Stephens v. Maphis ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ELKINS JOSEPH LEE STEPHENS, Plaintiff, v. CIVIL ACTION NO. 2:19-CV-23 (BAILEY) JANET MAPHIS, Defendant. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James P. Mazzone [Doc. 16]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his R&R on April 1, 2019, wherein he recommends the plaintiff’s Complaint be dismissed for lack of subject matter jurisdiction. Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge’s findings to which objection is made. However, 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). In addition, failure to file timely objections constitutes a waiver of de novo 1 review and the right to appeal this Court's Order. 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). Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket indicates the plaintiff accepted service on April 3, 2019 [Doc. 17]. In lieu of objections, plaintiff filed a letter on April 4, 2019 [Doc. 18], which states that he “would like for [the case] to be dismissed.” Accordingly, the R&R will be reviewed for clear error. Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 16] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, the plaintiff's Complaint [Doc. 1] is DISMISSED pursuant to Federal Rule 12(h)(3) for lack of subject matter jurisdiction. The plaintiff's Motion for Leave to Proceed IFP [Doc. 2] and Motion to Dismiss [Doc. 18] are MOOT. The Clerk is DIRECTED to STRIKE this case from the active docket of this Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se plaintiff. DATED: May 9, 2019. UNI ATES DISTRICT JU