David Stewart Cercone

Electronic Filing

Judge David Stewart Cercone

Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM ORDER

Pending before the Court is a Report and Recommendation issued by Chief Magistrate Judge Lenihan on October 21, 2013. The magistrate judge recommended that Plaintiff's Complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff was served with the Report and Recommendation and informed that he had until November 7, 2013, to file written objections. Plaintiff timely filed objections on October 30, 2013.

Plaintiff's objections are without merit. Case law referencing when Miranda warnings are required has no impact on plaintiff's failure to overcome the direct ruling by the trial court in plaintiff's prosecution that the statements were not obtained in violation of his Fifth Amendment rights and the subsequent bar created by Heck v. Humphrey, 512 U.S. 477 (1994) and its progeny. Consequently, plaintiff's objections do not undermine the recommendation of the magistrate judge.

In light of the above, the following order is appropriate.

AND NOW, this 19^th day of November, 2013, after de novo review of the record,

IT IS HEREBY ORDERED that Plaintiff's Complaint is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);

IT IS FURTHER ORDERED that the magistrate judge's Report and Recommendation dated October 21, 2013, (ECF No. 6), is adopted as the Opinion of this Court;

IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED; and

IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure.

________________

David Stewart Cercone

United States District Judge
cc: Donald Messina

GG-0082

SCI-Dallas

1000 Follies Road

Dallas, PA 18612-0286

(Via First Class Mail)