Opinion
CRIMINAL NO. 1:07cv113.
August 12, 2008
ORDER ADOPTING REPORT AND RECOMMENDATION
On August 22, 2007, the pro se plaintiff, Kenneth Culbreath ("Culbreath"), a prisoner at the Federal Correctional Institution in Gilmer County, West Virginia ("FCI-Gilmer"), filed a civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Pursuant to Local Rule of Prisoner Litigation 83.02, United States Magistrate Judge James E. Seibert conducted an initial review and entered a Report and Recommendation ("R R") on July 22, 2008.
Within that R R, the Magistrate Judge recommended that this Court dismiss with prejudice all claims against Harley Lappin ("Lappin"), Joyce Francis ("Francis"), E. Mace ("Mace"), CO Hobrat, the United States Attorney for the Northern District of West Virginia (the "U.S. Attorney"), John Doe, Jane Doe, and all Unknown Parties. Magistrate Judge Seibert also recommended that the claims against Spears, Wilson and Miller proceed.
Magistrate Judge Seibert's Report and Recommendation informed Culbreath that failure to object to the recommendations would result in the waiver of his appellate rights on those issues. On August 5, 2008, Culbreath filed objections to the R R. In his objections, Culbreath only objects to this Court dismissing Mace from this case. He does not object to Magistrate Judge Seibert's other recommendations.
Upon de novo review, the Court finds that the Magistrate Judge properly applied the controlling legal standard of Weller v. Dept. of Social Servs., 901 F.2d 384 (4th Cir. 1990), when he determined that this Court should dismiss Mace as a party because Culbreath has failed to allege any wrongdoing by Mace in the complaint.
Consequently, the Court ADOPTS the R R in its entirety (dkt. no. 23) and DISMISSES WITH PREJUDICE all claims against Lappin, Francis, Mace, CO Hobrat, the U.S. Attorney, John Doe, Jane Doe, and all Unknown Parties. The Court ORDERS that Spears, Wilson and Miller be SERVED with a copy of the summons and complaint and REFERS this case back to Magistrate Judge Seibert for further proceedings on the merits.
It is so ORDERED.
The Clerk is directed to mail a copy of this Order to the pro se petitioner, certified mail, return receipt requested and counsel of record.