Simmons v. Martin et al

Filing 22

ORDER the Court ADOPTS the 16 Proposed Findings and Recommendation by Magistrate Judge; and DISMISSES this action from the docket of the Court; denying plaintiff's 19 Letter-Form Motion for Appointment of Counsel. Signed by Judge Thomas E. Johnston on 4/24/2018. (cc: counsel of record; any unrepresented party) (taq)

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

AARON K. SIMMONS,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-27352

PREECE MARTIN et al.,
Defendants.

ORDER

Pending before the Court is Plaintiff’s Complaint. By Standing Order entered on October
29, 2014, this action was referred to United States Magistrate Judge Dwane L. Tinsley for
submission of proposed findings and a recommendation for disposition (“PF&R”).1 (ECF No. 5.)
Magistrate Judge Tinsley filed his PF&R on April 3, 2018, recommending that this Court dismiss
Plaintiff’s claim pursuant to Federal Rule of Civil Procedure 4(m) for failure to properly serve
Defendant. (ECF No. 16.)
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

1

Also pending before the Court is Plaintiff’s motion for appointment of counsel. (ECF No. 19.) Plaintiff was
previously advised that he has no constitutional right to counsel in this civil action. (See ECF No. 15.) Appointment
of counsel in civil cases is solely within the discretion of the court and denial of a plaintiff’s request for appointment
of counsel constitutes an abuse of the court’s discretion only if the plaintiff’s case presents “exceptional
circumstances.” Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984) (abrogated on other grounds by Mallard v. United
States Dist. Court, 490 U.S. 296 (1989)). Here, there are no exceptional circumstances that would warrant
appointment of counsel for Plaintiff. See id. at 163 (“If it is apparent to the district court that a pro se litigant has a
colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him.”)
Accordingly, Plaintiff’s motion for appointment of counsel is DENIED. (ECF No. 19.)

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 Plaintiff’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 in this case were due on April 20, 2018. (ECF No. 16.) To date,
Plaintiff has failed to submit any objections in response to the PF&R, thus constituting a waiver
of de novo review.
Accordingly, the Court ADOPTS the PF&R, (ECF No. 16) and DISMISSES this action
from the docket of the Court.
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:

April 24, 2018