Carter v. Corporal Alexander Hendrix et al, No. 2:2021cv00216 - Document 57 (S.D.W. Va. 2022)
Court Description: MEMORANDUM OPINION AND ORDER adopting the 56 Proposed Findings and Recommendations by Magistrate Judge, and directing that the Defendants' 39 Motion to Designate the Motion for Summary Judgment as Unopposed and to Dismiss for Failure to P rosecute be granted; the Plaintiff's 1 Complaint be dismissed with prejudice, the Defendant's 33 Motion to Compel be denied as moot, the Defendants Alexander Hendrix and Richard Toney's 35 Motion for Summary Judgment be denied as moot and this matter be removed from the Court's docket.Signed by Judge Irene C. Berger on 10/11/2022. (cc: Magistrate Judge Aboulhosn, counsel of record, and any unrepresented party) (msa)
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Carter v. Corporal Alexander Hendrix et al Doc. 57 Case 2:21-cv-00216 Document 57 Filed 10/11/22 Page 1 of 3 PageID #: 314 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION DARRELL CARTER, Plaintiff, v. CIVIL ACTION NO. 2:21-cv-00216 CORPORAL ALEXANDER HENDRIX and CORPORAL RICHARD TONEY, Defendants. MEMORANDUM OPINION AND ORDER On April 9, 2021, the Plaintiff filed his Complaint (Document 1) in this matter. By Administrative Order (Document 2) entered on April 12, 2021, the matter was referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636.1 Currently pending in the matter are the Defendant’s Motion to Compel (Document 33), the Defendants Alexander Hendrix and Richard Toney’s Motion for Summary Judgment (Document 35), and the Defendants’ Motion to Designate the Motion for Summary Judgment as Unopposed and to Dismiss Complaint for Failure to Prosecute (Document 39). On September 14, 2022, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 56) wherein it is recommended that this Court grant the Defendants’ 1 The matter was originally referred to the Magistrate Judge for discovery. However, the referral was modified on January 20, 2022, based on the Plaintiff’s pro se status. 1 Dockets.Justia.com Case 2:21-cv-00216 Document 57 Filed 10/11/22 Page 2 of 3 PageID #: 315 Motion to Designate the Motion for Summary Judgment as Unopposed and to Dismiss Complaint for Failure to Prosecute (Document 39), dismiss the Plaintiff’s Complaint (Document 1) with prejudice, deny as moot the Defendants Alexander Hendrix and Richard Toney’s Motion for Summary Judgment (Document 35), and remove this matter from the Court’s docket. Further, by footnote contained in the Proposed Findings and Recommendation, the Magistrate Judge ordered that the Defendant’s Motion to Compel (Document 33) be denied as moot; however, the motion remains pending on the docket. Objections to the Magistrate Judge’s Proposed Findings and Recommendation were due by October 3, 2022, and none were filed by either party. 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. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and a party’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and ORDERS that the Defendants’ Motion to Designate the Motion for Summary Judgment as Unopposed and to Dismiss Complaint for Failure to Prosecute (Document 39) be GRANTED, the Plaintiff’s Complaint (Document 1) be DISMISSED with prejudice, the Defendant’s Motion to Compel (Document 33) be DENIED as moot, the Defendants Alexander Hendrix and Richard Toney’s Motion for Summary Judgment (Document 35) be DENIED as moot, and this matter be REMOVED from the Court’s docket. 2 Case 2:21-cv-00216 Document 57 Filed 10/11/22 Page 3 of 3 PageID #: 316 The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge Aboulhosn, counsel of record, and any unrepresented party. ENTER: 3 October 11, 2022
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