Opinion
Civ. Action No. 1:20-CV-82
03-02-2021
MICHAEL HEATH THETFORD, ANGEL CENTENO-MORALES, and NELSON R. ZAPATA-VICENTE, Plaintiffs, v. ROGER WARE, ALVIN JAMES WARRICK, COLITHA PATRICE BUSH, RONALD BENNETT SHEPHERD, TANYA L. RICHARD, PRIVATE SERVICES, and UNITED STATES OF AMERICA, Defendants.
( ) ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 107]
On March 30, 2020, pro se Defendant Tanya Richard ("Richard") filed Motion to Dismiss and Answer to Complaint ("Motion") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECF No. ECF No. 2]. In the Motion, Richard requests this Court dismiss Richard from the case because Plaintiffs' Original Complaint failed to state a claim for which relief can be granted, is devoid of any facts supporting Plaintiffs' claims, and cites no authority supporting causes of action against Richard. [ECF No. 2].
Pursuant to 28 U.S.C. § 636 and the local rules, the Court referred the action to United States Magistrate Judge Michael J. Aloi for initial review. On February 9, 2021, the Magistrate Judge entered a Report and Recommendation ("R&R") [ECF No. 107], recommending that the Court grant the Motion [ECF No. 2].
The R&R also informed the parties regarding their right to file specific written objections to the magistrate judge's report and recommendation. Under Local Rule 12 of the Local Rules of Prisoner Litigation Procedure of the Northern District of West Virginia, "[a]ny party may object to a magistrate judge's recommended disposition by filing and serving written objections within fourteen (14) calendar days after being served with a copy of the magistrate judge's recommended disposition." LR PL P 12. Further, the magistrate judge allotted an extra three (3) days to account for mailing and service of any objections. [ECF No. 106]. Therefore, parties have seventeen (17) calendar days from the date of service of the R&R to file "specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection." The R&R further warned them that the "[f]ailure to file written objections . . . shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals." The docket reflects that Plaintiffs accepted service of the R&R on February 12, 2021. [See ECF Nos. 111, 112, 113]. To date, no objections to the R&R have been filed.
When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise, "the Court may adopt, without explanation, any of the magistrate judge's recommendations" to which there are no objections. Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Because no party has objected, the Court is under no obligation to conduct a de novo review. Accordingly, the Court reviewed the R&R for clear error. Upon careful review, and finding no clear error, the Court ADOPTS the R&R [ECF No. 107]. The Motion is GRANTED [ECF No. 2] and pro se Defendant Tanya Richard is DISMISSED from this case.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all pro se parties via certified mail, return receipt requested, and to counsel of record via email.
DATED: March 2, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE