Gonzales v. Commissioner of Social Security

• Court: District Court, N.D. West Virginia
• Decided: June 27, 2024
• Docket: 5:23-cv-00345
• Status: Unknown

Opinion

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

DANIEL JASON GONZALES, Plaintiff, : V. CIVIL ACTION No. 5:23-CV-345 Judge Bailey COMMISSIONER OF SOCIAL SECURITY, Defendant.

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. 17]. 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 May 23, 2024, wherein he recommends that this matter be dismissed for failure to prosecute. 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). Noris 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, plaintiff has waived his 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. 17] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, this Court DISMISSES the above-styled case for FAILURE TO PROSECUTE. The Clerk is DIRECTED TO STRIKE the above-styled case from the active docket of this Court. It is so ORDERED.

The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se plaintiff. DATED: June 27, 2024.

JOHN PRESTON BAILEY UNI TES DISTRICT JU