Cole v. Maruka
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)
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
WAYNE A. COLE,
CIVIL ACTION NO. 1:21-00318
BRADLEY M. TRATE, Warden,
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
Having reviewed the Findings and
Recommendation filed by Magistrate Judge Eifert, the court adopts
the findings and recommendations contained therein.
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).
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
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.
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
IT IS SO ORDERED this 10th day of May, 2022.
David A. Faber
Senior United States District Judge
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