Cole v. Maruka

Filing 10

MEMORANDUM OPINION AND ORDER adopting the 9 Proposed Findings and Recommendations by Magistrate Judge; denying petitioner's 1 Petition under 28 U.S.C. § 2241; granting the respondent's 6 motion to dismiss; and directing the Clerk to remove the matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 5/10/2022. (cc: petitioner, pro se; counsel of record) (mk)

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Case 1:21-cv-00318 Document 10 Filed 05/10/22 Page 1 of 3 PageID #: 128 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD WAYNE A. COLE, Plaintiff, v. CIVIL ACTION NO. 1:21-00318 BRADLEY M. TRATE, Warden, Defendant. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation (“PF&R”) on April 14, 2022, in which she recommended that the district court deny plaintiff’s petition under 28 U.S.C. § 2241 for failure to exhaust administrative remedies; grant defendant’s motion to dismiss; dismiss plaintiff’s claim without prejudice; and remove the 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 Eifert’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. (4th Cir. 1989). Snyder v. Ridenour, 889 F.2d 1363 Case 1:21-cv-00318 Document 10 Filed 05/10/22 Page 2 of 3 PageID #: 129 The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation within the seventeen-day period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DENIES plaintiff’s petition under 28 U.S.C. § 2241; GRANTS defendants’s motion to dismiss; DISMISSES plaintiff’s claim without prejudice; and DIRECTS the Clerk to remove the matter from the court’s docket. 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). 28 U.S.C. § 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 Case 1:21-cv-00318 Document 10 Filed 05/10/22 Page 3 of 3 PageID #: 130 The Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff, pro se, and counsel of record. IT IS SO ORDERED this 10th day of May, 2022. ENTER: David A. Faber Senior United States District Judge 3

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