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Lyons v. Beard

United States District Court, Third Circuit

December 19, 2013

ERIC LYONS, Plaintiff,
v.
JEFFREY BEARD, et al., Defendants.

ORDER

CHRISTOPHER C. CONNER, Chief District Judge.

AND NOW, this 19th day of December, 2013, upon consideration of the report of Chief Magistrate Judge Martin C. Carlson (Doc. 7), recommending the court grant the plaintiff's motion (Doc. 2) for leave to proceed in forma pauperis but dismiss plaintiff's complaint as to defendant Jeffery Beard, and, following an independent review of the record, the court agreeing with the magistrate judge that the claims against defendant Beard are time barred by the two-year statute of limitations governing Section 1983 claims, see Wilson v. Garcia , 471 U.S. 261, 266-267 (1985) (claims brought pursuant to 42 U.S.C. ยง 1983 subject to state statute of limitations for personal injury actions); see also Sameric Corp. v. City of Philadelphia , 142 F.3d 582, 599 (Pennsylvania's two-year statute of limitations for personal injury actions applies to Section 1983 claims), and the court further agreeing that the continuing violations doctrine does not toll the statute of limitations, and that granting leave to amend would thus be futile, see Alston v. Parker , 363 F.3d 229, 235 (3d Cir. 2004) (acknowledging that leave to amend should be liberally granted but carving out exception for claims which are clearly futile), and it further appearing that neither party has objected to the report, and that there is no clear error on the face of the record, [1] see Nara v. Frank , 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that:

1. The report of the magistrate judge (Doc. 7) recommending dismissal of the plaintiff's claims against defendant Jeffery Beard but allowing the plaintiff to proceed against the remaining defendants is ADOPTED in its entirety.
2. Plaintiff's motion (Doc. 2) for leave to proceed in forma pauperis is GRANTED.
3. Plaintiff's complaint (Doc. 1) is DISMISSED to the limited extent it seeks to state a claim against defendant Jeffery Beard.
4. The United States Marshals Service is directed to serve the pro se plaintiff's complaint (Doc. 1) on the remaining defendants.

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