Damron v. Major D. J.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT BECKLEY JONATHAN DAMRON, Plaintiff, v. CIVIL ACTION NO. 5:21-CV-00085 MAJOR D.J. and CPT. BURTON and SGT. LESTER and SGT. COX. and CORP. CLEAR and CORP. WALLS and CORP. COX and CORP. TONY and CORP. HAYS and CORP. COULTURE and CORP. GRANT and CORP. WIMMER and CORP. POWERS and CORP. MITCHUM and CORP. BOOTH and CORP. STURGIL and OFFICER MAXWELL and CORP. SAMPSON and CORP. PACK and COUNSELOR MARTIN, Defendants.

ORDER Pending is Defendants’ Motion to Dismiss [Doc. 31], filed on April 12, 2021. This action was previously referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission of proposed findings and a recommendation (“PF&R”). Magistrate Judge Aboulhosn filed his PF&R on November 8, 2021. Magistrate Judge Aboulhosn recommended the Court grant in part and deny in part Defendants’ Motion to Dismiss.

The Court need not 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. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” (emphasis added)). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal the Court’s order. See 28 U.S.C. § 636(b)(1); see also United States v. De Leon- Ramirez, 925 F.3d 177, 181 (4th Cir. 2019) (Parties may not typically “appeal a magistrate judge’s findings that were not objected to below, as § 636(b) doesn’t require de novo review absent objection.”); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989). Further, the Court need not conduct de novo review when a party “makes 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).

If the PF&R was delivered by mail, objections in this case were due on November 26, 2021. No objections were received.

Accordingly, the Court ADOPTS the PF&R [Doc. 36], GRANTS Defendants’ Motion to Dismiss [Doc. 31] to the extent Defendants’ request the dismissal of Plaintiff’s claim for monetary damages against Defendants in their official capacities; DENIES Defendants’ Motion to Dismiss [Doc. 31] to the extent Defendants request the dismissal of Plaintiff’s claim of injunctive relief against Defendants in their official capacities; DENIES Defendants’ Motion to Dismiss [Doc. 31] to the extent Defendants request the dismissal of Plaintiff’s claims against Defendants in their individual capacities; GRANTS Plaintiff permission to amend his Second Amended Complaint to include the additional facts contained in his Response; and REFERS the matter back to Magistrate Judge Aboulhosn for further proceedings.

The Court directs the Clerk to transmit a copy of this Order to any counsel of record and any unrepresented party.

ENTER: December 21, 2021 ES EE vn Fy eK my Frank W. Volk Grae United States District Judge