BAKER v. LEVI

Filing 48

ORDER adopting 44 REPORT AND RECOMMENDATIONS. ORDERED that petitioner's 2 Motion for Declaratory Judgment be DENIED. ORDER granting 16 Motion to Dismiss/Motion for Summary Judgment. ORDERED that Petitioner's 1 Petition be DENIED AND DISMISSED with prejudice. ORDERED that petitioner's 40 MOTION for Default Judgment and Motion for Summary Judgment is denied. ORDERED that the Clerk shall enter judgment for the respondent. ORDERED that this action is STRICKEN from the docket. Signed by Senior Judge Robert E. Maxwell on 9/22/09. (Attachments: # 1 Certified Mail Return Receipt)(jss) Modified on 9/23/2009 - corrected signature date (jss).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CHARLES WESLEY BAKER, Petitioner, v. TROY LEVI, Warden, Respondent. ORDER It will be recalled that on June 1, 2009, Magistrate Judge John S. Kaull filed a Report and Recommendation on Petitioner's Motion for Declaratory Judgment, and on September 4, 2009, Magistrate John S. Kaull filed his Report and Recommendation on the Petition herein. In each Report and Recommendation, the parties were directed, in accordance with 28 U.S.C. 636(b)(1), to file with the Clerk of Court any written objections within ten (10) days after being served with a copy of the Report and Recommendation. While Petitioner filed objections to an Order denying discovery, entered by the Magistrate Judge on June 1, 2009, no objections to the Magistrate Judge's Report and Recommendations have been filed. Accordingly, the Court will proceed with consideration of the Report and Recommendations, reviewing for clear error.1 Upon examination of the Magistrate's June 1, 2009 report, it appears to the Court that the appropriateness of the Petitioner's Motion for Declaratory Judgement T he 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 C ourt of any obligation to conduct a de novo review of the issues presented. See Wells v. S hrin ers Hospital, 109 F.3d 198, 199-200 (4th Cir. 1997); Thomas v. Arn, 474 U.S. 140, 148153 (1985). 1 Civil Action No. 2:09cv4 was thoroughly considered by Magistrate Judge Kaull. Further, upon examination of the September 4, 2009 report from the Magistrate Judge, it appears to the Court that the issues raised by the Petitioner's Application for Habeas Corpus, filed pursuant to 28 U.S.C. 2241, and the Respondent's Motion to Dismiss or For Summary Judgment, were thoroughly considered by Magistrate Judge Kaull in his Report and Recommendation. Moreover, the Court, upon a review for clear error, is of the opinion that both Report and Recommendations accurately reflect the law applicable to the facts and circumstances before the Court in this action. Therefore, it is ORDERED that Magistrate Judge Kaull's Report and Recommendations be, and the same hereby are, accepted in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is ORDERED that Petitioner's Motion for Declaratory Judgment (Docket #2) be, and the same hereby is, DENIED. It is further ORDERED that Respondent's Motion to Dismiss or in the Alternative, Motion For Summary Judgment (docket #16) shall be, and the same hereby is, GRANTED. It is further ORDERED that the Petitioner's 2241 petition shall be, and the same hereby is, DENIED and DISMISSED WITH PREJUDICE. It is further ORDERED that Petitioner's Motion for Leave of Court to Enter Default and Motion for Summary Judgment (docket #40) shall be, and the same hereby is, DENIED. It is further ORDERED that the Clerk shall enter judgment for the Respondent. It is further ORDERED that the above-styled action shall be STRICKEN from the docket of this Court. It is further ORDERED that, if a party should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4 of the Federal Rules of Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, Petitioner may, in accordance with the provisions of Rule 24(a) of the Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis from the United States Court of Appeals for the Fourth Circuit. ENTER: September 22 , 2009 /s/ Robert E. Maxwell United States District Judge

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