McBride v. Jones

Filing 23

MEMORANDUM OPINION AND ORDER: The District Court GRANTS Defendant's 22 MOTION to Dismiss, DISMISSES plaintiff's application as moot, and directs the Clerk to remove this case from the court's active docket. Signed by Judge David A. Faber on 1/16/2015. (cc: plaintiff, pro se and counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
MICHAEL W. MCBRIDE,
Plaintiff,
v.

CIVIL ACTION NO. 1:14-12074

DAVID W. JONES, Warden,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge R. Clarke VanDervort for submission of
findings and recommendations regarding disposition pursuant to 28
U.S.C.A. § 636(b)(1)(B).

Magistrate Judge VanDervort submitted

to the court his Findings and Recommendation on October 17, 2014,
in which he recommended that the District Court deny plaintiff’s
motion to transfer; deny plaintiff’s “Ancillary Motion Supporting
Habeas Corpus Petition Seeking Order for Show Cause and Summary
Judgment”; deny plaintiff’s petition for habeas relief; and
remove this matter from the court’s docket.
In accordance with the provisions of 28 U.S.C.A.
§ 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.

The failure of any

party to file such objections constitutes a waiver of such
party's right to a de novo review by this court.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Snyder v.

On October 28, 2014,

plaintiff filed a motion conceding to the PF&R and “dismissing my
action this day. . . .”

(Doc. No. 21).

Thereafter, on November

13, 2014, defendant filed a motion to dismiss the action as moot
given plaintiff’s release from federal custody.*

Plaintiff did

not file a response to defendant’s motion to dismiss.
Dismissal of plaintiff’s application as moot is
appropriate because plaintiff has already completed his term of
incarceration.

See Spencer v. Kemna, 523 U.S. 1, 7 (1998); see

also Wallace v. Jarvis, 423 F. App’x 328, 2011 WL 1355195, *1
(4th Cir. Apr. 11, 2011) (“While Wallace challenges the
calculation of his release date, he has been released from
custody, and he does not allege any collateral consequences that
would warrant relief.”); Evora v. Johnson, Civil Action No.
3:09CV91-HEH, 2009 WL 1437592, *1 (E.D. Va. May 21, 2009)
(dismissing as moot habeas petition where, having been released
from custody, petitioner did not “attempt to demonstrate that the
allegedly incorrect calculation [of time he was required to
serve] inflicted any collateral consequences upon him”).
Accordingly, because no case or controversy presently exists in
this case, the court GRANTS defendant’s motion to dismiss,
DISMISSES plaintiff’s application as moot, and directs the Clerk

*

In this action, plaintiff challenged the manner in which
his sentence was computed by the Bureau of Prisons. On November
12, 2014, his sentence was recalculated and he was released from
federal custody.
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to remove this case from the court’s active docket.

A judgment

order consistent with this Memorandum Opinion and Order will be
filed this day.
The Clerk is directed to forward a copy of this
Memorandum Opinion to plaintiff, pro se, and counsel of record.
IT IS SO ORDERED this 16th day of January, 2015.
ENTER:

David A. Faber
Senior United States District Judge

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