United States District Court, M.D. Pennsylvania
SHEILA M. MARTIN, et al., Plaintiffs
TOWNSEND R. MOREY, III, et al., Defendants
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
before the court is the report and recommendation of
Magistrate Judge Susan E. Schwab, (Doc. 54), which recommends
that the court dismiss, in part, with prejudice and, in part,
without prejudice, the constitutional claims, pursuant to
42 U.S.C. §1983, raised by pro se
plaintiff Sheila M. Martin, on behalf of herself and on
behalf of two deceased men, against six defendants. Judge
Schwab also recommends that the plaintiff's motion to
substitute, (Doc. 36), be denied. Based on the foregoing,
Judge Schwab's report will be ADOPTED IN ITS
ENTIRETY and, the claims and defendants stated in
plaintiff's amended complaint, (Doc. 38), will be
DISMISSED WITH PREJUDICE, in part, and
WITHOUT PREJUDICE, in part, as detailed
below. The plaintiff's motion to substitute will be
no objections to Judge Schwab's report have been filed by
any party and the time to file objections has passed.
no timely 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 Int'l, Inc., 702 F.Supp.2d 465, 469 (M.D.
Pa. 2010). District judges should give some “level
of review to dispositive legal issues raised by the
report.” Henderson v. Carlson, 812 F.2d 874, 878
(3d Cir. 1987). 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 72.3.
brings claims on behalf of herself and, on behalf of Townsend
R. Morey, Jr. and Peter A. Rodenrys, both deceased. Judge
Schwab correctly finds that the court should dismiss all
claims brought by plaintiff on behalf of Morey, Jr. and
Rodenrys. See Murray on behalf of Purnell v. City of
Philadelphia, 901 F.3d 169, 170 (3d Cir. 2018)
(“Although an individual may represent herself or
himself pro se, a non-attorney may not represent other
parties in federal court.”). In Murray, the
Third Circuit held that “a non-attorney,
non-beneficiary administrator [of an estate] [is not]
conduct[ing] her ‘own case' when representing an
estate in federal court” and, that she may not conduct
the case pro se on behalf of an estate. Id. at 171
(citing 28 U.S.C. §1654).
Schwab also recommends that the court grant the unopposed
motions to dismiss plaintiff's amended complaint, (Doc.
38), filed by defendants Bon Secours Hospital and Townsend R.
Morey, III. (Docs. 41 & 46). Specifically, she recommends
that Bon Secours's motion to dismiss for insufficient
service of process be granted pursuant to Fed.R.Civ.P.
12(b)(5), and that this defendant be dismissed without
prejudice. See Umbenhauer v. Woog, 969 F.2d 25, 30
n. 6 (3d Cir.1992). The court will adopt the recommendation
that Bon Secours's motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(5) be granted and, this defendant will be
dismissed without prejudice.
recommended that Townsend R. Morey, III's motion to
dismiss for failure to state a claim be granted pursuant to
pursuant to Federal Rule of Civil Procedure
12(b)(6), since plaintiff failed to allege facts that he
was acting under state law, and that he violated her rights.
Since plaintiff was already granted leave to amend her
complaint and since plaintiff failed to file a brief in
opposition to the motion, the Judge finds that it would be
futile to allow her further leave to amend her claims against
Townsend R. Morey, III.
it is recommended that the §1983 claims against Townsend
R. Morey, III be dismissed with prejudice. It is also
recommended that the court decline to exercise supplemental
jurisdiction over any state law claims against Townsend R.
Morey, III, pursuant to 28 U.S.C. §1367(c)(3).
court will adopt the recommendations as to Townsend R. Morey,
III, and this defendant will be dismissed with prejudice.
See Alston v. Parker, 363 F.3d 229, 236 (3d Cir.
2004) (“Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay,
prejudice, or futility.”).
Schwab further recommends that the court dismiss defendants
David Morey and Martin Morey, pursuant to Fed.R.Civ.P. 4(m),
for lack of service, especially since plaintiff was directed
to show cause why these defendants should not be dismissed
and she was warned that her failure to show cause would
result in a recommendation of the dismissal of these
defendants. To date, plaintiff has failed to file a return of
service showing that she properly served defendants David
Morey and Martin Morey, and the time for service on these two
defendants under Fed.R.Civ.P. 4(m) has passed.
recommendations as to David Morey and Martin Morey will be
adopted and these defendants will be dismissed without
prejudice. See Harris v. McMullen, 609 Fed.Appx.
704, 706 (3d Cir. 2015) (“Rule 4(m) provides that the
District Court must dismiss the action without prejudice as
to a defendant after notice to the plaintiff if service of
the complaint is not made upon that defendant within 120 days
after the filing.”).
Judge Schwab recommends that the claims in the amended
complaint against the two remaining defendants, namely,
Tracey Simon, an investigator with the Pike County Agency on
Aging, and the Pike County Agency on Aging, be dismissed
without prejudice. It is recommended that the plaintiff be
granted leave to file a second amended complaint against the
Pike County defendants. As the report explains, the
plaintiff's allegations as to what Simon personally did
to violate her rights are insufficient, see Santiago
v. Warminister Tp., 629 F.3d 121 (3d Cir. 2010), and
plaintiff fails to properly state a claim against the County
Agency on Aging under Monell v. Department of Social
Servs., 436 U.S. 658, 691, 98 S.Ct. 2018 (1978).
the claims against defendants Simon and Pike County Agency on
Aging will be dismissed without prejudice and, plaintiff will
be permitted to file a ...