United States District Court, M.D. Pennsylvania
March 31, 2014
RAPHAEL DWIGHT HUNDLEY, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
CHRISTOPHER C. CONNER, Chief District Judge.
AND NOW, this 31st day of March, 2014, upon consideration of the report and recommendation (Doc. 27) of Magistrate Judge Thomas M. Blewitt, recommending the court grant the United States' motion (Doc. 10) to dismiss the pro se plaintiff's complaint (Doc. 1), which asserts claims against the United States for deliberate indifference to medical needs and conspiracy pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675 et seq., and further recommending the court deny plaintiff's motion (Doc. 26) for an extension of time in which to move for compassionate release, a reduction in sentence, or a grant of nolle prosequi, and, following an independent review of the record, the court in agreement with the magistrate judge that the pro se plaintiff's claims against the United States are subject to dismissal for failure to exhaust administrative remedies, a result compelled by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and alternatively because certain of his claims are both time-barred, (see Doc. 27 at 14-15 (citing 28 U.S.C. § 2401(b) and finding that statute of limitations bars those of plaintiff's claims which accrued on or before April 21, 2010)) and procedurally barred for plaintiff's failure to file a certificate of merit, (see id. at 16-21 (citing PA. R. CIV. P. 1042.3(a)(1)), and the court further agreeing with the magistrate judge that plaintiff's motion (Doc. 26) for compassionate release or sentencing reduction is both administratively and procedurally improper, see 18 U.S.C. § 3582(c) (outlining the limited circumstances in which a court may modify a defendant's sentence), and it further appearing that the plaintiff has failed to object to the report, and that there is no clear error on the face of the record,  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. 27) is ADOPTED in its entirety.
2. The United States' motion (Doc. 10) to dismiss plaintiff's complaint (Doc. 1) is GRANTED.
3. Plaintiff's complaint (Doc. 1) is DISMISSED with prejudice.
4. Plaintiff's motion (Doc. 26) for extension of time to file a motion seeking compassionate release or reduction of sentence is DENIED.
5. The Clerk of Court is directed to CLOSE this case.