Harrelson v. Canterberrry et al, No. 5:2010cv00216 - Document 41 (S.D.W. Va. 2011)

Court Description: MEMORANDUM OPINION AND ORDER: The Court ADOPTS and incorporates herein the substance of the findings of the Magistrate Judge as contained in the 38 Proposed Findings and Recommendations and Further ADOPTS the recommendation of the Magistrate Judge and Directs that Plaintiff's 2 Application to Proceed without Prepayment of Fees or Costs is DENIED; Plaintiff's March 8, 2010 7 Motion to Dismiss is DENIED; Plaintiff's May 11, 2010 35 Motion to Dismiss is DENIED and Plaintiff's 1 Complaint is DISMISSED. Signed by Judge Irene C. Berger on 1/3/2011. (cc: USMJ VanDervort; attys; any unrepresented party) (mls)

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Harrelson v. Canterberrry et al Doc. 41 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION ANTHONY T. HARRELSON, Plaintiff, v. CIVIL ACTION NO. 5:10-cv-00216 KEVIN CANTERBERRY, et al., Defendants. MEMORANDUM OPINION AND ORDER On March 3, 2010, the Plaintiff filed a Complaint (Document No. 1) and an Application to Proceed Without Prepayment of Fees and Costs (Document No. 2). On March 8, the Plaintiff filed a Motion to Dismiss (Document No. 7). On May 11, 2010, the Plaintiff filed a second Motion to Dismiss (Document No. 35). By Standing Order (Document. No. 6) entered on March 3, 2010, this action was referred to the Honorable R. Clarke VanDervort, 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 December 13, 2010, the Magistrate Judge submitted Proposed Findings and Recommendation (Document No. 38) wherein it is recommended that this Court: 1) deny the Plaintiff’s Application to Proceed Without Prepayment of Fees and Costs (Document No. 2); 2) deny the Plaintiff’s March 8, 2010 Motion to Dismiss (Document No. 7); 3) deny the Plaintiff’s May 11, 2010 Motion to Dismiss (Document No. 35); and 4) dismiss the Plaintiff’s Complaint (Document No. 1). Dockets.Justia.com Neither party has timely filed objections to the Magistrate Judge’s Proposed Findings and Recommendation. 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 the 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). Accordingly, the Court ADOPTS and incorporates herein the substance of the findings of the Magistrate Judge as contained in the Proposed Findings and Recommendation. The Court further ADOPTS the recommendation of the Magistrate Judge and ORDERS that: 1) the Plaintiff’s Application to Proceed Without Prepayment of Fees and Costs (Document No. 2) is DENIED; 2) the Plaintiff’s March 8, 2010 Motion to Dismiss (Document No. 7) is DENIED; 3) the Plaintiff’s May 11, 2010 Motion to Dismiss (Document No. 35) is DENIED; and 4) the Plaintiff’s Complaint (Document No. 1) is DISMISSED. The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, counsel of record, and any unrepresented party. ENTER: 2 January 3, 2011 3

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