Opinion

WAHOLEK v. PENNSYLVANIA PAROLE BOARD

Court
District Court, W.D. Pennsylvania
Filed
Mar 19, 2021
Cited by
0 cases
Authority
More cited than 29.3%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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