Quinones-Cedeno v. Rickard

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD LAZARO QUINONES-CEDENO, Plaintiff, v. CIVIL ACTION NO. 1:19-00064 BARBARA RICKARD, WARDEN, et al., Defendants.

MEMORANDUM OPINION AND ORDER By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted to the court his Findings and Recommendation on June 26, 2019, in which he recommended that the court deny plaintiff’s Application to Proceed Without Prepayment of Fees and Costs, (ECF No. 19), deny plaintiff’s letter-form Motion for Preliminary Injunction, (ECF No. 5), dismiss plaintiff’s Amended Complaint, (ECF No. 33), and remove this case from the court’s active docket.

In accordance with the provisions of 28 U.S.C. § 636(b), petitioner was allotted fourteen days and three mailing days in which to file any objections to Magistrate Judge Aboulhosn’s Findings and Recommendation. The failure of any party to file such objections within the time allowed constitutes a waiver of such party’s right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Neither party filed any objections to the Magistrate Judge’s Findings and Recommendation within the requisite time period. However, on September 5, 2019, plaintiff filed a Motion for Default Judgment. (ECF No. 48). Plaintiff also filed a Motion for Extension of Time on September 19, 2019. (ECF No. 49). The court will address these outstanding motions now.

Defendants were never served with process in this case.

Plaintiff never paid the required filing fees and costs, and his Application to Proceed Without Prepayment of Fees and Costs was denied within the PF&R. The defendants have no obligation to “plead or otherwise defend” against the plaintiff's Complaint until they are properly served with process. See, e.g., Tulk v. Marshall Univ., 2019 WL 1030785, at *1 (S.D.W. Va. Jan. 23, 2019) (explaining that “the defendants have not yet been served with process and, thus, they are not in default”). Therefore, the court will not enter default judgment against the defendants in this case, and plaintiff’s Motion for Default Judgment is DENIED.

Plaintiff’s Motion for Extension of Time does not specifically reference any filing deadline. Plaintiff merely mentions that he has had difficulty obtaining his legal documents since his transfer to another facility on August 8, 2019, and therefore requests a general extension for any possible filing deadlines in this case that the court may order.

Because the PF&R was entered long before August 8, 2019, it does not appear that plaintiff’s subsequent transfer affected his ability to timely file objections. As such, this motion is not ripe for review, and therefore plaintiff’s Motion for Extension of Time is DENIED.

Accordingly, the court adopts the Findings and Recommendation of Magistrate Judge Aboulhosn as follows: 1. Plaintiff’s Application to Proceed Without Prepayment of Fees and Costs is DENIED; 2. Plaintiff’s letter-form Motion for Preliminary Injunction is DENIED; 3. Plaintiff’s Amended Complaint is DISMISSED; and 4. The Clerk is directed to remove this case from the court’s active docket.

Additionally, the court rules that plaintiff’s Motion for Default Judgment is DENIED, and plaintiff’s Motion for Extension of Time is DENIED.

The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to plaintiff.

IT IS SO ORDERED this 25th day of September, 2019.

ENTER: David A. Faber Senior United States District Judge