Miller v. Ballard et al

Filing 8

MEMORANDUM OPINION AND ORDER adopting the 6 Proposed Findings and Recommendation; dismissing the 2 complaint; denying plaintiff's 1 Application to Proceed without Prepayment of Fees and Costs; and directing this case removed from the Court's docket. Signed by Judge Thomas E. Johnston on 4/7/2014. (cc: plaintiff; attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

ANDREW MILLER,
Plaintiff,
v.

CIVIL ACTION NO. 2:13-cv-08573

DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Andrew Miller, pro se, an inmate at the Mount Olive Correctional Complex
(“prison”) in Mount Olive, West Virginia, filed an Application to Proceed without Prepayment of
Fees and Costs [ECF 1] and a Complaint [ECF 2]. In his Complaint, Plaintiff alleges that
Defendants have acted unreasonably in handling his complaints about one of the prison’s
rehabilitative programs.
By Standing Order entered on April 8, 2013, and filed in this case on April 22, 2013, this
action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and a recommendation (PF&R) pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Tinsley filed a PF&R on March 10, 2014 [ECF 6]. In that filing, the magistrate
judge recommended that this Court dismiss Petitioner’s Complaint under 28 U.S.C. § 1915A for
failing to state a facially plausible claim for relief. The magistrate judge also recommended that
the Court deny Plaintiff’s application to proceed without prepayment of fees and costs.
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.” 28 U.S.C. § 636(b)(1)(C).

The Court is not, however, required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a petitioner “makes general and conclusory
objections that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the
PF&R were due March 27, 2014. To date no objections have been filed.
Accordingly, the Court ADOPTS the PF&R [ECF 6], DISMISSES the Complaint [ECF
2], DENIES Plaintiff’s application to proceed without prepayment of fees and costs [ECF 1], and
DIRECTS the Clerk to remove this case from the Court's docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

2

April 7, 2014