The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDREW J. WAHOLEK, )
)
Plaintiff, ) 2:20-cv-1894
)
vs. )
) District Judge Robert J. Colville
PENNSYLVANIA PAROLE BOARD and ) Magistrate Judge Maureen P. Kelly
MARK CABONEY, Hearing Examiner. )
) Re: ECF Nos. 5 and 10
Defendants. )
ORDER OF COURT
Before the Court is the Honorable Maureen P. Kelly’s February 22, 2021 Report and
Recommendation (ECF No. 13), which recommends: (1) that Plaintiff’s claims arising under 42
U.S.C. § 1983 be dismissed with prejudice sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B); (2)
that the Court decline, under 28 U.S.C. § 1367(c)(3), to exercise supplemental jurisdiction over
any potentially asserted state law claims, and that the Court dismiss such claims without prejudice
to Plaintiff’s filing such claims in state court; (3) that dismissal should not be made with prejudice
with respect to Plaintiff’s right to raise a separately filed habeas corpus claim, to the extent that
relief under habeas remains available to him, or to the refiling of his potential state law claims in
state court; and (4) that the Court deny Plaintiff’s Motion for Preliminary Injunction (ECF No. 5).
Objections to Judge Kelly’s Report and Recommendation were due by March 11, 2021. No
objections were filed, and the matter is now ripe for disposition.
With respect to dispositive matters, the reviewing district court must make a de novo
determination of those portions of the magistrate judge’s report and recommendation to which
objections are made. 28 U.S.C. § 636(b)(1)(B)-(C); Fed. R. Civ. P. 72(b)(3). “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). The United States
Court of Appeals for the Third Circuit has explained that, “even absent objections to the report and
recommendation, a district court should ‘afford some level of review to dispositive legal issues
raised by the report,’” and has “described this level of review as ‘reasoned consideration.’” Equal
Employment Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017)
(quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)).
Upon consideration of Judge Kelly’s February 22, 2021 Report and Recommendation and
upon review of the record in this matter, it is hereby ORDERED as follows:
The Court accepts and adopts Judge Kelly’s Report and Recommendation in its entirety as
the opinion of the Court. Plaintiff’s claims arising under 42 U.S.C. § 1983 are dismissed with
prejudice sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B). This Order is entered without
prejudice with respect to Plaintiff’s right to raise a separately filed habeas corpus claim, to the
extent that relief under habeas remains available to him. To the extent that Plaintiff attempts to
raise claims under state tort law, the Court declines, pursuant to 28 U.S.C. § 1367(c)(3), to exercise
supplemental jurisdiction over such claims, and such claims are dismissed without prejudice to
Plaintiff’s refiling those claims in state court, if appropriate. Plaintiff’s Complaint (ECF No. 10)
is dismissed. Plaintiff’s Motion for Preliminary Injunction (ECF No. 5) is denied. The Clerk of
Courts shall mark this case as CLOSED.
BY THE COURT:
s/Robert J. Colville____
Robert J. Colville
United States District Judge
DATED: March 19, 2021
cc: Honorable Judge Maureen P. Kelly
United States Magistrate Judge
Andrew J. Waholek
NY-4306
SCI Mercer
801 Butler Pike
Mercer, PA 16137