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) (Additional attachment(s) added on 6/6/2024: #1 Certified Mail Return Receipt) (ag).

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

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