UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JAMIE ELLIOTT, :

:

Plaintiff : No. 4:05-CV-2548

:

vs. : (Complaint Filed 12/8/05)

:

GRACE, ET AL., : (Judge Muir)

:

Defendants :

 ORDER

 January 9, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On December 8, 2005, Plaintiff Jamie Elliott, a former

prison inmate, filed a civil rights complaint pursuant to 42

U.S.C. § 1983. This case was assigned to us but referred to

Magistrate Judge Thomas M. Blewitt for preliminary consideration. 

This is Elliott’s third action essentially raising the same claims

which were previously asserted, including a wrongful death claim

on behalf of his deceased brother Paul Elliott. The prior cases

were dismissed, inter alia, for lack of standing and because of

the expiration of the two-year statute of limitations.

On December 15, 2005, after screening the complaint

pursuant to the Prison Litigation Reform Act, Magistrate Judge

Blewitt issued a report recommending that the claims against all

Defendants be dismissed based on the two-year statute of

limitations and our decision in Elliott v. Grace, Civil No. 04-

2358, the first of the prior two cases. Objections to the report

Case 4:05-cv-02548-MM Document 11 Filed 01/09/06 Page 1 of 3
1. Magistrate Judge Blewitt recommended in footnote 13 that the

dismissal of this case constitute a second strike for purposes of

the three strike rule under 28 U.S.C. § 1915(g). However, our

reading of that statute requires that the action be filed by one

who is “incarcerated or detained in any facility” and Elliott

when he filed this action was not a prisoner. However, if

Elliott files any further complaints raising the same or similar

claims relating to incidents that occurred in 1989 we will

(continued...)

2

of a Magistrate Judge may be filed within 10 days after the report

is served on the parties. M.D. Pa. Local Rule 72.31. Elliott has

not filed objections to the report of Magistrate Judge Blewitt. 

The matter became ripe for decision on January 3, 2005. When no

objections are filed to the report of a Magistrate Judge, we need

only review that report as we in our discretion deem appropriate. 

Thomas vs. Arn, 474 U.S. 140, 151-52 (1985). 

In a 9-page report Magistrate Judge Blewitt explained

why the case should be dismissed on the basis of our prior ruling

relating to the statute of limitations and the fact that Elliott

has no standing to raise a claim on behalf of his brother. We

will not repeat Magistrate Judge Blewitt’s basis for those

recommendations other than noting that the prior two cases control

the disposition of this one.

We find no error in Magistrate Judge Blewitt’s report

and shall adopt it as our own. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The report of Magistrate Judge Thomas M. Blewitt

filed on December 15, 2005, is adopted in toto except for footnote

13.1

Case 4:05-cv-02548-MM Document 11 Filed 01/09/06 Page 2 of 3
1. (...continued)

consider imposing monetary or other sanctions against Elliott

under Rule 11 of the Federal Rules of Civil Procedure.

3

2. Elliott’s motion to proceed in forma pauperis is

granted solely for the purpose of filing the complaint.

3. Elliott’s complaint is dismissed.

4. Elliott’s motion for appointment of counsel is

denied as moot.

5. Elliott’s motion for summary judgment (Doc. 6) filed

on December 16, 2005, is denied as moot.

6. The Clerk of Court shall close this case and send a

copy of this order to Magistrate Judge Blewitt.

7. Any appeal from this order will be deemed frivolous,

without probable cause and not taken in good faith. 

 s/Malcolm Muir 

MUIR

United States District Judge

MM:gs

Case 4:05-cv-02548-MM Document 11 Filed 01/09/06 Page 3 of 3