Washburn v. Warden

Filing 12

MEMORANDUM OPINION AND ORDER adopting the 11 Proposed Findings and Recommendation by Magistrate Judge; granting the 9 Motion by Warden, FPC Alderson to Dismiss; denying as moot the 1 Petition by Cherie Washburn for Writ of Habeas Corpus (2241); dismissing this civil action and directing the Clerk to remove this case from the court's active docket; additionally, denying a certificate of appealability. Signed by Senior Judge David A. Faber on 11/14/2023. (cc: plaintiff and counsel of record) (arb)

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

CIVIL ACTION NO. 1:23-00034

WARDEN, FPC ALDERSON,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of
findings and recommendations regarding disposition pursuant to
28 U.S.C. § 636(b)(1)(B).

Magistrate Judge Tinsley submitted to

the court his Findings and Recommendation (“PF&R”) on October
13, 2023, in which he recommended that the district court grant
defendant’s motion to dismiss; deny as moot plaintiff’s petition
under 28 U.S.C. § 2241, dismiss this civil action, 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
Tinsley’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.
889 F.2d 1363 (4th Cir. 1989).

Snyder v. Ridenour,

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 Tinsley, the court
adopts the findings and recommendations contained therein.
Accordingly, the court hereby GRANTS defendant’s motion to
dismiss, DENIES as moot plaintiff’s petition under 28 U.S.C. §
2241, DISMISSES this civil action, and directs the Clerk to
remove this case from the court’s active 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.

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Accordingly, the

The Clerk is directed to forward a copy of this
Memorandum Opinion and Order to plaintiff and counsel of record.
IT IS SO ORDERED this 14th day of November, 2023.
ENTER:

David A. Faber
Senior United States District Judge

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