Bracmort v. Perdue et al

Filing 46

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Judge Seibert's 40 Report and Recommendation is ORDERED ADOPTED; Petitioner's 1 Petition for Writ of Mandamus is DENIED and DISMISSED WITHOUT PREJUDICE to the Peti tioner's right to file a Bivens action; and Petitioner's 33 Motion to Issue Subpoenas is DENIED AS MOOT. The Clerk is directed to enter a separate judgment in favor of the Respondents. Signed by District Judge John Preston Bailey on 3/26/15. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner)(cnd) Modified relationship on 3/26/2015 (cnd).

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

JACINTO L. BRACMORT,
Petitioner,
v.
Civil Action No. 2:14-CV-51
(BAILEY)
RUSSELL A. PERDUE, Warden; MR.
WEAVER; DR. ANDERSON; MS.
LEHMANN; MS. BRANNAN; MR.
NOLTE; FCI GILMORE MEDICAL
STAFF; CHARLES E. SAMUELS, JR.,
Director, Federal Bureau of Prisons;
NEWTON E. KENDIG, Medical Director,
Federal Bureau of Prisons; CHRISTINA
GHERKE; and ANDREA POSSE,
Respondents.

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 James E. Seibert [Doc.
40]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Seibert for submission of a proposed report and a recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on February 11, 2015 [Doc. 40]. In that filing, the magistrate
judge recommended that this Court deny and dismiss the petition for Writ of Mandamus
[Doc. 1] without prejudice to the petitioner’s right to file a Bivens action.
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). Originally, objections to Magistrate Judge Seibert’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). However, this Court granted the petitioner an extension of time to file objections by
March 25, 2015. 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. 40] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. As such, the petition for Writ of
Mandamus [Doc. 1] is DENIED and DISMISSED WITHOUT PREJUDICE to the petitioner’s
right to file a Bivens action. Additionally, the petitioner’s Motion to Issue Subpoenas [Doc.
33] is DENIED AS MOOT. Finally, the Clerk is directed to enter separate judgment in favor
of the respondents.
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: March 26, 2015.