Acevedo-Vargas v. Ebersole

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JUAN M. ACEVEDO-VARGAS, : No. 3:25cv703 Plaintiff : : (Judge Munley) v. : : (Magistrate Judge Arbuckle) DANIEL EBERSOLE, Child : Support Officer / Case Manager, : Defendant :

ORDER Presently before the court is the Report and Recommendation (“R&R") of

Magistrate Judge William |. Arbuckle. Magistrate Judge Arbuckle screened Plaintiff Juan M. Acevedo-Vargas’s pro se amended complaint pursuant to 28 U.S.C. § 1915(e)(2). (Doc. 9). The R&R recommends dismissing plaintiff's claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) for the violation of his Sixth, Eighth, and Fourteenth Amendment rights. (Id.) at 8. Since plaintiff has been provided with leave to amend on a previous occasion, (see Doc. 7), the R&R recommends dismissal of this action without leave to amend. (Doc. 9, p. 7). No objections to the R&R have been filed and the time for such filing has passed In deciding whether to adopt the report and recommendation when no timely objection is filed, the court must determine if a review of the record evidences plain error or manifest injustice. FED. R. Civ. P. 72(b), 1983 Advisory Committee Notes (“When no timely objection is filed, the court need only satisfy

itself that there is no clear error on the face of the record to accept the recommendation’); see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). After a careful review, the court thus finds neither clear error on the face of the record nor a manifest injustice in the magistrate judge’s analysis and recommendations, and therefore, the court shai] accept the R&R and adopt it in its entirety. As for leave to amend, Magistrate Judge Arbuckle concluded that

any amendment would be futile at this point. The court agrees. Plaintiff has had two chances to plead plausible claims and has not done so. He will not receive a third opportunity. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (d Cir. 2002)(discussing the rule that in forma pauperis plaintiffs who file complaints subject to dismissal under Rule 12(b)(6) should receive leave to amend unless amendment would be inequitable or futile); Jones v. Unknown D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478, 483 (3d Cir. 2019)(holding that it would be futile to provide a pro se inmate a third opportunity to amend his complaint). It is thus hereby ORDERED as follows: 1) The R&R, (Doc. 9), is ADOPTED in its entirety; 2) Plaintiffs amended complaint is DISMISSED for failure to state a claim, see 28 U.S.C. § 1915(e)(2)(B (ii);

3) Plaintiff's Section 1983 claims against the defendant for violation of his

Sixth, Eighth, and Fourteenth Amendment rights are DISMISSED with

prejudice; 4) The Clerk of Court is directed to close this case.

B 4E COURT: CY | □ eee JY A JULIA K. MUNLEY U d States District/Court

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