Gaylor v. Dagher, No. 2:2010cv00258 - Document 33 (S.D.W. Va. 2011)

Court Description: MEMORANDUM OPINION AND ORDER adopting and incorporating the 22 findings and recommendation of the Magistrate Judge and orders judgment consistent therewith; the court DISMISSES the plaintiff's 2 Complaint for failure to state a claim upon which relief can be granted and DIRECTS that this action be removed from the docket. Signed by Judge Joseph R. Goodwin on 7/25/2011. (cc: attys; any unrepresented party) (mkw)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION GENE GAYLOR, Plaintiff, v. CIVIL ACTION NO. 2:10-cv-00258 GHASSAN Y. DAGHER, Defendant. MEMORANDUM OPINION AND ORDER This action was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). On January 14, 2011, the Magistrate Judge submitted findings of fact and recommended that the court GRANT the Defendant s Motion to Dismiss Plaintiff s Complaint [Docket 10] and DISMISS this action for failure to state a claim upon which relief can be granted. The court did not receive objections from either party within the time allotted. Therefore, on February 7, 2011, the court issued a Memorandum Opinion and Order [Docket 24] adopting the Magistrate Judge s proposed findings of fact and recommendation of law ( PF&R ) and entering judgment in favor of the defendant [Docket 25]. On February 14, 2011, the plaintiff filed a Response [Docket 26] stating that he had not received a copy of the PF&R through the prison mail system, that he had not signed the Mount Olive Correction Complex record book for legal mail, and thus had not had an opportunity to object to the PF&R. The court construed the Response as a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and on February 25, 2011, vacated its prior Memorandum Opinion and Order and Judgment Order [Docket 27]. The court additionally ordered the parties to file any objections to the PF&R within fourteen (14) days, plus three (3) days for service and mailing, from the date of that Order. Neither party has filed objections. A district court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). This court is not, however, 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). As the parties have not filed objections in this case, the court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge [Docket 22] and orders judgment consistent therewith. The court DISMISSES the plaintiff s Complaint [Docket 2] for failure to state a claim upon which relief can be granted and DIRECTS that this action be removed from the docket. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: -2- July 25, 2011

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