Opinion
Civil Action 5:24-CV-70
12-11-2024
CARL SMALLWOOD, Plaintiff, v. WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, TIMOTHY TIBBS, Corrections Officer at North Central Regional Jail, and JOHN AND JANE DOES, unknown employees or agents of the above entity, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
The above referenced case is before this Court upon the magistrate judge's recommendation that defendant Timothy Tibbs' Partial Motion to Dismiss Plaintiff's Amended Complaint be granted and this Court dismiss Counts Two, Five, and Six as to defendant Tibbs and all claims against defendant West Virginia Division of Corrections and Rehabilitation be dismissed without prejudice for failure to serve unless, during the period for objections to the Report and Recommendation, plaintiff shows good cause for such failure.
This Court is charged with conducting a de novo review of any portion of the magistratejudge's reportto 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). No objections have been filed to the magistrate judge's report and recommendation.
A de novo review of the record indicates that the magistrate judge's report accurately summarizes this case and the applicable law. Accordingly, the magistrate judge's Report and Recommendation [Doc. 22] is ADOPTED. Defendant Timothy Tibbs' Partial Motion to Dismiss Plaintiff's Amended Complaint [Doc. 18] is GRANTED and Counts Two, Five, and Six are hereby DISMISSED as to defendant Timothy Tibbs.
This Court notes that on the same day the Report and Recommendation was filed, November 26, 2024, counsel for plaintiff filed a Summons. See [Doc. 23]. There is no receipt of service docketed as of the date of this Order. As noted above, no objections have been filed to the Report and Recommendation. Federal Rule of Civil Procedure 4(m) states:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Here, plaintiff is far outside the applicable ninety (90) day period provided in Rule 4(m). Moreover, plaintiff has provided no cause for his failure to serve defendant West Virginia Division of Corrections and Rehabilitation. Thus, all claims against defendant West Virginia Division of Corrections and Rehabilitation are DISMISSED WITHOUT PREJUDICE for failure to serve.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein.