Howard v. Ballard

Filing 153

MEMORANDUM OPINION AND ORDER adopting the 150 , 151 Proposed Findings and Recommendation by Magistrate Judge; granting Defendant Kelly Foster's 133 Motion to Dismiss; dismissing WITH PREJUDICE Kelly Foster as a defendant in this case; denying Plaintiff's 138 Letter-Form Motion for Judgment by Default; and DISMISSES WITHOUT PREJUDICE Defendants Cory DiMallo, Lyle Lesher, James McCloud, T.E. Tawes, M.A. Elswick, and Officer Godfrey pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Signed by Judge Thomas E. Johnston on 2/24/2017. (cc: counsel of record; any unrepresented party) (taq)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION JOSEPH EUGENE HOWARD, Plaintiff, v. CIVIL ACTION NO. 2:13-cv-11006 MOCC STAFF MEMBER DANIEL HAHN, et al., Defendants. MEMORANDUM OPINION AND ORDER Before the Court is Defendant Kelly Foster’s Motion to Dismiss (ECF No. 133) and Plaintiff Joseph Eugene Howard’s Letter-Form Motion for Judgment by Default (ECF No. 138). By Standing Order entered April 8, 2013, and filed in this case on May 14, 2013, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation (PF&R). Magistrate Judge Tinsley filed two PF&Rs (ECF Nos. 150 and 151) on February 1, 2017, recommending that this Court GRANT Defendant Foster’s Motion to Dismiss, DENY Plaintiff’s Letter-Form Motion for Judgment by Default (ECF No. 138), and DISMISS Defendants Cory DiMallo, Lyle Lesher, James McCloud, T.E. Tawes, M.A. Elswick, and Officer Godfrey, without prejudice, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. The Court is not 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). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de novo review when a party “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&Rs in this case were due on February 21, 2017. To date, no objections have been filed. Accordingly, the Court ADOPTS the PF&Rs (ECF Nos. 150 and 151), GRANTS Defendant Kelly Foster’s Motion to Dismiss (ECF No. 133) and DISMISSES WITH PREJUDICE Kelly Foster as a defendant in this case, DENIES Plaintiff’s Letter-Form Motion for Judgment by Default (ECF No. 138), and DISMISSES WITHOUT PREJUDICE Defendants Cory DiMallo, Lyle Lesher, James McCloud, T.E. Tawes, M.A. Elswick, and Officer Godfrey pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. 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 February 24, 2017

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