McCafferty v. Gilkeson et al

Filing 90

MEMORANDUM OPINION AND ORDER: ADOPTING and incorporating herein the 89 Proposed Findings and Recommendation of the Magistrate Judge and DISMISSING Plaintiff's 3 Complaint without prejudice, DENYING AS MOOT Defendants' 74 and 76 Motions for Summary Judgment and REMOVING this matter from the Court's docket; TERMINATING AS MOOT Plaintiff's 40 Motion for an Order Compelling Discovery and Plaintiff's 50 Motion to Correct Errors in Complaint. Signed by Judge Irene C. Berger on 3/13/2019. (cc: USMJ Aboulhosn; attys; any unrepresented party) (msa)

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

PAUL MCCAFFERTY,
Plaintiff,
v.

CIVIL ACTION NO. 5:18-cv-00418

TFC JOHN W. GILKESON, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

On March 12, 2018, the Plaintiff, proceeding pro se, filed his Complaint (Document 3) in
this matter. On November 12, 2018, Defendant Deputy J. L. Pachis filed a motion for summary
judgment (Document 74).

Also, on November 12, 2018, Defendants CPL. M.A. Agee and TFC

John W. Gilkerson filed a motion for summary judgment (Document 76).
By Standing Order (Document 4) entered on March 12, 2018, and by Memorandum
Opinion and Order (Document 43) entered on September 18, 2018, 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 November 14, 2018, Magistrate Judge Aboulhosn entered an Order (Document 78)
advising the Plaintiff of his right to file a response to the pending motions for summary judgment,

1

and advising him that failure to respond may result in a recommendation of denial of the relief
sought in his Complaint and dismissal of his lawsuit. The Plaintiff failed to respond.1
On January 3, 2019, Magistrate Judge Aboulhosn entered an Order (Document 87)
directing the Plaintiff to show cause as to why his civil action should not be dismissed for failure
to prosecute, and notifying him that failure to respond would result in a recommendation of
dismissal of the matter. The Plaintiff failed to respond.2
Subsequently, on February 19, 2019, Magistrate Judge Aboulhosn submitted a Proposed
Findings and Recommendation (Document 89) wherein it is recommended that the Plaintiff’s
Complaint (Document 3) be dismissed without prejudice, that the Defendants’ motions for
summary judgment (Documents 74 & 76) be denied as moot, and that this matter be removed from
the Court’s docket.

Objections to the Magistrate Judge=s Proposed Findings and

Recommendation were due by March 8, 2019, and none were filed by either party.
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).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and

1
The Docket reflects that the November 14, 2018 Order (Document 78) mailed to the Plaintiff was returned as
undeliverable on November 28, 2018.
2
The Docket reflects that the January 3, 2019 Order (Document 87) mailed to the Plaintiff was returned as
undeliverable on January 8, 2019.

2

Recommendation, and ORDERS that the Plaintiff’s Complaint (Document 3) be DISMISSED
without prejudice, that the Defendants’ motions for summary judgment (Documents 74 & 76) be
DENIED AS MOOT, and that this matter be REMOVED from the Court’s docket.
Lastly, the Court ORDERS that the Plaintiff’s Motion for an Order Compelling Discovery
(Docket 40) and Plaintiff’s Motion to Correct Errors in Complaint (Document 50) be
TERMINATED AS MOOT.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, counsel of record, and any unrepresented party.
ENTER:

3

March 13, 2019