Archer v. Warden Saad

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 6 ). The Court adopts the Magistrate Judge's 6 Report and Recommendation in its entirety, DENIES the 1 Petition for Writ of Preliminary Injunction and Restraining Order and ORDERS that thi s case be DISMISSED WITHOUT PREJUDICE and stricken from the Court's active docket. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 6/1/17. (To PS Plaintiff via cert. mail)(mh) (Additional attachment(s) added on 6/1/2017: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN EDWARD ARCHER,
Plaintiff,
v.

CIVIL ACTION NO.: 1:16cv172

WARDEN SAAD,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S
OPINION/REPORT AND RECOMMENDATION [DKT No. 6]
On August 12, 2016, the pro

se

plaintiff, Kevin Archer

(“Archer”), an inmate at FCI Gilmer, mailed a complaint to the
Circuit

Court

defendant,

of

Warden

Gilmer
Saad,

County,
seeking

West
a

Virginia,

preliminary

against

the

injunction

and

restraining order pursuant to 28 U.S.C. § 2201 (dkt. no. 1).
Because Plaintiff was incarcerated in FCI Gilmer, the Circuit Court
of Gilmer County transferred the case to this court on August 17,
2016. The Court referred this matter to United State Magistrate
Judge Michael J. Aloi for initial screening and a Report and
Recommendation (“R&R”) in accord with LR PL P 2.
On September 20, 2016, Magistrate Judge Aloi issued his R&R,
in which he recommended that the Court dismiss Archer’s claim as
improperly brought under § 2201 (dkt. no. 6 at 1-2). Specifically,
the R&R recommended that the Court dismiss Archer’s claim without
prejudice to his right to file his claim as a civil rights action.
Id. at 2.

ARCHER V. WARDEN SAAD

1:16CV172

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
The R&R also specifically warned Archer that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue. Id. The
parties did not file any objections.1 Consequently, finding no
clear error, the Court ADOPTS the R&R in its entirety (dkt. no. 6),
DENIES

the

petition

for

writ

of

preliminary

injunction

and

restraining order (dkt. no. 1), and ORDERS that this case be
DISMISSED WITHOUT PREJUDICE and stricken from the Court’s active
docket.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this order to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
Dated: June 1, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Wells v.
Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
2