Vance v. West Virginia State Police

Filing 23

MEMORANDUM OPINION AND ORDER: The court DENIES plaintiff's 22 Motion for a Stay and Abeyance. The court ADOPTS the 19 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn, DENIES plaintiff's 1 Application to Proc eed Without Prepayment of Fees and Costs, GRANTS defendant's 8 Motion to Dismiss, DISMISSES plaintiff's 2 and 3 Complaints, and DIRECTS the Clerk to remove this matter from the court's active docket. Signed by Senior Judge David A. Faber on 3/1/2018. (cc: plaintiff, pro se and counsel of record) (arb)

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

CIVIL ACTION NO. 1:16-10725

WEST VIRGINIA STATE POLICE
POCAHONTAS COUNTY DETACHMENT,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, the action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings of fact and recommendations regarding disposition
pursuant to 28 U.S.C. § 636(b)(1)(B).

Magistrate Judge Aboulhosn

submitted his Findings and Recommendation (“PF&R”) to the court
on November 13, 2017, in which he recommended that the court deny
plaintiff’s application to proceed without prepayment of fees and
costs, grant defendant’s motion to dismiss, dismiss plaintiff’s
complaints, and remove this matter from the court’s docket.
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 Aboulhosn’s
Findings and Recommendations.

On December 5, 2017, the court

granted plaintiff’s motion for an extension of time in which to
file objections, giving him until December 27, 2017 to do so.
Rather than filing objections, on December 28, 2017, plaintiff

filed a Motion for A Stay and Abeyance.

In that motion, Vance

asked the court to stay this matter pending a ruling on a “Rule
35(a)” Motion he has pending in the Circuit Court of Pocahontas
County.

However, the grounds raised in the state court motion

have no bearing on the issues raised in this 42 U.S.C. § 1983
action.

Furthermore, Vance has not explained how the outcome of

his state court motion will affect the analysis contained within
the PF&R and the court can find no reasonable relationship
between the two.

For this reason, the Motion for a Stay and

Abeyance is DENIED.
The failure of any party to file objections within the
time allowed constitutes a waiver of such party's right to a de
novo review by this court.
(4th Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363

Neither party filed any objections to the

magistrate judge's Findings and Recommendations within the
requisite time period.

Accordingly, the court adopts the

Findings and Recommendations of Magistrate Judge Aboulhosn and
DENIES plaintiff’s application to proceed without prepayment of
fees and costs, GRANTS defendant’s motion to dismiss, DISMISSES
plaintiff’s complaints, and DIRECTS the Clerk to remove this
matter from the court’s active docket.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.

2

IT IS SO ORDERED this 1st day of March, 2018.
ENTER:

David A. Faber
Senior United States District Judge

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