Shepherd v. Blocker et al
Filing
52
MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 50 Proposed Findings and Recommendation by Magistrate Judge R. Clarke VanDervort; GRANTS the USA's 25 Motion to Dismiss Plaintiff's FTCA claim; GRANTS Defendants William Goode, Carl Hil l, Karen F. Hogsten and Hippilto Mastos' 35 Motion to Dismiss; DISMISSES Plaintiff's 2 Complaint and DIRECTS the Clerk to remove this case from the Court's docket. The Court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 1/7/2015. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TERRENCE SHEPHERD,
Plaintiff,
v.
Civil Action No: 1:13-13757
REX BLOCKER, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are the United States’ motion to
dismiss plaintiff’s FTCA claim, (Doc. No. 25), and a motion to
dismiss plaintiff’s complaint submitted by defendants William
Goode, Carl Hill, Karen F. Hogsten, and Hippilto Matos.
No. 35).
(Doc.
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 November 25, 2014.
In the PF&R, Magistrate
Judge VanDervort recommended that the district court grant the
United States’ motion to dismiss, grant the remaining
defendants’ motion to dismiss, and remove this matter from the
court’s docket.
(Doc. No. 50).
1
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 the PF&R.
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).
Petitioner failed to file any objections to the Magistrate
Judge’s PF&R within the seventeen-day period.
Having reviewed
the PF&R filed by Magistrate Judge VanDervort, the court adopts
the findings and recommendations 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.
court DENIES a certificate of appealability.
2
Accordingly the
The court hereby ADOPTS the factual and legal analysis
contained within the PF&R, GRANTS the United States’ motion to
dismiss plaintiff’s FTCA claim, (Doc. No. 25), GRANTS the motion
to dismiss submitted by the remaining defendants, (Doc. No. 35),
and DISMISSES plaintiff’s complaint.
(Doc. No. 2).
The court
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 petitioner, pro se.
It is SO ORDERED this 7th day of January, 2015.
ENTER:
David A. Faber
Senior United States District Judge
3
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