Cohen v. UNITED STATES OF AMERICA

Filing 11

ORDER ADOPTING 9 REPORT AND RECOMMENDATION: this Court ORDERS that 6 plaintiff's Omnibus Motion as it relates to his request for a preliminary injunction be DENIED; plaintiffs Omnibus Motion as it relates to his request for issuance of a writ of mandamus is DENIED AS MOOT. Signed by District Judge John Preston Bailey on 3/23/2021. (copy to pro se plaintiff via cm,rrr) (nmm) (Additional attachment(s) added on 3/23/2021: # 1 Certified Mail Return Receipt) (ag).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
JEFFREY COHEN,
Plaintiff,
v.

CIVIL ACTION NO. 5:20-CV-219
Judge Bailey

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone [Doc. 9]. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Mazzone forsubmission of
a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his R&R
on March 2,2021, wherein he recommends that plaintiffs Omnibus Motion [Doc. 61 be denied
as it relates to his request for a preliminary injunction; further, Magistrate Judge Mazzone
recommends that plaintiffs Omnibus Motion be denied as moot as it relates to his requestfor
issuance of a writ of mandamus. For the reasons that follow, this Court will adopt the R&R.
Pursuantto 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 nave 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. Am, 474 U.S. 140, 150 (1985). Nor is

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this Court required to conduct a de novo 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 F.2d 44,47(4th Cir.
1982).
In addition, failure to file timely objections constitutes a waiver of de novo review and
the rightto 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).
Pro se 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. Haines 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, pursuantto 28 USC. § 636(b)(1 ) and Rule 72(b)(2) of the Federal
Rules of Civil Procedure. Having filed no objections within that time frame, plaintiff has waived
his right to both de nova 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. 9] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Accordingly, this Court ORDERS
that plaintiffs Omnibus Motion as it relates to his request fora preliminary injunction [Doc. 6]

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be DENIED; further, plaintiff’s Omnibus Motion [Doe. 6] as it relates to his request for
issuance of a writ of mandamus is DENIED AS MOOT.
It is so ORDERED.
The Clerk is directed to transmit copies of this Orderto any counsel of record and to
mail a copy to the pro se plaintiff.
DATED: March 23, 2021.

J HNPRESTONBA EY
TATES DISTRICT JUDGE
U

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