United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, United States District Judge
before the court is the report of Magistrate Judge Martin C.
Carlson, which recommends that the instant action be
dismissed. (Doc. 63). Specifically, Judge Carlson references
correspondence from the plaintiff in which she indicates that
she no longer wishes to proceed with the instant action.
(Doc. 62). On January 25, 2017, the plaintiff filed
“objections” to Judge Carlson's report. (Doc.
64). Upon review, the plaintiff does not substantively object
to the report and, in fact, confirms her intent to
discontinue the instant action. (Doc. 64).
no objections are made to a report and recommendation, the
court should, as a matter of good practice, “satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.” Fed.R.Civ.P.
72(b), advisory committee notes; see also Univac Dental
Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469
(2010) (citing Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987) (explaining judges should give some review
to every Report and Recommendation)). Nevertheless, whether
timely objections are made or not, the district court may
accept, not accept or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. §636(b)(1); Local Rule 72.31.
of background, the plaintiff, a pro se litigant,
originally filed this action on June 17, 2015. Judge Carlson
gave the plaintiff's complaint preliminary consideration
and recommended that a majority of the plaintiff's claims
be transferred to the United States District Court for the
District of Maine, as venue in this District was improper as
to those claims. As to the claims presented against the one
defendant for whom venue was proper, defendant Raijski, Judge
Carlson recommended that the plaintiff be directed to file an
amended complaint. (Doc. 3). By memorandum and order dated
September 8, 2015, the undersigned adopted Judge
Carlson's report in its entirety and remanded the action
to Judge Carlson for further proceedings.(Doc. 8, Doc. 9).
plaintiff filed an amended complaint against defendant
Raijski on September 18, 2015, (Doc. 10), followed by a
motion to correct the amended complaint on December 29, 2015,
(Doc. 16). On the following day, the defendant filed a motion
to dismiss the plaintiff's amended complaint. (Doc. 17).
Judge Carlson granted the plaintiff's motion to correct
her amended complaint on January 25, 2016. (Doc. 23). Rather
than filing a corrected amended complaint, on February 26,
2016, the plaintiff filed a motion for leave to file a second
amended complaint. (Doc. 31). Judge Carlson denied the
plaintiff's motion for leave to file a second amended
complaint and directed that, if the plaintiff was seeking
leave to further amend her pleadings, she was to prepare a
comprehensive proposed amended complaint and submit it along
with a motion to amend in accordance with L.R. 15.1. (Doc.
33, Doc. 34).
April 6, 2016, the plaintiff filed a second motion for leave
to file a second amended complaint, along with the proposed
second amended complaint. (Doc. 35). A supporting brief was
filed on April 8, 2016. (Doc. 36). By report dated, June 16,
2016, Judge Carlson recommended that the defendant's
motion to dismiss the plaintiff's amended complaint be
granted and that the plaintiff's second motion for leave
to amend be denied. (Doc. 37). Noting the legal obstacles
that prevent the court from assisting the plaintiff with her
claims, Judge Carlson further recommended, however, that the
plaintiff be permitted to lodge yet another amended complaint
which would cure the deficiencies outlined in his report.
20, 2016, prior to this court considering Judge Carlson's
report and recommendation, the plaintiff filed her third
amended complaint. (Doc. 38). Following this, on July 11,
2016, the undersigned issued a memorandum and order adopting
the June 16, 2016, report of Judge Carlson in its entirety
and accepting for filing the plaintiff's third amended
complaint. (Doc. 41). The matter was remanded to Judge
Carlson for further proceedings.
August 1, 2016, defendant Raijski filed a motion to dismiss
the plaintiff's third amended complaint. (Doc. 44). After
having been granted an extension of time to do so, (Doc. 48),
defendant Raijski filed a brief in support of his motion to
dismiss, (Doc. 49). In the meantime, the plaintiff had filed
a premature brief in opposition to the motion to dismiss on
August 2, 2016. (Doc. 46). Upon request, (Doc. 50), the
plaintiff was granted permission to file a second opposing
brief, (Doc. 51), which she proceeded to do on September 21,
2016, (Doc. 52).
report dated November 9, 2016, Judge Carlson recommended that
the defendant's motion to dismiss the plaintiff's
third amended complaint be granted, in part, in that all of
the plaintiff's claims, except her §3617 claim, be
dismissed. As to the §3617 claim, Judge Carlson
recommended that the plaintiff be directed to file a more
definite statement of her claim, asserting facts which would
allow for an informed evaluation of the claim. (Doc. 54). The
plaintiff filed objections to Judge Carlson's report.
(Doc. 55). By memorandum and order dated November 23, 2016,
the court adopted Judge Carlson's report in its entirety,
(Doc. 56, Doc. 57), and the plaintiff was directed to file a
more definite statement on or before December 9, 2016.
November 29, 2016, the plaintiff filed her more definite
statement, (Doc. 58), which was followed on December 13,
2016, by yet another motion to dismiss by the defendant.
(Doc. 59). A brief in support of the defendant's motion
to dismiss was filed on December 27, 2016. (Doc. 60). When no
opposing brief was received from the plaintiff, Judge Carlson
issued an order on January 24, 2017, advising the plaintiff
to file a response by February 3, 2017, or risk having her
action dismissed. (Doc. 61). On the same day, the plaintiff
filed the correspondence referenced by Judge Carlson in the
pending report, in which she indicates that she is no longer
able to proceed with the instant action. (Doc. 62). In his
report, Judge Carlson has reviewed each of the factors set
forth in Poulis v. State Farm Fire and Cas. Co., 747
F.2d 863, 868 (3d Cir. 1984), to determine whether dismissal
is appropriate in this case. Judge Carlson concluded that an
analysis of the Poulis factors, in fact, calls for
dismissal of this case.
court has reviewed both Judge Carlson's report, as well
as the plaintiff's response thereto. Given the
plaintiff's indication that she is no longer willing or
able to pursue the instant action, the court will adopt Judge
Carlson's recommendation and direct that the instant
action be dismissed.
basis of the foregoing, an appropriate order shall issue.