# Nally v. Davis

> District Court, N.D. West Virginia · February 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10725565

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** February 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10725565

## How later opinions describe it (automated extraction)

- holding that “when a state prisoner is challenging the very fact or duration of his physical confinement, and the relief he seeks is a determination that he is entitled to immediate release or speedier release from that imprisonment, his sole federal remedy is a writ of habeas…

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JEFFREY ALLEN NALLY,
Plaintiff,
v. Civ. Action No. 1:17-CV-66
(Kleeh)
JAMES W. DAVIS,
Prosecuting Attorney, and
JASON CUOMO, Judge,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 30], DENYING AS MOOT PLAINTIFF’S MOTION FOR HEARING AND
TRANSPORT ORDER [ECF NO. 29], AND DISMISSING COMPLAINT
Pending before the Court is a Report and Recommendation
(“R&R”) [ECF No. 30] entered by United States Magistrate Judge
Michael J. Aloi (“Judge Aloi”), along with a pro se Motion for
Hearing and Transport Order [ECF No. 29]. Judge Aloi recommends
that the Court dismiss the Plaintiff’s Complaint with prejudice
and dismiss the Motion for Hearing and Transport Order as moot.
For the reasons discussed below, the Court adopts the R&R in its
entirety.
I. PROCEDURAL HISTORY
On April 25, 2017, the Plaintiff, Jeffrey Allen Nally
(“Plaintiff”), filed an action pursuant to 42 U.S.C. § 1983 against
the Defendants, Hancock County Assistant Prosecutor James W. Davis
(“Davis”) and Hancock County Circuit Judge Jason Cuomo (“Cuomo”)
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 30], DENYING AS MOOT PLAINTIFF’S MOTION FOR HEARING AND
TRANSPORT ORDER [ECF NO. 29], AND DISMISSING COMPLAINT
(together, “Defendants”). ECF No. 1. Judge Aloi denied two requests
by Plaintiff for court-appointed counsel, finding that he did not
make the required showing of extraordinary circumstances. ECF Nos.
8, 12. Plaintiff proceeded in forma pauperis in this case. ECF No.
9. Davis filed a motion to dismiss and then withdrew the motion
because it was premature. See ECF No. 21. On May 1, 2019, Judge
Aloi entered his R&R.
II. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,
without explanation, any of the magistrate judge’s
recommendations” to which there are no objections. Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will
uphold portions of a recommendation to which no objection has been

made unless they are clearly erroneous. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
III. BACKGROUND
The Court has reviewed the Factual and Procedural History
included in the R&R. Noting that there were no objections by
Plaintiff to the background information, and finding no clear
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 30], DENYING AS MOOT PLAINTIFF’S MOTION FOR HEARING AND
TRANSPORT ORDER [ECF NO. 29], AND DISMISSING COMPLAINT
error, the Court adopts the R&R’s Factual and Procedural History1
and incorporates it by reference herein.
Plaintiff now alleges the following: (1) that he never
received a hearing in state court on his Rule 35 motion to develop
the record; (2) that the state breached his plea agreement; and
(3) that it was a violation of equal protection to charge him with
felonies rather than misdemeanors. As relief, he seeks a “fair
sentence without discrimination.” Compl., ECF No. 1, at 11.
The R&R recommends dismissal of this action. Plaintiff filed
two specific objections:
(1) Plaintiff argues that the plea agreement was
violated because he was entitled to a Rule 35
sentence reduction after five years served.
Plaintiff believes he is entitled to a
sentence reduction hearing or the opportunity
to put on evidence before the judge.
(2) Plaintiff argues that his Equal Protection
rights were violated because he received
felony counts for animal cruelty. He claims
that others accused of the same crimes have
been charged with misdemeanors and/or received
more lenient sentences.
The Court will review the two objections de novo and the
remainder of the R&R for clear error.
1 The Factual and Procedural History is located at pages 2–5 of
the R&R.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 30], DENYING AS MOOT PLAINTIFF’S MOTION FOR HEARING AND
TRANSPORT ORDER [ECF NO. 29], AND DISMISSING COMPLAINT
IV. DISCUSSION
The Magistrate Judge is correct that Plaintiff’s sole avenue
to relief lies in a habeas corpus action. See Preiser v. Rodriguez,
411 U.S. 475, 500 (1973) (holding that “when a state prisoner is
challenging the very fact or duration of his physical confinement,
and the relief he seeks is a determination that he is entitled to
immediate release or speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus”). Plaintiff has
not exhausted his available state court habeas corpus remedies, so
this Court cannot presently grant him the relief he seeks. See 28
U.S.C. § 2254(b)(1)(A).
Further, the Magistrate Judge is correct that Davis (the
prosecutor) and Cuomo (the judge) are entitled to qualified
immunity. Prosecutors are immune from civil liability when
performing their prosecutorial functions. See Imbler v. Pachtman,
424 U.S. 409 (1976); see also Ostrzenski v. Seigel, 177 F.3d 245

(4th Cir. 1999). Judges are also shielded from civil liability for
their judicial actions. Stump v. Sparkman, 435 U.S. 349 (1978).
Plaintiff’s allegations relate to Davis’s and Cuomo’s performance
of their official duties. As such, all of Plaintiff’s claims in
his Complaint fail, and his objections are overruled.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 30], DENYING AS MOOT PLAINTIFF’S MOTION FOR HEARING AND
TRANSPORT ORDER [ECF NO. 29], AND DISMISSING COMPLAINT
V. CONCLUSION
For the reasons discussed above, the Court ADOPTS the R&R
[ECF No. 30] and OVERRULES Plaintiff’s objections. The Court ORDERS
that this action be DISMISSED WITH PREJUDICE. The Court DISMISSES
AS MOOT the pending Motion for Hearing and Transport Order [ECF
No. 29].
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record and Plaintiff, via certified mail, return receipt
requested.
DATED: February 21, 2020
_/_s_/_ _T_h_o_m_a_s_ _S_._ _K_l_e_e_h_________
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725565. Public record. Not legal advice.