Cantrell v. Rubenstein et al

Filing 66

MEMORANDUM OPINION AND ORDER adopting the 60 Proposed Findings and Recommendation of the Magistrate Judge; denying with prejudice the 45 Motion to Dismiss; and permits this matter to proceed. Signed by Judge Thomas E. Johnston on 8/14/2015. (cc: plaintiff, pro se; counsel of record; any unrepresented party) (taq)

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

LARRY WAYNE CANTRELL,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-17419

JIM RUBENSTEIN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

On June 3, 2014, Plaintiff Larry Wayne Cantrell filed a Complaint pursuant to 42 U.S.C. §
1983. (ECF 2.) On the same day, this action was referred to United States Magistrate Dwane L.
Tinsley for submission of proposed findings and a recommendation (“PF&R”). On February 9,
2015, a motion to dismiss was filed in this matter, purportedly by Plaintiff.

[ECF 45.]

Magistrate Judge Tinsley filed a PF&R on July 8, 2015, noting that it appears that a non-party to
this case improperly filed the motion to dismiss and recommending that this Court deny the motion
with prejudice. [ECF 60.]
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. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and the Defendant’s right to appeal this
Court’s Order. See 28 U.S.C. § 636(b)(1); 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 July 27, 2015. To date, no objections have been
filed.
Accordingly, the Court ADOPTS the PF&R [ECF 60], DENIES WITH PREJUDICE
the motion to dismiss [ECF 45], and permits this matter to proceed.
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:

August 14, 2015