Harris v. Martin et al

Filing 14

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 11 Proposed Findings and Recommendation by Magistrate Judge R. Clarke VanDervort; DENIES Plaintiff's 1 Application to Proceed Without Prepayment of Fees and Costs; DENIES Plaintiff's [7 ] Motion for a Preliminary Injunction; 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 1/5/2015. (cc: Plaintiff, Pro Se) (arb)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD CHRISTOPHER L. HARRIS, Plaintiff, v. Civil Action No: 1:14-15925 K. MARTIN, et al., Defendants. MEMORANDUM OPINION AND ORDER Pending before the court are plaintiff’s application to proceed without prepayment of fees, (Doc. No. 1), plaintiff’s complaint, (Doc. No. 2), and plaintiff’s motion for a preliminary injunction. (Doc. No. 7). 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. 6). Magistrate Judge VanDervort submitted to the court his Proposed Findings and Recommendation on October 28, 2014. In the PF&R, Magistrate Judge VanDervort recommended that the district court dismiss plaintiff’s complaint for failure to exhaust his administrative remedies, deny plaintiff’s application to proceed without prepayment of fees, deny plaintiff’s motion for a preliminary injunction, and remove this matter from the court’s docket. (Doc. No. 11). 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, DENIES plaintiff’s application to proceed without prepayment of costs, (Doc. No. 1), DENIES plaintiff’s motion for a preliminary injunction, (Doc. No. 7), 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 5th day of January, 2015. ENTER: David A. Faber Senior United States District Judge 3

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