Damon v. Aerial Lighting and Electric, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY A. DAMON, :

Plaintiff : CIVIL ACTION NO. 3:19-979

v. : (JUDGE MANNION)

AERIAL LIGHTING AND :

ELECTRIC, INC.,

:

Defendant

MEMORANDUM

I. BACKGROUND

Pending before the court is the report and recommendation, (Doc. 13),

of Judge Karoline Mehalchick recommending that the second amended

complaint (“SAC”), (Doc. 10), filed by pro se plaintiff Jeffrey A. Damon,1 be

dismissed with prejudice. Judge Mehalchick granted plaintiff’s motions to

proceed in forma pauperis. (Doc. 2; Doc. 4; Doc. 6). Judge Mehalchick also

directed plaintiff to file two amended complaints, after finding deficiencies

with his original and amended complaints, and then screened plaintiff’s SAC

1Damon filed seven other cases in addition to the instant one. Judge

Mehalchick has issued reports in all of plaintiff’s cases recommending that

they be dismissed for failure to state cognizable claims. See Civil Nos. 19-

985, 19-986, 19-987, 19-1126, 19-1127, 19-1128 & 19-1129.

under 28 U.S.C. §1915.2 The judge found that the SAC should be dismissed

for failure to state a proper claim under Fed.R.Civ.P. 8(a) despite her Orders

directing plaintiff to amend his pleadings to properly state a claim.3

The court has reviewed plaintiff’s SAC and finds that the report

correctly concludes that plaintiff fails to state an actionable claim under Title

VII of the Civil Rights Act of 1964 alleging employment discrimination. (Doc.

13 at 6).

To date, the plaintiff has not filed objections to the report and

recommendation and the time within which they were due has expired.4

2Section 1915 of the United States Code, 28 U.S.C. §1915, requires

the court to dismiss a plaintiff’s case if, at any time, the court determines that

the action is, “frivolous or malicious” or “fails to state a claim on which relief

may be granted.” §1915(e)(2)(B). See McCain v. Episcopal Hosp., 350

Fed.Appx. 602, 604 (3d Cir. 2009) (Section 1915(e)(2) applies to all in forma

pauperis complaints, and not just to prisoners); Grayson v. Mayview State

Hosp., 293 F3d 103, 110 n. 10 (3d Cir. 2002).

3Since Judge Mehalchick states the correct pleading standard and the

correct standard regarding a motion to dismiss under Fed.R.Civ.P. 12(b)(6),

they will not be repeated.

4On April 20, 2020, Damon filed in several of his pending cases a letter

to the court indicating that he received the court’s correspondence (clearly

referring to the reports based on their dates) and, he alleges that someone

entered his home and tampered with his hand-written documents that “may

be related to [his] cases.” Damon states that he was almost ready to mail out

his documents to the “State of Connecticut Dep[t]. of Banking.” He also

alleges that his mail was tampered with and he fears what will happen if the

information in his missing documents “gets out to the wrong people.” Damon

states that he has notified the police and he asks the court for federal

protection until his cases are finished. (Doc. 14).

After having reviewed the record, the court will ADOPT the report and

recommendation. The plaintiff’s SAC will be DISMISSED WITH

PREJUDICE since the court finds futility in allowing the plaintiff a third

opportunity to file a proper pleading. See Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) ( “[I]n civil rights

cases district courts must offer amendment—irrespective of whether it is

requested—when dismissing a case for failure to state a claim unless doing

so would be inequitable or futile.”); Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002). Further, this case will be CLOSED.

II. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499

(M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

With respect to the portions of a report and recommendation to which

no objections are made, the court should, as a matter of good practice,

The court does not consider Damon’s letter to be objections to the

instant report, or to the reports filed in any of his other seven cases, as it

does not address any of the reasons why the judge finds that his cases

should be dismissed.

“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 (M.D.Pa. 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.

III. CONCLUSION

Based on the foregoing, the report and recommendation of Judge

Mehalchick, (Doc. 13), is ADOPTED IN ITS ENTIRETY, and plaintiff’s

second amended complaint, (Doc. 10), is DISMISSED WITH PREJUDICE.

The plaintiff’s case will be CLOSED. A separate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: May 12 2020

19-979-01