Pham v. Saad

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 18 , GRANTING RESPONDENTS MOTION TO DISMISS DKT. NO. 10 , AND DISMISSING PETITION AS MOOT DKT. NO. 1 . The Court DIRECTS the Clerk to enter a separate judgment order, and to remove this case from t he Courts active docket. Signed by Senior Judge Irene M. Keeley on 2/12/2018. (copy counsel of record via CM/ECF, copy pro se petitioner via certified mail).(jmm) (Additional attachment(s) added on 2/12/2018: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THUAN M. PHAM,
Petitioner,
v.

CIVIL NO. 1:17CV65
(Judge Keeley)

JENNIFER SAAD, Warden,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 10], AND DISMISSING PETITION AS MOOT [DKT. NO. 1]
On April 24, 2017, the pro se petitioner, Thuan M. Pham
(“Pham”), filed the pending Petition for Habeas Corpus Pursuant to
28 U.S.C. § 2241 (“Petition”) (Dkt. No. 1). As his sole ground for
relief, Pham claims that his due process rights were violated
during certain disciplinary proceedings because his administrative
appeal was not properly processed. Id. at 5-11. Pursuant to 28
U.S.C. § 636(b)(1)(B) and the local rules, the Court referred
Pham’s Petition to the Honorable Michael J. Aloi, United States
Magistrate Judge, for initial review.
On

June

19,

2017,

the

respondent,

Warden

Jennifer

Saad

(“Warden”), moved to dismiss the Petition (Dkt. No. 10), arguing
that the Court lacks jurisdiction over the Petition because the
incident report at issue has been remanded for a new hearing (Dkt.
No. 11 at 4). In addition, the Warden contended that Pham had
failed to exhaust his administrative remedies. Id. at 7-8.

PHAM V. SAAD

1:17CV65

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 10], AND DISMISSING PETITION AS MOOT [DKT. NO. 1]
In a Report and Recommendation (“R&R”) entered on January 17,
2018, Magistrate Judge Aloi recommended that the Court grant the
Warden’s motion to dismiss (Dkt. No. 18). More particularly, he
agreed with the Warden that Pham’s Petition is either moot or
subject to dismissal for failure to exhaust. Id. at 4. The R&R also
informed the parties of their right to file “written objections
identifying the portions of the recommendation to which objection
is made, and the basis of such objection.” It further warned that
failure to do so may result in waiver of the right to appeal. Id.
at 5. Although Pham received the R&R on January 22, 2018, he has
not filed any objections.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only 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 explanation, any of the magistrate judge’s recommendations
to which the prisoner does not 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
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
2

PHAM V. SAAD

1:17CV65

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], GRANTING RESPONDENT’S MOTION TO DISMISS
[DKT. NO. 10], AND DISMISSING PETITION AS MOOT [DKT. NO. 1]
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. 18);

2)

GRANTS the Warden’s Motion to Dismiss (Dkt. No. 10); and

3)

DISMISSES AS MOOT Pham’s Petition (Dkt. No. 1).

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, 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 12, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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