Sellers v. Anderson et al

Filing 58

ORDER adopting Report and Recommendations: The Report and Recommendation [Doc. 47 is ORDERED ADOPTED for the reasons more fully stated in the magistrate judges report. Accordingly, this Court further ORDERS that plaintiffs Complaint [Doc. 1 be DENIED and DISMISSED WITH PREJUDICE. Signed by District Judge John Preston Bailey on 10/28/20. (Attachments: # 1 Certified Mail Return Receipt)(jss)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
El ki ns
FREDERICK SELLERS,

Plaintiff,
v.

CIVIL ACTION No. 2:18-CV-1

Judge Bailey
EDDIE ANDERSON, D.C., et al.,

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

The above-styled mailer came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone [Doc. 47]. Pursuant to this
Courts Local Rules, this action was referred to Magistrate Judge Mazzone for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
R&R on May 26, 2020, wherein he recommends that plaintiffs Complaint [Doc. 1] be
dismissed with prejudice applying the principle of resjudicata. Furthermore, Magistrate
Judge Mazzone recommends that, in the alternative, plaintiffs Complaint as to defendants
Anderson and Carison be dismissed without prejudice for failure to exhaust administrative
remedies, and as to defendant Lehmann be dismissed with prejudice for failure to state a
claim upon which relief may be granted. For the reasons that follow, this Court will adopt
the R&R.
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
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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. Am, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a de nova review when the party makes
only general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 R2d
44, 47(4th Cir 1982).
In addition, failure to file timely objections constitutes a waiver of do nova 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). Prose filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. flames v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
days of receipt of the R&R, pursuant to 28 U.S.C.

§

636(b)(1) and Rule 72(b)(2) of the

Federal Rules of Civil Procedure. This Court granted plaintiffs request for an extension
of time [Doc. 50] and gave plaintiff an additional ninety (90) days to file his objections to
the R&R on June 29,2020. On September21, 2020, plaintiff asked for a further extension
to file a response/reply to the R&R. On September 22, 2020, this Court again granted
plaintiffs request for an extension of time [Doc. 55] and gave him an additional thirty (30)
days to file his objections to the R&R. Accordingly, objections were due on or before
October 25, 2020. Having filed no objections within that time frame, plaintiff has waived his

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right to both de novo review and to appeal this Court’s Order pursuant to 28 U.S.C.

§

636(b)(1). Consequently, the R&R will be reviewed for clear error.
Having reviewed the R&R for clear error, it is the opinion of this Court that the
Report and Recommendation [Doc. 47} should be, and is, hereby ORDERED ADOPTED
for the reasons more fully stated in the magistrate judge’s report. Accordingly, this Court
further ORDERS that plaintiffs Complaint [Doc. 1] be DENIED and DISMISSED WITH
PREJUDICE. This Court further DIRECTS the Clerk to enter judgment in favor of the
defendants and to STRIKE this case from the active docket of this Court.
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 plaintiff.
DATED: October 28, 2020.

LRIAILEY’(”S
U
ATES DISTRICT JUDGE

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