Opinion
Civil Action 5:22-CV-297
01-25-2023
FAISAL ALI, Petitioner, v. WARDEN ROANE, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
JOHN PRESTON BAILEY, DISTRICT JUDGE
The above referenced case is before this Court upon the magistrate judge's recommendation that petitioner's petition be denied and dismissed without prejudice. See [Doc. 7].
This Court is charged with conducting a de novo review of any portion of the magistrate judge's report to which a specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend for the district court to review the factual and legal conclusions of the magistrate judge. Thomas v. Arn, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those objections at the appellate court level. United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert, denied, 467 U.S. 1208 (1984). Petitioner timely filed his objections on January 20, 2023. See [Doc. 9].
In his objections, petitioner admits he has not exhausted administrative remedies, but claims this Court should overlook this failure because his petition “presents a dispute of statutory construction and is ripe for review.” See [Doc. 9].
This Court disagrees with petitioner, and agrees with Magistrate Judge Mazzone's finding that petitionerfailed to exhaust his administrative remedies thereby barring the claims contained in petitioner's petition. As stated by Magistrate Judge Mazzone, if the failure to exhaust is apparent from the face of the complaint, this Court has the authority to dismiss the case sua sponte. See [Doc. 7 at 4].
Pursuant to 28 C.F.R. § 542.18, “[i]f the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” Thus, by his own account, petitioner has not exhausted his administrative remedies and his objections provide no evidence to hold otherwise.
Accordingly, a de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. As such, the magistrate judge's report and recommendation [Doc. 7] is ADOPTED, petitioner's objections [Doc. 9] are OVERRULED, and petitioner's petition [Doc. 1] is DENIED and DISMISSED WITHOUT PREJUDICE. Furthermore, petitioner's Motion for Extension to Comply with Notice [Doc. 6] is DENIED AS MOOT.
This Court further DIRECTS the Clerk 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 petitioner.