Berry v. Hudgins

Full title: JAMES GILBERT BERRY, Petitioner, v. R. HUDGINS, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG

Date published: Feb 1, 2021

CIVIL ACTION NO.: 3:20-CV-46 (N.D.W. Va. Feb. 1, 2021)

Opinion

CIVIL ACTION NO.: 3:20-CV-46

02-01-2021

JAMES GILBERT BERRY, Petitioner, v. R. HUDGINS, Respondent.

GINA M. GROH CHIEF UNITED STATES DISTRICT JUDGE

(GROH)

ORDER ADOPTING REPORT AND RECOMMENDATION

Now before the Court is a Report and Recommendation ("R&R") filed by United States Magistrate Judge Robert W. Trumble. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed R&R. Magistrate Judge Trumble issued his R&R [ECF No. 23] on December 15, 2020. Therein, Magistrate Judge Trumble recommends that the Respondent's motion to dismiss for lack of jurisdiction [ECF No. 15] be granted, and the Petitioner's § 2241 petition [ECF No. 1] be denied and dismissed without prejudice. ECF No. 23 at 13.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of the magistrate judge's findings where 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 to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and of a petitioner's 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).

The Petitioner's objections to Magistrate Judge Trumble's R&R were due within fourteen plus three days of service. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The R&R was mailed to the Petitioner by certified mail on December 15, 2020. ECF No. 23. The Petitioner accepted service on December 22, 2020. To date, no objections have been filed. Accordingly, this Court reviews the R&R for clear error.

Upon careful review and thoughtful consideration, the Court finds that Magistrate Judge Trumble's R&R [ECF No. 23] should be, and is hereby, ADOPTED for the reasons more fully stated therein. Therefore, the Respondent's Motion to Dismiss [ECF No. 15] is GRANTED, and the Petitioner's § 2241 Petition [ECF No. 1] is DENIED and DISMISSED WITHOUT PREJUDICE.

This Court ORDERS that this matter be STRICKEN from the Court's active docket. The Clerk of Court is DIRECTED to mail a copy of this Order to the pro se Petitioner by certified mail, return receipt requested, at his last known address as reflected on the docket sheet.

DATED: February 1, 2021

/s/_________

GINA M. GROH

CHIEF UNITED STATES DISTRICT JUDGE