Summary
In Cohen v. United States, No. 20-CV-0152 (N.D. W.Va. Aug. 18, 2020), the Northern District of West Virgnia concluded that Plaintiff was barred from proceeding in forma pauperis under 28 U.S.C. § 1915(g), because the court found Plaintiff had filed three civil actions while he was a prisoner that were dismissed as frivolous, malicious, or failure to state a claim.
Summary of this case from Cohen v. United StatesOpinion
CIVIL ACTION NO. 5:20-CV-152
08-18-2020
JEFFREY COHEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
(BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Mazzone [Doc. 6]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation ("R&R"). Magistrate Judge Mazzone filed his R&R on August 3, 2020, wherein he recommends that plaintiff's case be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g). Further, Magistrate Judge Mazzone recommends that the plaintiff's Motion to Proceed in forma pauperis [Doc. 2] should be denied. For the reasons that follow, this Court will adopt the R&R.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which 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 as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn , 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de novo review when the party makes only "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).
In addition, failure to file timely objections constitutes a waiver of de novo review and the 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). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner , 404 U.S. 519, 520 (1972); Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone's R&R were due within fourteen (14) days of receipt of the R&R, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. Plaintiff filed a letter [Doc. 9] on August 14, 2020, stating that he does "not have any formal objections." Having stated no objections, plaintiff has waived his right to both de novo review and to appeal this Court's Order pursuant to 28 U.S.C. § 636(b)(1). Consequently, the R&R will be reviewed for clear error.
Furthermore, in plaintiff's letter, he requests this Court "to permit the current submission already filed with the Court to stand and not force [him] to incur additional expense to resubmit the same exact paperwork." [Doc. 9 at 2], A check for $350 was received by the Clerk's office but was returned to the sender because it was insufficient to file the paperwork. Thus, this Court DENIES AS MOOT plaintiff's request to permit the current submission already filed with the Court.
Having reviewed the R&R for clear error, it is the opinion of this Court that the Report and Recommendation [Doc. 6] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, this Court ORDERS that plaintiff's Federal Torts Claim Act Complaint [Doc. 1] be DISMISSED WITHOUT PREJUDICE. Further, plaintiff's Motion To Proceed in forma pauperis [Doc. 2] is hereby DENIED. This Court further DIRECTS the Clerk to enter judgment in favor of the defendants and 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 plaintiff.
DATED: August 18, 2020.
/s/ _________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE