Thetford v. Ware

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL HEATH THETFORD,

ANGEL CENTENO-MORALES, and

NELSON R. ZAPATA-VICENTE,

Plaintiffs,

v. Civ. Action No. 1:20-CV-82

(Judge Kleeh)

ROGER WARE,

ALVIN JAMES WARRICK,

COLITHA PATRICE BUSH,

RONALD BENNETT SHEPHERD,

TANYA L. RICHARD,

PRIVATE SERVICES, and

UNITED STATES OF AMERICA,

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

I. Introduction

Pending before the Court is a Report and Recommendation

(“R&R”) entered by United States Magistrate Judge Michael J. Aloi

(the “Magistrate Judge”) on pro se Plaintiff Michael Heath

Thetford’s Ex Parte TRO Motion (“Motion”) filed on May 1, 2020.

[ECF No. 25]. In the Motion, Plaintiff asks this Court to “issue

a temporary restraining order (“TRO”) against Defendant Roger

Ware, restraining him, his agents, and all other persons acting in

accord with him, from engaging in vindictive conduct or denying,

obstructing, or otherwise failing to respect Plaintiff’s exercise

of constitutional, statutory, and regulatory court-access rights.”

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

[ECF No. 5]. Defendant United States of America filed a response

in opposition to the motion on May 11, 2020. [ECF No. 12]. Thetford

filed objections to the R&R on October 2, 2020. [ECF No. 79]. For

the reasons discussed herein, the Court adopts the R&R.

Plaintiffs Thetford, Angel Centeno-Morales, and Nelson R.

Zapata-Vicente are federal inmates at FCI Hazelton and initiated

this civil action against various defendants in the Circuit Court

of Preston County in April 2020. [ECF No. 1-1]. The action was

removed to this Court on May 1, 2020. [ECF No. 1]. Plaintiffs

allege violations of the West Virginia Consumer Credit and

Protection Act, Racketeer Influenced and Corrupt Organizations

Act, West Virginia Uniform Declaratory Judgment Act, and “various

other violations of West Virginia statutes and torts.” See W. Va.

Code §§ 46A-6-101 et seq., 55-13-1 et seq., and 18 U.S.C. § 1961

et seq. In the Complaint, Plaintiffs allege twelve (12) causes of

action: (1) Disclosure of PSRs, (2) Disclosure of DMV Records, (3)

Civil Conspiracy: Invasion of Privacy, (4) Civil Conspiracy:

Insulting Words, (5) Civil Conspiracy: Tort of Battery, (6) Ware’s

RICO Conspiracy, (7) Private Services RICO Fraud, (8) Civil

Conspiracy: Trespass on the Case, (9) Ware’s Deceptive Acts or

Practices, (10) Private Services Deceptive Acts or Practices, (11)

Ware Negligence, (12) Tort of Outrage, and finally they seek

relief by way of a Preliminary Injunction and a Permanent

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

Injunction. [ECF No. 1-1].

II. Legal Standard

A. Preliminary Injunction

As noted by the Magistrate Judge, a “preliminary injunction

is an extraordinary remedy never awarded as of right. In each

case, courts must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding

of the requested relief.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008) (internal quotation marks and citations

omitted). In order to be awarded a preliminary injunction, a

plaintiff “must establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Id. at

20 (citations omitted).

The demanding standard for the issuance of a preliminary

injunction becomes even more exacting when a plaintiff requests an

injunction that mandates action, as opposed to one that preserves

the status quo pending trial. See East Tennessee National Gas Co.

v. Sage, 361 Fed 3d 808, 828 (4th Cir. 2004) (quoting Wetzel v.

Edwards, 635 F.2d 283, 286 (4th Cir. 1980)) (noting that ‘mandatory

preliminary injunctions do not preserve the status quo and normally

should be granted only in those circumstances when the exigencies

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

of the situation demand such relief’).

B. Report and Recommendation 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). “When

a party does make objections, but these objections are so general

or conclusory that they fail to direct the district court to any

specific error by the magistrate judge, de novo review is

unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730

(S.D.W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th

Cir. 1982) (emphasis added)).

Timely, specific objections are necessary to focus the

court’s attention on disputed issues. Thomas v. Arn, 474 U.S.

140, 148 (1985). General objections to a magistrate judge’s report

and recommendation are tantamount to a failure to object because

they do not direct the court’s attention to any specific portions

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

of the report. Howard v. Secretary of Health & Human Servs. 932

F.2d 505, 529 (6th Cir. 1991); Orpiano v. Johnson, 687 F.2d 44, 47

(4th Cir. 1982) (de novo review is not required where objections

are general and conclusory); United States v. Midgette, 478 F.3d

616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a

magistrate judge’s report, a party must object to the finding or

recommendation on that issue with sufficient specificity as

reasonably to alert the district court of the true ground for the

objection.”). “When only a general objection is made to a portion

of a magistrate judge’s report-recommendation, the Court subjects

that portion of the report-recommendation to only a clear error

review.” Williams v. New York State Div. of Parole, No. 9:10-CV-

1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012).

