Fleming v. State of West Virginia

Filing 10

MEMORANDUM OPINION AND ORDER: adopting in its entirety the 8 Proposed Findings and Recommendations; denying 1 Application to Proceed without Prepayment of Fees or Costs filed by Billy Fleming; dismissing Plaintiff's 3 Complaint; dismissing this case with prejudice. Signed by Judge Thomas E. Johnston on 4/7/2009. (cc: attys; any unrepresented party) (slr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION BILLY FLEMING, Plaintiff, v. STATE OF WEST VIRGINIA, et al., Defendants. CIVIL ACTION NO. 5:08-cv-00267 MEMORANDUM OPINION Pending before the Court is Plaintiff's Application to Proceed Without Prepayment of Fees [Docket 1]. By Standing Order entered on August 1, 2006, and filed in this case on April 21, 2008, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings and a recommendation (PF&R). Magistrate Judge VanDervort filed his PF&R [Docket 8] on March 16, 2009, recommending that this Court deny Plaintiff's Application to Proceed Without Prepayment of Fees, dismiss Plaintiff's Complaint [Docket 3], and remove this matter from the Court's docket. 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). In addition, failure to file timely objections constitutes a waiver of de novo review and Plaintiff's right to appeal this Court's Order. Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge VanDervort's PF&R were due by April 2, 2009, pursuant to 28 U.S.C. 636(b)(1) and Fed. R. Civ. P. 72(b). To date, no objections have been filed. Accordingly, the Court ADOPTS the PF&R [Docket 8] in its entirety, DENIES Plaintiff's Application to Proceed Without Prepayment of Fees [Docket 1], DISMISSES Plaintiff's Complaint [Docket 3], and DISMISSES this case with prejudice. A separate Judgment Order will enter this day implementing the rulings contained herein. 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 7, 2009 _________________________________________ THOMAS E. JOHNSTON UNITED STATES DISTRICT JUDGE 2

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