Thomas v. Cauley
Filing
14
MEMORANDUM OPINION AND ORDER: The Court OVERRULES Plaintiff's Objections to Magistrate Judge R. Clarke VanDervort's Proposed Findings and Recommendation; ADOPTS the 10 Proposed Findings and Recommendation by Magistrate Judge VanDervort; DENIES Plaintiff's 9 Application to Proceed In Forma Pauperis; and DISMISSES 1 and 2 Plaintiff's Complaint without prejudice. Signed by Senior Judge David A. Faber on 7/18/2014. (certified cc: Plaintiff, Pro Se) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
MICHAEL THOMAS,
Petitioner,
v.
Civil Action No: 1:11-0449
E.K. CAULEY,
Warden
Respondent.
MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
proposed findings and recommendations (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B).
Doc. No. 4.
Plaintiff
initially brought this action as a petition for writ of habeas
corpus in 2011.
By Order entered June 29, 2011, the magistrate
judge construed the action as one filed under Bivens v. Six
unknown Named Federal Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).
Doc. No. 6.
The same order required plaintiff
to file a form complaint and application to proceed in forma
pauperis within forty-five days of the date of entry of the
order.
Id.
The Order warned plaintiff of the consequences of
failing to comply with the Order – dismissal for failure to
prosecute.
Id.
By Order entered August 3, 2011, the magistrate
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judge granted plaintiff’s motion for an extension of time to
file these required documents.
On September 16, 2011, plaintiff
filed his application to proceed in forma pauperis (Doc. No. 9),
but he failed to file the required form complaint.
Plaintiff
took no action in this case for nearly two and a half years.
As
such, the magistrate judge submitted his PF&R on April 29, 2014,
in which he recommended that the district court deny plaintiff’s
application to proceed in forma pauperis (Doc. No. 9), dismiss
plaintiff’s complaint (Doc. Nos. 1 and 2) for failure to
prosecute, and remove this matter from the court’s docket.
More
specifically, the magistrate judge recommended “that this action
be dismissed without prejudice unless Mr. Thomas is able to show
good cause for his failure to prosecute.”
Doc. No. 10 at 6.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing days,
in which to file any objections to the PF&R.
Plaintiff filed a
document entitled “Plaintiff’s Letter/Motion of Notification” in
which he attempts to show good cause for his failure to
prosecute.
the PF&R.
The court construes this document as objections to
Petitioner’s objections “do not direct the court to a
specific error in the magistrate’s [PF&R]” because they are
“general and conclusory.”
(4th Cir. 1982).
Orpiano v. Johnson, 687 F.2d 44, 47
Normally, such non-specific objections would
waive the right to a de novo review.
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Because petitioner is
proceeding pro se, however, his filings are held to a less
stringent standard than if they were prepared by a lawyer and
are construed liberally.
(1972).
Haines v. Kerner, 404 U.S. 519, 520-21
As such, the court has performed a de novo review.
That said, a de novo review does not require an in-depth
discussion of patently frivolous objections.
After a de novo
review, the court determines that plaintiff’s objections are
wholly meritless.
The court adopts the magistrate judge’s
succinct factual and legal analysis in its entirety and adds the
following.
Nothing in plaintiff’s latest filing provides good cause
for his failure to prosecute this action.
Plaintiff makes
several excuses for his inaction in this matter.
He states that
he is blind, that he doesn’t have access to legal materials, and
that he is living under “hostile conditions.”
Doc. No. 11.
He
believes these factors justify his delay and warrant an
enlargement of time.
Plaintiff has already been granted more
time, and his failure to do anything in this case for over two
years warrants dismissal.
Doc. No. 11.
Because plaintiff’s
objections are without merit, this action is dismissed without
prejudice.
Accordingly, the court OVERRULES plaintiff’s objections to
Magistrate Judge VanDervort’s PF&R.
The court adopts the
factual and legal analysis contained within the PF&R, DENIES
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plaintiff’s application to proceed in forma pauperis (Doc. No.
9), and DISMISSES plaintiff’s complaint (Doc. Nos. 1 and 2)
without prejudice.
The Clerk is directed to forward a copy of
this Memorandum Opinion and Order to plaintiff, pro se.
IT IS SO ORDERED on this 18th day of July, 2014.
ENTER:
David A. Faber
Senior United States District Judge
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