Piziak v. Keller et al

Filing 24

MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the findings of the Magistrate Judge as contained in the 23 Proposed Findings and Recommendations, and ORDERS as follows: Plaintiff's 1 Application to Proceed without P repayment of Fees is DENIED; Plaintiff's 2 Motion for Immediate Injuctive relief is DENIED; Plaintiff's 5 Motion to Prevent Incarceration is DENIED; Defendants Andrew Dimlich, Pat Lamp, John Gallaher, Tom MacAuley, Ed Bibb, Krist en Keller, William Richmond and Tom Truman's 14 Motion to Dismiss the Plaintiff's Complaint is GRANTED; Plaintiff's 2 Complaint is DISMISSED; Defendants Little General Stores, Greg Darby, and Cory Beasley's 17 Motion to Dismiss Plaintiff's Complaint is DENIED AS MOOT; Defendants Andrew Dimlich, Pat Lamp, John Gallaher, Tom MacAuley, Ed Bibb, Kristen Keller, William Richmond, and Tom Truman's 8 Motion to Strike Plaintiff's Motion to Stop Incarceration is DENIED AS MOOT; and this matter is REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 5/15/2013. (cc: USMJ VanDervort; attys; any unrepresented party) (msa)

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

MICHAEL PIZIAK,
Plaintiff,
v.

CIVIL ACTION NO. 5:12-cv-05728

KRISTEN KELLER, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the various pleadings in this matter including: the Plaintiff’s
Application to Proceed Without Prepayment of Fees (Document 1); the Plaintiff’s Motion for
Immediate Injunctive Relief/Complaint (Document 2); the Plaintiff’s Motion to Prevent
Incarceration (Document 5); the Defendants Kristen L. Keller, Tom Truman, Tom MacAuley,
Andrew Dimlich, William Richmond, Pat Lamp, Ed Bibb, and John Gallaher’s Motion to Strike
Plaintiff’s Motion to Stop Incarceration (Document 8); the Defendants Kristen L. Keller, Tom
Truman, Tom MacAuley, Andrew Dimlich, William Richmond, Pat Lamp, Ed Bibb, and John
Gallaher’s Motion to Dismiss the Plaintiff’s Complaint (Document 14); and the Defendants Little
General Stores, Cory Beasley and Greg Darby’s Joint Motion to Dismiss the Plaintiff’s Complaint
(Document 17).
By Standing Order (Document 3) entered on September 21, 2012, this action was referred
to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this
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Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. '
636.

On April 24, 2013, the Magistrate Judge submitted a Proposed Findings and

Recommendation (Document 23) wherein it is recommended that this Court: deny the Plaintiff’s
Application to Proceed Without Prepayment of Fees (Document 1); deny the Plaintiff’s Motion for
Immediate Injunctive Relief (Document 2, pp. 1 - 2); deny the Plaintiff’s Motion to Prevent
Incarceration (Document 5); grant the Defendants Kristen L. Keller, Tom Truman, Tom MacAuley,
Andrew Dimlich, William Richmond, Pat Lamp, Ed Bibb, and John Gallaher’s Motion to Dismiss
the Plaintiff’s Complaint (Document 14); dismiss the Plaintiff’s Complaint (Document 2, pp. 2 11); deny as moot the Defendants Little General Stores, Cory Beasley and Greg Darby’s Joint
Motion to Dismiss the Plaintiff’s Complaint (Document 17); deny as moot the Defendants Kristen
L. Keller, Tom Truman, Tom MacAuley, Andrew Dimlich, William Richmond, Pat Lamp, Ed Bibb,
and John Gallaher’s Motion to Strike Plaintiff’s Motion to Stop Incarceration (Document 8); and
remove this matter from the Court’s docket.
Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due by
May 13, 2013. No party has timely filed objections to the Magistrate Judge=s Proposed Findings
and Recommendation. 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).

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Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS as follows:
1)

The Plaintiff’s Application to Proceed Without Prepayment of Fees (Document 1)
is DENIED;

2)

The Plaintiff’s Motion for Immediate Injunctive Relief (Document 2, pp. 1 - 2) is
DENIED;

3)

The Plaintiff’s Motion to Prevent Incarceration (Document 5) is DENIED;

4)

The Defendants Kristen L. Keller, Tom Truman, Tom MacAuley, Andrew Dimlich,
William Richmond, Pat Lamp, Ed Bibb, and John Gallaher’s Motion to Dismiss the
Plaintiff’s Complaint (Document 14) is GRANTED;

5)

The Plaintiff’s Complaint (Document 2, pp. 2 - 11) is DISMISSED;

6)

The Defendants Little General Stores, Cory Beasley and Greg Darby’s Joint
Motion to Dismiss the Plaintiff’s Complaint (Document 17) is DENIED AS
MOOT;

7)

The Defendants Kristen L. Keller, Tom Truman, Tom MacAuley, Andrew Dimlich,
William Richmond, Pat Lamp, Ed Bibb, and John Gallaher’s Motion to Strike
Plaintiff’s Motion to Stop Incarceration (Document 8) is DENIED AS MOOT;
and

8)

This matter is REMOVED from the Court’s docket.

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

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May 15, 2013