Phillips et al v. Thaxton et al, No. 2:2013cv16975 - Document 10 (S.D.W. Va. 2014)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 6 PROPOSED FINDINGS AND RECOMMENDATIONS and 9 PROPOSED FINDINGS AND RECOMMENDATIONS, denying Plaintiffs' 1 APPLICATION to Proceed without Prepayment of Fees and Costs, dismissing with prejudice Plaintiffs' 2 COMPLAINT and 7 AMENDED COMPLAINT, and directing the Court to remove this case from the Court's Docket. Signed by Judge Thomas E. Johnston on 4/18/2014. (cc: attys; any unrepresented party) (tmh)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION SHANNON PHILLIPS, et al., Plaintiffs, v. CIVIL ACTION NO. 2:13-cv-16975 WILBUR THAXTON, II, et al., Defendants. MEMORANDUM OPINION AND ORDER Before the Court is Plaintiffs pro se Complaint [ECF 2] and amended Complaint [ECF 7] filed under 42 U.S.C. § 1983. By Standing Order entered April 8, 2013, and filed in this case on July 5, 2013, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation ( PF&R ). Referral of this action was later transferred to United States Magistrate Judge Cheryl A. Eifert. Magistrate Judge Eifert filed her first PF&R [ECF 6] on August 30, 2013, recommending that this Court dismiss with prejudice Plaintiffs Complaint [ECF 2] against Defendant Wilbur Thaxton, II. Magistrate Judge Eifert also recommended that Plaintiffs application to proceed without prepayment of fees and costs and further proceedings on the claims against Defendant Vriendt be held in abeyance pending amendment of the Complaint per the magistrate judge s August 29, 2013, Order (ECF 5). On September 19, 2013, Plaintiffs filed their amended Complaint (ECF 7). Magistrate Judge Eifert filed her PF&R [ECF 9] on October 25, 2013, recommending that this Court deny Plaintiffs application to proceed without payment of fees and costs and dismiss this case with prejudice. 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 the Petitioner 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). In addition, this Court need not conduct a de novo review when a party makes general and conclusory objections that do not direct the Court to a specific error in the magistrate s proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the first PF&R (ECF 6) were due on September 16, 2013. Objections to the second PF&R were due November 12, 2013. To date, no objections have been filed for either PF&R. Accordingly, the Court ADOPTS the first and second PF&Rs [ECF 6, 9], DENIES Plaintiffs application to proceed without payment of fees and costs [ECF 1], DISMISSES WITH PREJUDICE Plaintiffs Complaint [ECF 2] and amended Complaint [ECF 7], and DIRECTS the Court remove this case from the Court s Docket. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: 2 April 18, 2014

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