A party waives any objection to an R&R that lacks adequate

specificity. See Mario v. P & C Food Markets, Inc., 313 F.3d 758,

766 (2d Cir. 2002) (finding that a party’s objections to the

magistrate judge’s R&R were not specific enough to preserve the

claim for review). Bare statements “devoid of any reference to

specific findings or recommendations . . . and unsupported by legal

authority, [are] not sufficient.” Mario, 313 F.3d at 766. Pursuant

to the Federal Rules of Civil Procedure and this Court’s Local

Rules, “referring the court to previously filed papers or arguments

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

does not constitute an adequate objection.” Id.; see also Fed. R.

Civ. P. 72(b); LR PL P 12.

The R&R informed the parties that they had fourteen (14) days

from the date of service of the R&R to file “specific written

objections, identifying the portions of the Report and

Recommendation to which objection is made, and the basis of such

objection.” It further warned them that the “[f]ailure to file

written objections . . . shall constitute a waiver of de novo

review by the District Court and a waiver of appellate review by

the Circuit Court of Appeals.” The docket reflects that Thetford

accepted service of the R&R on June 9, 2020. [See ECF No. 28].

Upon granting two motions for extension of time to file objections,

this Court allowed objections to be timely filed by October 2,

2020. [ECF No. 68]. Thetford filed timely objections to the R&R.

[ECF No. 79].

III. Discussion

In this case, Thetford requests the Court issue a temporary

restraining order against “Defendant Roger Ware, restraining him,

his agents, and all other persons acting in accord with him, from

engaging in vindictive conduct or denying, obstructing, or

otherwise failing to respect Plaintiff’s exercise of

constitutional, statutory, and regulatory court-access rights.”

[ECF No. 5 at 1]. Thetford asserts that he, and many others, would

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

testify as to certain abuse and oppression at the hands of

Defendant Ware at FCI Hazelton. Id. Further, Thetford states that

Defendant Ware distributed his sealed PSR, and that he has suffered

because of this disclosure. Id.

The Magistrate Judge’s R&R sets forth the relevant statute

that governs Thetford’s request for injunctive relief against

Defendant Ware as a federal employee, which is 5 U.S.C. § 702.

[ECF No. 25 at 8]. See also Simmat v. U.S. Bureau of Prisons, 413

F.3d 1225, *1233 (10th Cir. 2005) (finding that 5 U.S.C. § 702

operates as “a general waiver of the government’s sovereign

immunity from injunctive relief.”). Therefore, Defendant USA’s

notion that such relief is not authorized against Defendant Ware

is incorrect; however, as to the unnamed defendants in Plaintiffs’

Complaint, the Court agrees that any request for injunctive relief

against individuals unnamed in the Complaint is not cognizable.

The Magistrate Judge properly analyzed the Winter factors,

which must be satisfied for the issuance of a preliminary

injunction, and determined that Plaintiff did not make a clear

showing that he is likely to succeed on the merits of his complaint

[ECF No. 25 at 9]. Thetford has so far pleaded serious allegations

against the defendants and has submitted evidence that is too

speculative and vague to overcome the burden he faces. Because

Plaintiff cannot clearly show that he is likely to succeed on the

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

merits of his claims, Plaintiff cannot establish the necessary

first factor for a preliminary injunction. Id.

Second, whether Thetford’s claim he will suffer irreparable

harm in the absence of his requested preliminary relief also fails.

Aside from the conclusory allegations and scarce evidence

submitted to the Court, Thetford failed to show a temporary

restraining order would prevent him from being irreparably harmed.

A. Objections

Thetford filed a fifteen (15) page document with six (6) total

objections. [ECF No. 79]. Within the document, Thetford objects

for a myriad of reasons, and some objections merely repeat and

clarify the allegations of his Complaint [ECF No. 1-1] as well as

the arguments in his Motion [ECF No. 5]. Due to Thetford’s failure

to object to the finding or recommendation with sufficient

specificity on the Magistrate Judge’s recommendation that this

Court deny the motion for preliminary injunction, only one (1)

objection warrants a de novo review by this Court.

1. Objection #1

First, Thetford objects to the Court’s application of federal

law, as opposed to West Virginia state law, in determining the

outcome of his preliminary injunction claim. [ECF No. 79 at 8].

Indeed, Federal district courts have limited subject matter

jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

U.S. 546, 552 (2005). They possess only the jurisdiction authorized

by the United States Constitution and federal statute. Bowles v.

