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Dominic Joseph Abbott v. Michael J. Machen

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


October 24, 2012

DOMINIC JOSEPH ABBOTT, PLAINTIFF,
v.
MICHAEL J. MACHEN, ALLEGHENY /COUNTY PUBLIC DEFENDER; PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SCI PITTSBURGH (INDIVIDUALLY/OFFICIALLY); SCI SCI PITTSBURGH RECORDS DEPARTMENT; SCI PITTSBURGH MEDICAL DEPARTMENT; SCI CAMP HILL (INDIVIDUALLY/OFFICIALLY); SCI CAMP HILL RECORDS DEPARTMENT; SCI GREENE (INDIVIDUALLY/OFFICIALLY); SCI GREENE RECORDS DEPARTMENT, DEFENDANTS.

The opinion of the court was delivered by: District Judge Nora Barry Fischer

Magistrate Judge Maureen P. Kelly

ORDER

The above-captioned prisoner civil rights Complaint was received by the Clerk of Court on March 13, 2012, and was referred to United States Magistrate Judge Maureen P. Kelly for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72 of the Local Rules for Magistrate Judges.

The Magistrate Judge's Report and Recommendation (the"Report"), ECF No. 8, filed on September 24, 2012, recommended that Plaintiff's Complaint be dismissed because it was barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). Service was made on the Plaintiff at his address of record. Plaintiff was given until October 11, 2012 to file objections. Plaintiff filed Objections. ECF No. 9.

Nothing in those objections bears extended comment or warrants rejection of the Report. Suffice it to say, nothing Petitioner states shows that the Heck bar is inapplicable. We note that Plaintiff does appear to seek leave to amend his complaint. ECF No. 9 at 3, ¶¶ 5 to 6. However, nothing that he states in the Objections leads the Court to believe that he can overcome the Heck bar. Hence, we deny Plaintiff leave to amend the complaint as being futile.

Hence, the following order is entered.

AND NOW, this 24th day of October 2012, after de novo review of the Report and Recommendation and the Objections and the record in this case,

IT IS HEREBY ORDERED that Plaintiff's Complaint is dismissed for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED the Report and Recommendation, ECF No. 8, filed on September 24, 2012, by Magistrate Judge Kelly, is adopted as the opinion of the court.

Nora Barry Fischer U.S. District Judge

cc: Maureen P. Kelly United States Magistrate Judge Dominic Joseph Abbott GB-5800

SCI Graterford P.O. Box 244 Graterford, PA 19426

20121024

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