Sunshine v. Jividen et al, No. 2:2021cv00667 - Document 77 (S.D.W. Va. 2022)
Court Description: MEMORANDUM OPINION AND ORDER adopting the 72 Proposed Findings and Recommendations, directing that Plaintiff's 69 Motion to Dismiss is granted and that Defendant David Proctor, D.O. be dismissed; David Proctor's 65 Motion to Dismis s and Defendant David Proctor's 51 Motion to Dismiss are dismissed as moot. This matter is referred to the Magistrate Judge for further proceedings concerning the Plaintiffs claims against Defendants Jividen, Defibaugh, Searls, and Felton. Signed by Judge Irene C. Berger on 6/28/2022. (cc: Magistrate Judge Aboulhosn, counsel of record, any unrepresented party) (lca)
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Sunshine v. Jividen et al Doc. 77 Case 2:21-cv-00667 Document 77 Filed 06/28/22 Page 1 of 2 PageID #: 692 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION BRIANNA ANN SUNSHINE, Plaintiff, v. CIVIL ACTION NO. 2:21-cv-00667 BETSY C. JIVIDEN, et al., Defendants. MEMORANDUM OPINION AND ORDER On December 23, 2021, the Plaintiff’s pro-se Complaint (Document 1) was filed in this matter. Motions currently pending include Defendant David Proctor’s Motion to Dismiss Plaintiff’s Complaint (Document 51), Defendant David Proctor, D.O.’s Motion to Designate His Motion to Dismiss as Unopposed and to Dismiss the Complaint for Failure to Prosecute (Document 65), and Plaintiff’s Motion to Dismiss (Document 69) wherein the Plaintiff moves to dismiss this action as it relates to Defendant David Proctor, D.O. By Administrative Order (Document 2) entered on December 27, 2021, this action 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. On June 6, 2022, the Magistrate Judge submitted a Proposed Findings and Recommendation (Document 72) wherein it is recommended that this Court grant Plaintiff’s Motion to Dismiss (Document 69), deny as moot Defendant David Proctor’s Motion to Dismiss Plaintiff’s Complaint (Document 51) and Defendant David Proctor, D.O.’s Motion to Designate His Motion to Dismiss as Unopposed and to Dismiss the Complaint for Failure to Prosecute (Document 65), and refer this matter back to the Magistrate Judge for further proceedings concerning the Plaintiff’s claims against Defendants Jividen, Defibaugh, Searls, and Felton. 1 Dockets.Justia.com Case 2:21-cv-00667 Document 77 Filed 06/28/22 Page 2 of 2 PageID #: 693 Objections to the Magistrate Judge’s Proposed Findings and Recommendation were due by June 23, 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. The Court ORDERS that Plaintiff’s Motion to Dismiss (Document 69) be GRANTED and that Defendant David Proctor, D.O., be DISMISSED from this action pursuant to Rule 41(a) (1)(A)(i). The Court further ORDERS that Defendant David Proctor’s Motion to Dismiss Plaintiff’s Complaint (Document 51) and Defendant David Proctor, D.O.’s Motion to Designate His Motion to Dismiss as Unopposed and to Dismiss the Complaint for Failure to Prosecute (Document 65) be DENIED AS MOOT. Lastly, the Court ORDERS that this matter be REFERRED to the Magistrate Judge for further proceedings concerning the Plaintiff’s claims against Defendants Jividen, Defibaugh, Searls, and Felton. 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: 2 June 28, 2022
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