Villegas v. Connelly et al

Filing 25

MEMORANDUM OPINION AND ORDER The court finds that the second 19 Proposed Findings and Recommendation by Magistrate Judge renders the first 6 Proposed Findings and Recommendation by Magistrate Judge moot and adopts the second 19 Proposed Finding s and Recommendation as follows: Plaintiff's 5 amended complaint is DISMISSED without prejudice, and this case is removed from the court's docket. Furthermore, because the court construed plaintiff's letter as timely notice that he did not wish to prosecute his case, the court ORDERS that the Clerk refund any portion of the filing fee that the court has received. Signed by Senior Judge David A. Faber on 5/6/2022. (cc: counsel of record; any unrepresented parties) (mk)

Case 1:21-cv-00003 Document 25 Filed 05/06/22 Page 1 of 4 PageID #: 109

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JULIAN VILLEGAS,
Plaintiff,
v.

Civil Action No. 1:21-00003

LIEUTENANT C. CONNELLY,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

Magistrate Judge Aboulhosn submitted to

the court his first Proposed Findings and Recommendation
(“PF&R”) on April 14, 2021, in which he recommended that the
court dismiss plaintiff’s amended complaint (ECF No. 5) as to
plaintiff’s claim of being subjected to unconstitutional
conditions of confinement in violation of the Eighth Amendment;
and refer this matter back to him for further proceedings on
plaintiff’s claim of being subjected to excessive force and
deliberate indifference in violation of the Eighth Amendment.
(ECF No. 6.)
The same day, Magistrate Judge Aboulhosn entered an order
granting plaintiff’s application to proceed without prepayment

Case 1:21-cv-00003 Document 25 Filed 05/06/22 Page 2 of 4 PageID #: 110

of fees.

(ECF No. 7.)

That order included the following

notice:
NOTICE TO PLAINTIFF: IF YOU DO NOT WISH TO PAY THE
FILING FEE AS SET FORTH IN THIS ORDER, YOU MUST NOTIFY
THE COURT BY WRITING A LETTER TO THE CLERK AND BY
STATING THAT YOU DO NOT WISH TO PROSECUTE THIS CIVIL
ACTION. IF YOU WRITE SUCH A LETTER, THIS CASE WILL BE
DISMISSED WITHOUT PREJUDICE. YOU MUST SEND THE LETTER
WITHIN THIRTY (30) DAYS OF THE DATE OF ENTRY OF THIS
ORDER.
(Id. at 2.)
Within the 30-day window, plaintiff sent a letter to the
Clerk stating that he did not wish to pay the filing fee.
Plaintiff did not expressly state, however, that he had decided
not to prosecute the case.

In fact, in confusing language, he

seemed to suggest that the Mexican Embassy may represent him and
emphasized his need for safety.

(See ECF No. 15.)

Given the

ambiguity, Magistrate Judge Aboulhosn provided plaintiff with
notice that the court would construe his letter as expressing an
intent not to prosecute the case and that the case would be
dismissed unless plaintiff stated otherwise within two weeks:
Plaintiff is NOTIFIED that the Court is construing his
above Response (Document No. 15) as a notice that
Plaintiff does not wish to pay the filing fee in the
above action, the above case will be dismissed without
prejudice, and any filing fee made by Plaintiff will
be returned. If this is not Plaintiff’s intention,
Plaintiff shall notify the Court on or before May 25,
2021. Failure of Plaintiff provide such notice to the
Court on or before May 25, 2021, will result in the
dismissal of the above action without prejudice.
(ECF No. 16, at 1-2.)
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Several months passed with no response from plaintiff.
Magistrate Judge Aboulhosn then filed another PF&R recommending
that the court dismiss the amended complaint without prejudice.
(ECF No. 19.)
With each PF&R, in accordance with the provisions of 28
U.S.C. § 636(b), the parties were allotted fourteen days and
three mailing days in which to file objections to the PF&R.

The

failure of any party to file such objections within the time
allowed constitutes a waiver of such party’s right to a de novo
review by this court.

See Thomas v. Arn, 474 U.S. 140, 149-50

(1985); Snyder v. Ridenour, 889 F.2d 1363, 1365-66 (4th Cir.
1989); see also 28 U.S.C. § 636(b)(1) (“A judge of the court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.” (emphasis added)).
Neither party filed objections to either PF&R within the
required time period.

The court finds that the second PF&R

renders the first PF&R (ECF No. 6) moot and adopts the second
PF&R (ECF No. 19) as follows:

Plaintiff’s amended complaint

(ECF No. 5) is DISMISSED without prejudice, and this case is
removed from the court’s docket.
Furthermore, because the court construed plaintiff’s letter
as timely notice that he did not wish to prosecute his case, the

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court ORDERS that the Clerk refund any portion of the filing fee
that the court has received.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and any unrepresented
parties.
IT IS SO ORDERED this 6th day of May, 2022.
ENTER:
David A. Faber
Senior United States District Judge

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