Virts v. Foreman et al

Filing 7

MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATIONS re: 5 Proposed Findings and Recommendations by Magistrate Judge as to Jack L. Virts. The Court DENIES Plaintiff's 1 Application to Proceed without Prepayment of F ees or Costs; DISMISSES Plaintiff's 2 Complaint; and DIRECTS the Clerk to remove this case from the Court's docket. The Court further DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 12/8/2015. (cc: Plaintiff, pro se) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JACK L. VIRTS,
Plaintiff,
v.

Civil Action No: 1:12-07780

DENNIS W. FOREMAN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s application to
proceed without prepayment of fees or costs.

(Doc. No. 1).

By

Standing Order, this matter was referred to United States
Magistrate Judge R. Clarke VanDervort for submission of findings
and recommendations regarding disposition, pursuant to 28 U.S.C.
§ 636(b)(1)(B).

(Doc. No. 4).

Magistrate Judge VanDervort

submitted to the court his Proposed Findings and Recommendation
on October 27, 2015, in which he recommended that the district
court deny plaintiff’s application to proceed without prepayment
of fees and costs, dismiss plaintiff’s complaint, and remove
this matter from the court’s docket.

(Doc. No. 5 at 8).

In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
VanDervort’s Findings and Recommendation.
1 

The failure to file

such objections constitutes a waiver of the right to a de novo
review by this court.

Snyder v. Ridenour, 889 F.2d 1363 (4th

Cir. 1989).
Plaintiff failed to file any objections to the Magistrate
Judge’s Findings and Recommendation within the prescribed
period.

Having reviewed the Findings and Recommendation filed

by Magistrate Judge VanDervort, the court adopts the findings
and recommendation contained therein.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

Id. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683–84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly the

court DENIES a certificate of appealability.
The court hereby DENIES plaintiff’s application to proceed
without prepayment of fees or costs, (Doc. No. 1), DISMISSES

2 

plaintiff’s complaint, (Doc. No. 2), and DIRECTS the Clerk to
remove this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to plaintiff, pro se.
It is SO ORDERED this 8th day of December, 2015.

ENTER:

David A. Faber
Senior United States District Judge

3