Cardenas v. Coakley

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 20 ) AND DENYING AND DISMISSING PETITION AS MOOT. The petition is DENIED and DISMISSED AS MOOT. This action is STRICKEN from the Court's active docket. Signed by District Judge Thomas S. Kleeh on 11/27/2019. (Copy to PS Petitioner by cert. mail). (dk) (Additional attachment(s) added on 11/27/2019: # 1 Certified Mail Return Receipt) (dk).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LUES ASPRELLA CARDENAS,
Petitioner,
v.

Civil Action No. 1:18-CV-131
(Kleeh)

JOE COAKLEY,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20]
AND DENYING AND DISMISSING PETITION AS MOOT
On

June

11,

2018,

the

pro

se

Petitioner,

Lues

Asprella

Cardenas (“Cardenas”), an inmate then-incarcerated at USP Hazelton 1
in Bruceton Mills, West Virginia, filed a Petition for Habeas
Corpus Pursuant to 28 U.S.C. § 2241.

Cardenas challenged a prison

disciplinary proceeding that arose from a September 14, 2016,
medical emergency where he became unresponsive [Dkt. No. 1 at 5].
After he was transferred to a trauma unit, no medical cause for
the incident could be found [Id.].

On the following day, he was

charged with a 313 violation (lying to an officer), a 399 violation
(disrupting/interfering with the security/running of the Federal
Bureau of Prisons (“BOP”)), and a 402 violation (malingering)
[Id.].

Cardenas asserts that the 313 and 399 violations were

expunged but the 402 was not and should have been [Id.].

He claims

Petitioner is presently incarcerated at USP Terre Haute in Terre Haute,
Indiana.

1

Cardenas v. Coakley

1:18-CV-131

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20]
AND DENYING AND DISMISSING PETITION AS MOOT
that he exhausted administrative remedies and that the entire
incident was ordered expunged, but due to clerical error, the 402
violation remained on his record [Id. at 7-8].
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the action to United States Magistrate Judge Michael J.
Aloi (the “Magistrate Judge”) for initial review.

On April 29,

2019, the Magistrate Judge entered a Report and Recommendation
(“R&R”), recommending that the Court deny and dismiss the petition
as moot because the remaining incident report for the 402 violation
(malingering) was expunged from Petitioner’s record [Dkt. No. 20
at 6].

Because Petitioner’s incident report has already been

expunged, there is no further relief which this Court can grant
[Id.].
The R&R also informed the parties that they had fourteen days
(and an additional three days for mailing) from the entry of the
R&R to file “specific written objections, identifying the portions
of the Report and Recommendation to which objection is made, and
the basis of such objection” [Dkt. No. 20 at 7].

It further warned

them that the “[f]ailure to file written objections . . . shall
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals” [Id.].
Service of the R&R was accepted on May 2, 2019 [Dkt. No. 21].

2

To

Cardenas v. Coakley

1:18-CV-131

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20]
AND DENYING AND DISMISSING PETITION AS MOOT
date, no objections have been filed. 2
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C).

Otherwise, “the Court may adopt,

without explanation, any of the magistrate judge’s recommendations
to

which

the

[parties

do]

not

object.”

Dellarcirprete

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. 1983)).

Courts will

uphold portions of a 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).
Because

no

party

has

objected,

the

obligation to conduct a de novo review.

Court

is

under

no

Accordingly, the Court

reviewed the R&R for clear error. Upon careful review, and finding
no clear error, the Court ADOPTS the R&R [Dkt. No. 20].
petition is DENIED and DISMISSED AS MOOT.

The

This action is STRICKEN

from the Court’s active docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record and to the pro se Petitioner, via certified mail,

Cardenas sent the Clerk of Court a letter requesting clarification concerning
the Petition, which was docketed on June 10, 2019 [Dkt. No. 22], but he raised
no objections to the R&R.
The Clerk provided the Petitioner a copy of his
docket sheet and the relevant case filings on June 13, 2019 [Dkt. No. 23].

2

3

Cardenas v. Coakley

1:18-CV-131

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20]
AND DENYING AND DISMISSING PETITION AS MOOT
return receipt requested, at the last known address as shown on
the docket.
DATED: November 27, 2019
____________________________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

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