Cantrell v. Rubenstein et al, No. 2:2014cv17419 - Document 66 (S.D.W. Va. 2015)

Court Description: MEMORANDUM OPINION AND ORDER adopting the 60 Proposed Findings and Recommendation of the Magistrate Judge; denying with prejudice the 45 Motion to Dismiss; and permits this matter to proceed. Signed by Judge Thomas E. Johnston on 8/14/2015. (cc: plaintiff, pro se; counsel of record; any unrepresented party) (taq)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION LARRY WAYNE CANTRELL, Plaintiff, v. CIVIL ACTION NO. 2:14-cv-17419 JIM RUBENSTEIN, et al., Defendants. MEMORANDUM OPINION AND ORDER On June 3, 2014, Plaintiff Larry Wayne Cantrell filed a Complaint pursuant to 42 U.S.C. § 1983. (ECF 2.) On the same day, this action was referred to United States Magistrate Dwane L. Tinsley for submission of proposed findings and a recommendation (“PF&R”). On February 9, 2015, a motion to dismiss was filed in this matter, purportedly by Plaintiff. [ECF 45.] Magistrate Judge Tinsley filed a PF&R on July 8, 2015, noting that it appears that a non-party to this case improperly filed the motion to dismiss and recommending that this Court deny the motion with prejudice. [ECF 60.] 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. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and the Defendant’s right to appeal this Court’s Order. See 28 U.S.C. § 636(b)(1); 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 PF&R were due on July 27, 2015. To date, no objections have been filed. Accordingly, the Court ADOPTS the PF&R [ECF 60], DENIES WITH PREJUDICE the motion to dismiss [ECF 45], and permits this matter to proceed. 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: August 14, 2015

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