Visconi v. Warner et al

Filing 24

MEMORANDUM OPINION AND ORDER adopting the 22 Proposed Findings and Recommendation of the Magistrate Judge; finding that plaintiff has not demonstrated that he has standing to bring this lawsuit and that this Court lacks subject matter juris diction over plaintiff's 1 complaint; denying as moot plaintiff's 5 , 7 , and 8 motions for leave to file supplementary pleadings/information, defendants' 11 motion to dismiss and plaintiff's 12 motion for default jud gment; denying plaintiff's 23 motion for an extension of time to file objections; and dismissing this civil action pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. Signed by Judge Thomas E. Johnston on 3/10/2015. (cc: plaintiff; counsel of record; any unrepresented party) (taq)

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

FRANK J. VISCONI,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-15592

PAUL D. WARNER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are three motions filed by Plaintiff for leave to file supplementary
pleadings/information [ECF 5, 7, and 8], Defendants’ motion to dismiss [ECF 11], and Plaintiff’s
motion for default judgment [ECF 12]. By Standing Order entered February 7, 2014, and entered
in this case on March 30, 2014, 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 his PF&R [ECF 22] on February 20, 2015, recommending that this Court
dismiss this action for lack of subject matter jurisdiction.
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&R were due on March
9, 2015. To date, no objections have been filed. 1
Accordingly, the Court ADOPTS the PF&R [ECF 22], FINDS that Plaintiff has not
demonstrated that he has standing to bring this lawsuit and that therefore this Court lacks subject
matter jurisdiction over Plaintiff’s Complaint, DENIES AS MOOT all pending motions [ECF 5,
7, 8, 11, and 12], and DISMISSES this civil action pursuant to Rule 12(h)(3) of the Federal Rules
of Civil Procedure. A separate Judgment Order will enter this day implementing the rulings
contained herein.
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:

March 10, 2015

1 On March 10, 2014, Plaintiff filed a motion for an extension of time to file objections [ECF 23]. Because good
cause was not shown, Plaintiff’s motion is DENIED.

2