Hueston v. Brown et al

Filing 8

ORDER. The magistrate judge's report and recommendation [Doc. 6 ] is ADOPTED and the petition [Doc. 1 ] is DENIED and DISMISSED WITHOUT PREJUDICE to the petitioner's right to file his claims in a civil rights action. Further, the petitioner' s Motion for Leave to Proceed in forma pauperis [Doc. 2 ] is DENIED AS MOOT. Signed by District Judge John Preston Bailey on 6/5/2024. (ag) (pro se PET cm rrr)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling DAVID E. HUESTON, Petitioner, v. CIV. ACT. NO. 5:24-CV-81 Judge Bailey R. BROWN, Warden, FCI Gilmer, and DR. McCOY, FCI Gilmer, “Care Provider”, Respondents. ORDER The above-referenced case is before this Court upon the magistrate judge’s recommendations that the petition [DoG 1] filed by Petitioner David E Hueston be denied and dismissed without prejudice to the petitioner’s right to file his claims in a civil rights action and that the pending Motion for Leave to Proceed in forma pauperis [Doc. 2] be denied as moot. 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 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. 6] is ADOPTED and the petition [Doc. 11 is DENIED and DISMISSED WITHOUT PREJUDICE to the petitioner’s right to file his claims in a civil rights action. Further, the petitioner’s Motion for Leave to Proceed in forma pauperis [Doc. 2] is DENIED AS MOOT. The Clerk is DIRECTED TO STRIKE the above-styled 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 herein and to pro se petitioner DATED: June 5, 2024. JOI(L~LBRESTON BAILEY UNITED STATES DISTRICT JUDGE 2

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