Rhodes v. United States

• Court: District Court, N.D. West Virginia
• Decided: May 13, 2020
• Docket: 5:19-cv-00335
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA WHEELING BRYAN RHODES, Plaintiff, v. CIVIL ACTION NO. 5:19-CV-335 (BAILEY) UNITED STATES OF AMERICA, Defendant. ORDER ADOPTING REPORT AND RECOMMENDATION On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James P. Mazzone (Doc. 10]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and recommendation (“R&R"). Magistrate Judge Mazzone filed his R&R on April 16, 2020, wherein he recommends that plaintiff's Complaint under the Federal Tort Claims Act [Doc. 1] be dismissed without prejudice for failure to exhaust administrative remedies and that plaintiff's Motion for Extension of Time to Serve Complaint [Doc. 9] be denied as moot. 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). 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). Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). Service of the R&R was accepted on April 21, 2020. Accordingly, plaintiff had until May 8, 2020, to file objections to the R&R. To date, no objections have been filed. Accordingly, this Court will review the R&R for clear error. Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 10] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, plaintiffs Complaint [Doc. 1] is hereby DISMISSED WITHOUT PREJUDICE. Further, plaintiff's Motion for Extension of Time to Serve Complaint [Doc. 9] is hereby DENIED AS MOOT. The Court further ORDERS that this matter be STRICKEN from the active docket of this Court and DIRECTS the Clerk to enter judgment in favor of the defendant. It is so ORDERED. The Clerk is directed to transmit copies of this Order to any counsel of record herein and to mail a copy to the pro se plaintiff. DATED: May 13, 2020.

UNITED STATES DISTRICT JUDGE