Bigley v. Morgantown Sheriff Dept

• Court: District Court, N.D. West Virginia
• Decided: October 2, 2023
• Docket: 1:23-cv-00068
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

NICHOLAS BIGLEY,

Plaintiff,

v. Civil Action No. 1:23-cv-68

MORGANTOWN SHERIFF DEPT., et al.,

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 7] AND DISMISSING CASE WITHOUT PREJUDICE

On September 5, 2023, the pro se Plaintiff, Nicholas Bigley (“Plaintiff”), filed a Complaint against the Defendants. [ECF No. 1]. Pursuant to 28 U.S.C. § 636 and the local rules, the United States Magistrate Judge Michael J. Aloi (the “Magistrate Judge”) reviewed the case in accordance with 28 U.S.C. § 1915(e)(2) [ECF No. 7]. On September 12, 2023, the Magistrate Judge entered a Report and Recommendation (“R&R”) [ECF No. 7], recommending that Plaintiff’s complaint [ECF No. 1] be dismissed without prejudice for failure to state a claim and that Plaintiff’s motion to proceed in forma pauperis [ECF No. 2] be denied. The R&R informed the parties that they had fourteen (14) days plus an additional three (3) days from the date of the filing of the R&R to file “specific written objections identifying the portions of the Report and ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 7] AND DISMISSING CASE WITHOUT PREJUDICE Recommendation to which objection is made, and the basis for such objection.” It further warned them that the “[f]ailure to timely file 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.” ECF No. 7 at 8-9. Plaintiff accepted service on September 14, 2023. ECF No. 13. 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). An objection must be specific and particularized to warrant such review. See United States v. Midgette, 478 F.3d 616, 621–22 (4th Cir. 2007). Otherwise, the Court will uphold portions of a recommendation to which a general objection or 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); Midgette, 478 F.3d at 622. The Court has reviewed the R&R for clear error. Diamond, 416 F.3d at 315. Because the Court FINDS dismissal appropriate, the Court ADOPTS the R&R in its entirety [ECF No. 7], DENIES Plaintiff’s motion to proceed in forma pauperis [ECF No. 2], DENIES AS MOOT all other pending motions, and DISMISSES WITHOUT PREJUDICE Plaintiff’s complaint [ECF No. 1]. The Court DIRECTS the Clerk to strike this case from the Court’s active docket. BIGLEY V. MORGANTOWN SHERIFF DEPT., ET AL. 1:23CV68 ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 7] AND DISMISSING CASE WITHOUT PREJUDICE It is so ORDERED. The Clerk shall transmit copies of this Order to counsel of record via email and the pro se Plaintiff via certified mail, return receipt requested. DATED: October 2, 2023

THOMAS S. KLEEH, CHIEF JUDGE NORTHERN DISTRICT OF WEST VIRGINIA