Finely v. Warden, Warren Correctional Institution, No. 1:2010cv00342 - Document 15 (S.D. Ohio 2011)
Court Description: OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 14 Report and Recommendation in its entirety, granting 12 Motion to Dismiss Without Prejudice as Moot. The Court finds that Petitioner's petition was not frivolous or malicious and did not fail to state a claim upon which relief could be granted. Signed by Judge S Arthur Spiegel on 4/5/2011. (km1)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION CHARLES FINLEY, : : : : : : : : : : : Petitioner, v. WARDEN, WARREN CORRECTIONAL INSTITUTION, NO. 1:10-CV-00342 OPINION AND ORDER Respondent. This matter is before the Court on the Magistrate Judge s Report and Recommendation, (doc. 14), to which no objections were filed. In his Report and Recommendation, the Magistrate Judge recommended that Respondent s Motion to Dismiss (doc. 12) be granted, and the Court agrees. Because Petitioner s habeas corpus petition sought relief on the same grounds on which Ohio s state courts granted him relief, the Magistrate Judge found Petitioner s habeas petition moot and recommends that Respondent s motion to dismiss be granted (doc. 14). Having reviewed this matter pursuant to 28 U.S.C. ยง636(b), the Court finds no clear error on the face of the record and agrees with the position taken by the Magistrate Judge. See Advisory Committee Notes to Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 150(1985)( It does not appear that Congress intended to require district court review of a magistrate judge s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings ). Accordingly, the Court ADOPTS and AFFIRMS the Magistrate Judge s Report and Recommendation in its entirety (doc. 14) and therefore GRANTS Respondent s Motion to Dismiss without prejudice (doc. 12). Further, the Court finds that Petitioner s petition was not frivolous or malicious and did not fail to state a claim upon which relief could be granted. SO ORDERED. Dated: April 5, 2011 /s/ S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge -2-
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