Vance v. Pocahontas Sheriff Department

Filing 14

MEMORANDUM OPINION AND ORDER: The court DENIES plaintiff's 13 Motion for a Stay and Abeyance; ADOPTS the 9 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; DENIES plaintiff's 1 Application to Proceed Without Prepayment of Fees and Costs; DISMISSES this matter without prejudice (ECF Nos. 2, 3); and DIRECTS the Clerk to remove this case from the court's docket. Signed by Senior Judge David A. Faber on 4/18/2018. (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. 1:16-10730

POCAHONTAS SHERIFF DEPARTMENT,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s complaint alleging
defendant violated his constitutional and civil rights pursuant
to 42 U.S.C. § 1983.1

ECF Nos. 2, 3.

By Standing Order, the

matter was referred to United States Magistrate Judge Omar J.
Aboulhosn for submission of proposed findings and
recommendations (“PF&R”) for disposition pursuant to 28 U.S.C. §
636(b)(1)(B).

On November 13, 2017, the magistrate judge

submitted his PF&R, in which he recommended that the district
court (1) deny plaintiff’s application to proceed without
prepayment of fees and costs (ECF No. 1), (2) dismiss this
matter without prejudice due to plaintiff’s failure to exhaust

1

Plaintiff has initiated three similar 42 U.S.C. § 1983 civil
actions with this court: (1) Vance v. West Virginia State
Police, Case No. 1:16-cv-10725; (2) Vance v. Lightner, Case No.
1:16-cv-12296; and (3) Vance v. West Virginia State Police, Case
No. 1:17-cv-01085.

(ECF Nos. 2,3), and (3) remove the matter from the court’s
docket.

See ECF No. 9.

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

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).
On December 8, 2017, the court granted plaintiff's motion
for an extension of time to file objections, giving him until
December 27, 2017 to do so.

ECF No. 12.

Rather than filing

objections by this deadline, plaintiff filed a Motion for A Stay
and Abeyance on December 28, 2017.

ECF No. 13.

In that motion,

Vance requested that the court stay this matter pending a ruling
on a “Rule 35(a)” Motion 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.

Additionally, 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.2
Accordingly, plaintiff failed to file any objections to
Magistrate Judge Aboulhosn’s Findings and Recommendation by the
extended December 27, 2017 deadline, thereby waiving plaintiff’s
right to a de novo review.

See Snyder, 889 F.2d 1363.

Having

reviewed the Findings and Recommendation, the court hereby
ADOPTS the factual and legal analysis contained within the PF&R,
(ECF No. 9), DENIES plaintiff’s application to proceed without
prepayment of fees and costs, (ECF No. 1), DISMISSES this matter
without prejudice, (ECF Nos. 2,3), 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 counsel of record and plaintiff,
pro se.
It is SO ORDERED this 18th day of April, 2018.
ENTER:
David A. Faber
Senior United States District Judge

2

Plaintiff filed the same Motion for a Stay and Abeyance in
Vance v. West Virginia State Police Pocahontas Cty. Detachment,
which the court also denied. See No. CV 1:16-10725, 2018 WL
1129372, at *1 (S.D.W. Va. Mar. 1, 2018).