Alvarado v. Ohio State Penitentiary

Filing 18

Memorandum of Opinion and Order: This matter is before the Court upon the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. 17 ) recommending that Petitioner's Motion for Stay and Abeyance (Doc. 5 ) be GRANTED a nd that his Motion for Order Directing Respondent to Correct the Return (Doc. 14 ) be DENIED WITHOUT PREJUDICE. This Court, having reviewed the Report and Recommendation and finding no clear error, hereby accepts the Magistrate Judge's Report and Recommendation. In accordance with that recommendation, this case is hereby stayed to allow Petitioner to exhaust his Second, Third, Seventh, and Ninth Grounds for Relief in state court. This stay is granted on the condition that Petitioner (1) file quarterly status reports in this Court regarding the progress of his state court appeal; and (2) seek reinstatement on this Court's active docket within thirty days of fully exhausting his state court remedies. This case is hereby removed from the Court's active docket and administratively closed. This is purely an administrative device for the convenience of the Court and in no way affects the substantive or procedural rights of the parties in interest to proceed before this Court at a later date. Nothing in this order shall be considered a dismissal or disposition of this matter. Judge Patricia A. Gaughan on 3/3/17. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Hector Alvarado,
Plaintiff,
Vs.
Warden,
Ohio State Penitentiary,
Defendant.

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CASE NO. 3:16 CV 2563
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Jonathan D. Greenberg (Doc. 17) recommending that Petitioner’s Motion for Stay and
Abeyance (Doc. 5) be GRANTED and that his Motion for Order Directing Respondent to
Correct the Return (Doc. 14) be DENIED WITHOUT PREJUDICE. Neither party has filed
objections to the Report and Recommendation.
STANDARD OF REVIEW
When objections are made to a Magistrate Judge’s Report and Recommendation, the
district court reviews the case de novo. Federal Rule of Civil Procedure 72(b) provides in
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pertinent part:
The district judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional evidence,
of any portion of the magistrate judge’s disposition to which
specific written objection has been made in accordance with this
rule. The district judge may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the
matter to the magistrate judge with instructions.
As stated in the 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 in order to accept the
recommendation.” In Thomas v. Arn, 474 U.S. 140, 150 (1985), the Court held, “It does not
appear that Congress intended to require district court review of a magistrate judge’s factual or
legal conclusions, under a de novo or any other standard, when neither party objects to those
findings.”
DECISION
This Court, having reviewed the Report and Recommendation and finding no clear error,
hereby accepts the Magistrate Judge’s Report and Recommendation. In accordance with that
recommendation, this case is hereby stayed to allow Petitioner to exhaust his Second, Third,
Seventh, and Ninth Grounds for Relief in state court. This stay is granted on the condition that
Petitioner (1) file quarterly status reports in this Court regarding the progress of his state court
appeal; and (2) seek reinstatement on this Court’s active docket within thirty days of fully
exhausting his state court remedies.
This case is hereby removed from the Court’s active docket and administratively closed.
This is purely an administrative device for the convenience of the Court and in no way affects
the substantive or procedural rights of the parties in interest to proceed before this Court at a

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later date. Nothing in this order shall be considered a dismissal or disposition of this matter.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 3/3/17

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