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)

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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

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