Anderson v. West Virginia Division Of Corrections et al

Filing 79

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 77] AND DISMISSING § 1983 COMPLAINT WITH PREJUDICE [DKT. NO. 1]: Denying as moot 67 Motion to Dismiss; Denying as moot 73 Motion to Dismiss; Adopting 77 REPORT AND RECOMMENDATIONS re [1 ] Complaint, filed by Peter Anderson, 73 MOTION to Dismiss Pursuant to Rule 37 of the Federal Rules of Civil Procedure filed by Timothy Cutwright, Cecil Pritt, Todd Schellur, Daniel James, Sidney Feast Signed by Senior Judge Irene M. Keeley on 2/8/18. (copy to Pltff by cert. mail)(soa) (Additional attachment(s) added on 2/8/2018: # 1 Certified Mail Return Receipt) (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PETER ANDERSON,
Plaintiff,
v.

CIVIL ACTION NO.: 1:15CV156
(Judge Keeley)

WV DIVISION OF CORRECTIONS;
COII DUSTIN CASSEL; CPL. DOUG
WHITE; LT. CECIL PRITT; SGT.
DANIEL JAMES; COII SIDNEY
FEASTER JAMES; CO JOSH LANHAM;
COII TIMOTHY CUTWRIGHT; AND
SGT. TODD SCHELLUR,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 77] AND
DISMISSING § 1983 COMPLAINT WITH PREJUDICE [DKT. NO. 1]
On September 9, 2015, the pro se plaintiff, Peter Anderson
(“Anderson”), an inmate then incarcerated at the Huttonsville
Correctional Center, filed this complaint pursuant to 42 U.S.C. §
1983, alleging that the defendants failed to respond to the
emergency call button in his cell, refused him medical assistance,
used excessive force, and sexually assaulted him (Dkt. No. 1).
Pursuant to 28 U.S.C. § 636 and the local rules of this Court, the
matter was referred to the Honorable James E. Seibert, United
States Magistrate Judge, for initial review.
In a Report and Recommendation (“R&R”) entered on September
18, 2017, Magistrate Judge Seibert recommended that the Court
dismiss the complaint with prejudice because Anderson had failed to
prosecute the matter (Dkt. No. 77). After reviewing the procedural
history in the case, including Anderson’s failure to appear at his

ANDERSON v. WV DOC

1:15cv156

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 77] AND
DISMISSING § 1983 COMPLAINT WITH PREJUDICE [DKT. NO. 1]
court-ordered deposition, the R&R concluded that Anderson had acted
in bad faith by failing to appear at his deposition, that his
actions had prejudiced the defendants, and that despite the court’s
efforts to accommodate him, Anderson had willfully failed to comply
with its orders. Id. at 2-4, 5. Furthermore, it concluded that no
sanction

other

than

dismissal

is

appropriate

under

the

circumstances. Id. at 6.
The R&R also informed the parties of their right to file
“specific written objections, identifying the portions of the
Report and Recommendation to which objection is made, and the basis
of such objection.” Id. It further warned that failure to do so may
result in waiver of the right to appeal. Id. No party objected to
the R&R.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only those portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may
adopt,

without

recommendations

explanation,
to

which

any

the

of

the

prisoner

magistrate
does

not

judge’s
object.”

Dellacirprete v. Gutierrez, 479 F. Supp. 2d. 600, 603-04 (N.D.W.
Va. 2007)(citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
2005)). Courts will uphold those portions of the recommendation to
which

no

objection

has

been

made

2

unless

they

are

“clearly

ANDERSON v. WV DOC

1:15cv156

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 77] AND
DISMISSING § 1983 COMPLAINT WITH PREJUDICE [DKT. NO. 1]
erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
Because

no

party

has

objected,

the

Court

is

under

no

obligation to conduct a de novo review. Dellacirprete, 479 F. Supp.
at 603-04. Upon review of the R&R and the record for clear error,
the Court:
1) ADOPTS the R&R (Dkt. No. 77);
2) DISMISSES the complaint WITH PREJUDICE (Dkt. No. 1);
3) DENIES as MOOT the motion to dismiss filed by defendant
Schellur (Dkt. No. 67); and
4) DENIES as MOOT the motion to dismiss filed by defendants
Cassel, White, Pritt, James, James, Schellur, and Cutwright (Dkt.
No. 73).
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel or record and the pro se plaintiff, certified mail and
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: February 8, 2018.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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