Pertuset v. Clifford

Filing 17

ORDER this Court ADOPTS the 16 Proposed Findings and Recommendation of the Magistrate Judge; DENIES the 1 Application by Troy Pertuset to Proceed without Prepayment of Fees or Costs; and DISMISSES this action without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b); and further DIRECTS the Clerk to remove this matter from this Court's docket. Signed by Judge Thomas E. Johnston on 10/31/2018. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
TROY PERTUSET,
Plaintiff,
v.

CIVIL ACTION NO. 2:16-cv-10554

MARGARET CLIFFORD,
Defendant.

ORDER
Before this Court are Plaintiff Troy Pertuset’s (“Plaintiff”) Complaint, (ECF No. 3),
Application to Proceed Without Prepayment of Fees and Costs, (ECF No. 1). By Standing Order
entered on January 4, 2016, and filed in this case on November 4, 2016, this action was referred
to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a
recommendation for disposition (“PF&R”). (ECF No. 9.) On May 8, 2017, Magistrate Judge
Tinsley entered an Order directing Plaintiff to file an amended complaint by June 8, 2017. (ECF
No. 13.)
More than one year after the deadline set forth in the Order, Plaintiff still had not filed an
amended complaint or otherwise participated in the litigation.

Therefore, Magistrate Judge

Tinsley entered a PF&R on June 21, 2018, recommending that this Court find that Plaintiff has
failed to prosecute this civil action, dismiss the matter without prejudice, and deny as moot
Plaintiff’s application to proceed without prepayment of fees and costs. (ECF No. 16.) 1

This Court notes that this action in part requests injunctive relief related to Plaintiff’s incarceration at the Mount
Olive Correctional Complex in Mount Olive, West Virginia. It does not appear that Plaintiff remains incarcerated in
this facility, so the request for injunctive relief would be moot.

1

This 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 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 July 9, 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 and Plaintiff’s right to appeal this Court’s order.
Accordingly, this Court ADOPTS the PF&R, (ECF No. 16), DENIES Plaintiff’s
Application to Proceed Without Prepayment of Fees and Costs, (ECF No. 1), and DISMISSES
this action without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b). This Court further DIRECTS the Clerk to remove this matter from this Court’s docket.
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:

October 31, 2018