Taylor v. Phillips, No. 3:2008cv00108 - Document 21 (N.D.W. Va. 2009)

Court Description: ORDER ADOPTING OPINION/REPORT AND RECOMMENDATION granting 13 Motion to Dismiss; granting 13 Motion for Summary Judgment; adopting Report and Recommendations re 19 Dismiss document 1 Petitioner's 2241 petition and stricken from the active docket of this Court. Signed by Chief Judge John Preston Bailey on 05/18/09. (copy to pro se petitioner via certified/return receipt mail)(jko)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG TIMOTHY N. TAYLOR, Petitioner, v. CIVIL ACTION NO. 3:08-CV-108 (BAILEY) WAYNE A. PHILLIPS, Warden, Respondent. ORDER ADOPTING OPINION/REPORT AND RECOMMENDATION On this day, the above-styled matter came before the Court for consideration of the Opinion/Report and Recommendation of United States Magistrate Judge John S. Kaull. By Standing Order, this action was referred to Magistrate Judge Kaull for submission of a proposed report and a recommendation ( R & R ). Magistrate Judge Kaull filed his R & R on April 21, 2009 [Doc. 19]. In that filing, the magistrate judge recommended that this Court dismiss the § 2241 petition [Doc. 1] with prejudice. Pursuant to 28 U.S.C. § 636 (b) (1) (c), this Court is required to make a de novo review of those portions of the magistrate judge s findings to which objection is made. However, 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). In addition, 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); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Kaull s R & R were due within ten (10) days of receipt of the R & R, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service of the R & R was accepted on April 23, 2009. See Doc. 20. To date, neither party has filed objections to the R & R. Accordingly, this Court will review the report and recommendation for clear error. Upon careful review of the R & R, it is the opinion of this Court that the Magistrate Judge s Opinion/Report and Recommendation [Doc. 19] should be, and the same is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge s report. Therefore, the Respondent s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment [Doc. 13] is hereby GRANTED. Accordingly, this Court DISMISSES with prejudice the petitioner s § 2241 petition [Doc. 1] and ORDERS it STRICKEN from the active docket of this Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to all counsel of record herein and to mail a copy to the pro se petitioner. DATED: May 18, 2009.

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