Triplett v. Rubenstein et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATION adopting 44 Report and Recommendation; granting in part and denying in part 43 Motion to Dismiss. James Rubenstein (Commissioner of Department of Corrections for West Virginia) dismissed from this action. Signed by District Judge Gina M. Groh on 11/7/2014. (cwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
MATTHEW W. TRIPLETT,
Plaintiff,
v.

CIVIL ACTION NO.: 3:13-CV-135
(JUDGE GROH)

JAMES RUBENSTEIN;
PATRICK MIRANDY; and
JOHN ANDERSON,
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 James E. Seibert.
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Seibert
for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge
Seibert filed his R&R on September 2, 2014. ECF 44. In that filing, he recommends that
the Defendants’ supplemental motion to dismiss, [ECF 43], be denied in part and granted
in part; that Defendant Rubenstein be dismissed from this action; and that a scheduling
order be entered.
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). 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 v. Ridenour,
889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). Objections to Magistrate Seibert’s R&R were originally due within fourteen plus
three days of the R&R being entered. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). No
objections were filed by either party. Just prior to the original deadline for objections to be
filed, the Plaintiff’s attorney filed a motion to withdraw as counsel. The Court denied this
motion, and extended the deadline for the parties to file objections to the R&R. The second
deadline has now passed, and no objections were filed by either party.
Accordingly, this Court will review the R&R for clear error. Upon careful review of
the report and recommendation, it is the opinion of this Court that the magistrate judge’s
Report and Recommendation should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Accordingly, the Court hereby
ORDERS that the Defendants’ supplemental motion to dismiss is DENIED IN PART as to
Defendants Mirandy and Anderson. The Court further ORDERS that the Defendants’
supplemental motion to dismiss is GRANTED IN PART as to Defendant Rubenstein, and
that Defendant Rubenstein be DISMISSED from this action.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: November 7, 2014

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