Russell, 551 U.S. 205, 212 (2007) (“Within constitutional bounds,

Congress decides what cases the federal courts have jurisdiction

to consider.”). Federal district courts decide federal question

cases-such as the instant case-which are “civil actions that arise

under the Constitution, laws, or treaties of the United States.” 28

U.S.C. § 1331.

While this action was initiated in Preston County Circuit

Court, Defendants timely removed the matter under 28 U.S.C. §

2679(d)(2) and deemed the United States of America as a defendant

for purposes of Plaintiffs’ West Virginia state law claims under

§ 2679(d)(2). 28 U.S.C. § 2679(d)(2) states that “[u]pon

certification by the Attorney General that the defendant employee

was acting within the scope of his office or employment at the

time of the incident out of which the claim arose, any civil action

or proceeding commenced upon such claim in a State court shall be

removed . . . at any time before trial by the Attorney General to

the district court of the United States . . . .” Id.

As the Magistrate Judge clearly stated, temporary restraining

orders or preliminary injunctive relief are expressly authorized

in civil actions with respect to prison conditions that violate

the Federal rights of inmates. 18 U.S.C. § 3626(a)(2) (“In any

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

civil action with respect to prison conditions, to the extent

otherwise authorized by law, the court may enter a temporary

restraining order or an order for preliminary injunctive

relief.”). Therefore, the preliminary injunction action arises

under the laws of the United States, and federal law applies on

this particular issue. Specifically, the procedural standards

governing claims for injunctive relief most certainly apply in

this venue. Of course, Plaintiffs’ substantive state law claims

would be governed by West Virginia law if and when the time comes

for this Court to assess those causes of action. See Gasperini v.

Center for Humanities, Inc., 518 U.S. 415, 427 (1996) (“Under the

Erie doctrine, federal courts sitting in diversity apply state

substantive law and federal procedural law.”). Based upon the

foregoing, this objection is overruled.

2. Objection #2

Next, Thetford objects to the Magistrate Judge’s finding that

his ability to litigate this case has not been hindered in a

substantial way. [ECF No. 79 at 10]. Thetford attempts to clarify

this issue raised in the complaint against Defendant Ware and non-

party Unit Supervisor Jose Rivera. The Court finds that Thetford’s

objection is conclusory, restates and clarifies the allegations of

the complaint, and is not specific as to the findings and

recommendation of the Magistrate Judge with respect to the

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

necessary standard for the issuance of a preliminary injunction.

Therefore, this objection is overruled.

3. Objection #3

Thetford takes issue with the Magistrate Judge’s statement in

the R&R that the motion for temporary restraining order or

preliminary injunction was fully briefed. Thetford states that he

intended to file a brief in support of the TRO. [ECF No. 79 at

12]. There is nothing in the record before the Court that shows

Thetford’s ability to file documents with the Court has been

hindered; in fact, the record shows the opposite. The Court finds

this objection to be without merit. In addition, the Court finds

that Thetford’s third objection is not specific as to the findings

and recommendation of the Magistrate Judge with respect to the

necessary standard for the issuance of a preliminary injunction.

Therefore, the third objection is likewise overruled.

4. Objection #4

Thetford’s fourth objection states his disagreement with the

Magistrate Judge’s finding that a hearing on the Motion is

unnecessary. [ECF No. 79 at 13]. Again, the Court overrules this

objection because Thetford failed to bring to this Court’s

attention an objection specific as to the findings and

recommendation of the Magistrate Judge with respect to the

necessary standard for the issuance of a preliminary injunction.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

This objection is likewise overruled.

5. Objection #5

Thetford objects to the Magistrate Judge’s statement that

Thetford has administrative remedies available to him through the

BOP. [ECF No. 79 at 13]. Again, the Court overrules this objection

because Thetford failed to bring to this Court’s attention an

objection specific as to the findings and recommendation of the

Magistrate Judge with respect to the necessary standard for the

issuance of a preliminary injunction. This objection is likewise

overruled.

6. Objection #6

Lastly, Thetford objects to the “application of the Local

Rules of Prison Litigation Procedure to this case.” [ECF No. 79 at

13]. Again, the Court overrules this objection because Thetford

failed to bring to this Court’s attention an objection specific as

to the findings and recommendation of the Magistrate Judge with

respect to the necessary standard for the issuance of a preliminary

injunction. This objection is likewise overruled.

IV. Conclusion

For the reasons discussed herein, the Report and

Recommendation [ECF No. 25] is ADOPTED in its entirety. Thetford’s

objections [ECF No. 79] are OVERRULED, and Plaintiff Thetford’s Ex

Parte TRO Motion [ECF No. 5] is DENIED.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 25] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 79]

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all

pro se parties via certified mail, return receipt requested, and

to counsel of record via email.

DATED: February 8, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE