Buzzard v. Ballard et al

Filing 42

MEMORANDUM OPINION AND ORDER adopting the 26 Proposed Findings and Recommendation by Magistrate Judge; denying as moot all claims for declaratory and injunctive relief asserted in Plaintiff's 25 Second Amended Complaint; and dismissing Plaintiff's official capacity claims against Defendant Rubenstein. Signed by Judge Thomas E. Johnston on 6/21/2016. (cc: counsel of record; any unrepresented party) (taq)

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

DAVID DEAN BUZZARD, JR.
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-06376

DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Second Amended Complaint, (ECF No. 25), which
seeks damages and declaratory and injunctive relief based on the alleged constitutional violations
of various officials at Mount Olive Correctional Complex and Jim Rubenstein, the commissioner
of the West Virginia Division of Corrections. On May 18, 2015, this action was referred to United
States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and
recommendations.

(ECF No. 5.)

Magistrate Judge Tinsley filed a proposed finding and

recommendation (“PF&R”) on May 20, 2016, recommending that this Court deny as moot all of
Plaintiff’s requests for declaratory and injunctive relief and dismiss Plaintiff’s official capacity
claims against Defendant Rubenstein. (ECF No. 26.)
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 a party’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 this PF&R were due on June 6, 2016. To date, no objections have been
filed.
Accordingly, the Court ADOPTS the PF&R, (ECF No. 26), DENIES AS MOOT all
claims for declaratory and injunctive relief asserted in Plaintiff’s Second Amended Complaint, and
DISMISSES Plaintiff’s official capacity claims against Defendant Rubenstein.
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:

June 21, 2016