Summary
noting that the petitioner was not prejudiced by the delay in receiving his DHO report because, although his appeal was denied as untimely, the petitioner was able to proceed with judicial review of the DHO's decision
Summary of this case from McCall v. PhelpsOpinion
CIVIL ACTION NO. 1:15-12778
05-03-2016
ESPEL CALIXTO, Plaintiff, v. BART MASTERS, Warden FCI McDowell, Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation ("PF&R") on March 16, 2016, in which she recommended that the district court deny plaintiff's petition under 28 U.S.C. § 2241, grant defendant's motion and supplemental motion to dismiss, and dismiss this matter with prejudice from the court's docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Eifert's Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
The parties failed to file any objections to the Magistrate Judge's Findings and Recommendation within the seventeen-day period. Having reviewed the Findings and Recommendation filed by Magistrate Judge Eifert, the court adopts the findings and recommendations contained therein. Accordingly, the court hereby DENIES plaintiff's petition under 28 U.S.C. § 2241, GRANTS defendant's motion and supplemental motion to dismiss (Docs. No. 7, 15), DISMISSES this action with prejudice, and directs the Clerk to remove this case from the court's active docket.
Additionally, the court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is not satisfied in this instance. Accordingly, the court DENIES a certificate of appealability.
The Clerk is directed to forward a copy of this Memorandum Opinion and Order to plaintiff and counsel of record.
IT IS SO ORDERED this 3rd day of May, 2016.
ENTER:
/s/_________
David A. Faber
Senior United States District Judge