Pew v. Wetzel

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALFONSO PERCY PEW, No. 1:20-CV-00668

Plaintiff, (Judge Brann)

v. (Magistrate Judge Carlson)

JOHN WETZEL, et al.,

Defendant.

ORDER

OCTOBER 28, 2020

Plaintiff filed the instant action on April 22, 2020, and it was jointly

assigned to the undersigned and Magistrate Judge Martin C. Carlson. 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.”1 Once filed, this report and recommendation is disseminated

to the parties in the case who then have the opportunity to file written objections.2

On September 3, 2020 Magistrate Judge Carlson, to whom this matter is

jointly assigned, issued a thorough report and recommendation, recommending that

Defendants’ motion to revoke Plaintiff’s leave to proceed in forma pauperis (Doc.

24) be granted in part, such that Plaintiff should be directed to file an amended

complaint setting forth only those claims which he alleges entail imminent danger

1 28 U.S.C. 636(b)(1)(B).

of serious bodily injury. Furthermore, Magistrate Judge Carlson recommends that

Plaintiff’s motions (Docs. 35 and 38) be denied without prejudice to renew once

Pew has properly filed an amended complaint including only the claims satisfying

28 U.S.C. § 1915(g).

Plaintiff filed objections to the report and recommendation on September 17,

2020. When objections are timely filed, the District Court must conduct a de novo

review of those portions of the report to which objections are made.3 Although the

standard of review for objections is de novo, the extent of review lies within the

discretion of the District Court, and the Court may otherwise rely on the

recommendations of the magistrate judge to the extent that it deems proper.4 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.”5 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.6

3 28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

4 Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz, 447

U.S. 667, 676 (1980)).

5 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 that judges should give some review to every report and

recommendation)).

Because 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 here and found no error. “The imminent danger

exception [] creates a narrow opening for a particular type of claim; it does not

give prisoners like [Pew] a license to swamp the court with claims whenever they

successfully state a claim of imminent danger.”7

AND NOW, IT IS HEREBY ORDERED that:

1. Magistrate Judge Carlson’s September 3, 2020 Report and

Recommendation (Doc. 39) is ADOPTED in full.

2. The matter is remanded back to Magistrate Judge Carlson for further

proceedings.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge