Hernandez v. Rokosky

Filing 13

MEMORANDUM OPINION AND ORDER adopting the 11 Proposed Findings and Recommendations by Magistrate Judge Aboulhosn; GRANTING defendant's 8 Motion to Dismiss and directing the Clerk to remove this case from the court's active docket; further DENYING a certificate of appealability. Signed by Senior Judge David A. Faber on 8/29/2024. (cc: plaintiff and counsel of record) (jsa)

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

CIVIL ACTION NO. 1:24-00225

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

Magistrate Judge Aboulhosn submitted

to the court his Findings and Recommendation (“PF&R”) on July
12, 2024, in which he recommended that the district court grant
defendant’s motion to dismiss 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
Aboulhosn’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.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Snyder v.

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 Aboulhosn, the court
adopts the findings and recommendations contained therein.
Accordingly, the court hereby GRANTS defendant’s motion to
dismiss 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 29th day of August, 2024.
ENTER:
David A. Faber
Senior United States District Judge

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