Miller v. Ballard

Full title: ANDREW MILLER, Plaintiff, v. DAVID BALLARD, et al., Defendants.

Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

Date published: Apr 7, 2014

CIVIL ACTION NO. 2:13-cv-08573 (S.D.W. Va. Apr. 7, 2014)

Opinion

CIVIL ACTION NO. 2:13-cv-08573

04-07-2014

ANDREW MILLER, Plaintiff, v. DAVID BALLARD, et al., Defendants.

THOMAS E. JOHNSTON

MEMORANDUM OPINION AND ORDER

Plaintiff Andrew Miller, pro se, an inmate at the Mount Olive Correctional Complex ("prison") in Mount Olive, West Virginia, filed an Application to Proceed without Prepayment of Fees and Costs [ECF 1] and a Complaint [ECF 2]. In his Complaint, Plaintiff alleges that Defendants have acted unreasonably in handling his complaints about one of the prison's rehabilitative programs.

By Standing Order entered on April 8, 2013, and filed in this case on April 22, 2013, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation (PF&R) pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Tinsley filed a PF&R on March 10, 2014 [ECF 6]. In that filing, the magistrate judge recommended that this Court dismiss Petitioner's Complaint under 28 U.S.C. § 1915A for failing to state a facially plausible claim for relief. The magistrate judge also recommended that the Court deny Plaintiff's application to proceed without prepayment of fees and costs.

The Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). The Court is not, however, 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, this Court need not conduct a de novo review when a petitioner "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). Objections to the PF&R were due March 27, 2014. To date no objections have been filed.

Accordingly, the Court ADOPTS the PF&R [ECF 6], DISMISSES the Complaint [ECF 2], DENIES Plaintiff's application to proceed without prepayment of fees and costs [ECF 1], and DIRECTS the Clerk to remove this case from the Court's docket.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

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THOMAS E. JOHNSTON

UNITED STATES DISTRICT JUDGE