Heuser-Whitaker v. Brown

Filing 19

ORDER ADOPTING 17 REPORT AND RECOMMENDATION; granting Respondent's 9 Motion to Dismiss for failure to state a claim. This case is ordered stricken from the docket. Signed by District Judge John Preston Bailey on 4/28/2023. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 4/28/2023: # 1 Certified Mail Return Receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
M arti nsbu rg
DARRIUS HEUSER-WHITAKER,
Petitioner,
v.

Civil Action No. 3:22-CV-222
Judge Bailey

WARDEN BROWN,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above referenced case is before this Court upon the magistrate judge’s
recommendation that Respondent’s Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment [Doc. 9] be granted and that petitioner’s petition [Doc. 1] be denied
and dismissed with prejudice.
This Court is charged with conducting a de novo review of any portion of the
magistrate judge’s report to which a specific objection is registered, and may accept, reject,
or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C.

§ 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that
Congress did not intend for the district court to review the factual and legal conclusions of
the magistrate judge. Thomas v. Am, 474 U.S. 140 (1985). Additionally, any party who
fails to file timely, written objections to the magistrate judge’s report pursuant to 28 U.S.C.

§ 636(b)(1) waives the right to raise those objections at the appellate court level. United

I

States v. Schronce, 727 F.2d 91(4th Cir. 1984), cert. denied, 467 U.S. 1208(1984). No
objections have been filed to the magistrate judge’s report and recommendation.
A de novo review of the record indicates that the magistrate judge’s report
accurately summarizes this case and the applicable law. Accordingly, the magistrate
judge’s report and recommendation [Doc. 17] is ADOPTED, and respondent’s Motion to
Dismiss, or in the Alternative, for Summary Judgment [Doc. 9] is GRANTED. Petitioner’s
Petition for Habeas Corpus Pursuant to 28 U.S.C.

§ 2241 [Doc. 1] is DENIED and

DISMISSED WITH PREJUDICE.
This Court further DIRECTS the Clerk 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 petitioner.
DATED: April 28 2023.

J
N PRESTON BAILEY
UNIT
STATES DISTRICT JUDGE

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