United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is the report of United States Magistrate
Judge Joseph Saporito, (Doc. 10), which recommends
that the court deny the motion for a temporary restraining
order, (Doc. 3), filed by the pro se
plaintiff John Michael Kistler and dismiss sua sponte
plaintiff's civil rights complaint, (Doc. 1),
pursuant to 42 U.S.C. §1983, for lack of subject matter
jurisdiction. Judge Saporito also recommends that the court
close this case. No objections to Judge Saporito's report
have been filed and the time within which to object has
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.”
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.
court will adopt Judge Saporito's report in its entirety.
The court has reviewed the recommended grounds for dismissal
of the plaintiff's complaint presented by Judge Saporito.
The court agrees with Judge Saporito and finds that it lacks
subject matter jurisdiction over plaintiff's case. It is
well-settled that the court can raise, sua sponte,
subject matter jurisdiction issues. See Nesbit v. Gears
Unlimited, Inc. 347 F.3d 72, 77 (3d Cir. 2003). As Judge
Saporito explains in his report, plaintiff's claims
relate to the real estate taxes assessed on his property
located in Scranton, Lackawanna County, Pennsylvania, and to
the September 25, 2017 tax sale of his South Webster Avenue
property. To the extent plaintiff is challenging the
Lackawanna County Tax Claim Bureau's assessment and
collection of real estate taxes on his property and alleges
that it is unconstitutional based on the fact that his
property is “owned for purely private purposes”,
this court lacks subject matter jurisdiction over his claims.
The Tax Injunction Act, 28 U.S.C. §1341, provides that
“[t]he district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any tax under
State law where a plain, speedy and efficient remedy may be
had in the courts of such State.” Gass v. County of
Allegheny, PA, 371 F.3d 134, 136 (3d Cir. 2004).
such, the Tax Injunction Act deprives this federal court of
subject matter jurisdiction in this case. See Dommel
Properties, LLC v. Jonestown Bank and Trust Co., 2013 WL
1149265, *7 (M.D.Pa. March 19, 2013); Agarwal v.
Schuykill County Tax Claim Bureau, 2010 WL 5175021,
*13-*14 (M.D.Pa. July 27, 2010), adopted by 2010 WL 5175003
(M.D.Pa. Dec.15, 2010), affirmed by 442 Fed.Appx.
733 (3d Cir. 2011).
as Judge Saporito states, since the court lacks subject
matter jurisdiction over plaintiff's claims, it also
lacks jurisdiction to grant his motion for temporary
restraining order. See Greene v. Phila. Hous. Auth.,
789 F.Supp.2d 582, 585 (E.D.Pa. 2011) (“In the absence
of a complaint ... setting out the basis for jurisdiction,
the Court lacks the jurisdiction to grant either a temporary
restraining order (‘TRO') or a preliminary
injunction.” (citations omitted).
the court agrees with the sound reasoning that led Judge
Saporito to the conclusions in his report and finds no clear
error on the face of the record, the court will
ADOPT the report in its entirety. The
plaintiff's motion for a temporary restraining order will
be denied and his complaint will be dismissed.
IS HEREBY ORDERED THAT the report of Judge Saporito,
(Doc. 10), is ADOPTED. The
plaintiff's motion for a temporary restraining order,
(Doc. 3), is DENIED. The
plaintiff's complaint, (Doc. 1), is
DISMISSED for lack of subject matter
jurisdiction. The Clerk is directed to CLOSE
The court notes that Kistler has filed
other actions with this court. See Civil No. 10-466;
M.D.Pa., Civil ...