Opinion
CIVIL ACTION NO. 5:20-CV-168
09-09-2020
MONICA PERKINS, Petitioner, v. WARDEN P. ADAMS, Respondent.
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. 5]. 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 13, 2020, wherein he recommends that petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] be denied and dismissed without prejudice, noting petitioner's right to file a Bivens action. Additionally, Magistrate Judge Mazzone recommended that petitioner's Motion for Leave to Proceed in Forma Pauperis [Doc. 2] be granted. 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. Having filed no objections within that time frame, petitioner has waived her 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.
Having reviewed the R&R for clear error, it is the opinion of this Court that the Report and Recommendation [Doc. 5] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, this Court ORDERS that petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] be DENIED AND DISMISSED WITHOUT PREJUDICE to petitioner's right to file a Bivens action. Furthermore, petitioner's Motion for Leave to Proceed in Forma Pauperis [Doc. 2] is hereby GRANTED, and, as such, petitioner is permitted to proceed in forma pauperis on her related Bivens action should she choose to so file. This Court further DIRECTS the Clerk to enter judgment in favor of the respondent and to STRIKE this matter from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Orderto any counsel of record and to mail a copy to the pro se petitioner.
DATED: September 9, 2020.
/s/ _________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE