Thetford et al v. Ware et al

Filing 119

ORDER ADOPTING REPORT AND RECOMMENDATION (ECF NO. 107 granting 2 Motion to Dismiss Tanya L. Richard. Signed by District Judge Thomas S. Kleeh on 3/2/21. (mh) (Copy PS Parties via cert mail) (Additional attachment(s) added on 3/2/2021: # 1 Certified Mail Return Receipt) (mh).

Case 1:20-cv-00082-TSK-MJA Document 119 Filed 03/02/21 Page 1 of 3 PageID #: 956

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL HEATH THETFORD,
ANGEL CENTENO-MORALES, and
NELSON R. ZAPATA-VICENTE,
Plaintiffs,
v.

Civ. Action No. 1:20-CV-82
(Judge Kleeh)

ROGER WARE,
ALVIN JAMES WARRICK,
COLITHA PATRICE BUSH,
RONALD BENNETT SHEPHERD,
TANYA L. RICHARD,
PRIVATE SERVICES, and
UNITED STATES OF AMERICA,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 107]
On March 30, 2020, pro se Defendant Tanya Richard (“Richard”)
filed Motion to Dismiss and Answer to Complaint (“Motion”) pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECF No.
ECF No. 2]. In the Motion, Richard requests this Court dismiss
Richard

from

the

case

because

Plaintiffs’

Original

Complaint

failed to state a claim for which relief can be granted, is devoid
of any facts supporting Plaintiffs’ claims, and cites no authority
supporting causes of action against Richard. [ECF No. 2].
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the action to United States Magistrate Judge Michael J.
Aloi for initial review. On February 9, 2021, the Magistrate Judge
entered

a

Report

and

Recommendation

(“R&R”)

[ECF

No.

107],

Case 1:20-cv-00082-TSK-MJA Document 119 Filed 03/02/21 Page 2 of 3 PageID #: 957
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 107]
recommending that the Court grant the Motion [ECF No. 2].
The R&R also informed the parties regarding their right to
file specific written objections to the magistrate judge’s report
and recommendation. Under Local Rule 12 of the Local Rules of
Prisoner Litigation Procedure of the Northern District of West
Virginia,

“[a]ny

party

may

object

to

a

magistrate

judge’s

recommended disposition by filing and serving written objections
within fourteen (14) calendar days after being served with a copy
of the magistrate judge’s recommended disposition.” LR PL P 12.
Further, the magistrate judge allotted an extra three (3) days to
account for mailing and service of any objections. [ECF No. 106].
Therefore, parties have seventeen (17) calendar days from the date
of

service

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.” The R&R
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.” The docket reflects that Plaintiffs accepted
service of the R&R on February 12, 2021. [See ECF Nos. 111, 112,
113]. To date, no objections to the R&R have been filed.
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,

Case 1:20-cv-00082-TSK-MJA Document 119 Filed 03/02/21 Page 3 of 3 PageID #: 958
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 107]
without

explanation,

any

of

the

magistrate

judge’s

recommendations” to which there are no objections. 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

Court

is

under

no

obligation to conduct a de novo review. Accordingly, the Court
reviewed the R&R for clear error. Upon careful review, and finding
no clear error, the Court ADOPTS the R&R [ECF No. 107]. The Motion
is GRANTED [ECF No. 2] and pro se Defendant Tanya Richard is
DISMISSED from this case.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all
pro se parties via certified mail, return receipt requested, and
to counsel of record via email.
DATED: March 2, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE