Cummings v. Weller

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM CUMMINGS, : CIVIL ACTION NO. 1:22-1119

Plaintiff : (MANNION, D.J.)

(CARLSON, M.J.)

v. :

A. WELLER, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND1

Presently before the court is Magistrate Judge Martin C. Carlson’s

September 6, 2022 report and recommendation, (hereinafter “report”), (Doc.

10), which recommends that the defendants’ motion to dismiss, (Doc. 6), the

civil rights complaint raising constitutional claims under 42 U.S.C. §1983, as

well as raising a claim under the Americans with Disabilities Act, (“ADA”),

filed by the pro se plaintiff William Cummings, (Doc. 1-1), be granted.

Specifically, the report finds that the 8th Amendment claims in the complaint

should be dismissed for failure to state cognizable claims. The report also

1Since the allegations in the plaintiff’s complaint are summarized in the

report, they are not repeated herein.

finds that plaintiff’s Title II ADA claim should be dismissed as a matter of law

for failure to establish a violation.

Finally, the report recommends that all of the plaintiff’s claims be

dismissed without prejudice, and that plaintiff be given leave to file one

amended complaint.

On September 27, 2022, plaintiff filed a 1-page handwritten objection

to the report. (Doc. 11). In this filing, plaintiff seeks to clarify his 8th

Amendment claims by raising additional allegations, and he seeks to raise a

new 1st Amendment retaliation claim. However, the document is not a proper

amended complaint as the report recommends the plaintiff be allowed to file,

and it is not a proper objection to the report. Further, to the extent that the

plaintiff states that he sent the court an amended complaint, no such

document was filed in this case. In any event, the plaintiff will be allowed the

opportunity to file an amended pleading.

To date, the defendants have not filed objections to Judge Carlson’s

report and the time within which they were due has expired.

II. STANDARD

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)).

For those sections 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.” 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); M.D. Pa. Local Rule 72.3.

III. DISCUSSION

Since the complete background of this case is stated in Judge

Carlson’s report, (Doc. 10), it will not be repeated herein.2 Judge Carlson

correctly finds that the court should dismiss without prejudice all of the claims

in plaintiff’s complaint.

The court has considered the findings in Judge Carlson’s report, and

finds no clear error of law. As such, the court agrees with the sound

reasoning which has led Judge Carlson to the conclusions in his report.

IV. CONCLUSION

Based upon the foregoing, the court will ADOPT IN ITS ENTIRETY

Judge Carlson’s report and recommendation, (Doc. 10), and it will GRANT

the defendants’ motion to dismiss, (Doc. 6). Specifically, the court will

DISMISS WITHOUT PREJDUICE all of the claims in the plaintiff’s complaint,

(Doc. 1-1). The plaintiff’s objection to the report, (Doc. 11), will be

OVERRULED. The plaintiff will be given one opportunity to file an amended

2Also since Judge Carlson states the correct applicable legal standard

for a motion to dismiss under Rule 12(b)(6) as well as the correct legal

standards regarding plaintiff’s 8th Amendment and ADA claims, they shall not

be repeated herein.

complaint in conformance with Judge Carlson’s directives upon remand. An

appropriate order follows.

s/Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: September 29, 2022

22-1119-01