LYONS v. BEARD, 1:13-CV-2952. (2014)
Court: District Court, M.D. Pennsylvania
Number: infdco20141112d12
Visitors: 8
Filed: Nov. 10, 2014
Latest Update: Nov. 10, 2014
Summary: ORDER CHRISTOPHER C. CONNER, Chief District Judge. AND NOW, this 10th day of November, 2014, upon consideration of the report (Doc. 43) of Chief Magistrate Judge Martin C. Carlson, recommending the court deny defendants' second motion (Doc. 37) to revoke plaintiff Eric Lyons' ("Lyons") in forma pauperis status pursuant to 28 U.S.C. 1915(g) (the "three strikes rule"), and, following an independent review of the motion, the court agreeing with the Magistrate Judge that the record at present
Summary: ORDER CHRISTOPHER C. CONNER, Chief District Judge. AND NOW, this 10th day of November, 2014, upon consideration of the report (Doc. 43) of Chief Magistrate Judge Martin C. Carlson, recommending the court deny defendants' second motion (Doc. 37) to revoke plaintiff Eric Lyons' ("Lyons") in forma pauperis status pursuant to 28 U.S.C. 1915(g) (the "three strikes rule"), and, following an independent review of the motion, the court agreeing with the Magistrate Judge that the record at present ..
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ORDER
CHRISTOPHER C. CONNER, Chief District Judge.
AND NOW, this 10th day of November, 2014, upon consideration of the report (Doc. 43) of Chief Magistrate Judge Martin C. Carlson, recommending the court deny defendants' second motion (Doc. 37) to revoke plaintiff Eric Lyons' ("Lyons") in forma pauperis status pursuant to 28 U.S.C. § 1915(g) (the "three strikes rule"), and, following an independent review of the motion, the court agreeing with the Magistrate Judge that the record at present does not permit a finding that Lyons "has, on three or more prior occasions . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted," id., and it appearing that neither party has objected to the report, and that there is no clear error on the face of the record,1 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that the failure to timely object "may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that:
1. The report (Doc. 43) of Chief Magistrate Judge Martin C. Carlson is ADOPTED in its entirety.
2. Defendants' motion (Doc. 37) to revoke plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) is DENIED without prejudice.
3. This case is REMANDED to Chief Magistrate Judge Carlson for further proceedings.
FootNotes
1. When parties fail to timely object to a magistrate judge's report and recommendation, the Federal Magistrates Act does not require a district court to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). As a matter of good practice, however, the Third Circuit expects courts to "afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The advisory committee notes to Rule 72(b) of the Federal Rules of Civil Procedure indicate that "[w]hen no timely objection is filed, the court need only 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 Henderson, 812 F.2d at 878-79 (stating that "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F.Supp.2d 676, 680 (W.D. Pa. 2006) (holding that the court's review is conducted under the "plain error" standard); Cruz v. Chater, 990 F.Supp. 375-78 (M.D. Pa. 1998) (holding that the court's review is limited to ascertaining whether there is "clear error on the face of the record"); Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D. Pa. 1998) (holding that the court will review the report and recommendation for "clear error"). The court reviews the Magistrate Judge's report in according with this Third Circuit directive.
Source: Leagle
