Austin v. Warden, No. 5:2021cv00348 - Document 9 (S.D.W. Va. 2024)

Court Description: ORDER adopting the 7 Proposed Findings and Recommendations; denying Plaintiff's 1 and 6 Complaint and dismisses the matter without prejudice. Signed by Judge Frank W. Volk on 4/10/2024. (cc: counsel of record; any unrepresented party) (lca)

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Austin v. Warden Doc. 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT BECKLEY VICTOR AUSTIN, Plaintiff, v. CIVIL ACTION NO. 5:21-cv-00348 WARDEN, Defendant. ORDER Pending is Victor Austin’s Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody with Motion for Preliminary Injunction or Temporary Restraining Order [Doc. 1], filed on June 21, 2021. This action was previously referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”). [Doc. 4]. On June 23, 2021, Magistrate Judge Aboulhosn ordered that Plaintiff’s 28 U.S.C. § 2241 for Writ of Habeas Corpus be construed as a civil action filed pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics. [Doc. 5]. The Complaint was re-docketed. [Doc. 6]. Magistrate Judge Aboulhosn filed his PF&R on March 11, 2024. [Doc. 7]. Magistrate Judge Aboulhosn recommended the Court dismiss the Complaint [Docs. 1, 6] without prejudice and remove it from the docket. [Id.]. The Court need not 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. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” (emphasis Dockets.Justia.com added)). Failure to file timely objections constitutes a waiver of de novo review and the Plaintiff’s right to appeal the Court’s order. See 28 U.S.C. § 636(b)(1); see also United States v. De LeonRamirez, 925 F.3d 177, 181 (4th Cir. 2019) (Parties may not typically “appeal a magistrate judge’s findings that were not objected to below, as § 636(b) doesn’t require de novo review absent objection.”); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989). Further, the Court need not conduct 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 in this case were due on March 28, 2024. [Doc. 7]. No objections were filed.1 Accordingly, the Court ADOPTS the PF&R [Doc. 7], DENIES the Plaintiff’s Complaint [Docs. 1, 6], and DISMISSES the matter without prejudice. The Court directs the Clerk to transmit a copy of this Order to any counsel of record and any unrepresented party. ENTERED: 1 April 10, 2024 On March 25, 2024, the Proposed Findings and Recommendations sent to Mr. Austin at FCI Beckley was returned. [Doc. 8]. Mr. Austin was released on July 16, 2021, and no current address was available. [Id.]. He is obliged to keep his contact information current.

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