Proctor v. South Central Regional Jail

Filing 9

ORDER adopting the 8 Proposed Findings and Recommendation by Magistrate Judge; denying the 1 Application by Dakota Steven Proctor to Proceed without Prepayment of Fees and Costs; and DISMISSES this action without prejudice for failure to pro secute pursuant to Federal Rule of Civil Procedure 41(b); denying as moot the 4 motion to proceed before a magistrate; and DIRECTS the Clerk to remove this matter from this Court's docket. Signed by Judge Thomas E. Johnston on 1/14/2019. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DAKOTA STEVEN PROCTOR,
Plaintiff,
v.

CIVIL ACTION NO. 2:18-cv-00954

SOUTH CENTRAL REGIONAL JAIL,
Defendant.

ORDER
Before this Court are Plaintiff Dakota Steven Proctor’s (“Plaintiff”) Complaint, (ECF No.
2), and 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 May 21, 2018, 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. 3.)
After being notified that Plaintiff was no longer incarcerated, Magistrate Judge Tinsley
ordered Plaintiff to appear in person at a status conference set for November 8, 2018. (ECF No.
5.) Plaintiff failed to appear. (See ECF No. 8 at 2.) Magistrate Judge Tinsley thereafter ordered
Plaintiff to show cause why this matter should not be dismissed for failure to prosecute pursuant
to Federal Rule of Civil Procedure 41(b). (ECF No. 6.) Plaintiff did not respond by the deadline
in that Order. Therefore, Magistrate Judge Tinsley entered a PF&R on November 27, 2018,
recommending that this Court find that Plaintiff has failed to prosecute this civil action, dismiss

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the matter without prejudice, and deny as moot Plaintiff’s application to proceed without
prepayment of fees and costs. (ECF No. 8.)
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 December 14, 2018. (ECF No. 8.) 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. 8), 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 also DENIES AS MOOT Plaintiff’s motion to proceed before a magistrate.
(ECF No. 4.) This Court further DIRECTS the Clerk to remove this matter from this Court’s
docket.
IT IS SO ORDERED.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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January 14, 2019