Chavez v. Warden, FCI McDowell, No. 1:2021cv00317 - Document 30 (S.D.W. Va. 2024)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 28 Proposed Findings and Recommendation by Magistrate Judge, granting the 27 MOTION by Warden, FCI McDowell to Dismiss, denying Plaintiff's 1 , 20 Petition under U.S.C. § 2241 as moot, dismissing this civil action and directing the Clerk to remove this case from the court's active docket; additionally denying a certificate of appealability. Signed by Senior Judge David A. Faber on 6/4/2024. (cc: plaintiff; counsel of record) (mk)

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Chavez v. Warden, FCI McDowell Doc. 30 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD JORGE CHAVEZ, Plaintiff, v. CIVIL ACTION NO. 1:21-00317 WARDEN, FCI MCDOWELL, Defendant. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley submitted to the court his Findings and Recommendation (“PF&R”) on May 13, 2024, in which he recommended that the district court grant defendant’s motion to dismiss, deny plaintiff’s petition under 28 U.S.C. § 2241 as moot, dismiss this civil action, and remove this matter from the court’s docket. In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Tinsley’s Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation within the seventeen-day period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Tinsley, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby GRANTS defendant’s motion to dismiss, DENIES plaintiff’s petition under 28 U.S.C. § 2241 as moot, DISMISSES this civil action, and directs the Clerk to remove this case from the court’s active docket. Additionally, the court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is “a substantial showing of the denial of a constitutional right.” 2253(c)(2). 28 U.S.C. § The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is not satisfied in this instance. court DENIES a certificate of appealability. 2 Accordingly, the The Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff and counsel of record. IT IS SO ORDERED this 4th day of June, 2024. ENTER: David A. Faber Senior United States District Judge 3

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