MANGUM v. UNITED STATES OF AMERICA

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS : It is the opinion of this Court that the Report and Recommendation 34 should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judges report. Accordingly, this Court ORDERS that the defendants Motion to Dismiss or, Alternatively for Summary Judgment 25 be GRANTED. As such, the plaintiffs Complaint 1 is hereby DISMISSED WITH PREJUDICE. This Court further ORDERS that this matter be STRICKEN from the active docket of this Court and DIRECTS the Clerk to enter judgment in favor of the defendant. Signed by District Judge John Preston Bailey on 7/12/17. (Attachments: # 1 Certified Mail Return Receipt)(jss)

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

CIVIL ACTION NO. 2:16-CV-77
(BAILEY)

UNITED STATES OF AMERICA,
Defendant.
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 Michael John Aloi [Doc.
34]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Aloi
filed his R&R on June 5, 2017, wherein he recommends this Court grant the defendant’s
motion to dismiss and dismiss the plaintiff’s Complaint with prejudice.
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,

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94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi’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).
The docket reflects that service was accepted on June 8, 2017. [Doc. 35]. However, the
mail was thereafter returned as undeliverable, stating that the plaintiff was no longer
located at that address. [Doc. 36]. As such, the R&R was sent to the plaintiff at his new
address on June 12, 2017, resetting the time in which the plaintiff had to respond. [Id.].
The docket reflects that service of the R&R was accepted at the correct address on June
23, 2017. [Doc. 37]. 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. 34] 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 defendant’s Motion to Dismiss or, Alternatively for Summary Judgment
[Doc. 25] be GRANTED. As such, the plaintiff’s Complaint [Doc. 1] is hereby DISMISSED
WITH PREJUDICE. This Court further ORDERS that this matter be STRICKEN from the
active docket of this Court and DIRECTS the Clerk to enter judgment in favor of the
defendant.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein
and to mail a copy to the pro se plaintiff.

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DATED: July 12, 2017.

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