Chewning v. Doe et al

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION: The Report and Recommendation 6 is ORDERED ADOPTED. ORDERED that the defendants Motion to Dismiss 2 be GRANTED IN PART and DENIED IN PART. The Motion is granted as to Defendant West Virginia Regional Ja il & Correctional Facility Authority and denied without prejudice as to the John Doe Defendants. ORDERED that the plaintiffs Motion for Extension of Time for Service 5 be GRANTED. The plaintiff may conduct limited discovery in order to learn the t rue names of the John Doe Defendants, which must be completed within forty-five (45) days of entry of this Order. The plaintiff must serve the John Doe Defendants within thirty (30) days of learning their true identities. Signed by District Judge John Preston Bailey on 12/21/16. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
JASON CHEWNING,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-CV-67
(BAILEY)

JOHN DOES, numbers one through
five and THE WEST VIRGINIA
REGIONAL JAIL AUTHORITY,
Defendants.
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.
6]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Seibert for submission of a proposed report and recommendation (“R&R”). Magistrate
Judge Seibert filed his R&R on November 30, 2016, wherein he recommends this Court
grant the defendants’ motion to dismiss as to Defendant WVRJCFA, deny the defendants’
motion to dismiss without prejudice as to the John Doe Defendants, and grant the plaintiff’s
motion for extension of time for service.
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,

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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 Seibert’s R&R were due within
fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
Service was effectuated on November 30, 2016. To date, 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. 6] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report.

Accordingly, this Court

ORDERS the defendants’ Motion to Dismiss [Doc. 2] be GRANTED IN PART and DENIED
IN PART. The Motion is granted as to Defendant West Virginia Regional Jail & Correctional
Facility Authority and denied without prejudice as to the John Doe Defendants. This Court
further ORDERS that the plaintiff’s Motion for Extension of Time for Service [Doc. 5] be
GRANTED. The plaintiff may conduct limited discovery in order to learn the true names
of the John Doe Defendants, which must be completed within forty-five (45) days of entry
of this Order. The plaintiff must serve the John Doe Defendants within thirty (30) days of
learning their true identities.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.

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DATED: December 21, 2016.

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