Swint v. Redfield et al, No. 2:2021cv00372 - Document 8 (S.D.W. Va. 2021)

Court Description: ORDER adopting the 6 Proposed Findings and Recommendations and dismissing this action without prejudice as as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B); directing the Clerk to remove this matter from the Courts docket. Signed by Judge Thomas E. Johnston on 9/14/2021. (cc: counsel of record; any unrepresented party) (msa)

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Swint v. Redfield et al Doc. 8 Case 2:21-cv-00372 Document 8 Filed 09/14/21 Page 1 of 3 PageID #: 20 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION ROBERT JAMES SWINT, Plaintiff, v. CIVIL ACTION NO. 2:21-cv-00372 ROBERT R. REDFIELD, et al., Defendants. ORDER By standing order entered January 4, 2016, and filed in this case on June 28, 2021, (ECF No. 2), this action was referred to United State Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation for disposition (“PF&R”). Magistrate Judge Tinsley filed his PF&R on July 15, 2021, recommending that Plaintiff’s complaint be dismissed as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). (ECF No. 6.) This Court is not required to review, under a de novo or any other standard, the factual and legal conclusions of the magistrate judge as to those portions of the PF&R 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 Plaintiff’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). In addition, this Court need not conduct de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific 1 Dockets.Justia.com Case 2:21-cv-00372 Document 8 Filed 09/14/21 Page 2 of 3 PageID #: 21 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 in this case were due August 2, 2021. (ECF No. 6.) To date, Plaintiff has failed to submit any objections in response to the PF&R, thus constituting a waiver of de novo review and Plaintiff’s right to appeal this Court’s order. The Court notes that Plaintiff has also seemingly failed to maintain his current address with the clerk as the PF&R, which was sent to Plaintiff at his address on record, was returned as undeliverable. (See ECF No. 7.) Per Rule 83.5 of the Local Rules of Civil Procedure, Plaintiff—as a pro se party—“must advise the clerk promptly of any changes in name, address, or telephone number.” The fact that the PF&R mailed to Plaintiff was returned as undeliverable due to Plaintiff’s failure to maintain his current address with the clerk does not impact the Court’s review and analysis of the PF&R and does not provide Plaintiff with an avenue to object to the PF&R after the August 2, 2021 deadline. Accordingly, the Court ADOPTS the PF&R, (ECF No. 6), and DISMISSES this action WITHOUT PREJUDICE as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court further DIRECTS the Clerk to remove this matter from the Court’s docket. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. 2 Case 2:21-cv-00372 Document 8 Filed 09/14/21 Page 3 of 3 PageID #: 22 ENTER: 3 September 14, 2021

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