The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SCOTT RICHARD NESTOR and
CELINA DAWN SANSONE,
Plaintiffs,
v. Civil Action No. 1:20-CV-217
(Judge Kleeh)
KRISTEN D. ANTOLINI,
ANNE M. ARMSTRONG,
CARRIE POIER, and
STEVEN L. SHAFFER,
Defendants.
ORDER ADOPTING OMNIBUS REPORT
AND RECOMMENDATION [DKT. NO. 43]
On September 3, 2020, the pro se Plaintiffs filed a Complaint
alleging a cause of action under 42 U.S.C. § 1983 arising from a
West Virginia state judicial proceeding that involves a juvenile
abuse and neglect petition against Plaintiffs Scott Richard Nestor
and Celina Dawn Sansone (“Plaintiffs”) [Dkt. No. 1]. Each
Defendant filed a Motion to Dismiss for Failure to State a Claim
[Dkt. Nos. 24, 25, 26, and 27]. Plaintiffs filed a response [Dkt.
No. 36], and Defendants Antolini, Poier, and Shaffer filed replies
in support of their motions [Dkt. Nos. 38, 39, and 40]. Plaintiffs
filed a “Second Response” [Dkt. No. 41], and Defendant Antolini
filed a Motion to Strike Plaintiffs’ Second Response [Dkt. No.
42].
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
ORDER ADOPTING OMNIBUS REPORT AND RECOMMENDATION [DKT. NO. 43]
referred the action to United States Magistrate Judge Michael J.
Aloi for initial review. On May 19, 2021, the Magistrate Judge
entered an Omnibus Report and Recommendation (“R&R”) [Dkt. No.
43], recommending that the Court grant the Motions to Dismiss [Dkt.
Nos. 24, 25, 26, and 27] and deny the Motion to Strike [Dkt. No.
42]. On June 10, 2021, Plaintiffs filed a “Reply to Memorandum,
Opposing Counsel’s Motion to Dismiss and Plaintiff’s [sic] Motion
for Reconsideration” [Dkt. No. 45] which was docketed as an
objection to the R&R. Plaintiffs also filed a pro se Motion to
Amend the Complaint to Add Additional Constitutional Violations
[Dkt. No. 46]. Responses in Opposition were filed to Plaintiffs’
Motion to Amend [Dkt. Nos. 47, 48, 49, and 50].
The R&R informed the parties of their right to file specific
written objections to the Magistrate Judge’s report and
recommendation. Specifically, the Magistrate Judge gave the
parties fourteen (14) calendar days “from the date of filing this
Report and Recommendation within which to file with the Clerk of
this Court, specific written objections, identifying the portions
of the Report and Recommendation to which objection is made, and
the basis of such objection” [Dkt. No. 43 at 45-46]. The R&R
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
ORDER ADOPTING OMNIBUS REPORT AND RECOMMENDATION [DKT. NO. 43]
Court of Appeals” [Id. at 46]. The docket reflects that the R&R
was sent to the Plaintiffs by certified mail, return receipt
requested, and was received by Plaintiffs on May 21, 2021 [Dkt.
No. 44]. Plaintiffs’ objections were received more than fourteen
(14) days after the R&R was filed.
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).
Failure to timely object within the appropriate time period
shall constitute a waiver of de novo review by the District Court
and a waiver of appellate review by the Circuit Court of Appeals.
See Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v.
Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
While no party objected within fourteen (14) days of the filing of
the R&R, and the Court is under no obligation to conduct a de novo
ORDER ADOPTING OMNIBUS REPORT AND RECOMMENDATION [DKT. NO. 43]
review, the Court will conduct a review nonetheless.
The Magistrate Judge determined that any allegations
predating the two-year statute of limitations should be dismissed
by the Court as time-barred [Dkt. No. 43 at 26]. The R&R also
found that Plaintiffs’ claims against Antolini, Armstrong, and
Poier are subject to qualified immunity because each of these
Defendants were performing discretionary functions as officials
authorized by the state when the violations alleged by Plaintiffs
occurred, and should be dismissed for failure to state a claim
[Id. at 26-31]. It further found that Plaintiffs’ claims against
Defendant Armstrong are barred due to absolute prosecutorial
immunity, and that Defendant Antolini benefits from immunity under
the doctrines of quasi-judicial immunity, prosecutorial immunity,
and litigation privilege [Id. at 31-33, 33-39]. The Magistrate
Judge concluded that Defendant Shaffer, as a Circuit Court judge,
is protected from suit by absolute judicial immunity and
Plaintiffs’ claims against him cannot proceed [Id. at 40-41].
