Shrout v. Seifert

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION: The 21 Report and Recommendation should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judges report. Accordingly, this Court ORDERS that the Respondents 15 Motion to Dismiss be DENIED. Further, this Court hereby ORDERS that the Respondent answer the merits of the petition within twenty-eight (28) days from the entry of this Order. The petitioners renewed 24 motion for counsel is DENIED WITHOUT PREJUDICE for the same reasons set out in Magistrate Judge Kaulls 23 Order dated November 25, 2013. Signed by Chief Judge John Preston Bailey on 12/12/2013. (Copy to pro se petitioner (via cm/rrr)) (kac) (Additional attachment(s) added on 12/12/2013: # 1 Certified Mail Return Receipt) (kac).

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

ROBERT SHROUT,
Petitioner,
v.
CIVIL ACTION NO. 2:13-CV-22
(BAILEY)
EVELYN SEIFERT, Warden,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge John S. Kaull [Doc. 21].
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Kaull for
submission of a proposed report and a recommendation (“R & R”). Magistrate Judge Kaull
filed his R&R on November 18, 2013, wherein he recommends this Court deny the
Respondent’s Motion to Dismiss [Doc. 15], and that the Respondent be ordered to answer
the merits of the petition.
Pursuant to 28 U.S.C. § 636 (b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo

review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Kaull’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
No objections have been filed. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 21] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report.

Accordingly, this Court

ORDERS that the Respondent’s Motion to Dismiss [Doc. 15] be DENIED. Further, this
Court hereby ORDERS that the Respondent answer the merits of the petition within
twenty-eight (28) days from the entry of this Order.
As a final matter, the petitioner’s renewed request for counsel [Doc. 24] is DENIED
WITHOUT PREJUDICE for the same reasons set out in Magistrate Judge Kaull’s Order
dated November 25, 2013 [Doc. 23].
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: December 12, 2013.