Bellamy v. Miller et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Report and Recommendation [Doc. 39 is hereby ORDERED ADOPTED. This Court ORDERS that the Defendants Motion to Dismiss [Doc. 27 is GRANTED and the Plaintiffs § 1983 complaint [Doc. 1 be DISMISSED W ITH PREJUDICE for failure to state a claim upon which relief can be granted. Further, John Doe, President of Glenville State College, is DISMISSED as a defendant and the plaintiffs second Motion for Leave to Proceed in forma pauperis [Doc. 19 is DE NIED AS MOOT. 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 defendants. Signed by District Judge John Preston Bailey on 2/26/19. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 2/26/2019: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
ULYSSES A. BELLAMY,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-CV-115
(BAILEY)

DIANA R. MILLER, et. al.,
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 P. Mazzone
[Doc. 39]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate
Judge Mazzone for submission of a proposed report and recommendation (“R&R”).
Magistrate Judge Mazzone filed his R&R on February 5, 2019, wherein he recommends
(1) John Doe, President of Glenville State College, be dismissed as a defendant; (2) the
plaintiff’s second Motion for Leave to Proceed in forma pauperis [Doc. 19] be dismissed as
moot; (3) the Defendants’ Motion to Dismiss [Doc. 27] be granted; and (4) the Plaintiff’s §
1983 complaint [Doc. 1] be dismissed with prejudice for failure to state a claim upon which
relief can be granted.
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

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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 Mazzone’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 February 8, 2019 [Doc. 40]. 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. 39] 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 Defendants’ Motion to Dismiss [Doc. 27] is GRANTED and the
Plaintiff’s § 1983 complaint [Doc. 1] be DISMISSED WITH PREJUDICE for failure to state
a claim upon which relief can be granted. Further, John Doe, President of Glenville State
College, is DISMISSED as a defendant and the plaintiff’s second Motion for Leave to
Proceed in forma pauperis [Doc. 19] is DENIED AS MOOT. 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 defendants.
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: February 26, 2019.

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