Garcia v. Rokosky et al, No. 1:2023cv00153 - Document 11 (S.D.W. Va. 2023)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 10 Proposed Findings and Recommendation by Magistrate Judge, dismissing plaintiff's 1 petition under 28 U.S.C. § 2241, without prejudice, and directing the Clerk to remove the matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/8/2023. (cc: plaintiff, pro se; counsel of record) (mk)

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Garcia v. Rokosky et al Doc. 11 Case 1:23-cv-00153 Document 11 Filed 09/08/23 Page 1 of 3 PageID #: 16 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD DANTE DIAZ GARCIA, Plaintiff, v. CIVIL ACTION NO. 1:23-00153 WARDEN ROKOSKY, ACTING WARDEN LEFEVER, Defendants. MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation (“PF&R”) on June 14, 2023, in which she recommended that the district court dismiss plaintiff’s petition under 28 U.S.C. § 2241, without prejudice, and remove the 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 Eifert’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). Dockets.Justia.com Case 1:23-cv-00153 Document 11 Filed 09/08/23 Page 2 of 3 PageID #: 17 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 Eifert, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DISMISSES plaintiff’s petition under 28 U.S.C. § 2241, without prejudice, and DIRECTS the Clerk to remove the matter from the court’s 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 Case 1:23-cv-00153 Document 11 Filed 09/08/23 Page 3 of 3 PageID #: 18 The Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff, pro se, and counsel of record. IT IS SO ORDERED this 8th day of September, 2023. ENTER: David A. Faber Senior United States District Judge 3

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