Finally, the Magistrate Judge determined that Defendant Poier is
entitled to statutory immunity for actions pursuant to her official
duties as a caseworker for the West Virginia Department of Health
and Human Resources (“WV DHHR”) [Id. at 41-43]. In support of the
recommendations, the Magistrate Judge accurately summarizes the
case and the applicable law.
ORDER ADOPTING OMNIBUS REPORT AND RECOMMENDATION [DKT. NO. 43]
Plaintiffs filed a ten-page, single-spaced document
reiterating many of the allegations in the Complaint while
requesting that the dismissal recommended by the Magistrate Judge
be reconsidered [Dkt. No. 45]. Plaintiffs assert that the Rooker-
Feldman doctrine does not apply because the state court order which
serves as the basis for the Complaint is interlocutory in nature1
[Dkt. No. 45 at 1-2]. Plaintiffs also argue that Defendants are
not entitled to judicial immunity, statutory immunity, or
qualified immunity [Dkt. No. 3-10]. However, in the body of the
document, the objections are not briefed in manner that is specific
to the R&R and its findings [Id.]. Rather, the document is
duplicative of Complaint allegations and restates general claims
of conspiracy and discrimination against Defendants that are
purported to have occurred during the abuse and neglect proceeding
involving Plaintiffs and their children [Id.].
The Court finds that Plaintiffs’ objections fall short of the
specificity requirement in that the primary argument against the
R&R is that Magistrate Judge Aloi is simply wrong and that
1 The Magistrate Judge concluded that the jurisdictional doctrine
known as Rooker-Feldman bars a party from seeking what is in
substance federal appellate review of a state judgment, and that
the Court lacks subject matter jurisdiction to “void” a state court
decision [Dkt. No. 43 at 17-24]. However, the Magistrate Judge
determined the Court may exercise subject matter jurisdiction over
Section 1983 claims seeking monetary and injunctive relief to the
extent that they were not raised in state court [Id.].
ORDER ADOPTING OMNIBUS REPORT AND RECOMMENDATION [DKT. NO. 43]
Plaintiffs and their family and children deserve protection from
“invasive court proceedings that lacked merit or reason” [Dkt. No.
45 at 9-10]. Plaintiffs’ general grievances and repeated
conclusory allegations do not merit a de novo review. Plaintiff’s
objections, while lengthy, are grievances regarding the Magistrate
Judge’s conclusions, and none preserve a claim for review by this
Court.
The objections are nonspecific, are devoid of any reference
to specific findings or recommendations, and are unsupported by
appropriate legal authority. Therefore, because Plaintiffs’
objections are conclusory and are not specific to the findings and
recommendation of the Magistrate Judge with respect to the
necessary standard for the issuance of an order dismissing the
Complaint or entering a 12(b)(6) dismissal, the Court is under no
obligation to conduct a de novo review as to any objection to the
R&R. Accordingly, the Court reviewed the R&R for clear error and
found none.
Upon careful review, and finding no clear error, the Court
ADOPTS the Omnibus R&R [Dkt. No. 43]. The Motions to Dismiss are
GRANTED [Dkt. Nos. 24, 25, 26, and 27], and the Motion to Strike
[Dkt. No. 42] is DENIED. The Complaint [Dkt. No. 1] is DISMISSED
WITH PREJUDICE as to all Defendants.
The Motion for Leave to Proceed in Forma Pauperis [Dkt. No.
ORDER ADOPTING OMNIBUS REPORT AND RECOMMENDATION [DKT. NO. 43]
6] is DENIED AS MOOT. The Motion to Amend the Complaint [Dkt. No.
46] is DENIED. The Clerk is further DIRECTED to STRIKE this matter
from the Court’s active docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record via electronic means and to the pro se Plaintiffs
via certified mail, return receipt requested.
DATED: September 22, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE