Marley v. United States of America ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION CHRISTOPHER SCOTT MARLEY, Plaintiff, v. CIVIL ACTION NO. 2:23-cv-00495 UNITED STATES OF AMERICA, et al., Defendants. ORDER By standing order entered on January 4, 2016, and filed in this case on July 25, 2023, (ECF No. 2), this action was referred to United States 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 October 30, 2023, recommending this Court dismiss this action with prejudice for failure to prosecute because Plaintiff Christopher Scott Marley (“Plaintiff”) has failed to effect service of process on nine defendants, as required by the Magistrate Judge’s Notice, and Plaintiff has failed to respond to a series of motions, as required by the Magistrate Judge’s multiple Orders and Notices. (ECF No. 33 at 1–3.) Magistrate Judge Tinsley entered a Notice, (ECF No. 8), on July 26, 2023, notifying Plaintiff that failure to effect timely service on nine defendants by October 23, 2023, could result in the Magistrate Judge submitting a recommendation that this matter be dismissed. Following Defendants Meta and Town of Fayetteville, West Virginia’s Motions to Dismiss the Complaint, Magistrate Judge Tinsley entered a second Order and Notice, (ECF No. 23), on August 23, 2023, notifying Plaintiff of his obligation to respond to Defendants’ motions “on or before” September 18, 2023. (Id.) The Order expressly notified Plaintiff that failing to respond to the motions could result in a recommendation of dismissal. (Id.) Similarly, following Defendant Chase Bank/J.P. Morgan’s Motion to Dismiss the Complaint, Magistrate Judge Tinsley entered an Order and Notice, (ECF No. 27), on September 19, 2023, notifying Plaintiff of his obligation to respond to the Defendant’s motion “on or before” October 19, 2023. (Id.) Again, the Order expressly notified Plaintiff that failing to respond to the motion would result in the recommendation of dismissal. (Id.) Finally, Magistrate Judge Tinsley entered an Order to Show Cause, (ECF No. 30),1 on October 4, 2023, ordering Plaintiff to respond to the Order in writing by October 24, 2023, “to advise the Court of his intent to further pursue this matter and to show cause why this civil action should not be dismissed with prejudice . . . .” (Id. at 1–2, ¶ 2.) Plaintiff has failed to respond in any way to any of the above-mentioned motions and Orders. (ECF No. 33 at 3.) This 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 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 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 consider a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). 1 The Order also stayed proceedings. (ECF No. 30.) On October 10, 2023, after the Court stayed proceedings, the FBI and United States filed a joint Motion to Dismiss. (ECF No. 31.) Objections to the PF&R in this case were due on November 13, 2023. (ECF No. 33.) 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. Accordingly, the Court ADOPTS the PF&R, (ECF No. 33), and DISMISSES this action WITH PREJUDICE for failure to prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and the four pending motions to dismiss, (ECF Nos. 18; 21; 25; 31), are DENIED AS MOOT. The Court further DIRECTS the Clerk to remove this matter from the Court’s docket. IT ISSO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: December 21, 2023 Lk. THOMAS E. JOHNSTON, CHIEF JUDGE