Miller v. Stuckey et al

Filing 8

MEMORANDUM OPINION AND ORDER the Court ADOPTS the 6 Proposed Findings and Recommendation by Magistrate Judge; and FINDS that Plaintiff's 2 Complaint fails to state a claim upon which relief can be granted; DENIES Plaintiff's 1 APPL ICATION to Proceed without Prepayment of Fees and Costs and 3 MOTION to Proceed In Forma Pauperies [sic]; DISMISSES this civil action pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A; and DIRECTS the Clerk to remove this matter from the Court's docket. Signed by Judge Thomas E. Johnston on 9/20/2018. (cc: counsel of record; any unrepresented party) (taq)

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

ANDREW MILLER,
Plaintiff,
v.

CIVIL ACTION NO. 2:17-cv-04398

JAMES STUCKY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiff’s Application to Proceed Without Prepayment of
Fees and Costs, (ECF No. 1), and Motion to Proceed In Forma Pauperies [sic], (ECF No. 3). By
Standing Order filed in this case on November 27, 2017, 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. 5.) Magistrate Judge Tinsley filed his PF&R on August
27, 2018, recommending that this Court find that Plaintiff fails to state a claim upon which relief
can be granted, dismiss this matter pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, and deny
both the Application to Proceed Without Prepayment of Fees and Costs, (ECF No. 1), and Motion
to Proceed In Forma Pauperies [sic], (ECF No. 3). (ECF No. 6.)
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 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 September 13, 2018. To date, no
objections have been filed. Accordingly, the Court ADOPTS the PF&R, (ECF No. 6), and
FINDS that Plaintiff’s Complaint, (ECF No. 2), fails to state a claim upon which relief can be
granted. The Court further DENIES Plaintiff’s Application to Proceed Without Prepayment of
Fees and Costs, (ECF No. 1), and Motion to Proceed In Forma Pauperies [sic], (ECF No. 3),
DISMISSES this civil action pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, and DIRECTS
the Clerk to remove this matter from the 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:

September 20, 2018