Collins v. Plumley

Filing 10

ORDER construing the plaintiff's 5 appeal as an objection; adopting the 3 Proposed Findings and Recommendation; finding that this court lacks jurisdiction over the Petition; denying the 1 Petition for Writ of Mandamus. Signed by Judge Joseph R. Goodwin on 8/6/2014. (cc: petitioner; attys; any unrepresented party) (taq)

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

PATRICK SHAWN COLLINS,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-05473

MARVIN PLUMLEY,
Defendant.

ORDER
This action was referred to the Honorable Dwane L. Tinsley, United States Magistrate
Judge, for submission of proposed findings of fact and recommendation for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B). Judge Tinsley submitted proposed findings and recommended
[Docket 3] that I dismiss the plaintiff’s Petition for Writ of Mandamus for Immediate Release from
Custody (“Petition”) [Docket 1]. Judge Tinsley’s Proposed Findings and Recommendation
(“PF&R”) recommended I deny the petition “as being legally frivolous and failing to state a claim
upon which relief can be granted.” (PF&R [Docket 3], at 4).
The PF&R instructed the plaintiff that he had seventeen days to file objections to the PF&R
with the court (fourteen days for the filing of objections and three days for service and mailing).
(See PF&R [Docket 3], at 4). The PF&R further instructed the plaintiff that failure to file written
objections would constitute a waiver of de novo review of the PF&R. (See id.). Despite this notice,
rather than file objections to the PF&R, the plaintiff appealed the PF&R to the Fourth Circuit. (See
Notice of Appellate Case Opening [Docket 4]). The Fourth Circuit noted that it “does not have

jurisdiction to grant mandamus relief against state officials, and does not have jurisdiction to
review final state court orders.” (Fourth Circuit Opinion [Docket 7], at 2) (internal citations
omitted). The court granted leave to proceed in forma pauperis but denied the petition for writ of
mandamus. (See id. at 2-3). It also noted “[t]o the extent Collins’s filing could be construed as an
appeal of the proposed findings and recommendation entered by the magistrate judge in his
pending case in the district court, we lack jurisdiction to consider the appeal because the district
court has not issued a final order.” (Id. at 2-3).
I have reviewed the PF&R and construed the plaintiff’s appeal as an objection to it. For the
reasons set forth in the PF&R and the Fourth Circuit’s opinion, I FIND that this court lacks
jurisdiction over the Petition. The Petition [Docket 1] is DENIED. The court DIRECTS the Clerk
to send a copy of this Order to counsel of record and any unrepresented party.

ENTER:

August 6, 2014