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Elisha Riggleman v. D. Snow

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION


September 6, 2011

ELISHA RIGGLEMAN, PLAINTIFF,
v.
D. SNOW, DEFENDANT. AND ELISHA RIGGLEMAN, PETITIONER,
v.
JOEL ZEIGLER, RESPONDENT.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the two above-styled actions filed by Plaintiff/Petitioner alleging violations of his constitutional rights. By Standing Order (Document 2 in 5:10-cv-1410; Document 2 in 5:11-cv-373), both actions were referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. By Order of June 10, 2011 (Document 7 in 5:10-cv-1410; Document 6 in 5:11-cv-373), the two actions were consolidated, with Civil Action No. 5:11-cv-373 designated as the lead action.

On June 10, 2011, the Magistrate Judge submitted Proposed Findings and Recommendation (Document 9) wherein it is recommended that this Court deny Plaintiff/Petitioner's Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus, dismiss these consolidated matters, and remove them from the Court's docket. Neither party has timely filed objections to the Magistrate Judge's Proposed Findings and Recommendation. 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). Failure to file timely objections constitutes a waiver of de novo review and the Petitioner's right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

Accordingly, the Court ADOPTS and incorporates herein the findings and recommendation of the Magistrate Judge as contained in the Proposed Findings and Recommendation, and ORDERS that Plaintiff/Petitioner's Application Under 28 U.S.C. § 2241 for Writ of Habeas Corpus (Document 1) be DENIED, and that these consolidated matters be DISMISSED and REMOVED from the Court's docket.

Pursuant to the Court's aforesaid ruling, it is ORDERED that Plaintiff/Petitioner's motion to dismiss (Document 8) is DENIED as MOOT. Further, it is ORDERED that the Plaintiff/Petitioner's motions for appointment of counsel (Documents 5 & 7) are DENIED.

The Court has considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this Court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court concludes that the governing standard is not satisfied in this instance. Accordingly, the Court DENIES a certificate of appealability.

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge VanDervort, to counsel of record and to any unrepresented party.

20110906

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