United States District Court, M.D. Pennsylvania
JAMES E. NOTTINGHAM, Plaintiff,
LAUREL HARRY, et al., Defendants.
Arbuckle Magistrate Judge
Matthew W. Brann United States District Judge
Plaintiff filed the instant action on April 5, 2019, and it
was jointly assigned to the undersigned and to Magistrate
Judge William I. Arbuckle. Upon 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. This order both adopts in full Magistrate
Judge Arbuckle's August 12, 2019 report and
recommendation, to which Plaintiff raised no objections,
denies Plaintiff's self-styled motion to amend his
August 12, 2019, Magistrate Judge Arbuckle issued a thorough
report and recommendation. Magistrate Judge Arbuckle
recommended that this Court dismiss several of
Plaintiff's claims but allow Plaintiff's Fourth
Amendment excessive force claim against defendants Jason
Cooley and Blake Brown to proceed.
objections to the report and recommendation have been filed.
For portions of the report and recommendation to which no
objection is made, 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.” Regardless of whether timely objections
are made by a party, the District Court may accept, not
accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.
I write solely for the parties, I will not restate the facts,
but will instead adopt the recitation of facts as set forth
by the magistrate judge. I have conducted a de novo review of
Magistrate Judge Arbuckle's Report and Recommendation and
found no error. The Court adopts the Report and
Recommendation in full.
August 22, 2019, Plaintiff submitted a self-styled motion to
amend his complaint. In this motion, Plaintiff moves the Court
for leave to make a habeas corpus petition under 28 U.S.C.
§ 2254. Plaintiff appears to argue, in part, that
his Pennsylvania state court conviction should be overturned
because the Pennsylvania authorities never properly served
Plaintiff with process.
28 U.S.C. § 2244 provides that before a petitioner
seeking habeas corpus relief from a state court judgment
under 28 U.S.C. § 2254 for a second time files their
“second or successive application, ” they must
first “move in the appropriate court of appeals for an
order authorizing the district court to consider the
application.” Here, Plaintiff has already made one
application for habeas corpus relief [before this Court]
under 28 U.S.C. § 2254. Review of the case filing
records of the United States Court of Appeals for the Third
Circuit indicates that Plaintiff has not petitioned that
court for the prerequisite authorizing order. The Court must
therefore dismiss Plaintiff's motion to amend. Given this
dismissal, the Court also dismisses Plaintiff's September
16, 2019 proposed amended complaint as moot.
NOW, IT IS HEREBY ORDERED that:
United States Magistrate Judge William I. Arbuckle's
August 12, 2019 Report and Recommendation, ECF No. 22, is
ADOPTED in full.
Plaintiff's § 1983 claims against Defendants Butts
and Gray are dismissed with prejudice.
Plaintiff's § 1983 claims against Defendants
Welickovitch, Drier, J. Smith, S. Smith, Renner, Markley,
Reitz, and Kilgus are dismissed with prejudice.
Plaintiff's § 1983 claims against Defendants Harry
and Simpler are dismissed without prejudice.
Plaintiff's Fourteenth Amendment due process claim
against Defendants Cooley and Jones for fabrication of