Hill v. Haynes et al

Filing 177

ORDER adopting Report and Recommendations re 170 Report and Recommendations; denying 175 Motion for Extension of Time to File Response/Reply re 170 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Demetrius Hill. Motion for Summary Judgmen t 38 is hereby GRANTED, and the Plaintiffs Bivens Complaint 1 is hereby DISMISSED WITH PREJUDICE. This Court DIRECTS the Clerk to enter judgment in favor of the Defendants and strike this case from the active docket of this Court. Signed by District Judge Gina M. Groh on 11/9/12. copy mailed to pro se pla via cert. return rec't mail.(njz) (Additional attachment(s) added on 11/9/2012: # 1 Certified Mail Return Receipt) (njz).

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

DEMETRIUS HILL,
Plaintiff,
v.

CIVIL ACTION NO. 3:06-CV-136
(JUDGE GROH)

WARDEN AL HAYNES;
A.W. GILL; WARDEN JOE
DRIVER; CAPT. ODDO;
LT. CLEMENS; LT. GIFFORD;
LT. TRAIT; C.O. SPOTLAN;
C.O. FOSTER; C.O. MORGAN;
COUNSELOR MORRERO;
COUNSELOR ETRIS,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge John S. Kaull [Doc. 170].
By Standing Order, entered on March 24, 2000, a Bivens civil rights complaint1 originally
filed by the pro se Plaintiff on December 15, 2006, was referred to Magistrate Judge Kaull
for submission of a proposed report and recommendation (“R&R”). Upon his initial review,
Magistrate Judge Kaull filed his R&R on November 29, 2007 [Doc. 45]. In that filing, the
magistrate judge recommended that the Court deny the Defendants’ Motion to Dismiss, or,
in the Alternative, Motion for Summary Judgment [Doc. 38].
On December 10, 2007, the Defendants filed objections [Doc. 47] to the magistrate

1

See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

judge’s R&R. Thereafter, on March 5, 2008, this Court entered an Order Declining to Adopt
the R&R and dismissing the Plaintiff’s complaint without prejudice [Doc. 51]. The Plaintiff
appealed this decision to the United States Court of Appeals for the Fourth Circuit, which
issued a per curiam decision on June 2, 2010, finding that the Plaintiff had shown genuine
issues of material fact as to whether the Defendants hindered his ability to exhaust
administrative remedies [Doc. 67].

Consequently, the case was “remand[ed] for a

determination whether the grievance procedure was ‘available’ to Hill within the meaning
of [42 U.S.C.] §1997e(a) so he could administratively exhaust his claim.”
Pursuant to 28 U.S.C. §636, this matter was re-referred to the magistrate judge on
August 16, 2010 [Doc. 70]. After a series of continuances at the request of both Plaintiff
and Defendants, the magistrate judge conducted an evidentiary hearing which spanned
three days: January 20, 2012, February 10, 2012, and February 15, 2012.
On September 5, 2012, the magistrate judge entered the instant R&R [Doc. 170],
recommending that the Defendants’ Motion to Dismiss or for Summary Judgment [Doc. 38]
be granted, and further recommending that the Plaintiff’s claims be dismissed.
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 petitioner's right to appeal this Court's Order. 28 U.S.C. §636(b)(1); Snyder
2

v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d
91, 94 (4th Cir. 1984). Here, this Court, by Order dated September 17, 2012 [Doc. 173],
granted the Plaintiff until October 27, 2012, to file any objections to Magistrate Judge
Kaull’s R&R. The record reflects that the Plaintiff received service of this Order on
September 21, 2012 [Doc. 174]. On November 1, 2012, the Court received in chambers
a request from the Plaintiff for a second extension of time in which to file his objections.
However, the Plaintiff’s request for an extension was filed after the deadline to file
objections had passed,2 and it is, therefore, DENIED.

Accordingly, this Court will review

the R&R for clear error.
Upon careful review of the record, it is the opinion of this Court that the magistrate
judge’s Report and Recommendation [Doc. 170] should be, and is, hereby ORDERED
ADOPTED for the reasons more fully stated therein. Accordingly, the Defendants’ Motion
to Dismiss, or, Alternatively, Motion for Summary Judgment [Doc. 38] is hereby
GRANTED, and the Plaintiff’s Bivens Complaint [Doc. 1] is hereby DISMISSED WITH
PREJUDICE. This Court DIRECTS the Clerk to enter judgment in favor of the Defendants
and 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 all counsel of record and to

2

While the Plaintiff’s handwritten request is dated “October 23, 2012,” the envelope indicates
that it was mailed on October 29, 2012. It is thus clear to the Court that the Plaintiff either
back-dated the request or, at best, placed it in the mail after the deadline to file objections
had passed. In neither event will the Court consider the Plaintiff’s request, because it was
not timely filed.
3

mail a copy to the pro se plaintiff.
DATED: November 9, 2012

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