Custer v. W. V. Northern Regional Jail et al

Filing 57

ORDER granting Defendant's 42 Motion to Dismiss; adopting Magistrate Kaull's 55 Report and Recommendation; Plaintiff's 1 Complaint is dismissed without prejudice. This case is stricken from the docket. Judgment shall be entered for the Defendant. Notice of appeal must be received within 30 days, along with $455.00, or seek leave to appeal in forma pauperis. Signed by Senior Judge Robert E. Maxwell on 5/14/09. (copy Plaintiff)(cnd)

IN THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF WEST VIRGINIA R IC H AR D MICHAEL CUSTER, P la in t iff , v. W V NORTHERN REGIONAL JAIL, J AM E S SPENCER, SHAR MURRIN MASON, L T . MIDCAP and CAPT. STOCKGLASS, D e fe n d a n ts . ORDER It will be recalled that on April 24, 2009, Magistrate Judge John S. Kaull filed his R e p o rt and Recommendation, wherein the Plaintiff was directed, in accordance with 28 U .S .C . § 636(b)(1), to file with the Clerk of Court any written objections within ten (10) d a ys after being served with a copy of the Report and Recommendation. No objections to the Magistrate Judge's Report and Recommendation have been filed. Accordingly, the C o u rt will proceed with consideration of the Report and Recommendation reviewing for c le a r error.1 U p o n examination of the report from the Magistrate Judge, it appears to the Court th a t the issues raised by the Plaintiff in his Complaint, filed pursuant to 42 U.S.C. §1983, w h e re in Plaintiff alleges that Defendants harassed him and/or allowed other inmates to h a ra s s him, were thoroughly considered by Magistrate Judge Kaull in his Report and R e c o m m e n d a tio n . Moreover, the Court, upon a review for clear error of all matters now b e fo re it, is of the opinion that the Report and Recommendation accurately reflects the la w applicable to the facts and circumstances before the Court in this action. Therefore, C iv il Action No. 2:08cv54

The failure of a party to object to a Report and Recommendation waives the party's right to appeal from a judgment of this Court based thereon and, additionally, relieves the Court of any obligation to conduct a de novo review of the issues presented. See Wells v. Shriners Hospital, 109 F.3d 198, 199-200 (4th Cir. 1997); Thomas v. Arn, 474 U.S. 140, 148-153 (1985).

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it is O R D E R E D that Magistrate Judge Kaull's Report and Recommendation be, and th e same hereby is, accepted in whole and that this civil action be disposed of in a c c o rd a n c e with the recommendation of the Magistrate Judge. Accordingly, it is O R D E R E D that Defendants' Motion to Dismiss or in the Alternative for Summary J u d g m e n t (docket #42) shall be, and the same is hereby, GRANTED to the extent that it s e e k s dismissal of the Plaintiff's claims for failure to exhaust. It is further O R D E R E D that the Plaintiff's Complaint shall be, and the same is hereby, D IS M IS S E D without prejudice. It is further O R D E R E D that the above-styled civil action shall be STRICKEN from the docket o f this Court. It is further O R D E R E D that the Clerk shall enter judgment for the Defendant. It is further O R D E R E D that, if Plaintiff should desire to appeal the decision of this Court, w ritte n notice of appeal must be received by the Clerk of this Court within thirty (30) days fro m the date of the entry of the Judgment Order, pursuant to Rule 4 of the Federal Rules o f Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 d o c k e tin g fee should also be submitted with the notice of appeal. In the alternative, at th e time the notice of appeal is submitted, Plaintiff may, in accordance with the provisions o f Rule 24(a) of the Federal Rules of Appellate Procedure, seek leave to proceed in fo rm a pauperis from the United States Court of Appeals for the Fourth Circuit. T h e Clerk of the Court is directed to transmit a copy of this Order to all parties a p p e a rin g herein. E N T E R : May 14 th , 2009 /s/ Robert E. Maxwell United States District Judge

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