Bailey v. Beckley VA Medical Center

Filing 5

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 4 Proposed Findings and Recommendation and ORDERS that the Plaintiff's 1 Application to Proceed Without Prepayment of Fees and Costs be DENIED, the Plaintiff's 2 Complaint be DISMISSED, and that this matter be REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 4/29/2016. (cc: Magistrate Judge Aboulhosn; attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
CHARLEY BAILEY,
Administrator of the Estate
of Daniel Bailey,
Plaintiff,
v.

CIVIL ACTION NO. 5:16-cv-02959

BECKLEY VA MEDICAL
CENTER,
Defendant.

MEMORANDUM OPINION AND ORDER
On March 29, 2016, the Plaintiff, proceeding pro-se, filed his Application to Proceed
Without Prepayment of Fees and Costs (Document 1) and his Complaint (Document 2).
By Standing Order (Document 3) entered on March 29, 2016, this action was referred to
the Honorable Omar J. Aboulhosn, 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 April 7, 2016, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 4), wherein it is recommended that this Court deny the Plaintiff’s Application to
Proceed Without Prepayment of Fees and Costs, dismiss the Plaintiff’s Complaint, and remove
this matter from the Court’s docket “unless Plaintiff can demonstrate within the period of time
allotted for objecting to this Proposed Findings and Recommendation that (1) Plaintiff is the sole
beneficiary of the estate and that the estate has no creditors, or (2) Plaintiff has obtained counsel
to represent him.” (Proposed Findings and Recommendation at 5).

1

Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due
by April 25, 2016. Likewise, due by April 25, 2016, were any submissions by the Plaintiff to
demonstrate that he is the sole beneficiary of the estate and that the estate has no creditors, or that
he had obtained counsel. No filings have been submitted. Accordingly, the Court FINDS that
the Plaintiff has failed to demonstrate that he is the sole beneficiary of the estate and that the estate
has no creditors, and has failed to obtained counsel to represent him in this matter.
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 a party’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).
Wherefore, the Court ADOPTS and incorporates herein the findings and recommendation
of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and
ORDERS that the Plaintiff’s Application to Proceed Without Prepayment of Fees and Costs
(Document 1) be DENIED, the Plaintiff’s Complaint (Document 2) be DISMISSED, and that this
matter be REMOVED from the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, to counsel of record, and to any unrepresented party.
ENTER:

2

April 29, 2016