Vanderhart v. Felts et al

Filing 21

MEMORANDUM OPINION AND ORDER: adopting the 20 Proposed Findings and Recommendation of the Magistrate Judge; granting the 12 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, filed by Dominick McLain, Scott Rose, and Charles T. Felts; dismissing Plaintiff's 2 Complaint; ordering that this matter be removed from the Court's docket. Signed by Judge Irene C. Berger on 3/6/2012. (cc: attys; any unrepresented party) (slr)

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

JOSEPH LEE VANDERHART,
Plaintiff,
v.

CIVIL ACTION NO. 5:10-cv-00492

CHARLES T. FELTS, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
On April 16, 2010, Plaintiff filed his Complaint (Document 2) in this matter claiming
entitlement to relief pursuant to the Federal Tort Claims Act U.S.C. §§ 1346(b) and 2671, et seq.,
and for alleged violations of his constitutional and civil rights pursuant to Bivens v. Six Unknown
Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). By Standing Order
(Document 6) entered on April 16, 2010, this action was referred to the Honorable R. Clarke
VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings
of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
On June 9, 2011, Defendants’ filed their Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment (Document 12) along with their supportive memorandum (Document
13). On September 23, 2011, Plaintiff filed his response to Defendants’ motion. (Document 19).
On February 15, 2012, the Magistrate Judge submitted Proposed Findings and Recommendation
(“PF&R”) (Document 20), wherein it is recommended that this Court grant Defendants’ Motion
to Dismiss, or in the Alternative Motion for Summary Judgment, dismiss Plaintiff’s Complaint,
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). Failure to file
timely objections constitutes a waiver of de novo review and the Petitioner'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 by March 5, 2012. To date, no party has filed objections.
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation (Document 20), and ORDERS that Defendants’ Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment (Document 12) be GRANTED and Plaintiff’s
Complaint (Document 2) be DISMISSED. The Court further ORDERS that this matter be
removed from its docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: March 6, 2012

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