United States District Court, M.D. Pennsylvania
Matthew W. Brann United States District Judge
the Court for disposition is a Report and Recommendation
prepared by Chief Magistrate Judge Susan E. Schwab on October
3, 2016. In this Report, Chief Magistrate Judge
Schwab recommended that the Court grant Defendants'
Motion to Dismiss the Amended Complaint and that Plaintiff be
granted leave to file a second amended
complaint. On October 19, 2016, Plaintiff John
DeRaffelle filed a “Reply to the Report and
Recommendation” which this Court will construe as
designation, a magistrate judge may “conduct hearings,
including evidentiary hearings, and . . . submit to a judge
of the court proposed findings of fact and
recommendations.” Once filed, this Report and
Recommendation is disseminated to the parties in the case who
then have the opportunity to file written
objections. Where no objection is 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.” Nevertheless, whether timely objections
are made or not, the district court may accept, reject or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.
independent review of the record, I am satisfied that the
Report and Recommendation contains no clear facial error.
Furthermore, while Plaintiff has filed Objections, he has
provided no legal argument to the Court as to (1) why his due
process and Fourth Amendment claims should not be dismissed
due to the exigent circumstances, or (2) why, to the extent
his claims are based on the issuance of the citation, the
Heck favorable termination rule does not bar his
claims. Rather, having reviewed de novo
the entirety of the Report and Recommendation, I am in
agreement that, based solely on the allegations contained
within his Amended Complaint,  Plaintiff fails to state a
claim under either the due process clause of the Fourteenth
Amendment clause or the Fourth Amendment. I will therefore
not rehash Chief Magistrate Judge Schwab's sound
reasoning and legal citation on this issue.
because I will grant leave to amend in accordance with the
conclusion of the Report and Recommendation, I will impart to
Plaintiff the following guidance. First, I note that
Plaintiff's Objections contain obscene language. As
acknowledged by Defendants in their brief in opposition to
Plaintiff's objections, I previously admonished Plaintiff
for such language in a separate lawsuit. I repeat that
admonition here and opine that such inflammatory language
does not advance Plaintiff's case. Second and relatedly,
I advise that pro se Plaintiff study the
legal deficiencies of his Complaint outlined by the Report
and Recommendation, and take heed of the directive contained
in footnote 15 of the Report, located on page 16. Plaintiff
is warned that he will receive only one further opportunity
to construct a legally sufficient complaint.
NOW, therefore, IT IS HEREBY ORDERED THAT:
Chief Magistrate Judge Susan E. Schwab's Report and
Recommendation (ECF No. 39) is ADOPTED IN ITS ENTIRETY.
Defendants City of Williamsport, Joseph Girardi and Thomas
Evansky's Motion to Dismiss Plaintiff's Amended
Complaint (ECF No. 10) is GRANTED.
Plaintiff, however, is given leave to file a second amended
complaint on or before twenty-one (21) days from the date of
matter is remanded to Chief Magistrate Judge Schwab for
 ECF No. 39.