Owens v. Simmons et al

Filing 17

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 7 Proposed Findings and Recommendation by the Magistrate Judge, and ORDERS that the Plaintiff's Bivens claim against Defendant Simmons be DISMISSED, and that this matter be referred back to the Magistrate Judge for further proceedings on the Plaintiff's Bivens claim against the remaining Defendants. Signed by Judge Irene C. Berger on 11/10/2014. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)

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

LEROY OWENS,
Plaintiff,
v.

CIVIL ACTION NO. 5:14-cv-26939

JASON SIMMONS, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Plaintiff filed a Bivens action Complaint (Document 4) in this matter on October 16,
2014.

Therein, the Plaintiff names as Defendants:

Inmate Jason Simmons; Warden Joe

Coakley; Correctional Officer Romano; and Correctional Officer Frozen. By Standing Order
(Document 5) entered on October 16, 2014, 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.
On October 20, 2014, the Magistrate Judge submitted a Proposed Findings and
Recommendation (Document 7) wherein it is recommended that this Court dismiss the Plaintiff’s
Bivens claim against Defendant Simmons, and refer the matter back to the Magistrate Judge for
further proceedings on the Plaintiff’s Bivens claim against the remaining Defendants. Objections
to the Magistrate Judge=s Proposed Findings and Recommendation were due by November 6,

1

N
y
f
ons
Magistrate Jud
dge=s Proposed Finding and
gs
2014. Neither party has timely filed objectio to the M
Recomme
endation.
The Court is not required to review, under a de n
T
d
u
novo or any other standa the factu or
ard,
ual
legal con
nclusions of the magistrat judge as to those porti
t
te
o
ions of the fi
indings or recommendati to
ion
which no objections are address
o
sed. Thoma v. Arn, 47 U.S. 140, 150 (1985) Failure to file
as
74
,
).
timely ob
bjections con
nstitutes a waiver of de novo review and a party right to ap
w
n
w
y’s
ppeal this Co
ourt=s
Order. 28 U.S.C. ' 636(b)(1); see also Snyd v. Rideno 889 F.2d 1363, 1366 (4th Cir. 1989);
2
der
our,
d
6
United St
tates v. Schr
ronce, 727 F.2d 91, 94 (4 Cir. 1984
4th
4).
Accordingly, the Cour ADOPT and in
A
rt
TS
ncorporates herein the findings and
e
recomme
endation of the Magistrate Judge as conta
f
ained in th Proposed Findings and
he
d
Recomme
endation, an ORDERS that the Pla
nd
S
aintiff’s Bive claim ag
ens
gainst Defend Simmo be
dant
ons
DISMISSED, and that this mat be REF
t
tter
FERRED b ack to the M
Magistrate J
Judge for fu
urther
proceedin on the Plaintiff’s Biv
ngs
P
vens claim against the re
a
emaining De
efendants.
The Court DI
T
IRECTS the Clerk to se a certifie copy of th Order to Magistrate J
e
end
ed
his
Judge
VanDerv
vort, counsel of record, and any unre
l
a
epresented pa
arty.
ENTER:

2

ber
Novemb 10, 2014