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,

PRIVATE SERVICES, and

UNITED STATES OF AMERICA,

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

I. BACKGROUND AND REPORT AND RECOMMENDATION

On September 28, 2020, Defendant Roger Ware (“Ware”) filed a

Motion to Dismiss (“Motion”) pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure. [ECF No. 74]. In

the Motion, Ware requests this Court dismiss Ware from the case

because Plaintiffs’ Complaint failed to state a claim for which

relief can be granted, is devoid of any facts supporting

Plaintiffs’ claims, and cites no authority supporting causes of

action against Ware. [ECF No. 74]. Plaintiffs failed to file a

responsive pleading to the motion to dismiss. Therefore, the motion

is ripe for decision.

Pursuant to 28 U.S.C. § 636 and the local rules, the Court

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

referred the action to United States Magistrate Judge Michael J.

Aloi for initial review. On February 9, 2021, the Magistrate Judge

entered a Report and Recommendation (“R&R”) [ECF No. 125],

recommending that the Court grant the Motion [ECF No. 74].

The R&R also informed the parties regarding their right to

file specific written objections to the magistrate judge’s report

and recommendation. Under Rule 12 of the Local Rules of Prisoner

Litigation Procedure of the Northern District of West Virginia,

“[a]ny party may object to a magistrate judge’s recommended

disposition by filing and serving written objections within

fourteen (14) calendar days after being served with a copy of the

magistrate judge’s recommended disposition.” LR PL P 12; see also

Fed. R. Civ. P. 72. Further, the magistrate judge allotted an extra

three (3) days to account for mailing and service of any

objections. [ECF No. 125]. Therefore, parties have seventeen (17)

calendar 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.” 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 Court of Appeals.”

The docket reflects that Plaintiff Thetford accepted service

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

of the R&R on April 15, 2021, making Plaintiff Thetford’s

objections to the R&R due May 3, 2021. [ECF No. 126]. Plaintiffs

Zapata-Vicente and Centeno-Morales accepted service of the R&R on

April 16, 2021. [ECF Nos. 127, 128]. Thereafter, the Court received

a return from Hazelton FCI stating that Plaintiff Zapata-Vicente

is no longer at the facility. [ECF No. 129; see also ECF Nos. 134,

144, 146]. On May 3, 2021, Plaintiff Thetford filed a Motion for

Extension of Time to File Objections to the R&R and Motion for

Leave to File and Serve a Supplemental Complaint. [ECF Nos. 131,

132]. Motion for Leave to File and Serve a Supplemental Complaint

was denied by order [ECF No. 137]. To date, Plaintiff Thetford has

filed a number of motions seeking extensions to respond to matters

in his case. See, e.g., ECF Nos. 131, 138, 140.

II. OBJECTIONS AND STANDARD OF REVIEW

On June 3, 2021, Plaintiff Thetford untimely filed, without

leave, “Plaintiff’s Objections to the Magistrates Recommendation

That Ware’s Motion Be Granted.” [ECF No. 147]. On July 14, 2021,

Plaintiff Thetford again untimely filed, without leave,

“Plaintiff’s First Amended Objections to the Magistrate’s Report

and Recommendation That Ware’s Dismissal Motion Be Granted.” [ECF

No. 153]. Defendant Ware, by counsel, filed a response in

opposition to Thetford’s amended objections, arguing (1)

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

Thetford’s initial objections are untimely and should not be

considered, and (2) the amended objections are likewise untimely

and should be overruled. [ECF No. 156].

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).

Further, according to Local Rule 6 of the Local Rules of

Prisoner Litigation Procedure, “[a]ll pro se prisoner litigants

are responsible for promptly informing the Court of any change in

their addresses, monitoring the progress of their cases and

prosecuting or defending their actions diligently. Notification of

a prisoner’s change of address must be accomplished by filing a

Notice with the Clerk of Court and serving that Notice upon all

other parties within ten (10) days of the change of address.” The

Rule goes on to state that “[f]ailure to notify the Clerk of Court

of an address change will result in dismissal of the prisoner’s

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

case.” LR PL P 6.

Failure to timely object within the appropriate time period

– here, governed by 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b),

and LR PL P 12 - 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).

“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) (emphasis added) (citing Orpiano v. Johnson,

687 F.2d 44, 47 (4th Cir. 1982)). “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

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

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

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

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

Plaintiff Thetford filed an eight-page document pointing out

sections of the R&R to which he disagrees, purporting to be his

objections. [ECF No. 147]. Plaintiff begins by asserting four areas

of objections to the R&R’s recommendations: (1) Thetford failed to

exhaust the administrative remedies; (2) Plaintiffs failed to

plead Count Six with sufficient particularity; (3) Defendant Ware

is entitled to qualified immunity; and (4) Plaintiffs failed to

sufficiently plead a viable RICO claim. Id. However, in the body

of the document, each objection area is not briefed or supported

with legal authority. Id.

Approximately six weeks later, again without leave, Plaintiff

Thetford filed “amended objections” objecting on the same four

grounds and adding four more grounds. [ECF No. 153]. The four

additional objections, objections five through eight, were largely

duplicative of the initial filing, complaining of the magistrate

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

judge’s findings as to the exhaustion requirement, RICO pleading

standard, and qualified immunity. Id.

Defendant Ware’s responses to Plaintiff’s objections confirms

the Court’s assessment the objections largely fall short of the

specificity requirement and should otherwise be overruled. [ECF

Nos. 150, 156]. Particularly, Ware correctly notes Plaintiff’s

primary argument is Magistrate Judge Aloi’s findings are “false.”

Id. Plaintiff’s general grievances and repeated conclusory

allegations do not merit a de novo review. Plaintiff’s objections,

while descriptive and even lengthy, are grievances regarding the

magistrate judge’s conclusions, and none preserve a claim for

review by this Court. Plaintiff alleges he objects to the R&R

because he is unaware whether the motion is one under 12(b)(6) or

12(b)(1). It is clear from the face of the document, and

Plaintiff’s responses, that the motion is one under 12(b)(6).

Plaintiff then argues, with no authority and little logic, that

Ware should have raised “failure to exhaust” as an affirmative

defense in a pleading instead of the motion. Then Plaintiff

contends that the complaint should not be dismissed because “[t]he

PLRA’s exhaustion requirement is not jurisdictional.” Moore v.

Bennett, 517 F.3d 717, 725 (4th Cir. 2008). However, “a complaint

may be dismissed on exhaustion grounds.” Id. at 725. No evidence

was presented by Plaintiff that the exhaustion requirements were

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

met; in fact, the record shows clearly that the exhaustion

requirements were not met.

The objections are unspecific and are devoid of any reference

to specific findings or recommendations and are unsupported by

legal authority. Therefore, because Plaintiff’s 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. Because Plaintiff’s objections do not

constitute adequate objections, Plaintiff’s objections fail to

merit de novo review from this Court, and therefore, 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. For these reasons, and because Plaintiff failed to

provide any evidence to refute Defendant’s declarations beyond

bare conclusory statements, and failed to point to any reference

to specific findings or recommendations and the objections were

wholly unsupported by legal authority, Plaintiff’s objections are

overruled.

III. CONCLUSION

Because the objections filed are insufficient or otherwise

overruled, and Plaintiff Zapata-Vicente failed to notify the Clerk

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 125]

of Court as to any address change, the Court has reviewed the R&R

under the appropriate standard and ADOPTS the R&R in its entirety

[ECF No. 125]. The Motion is GRANTED [ECF No. 74] and Defendant

Ware is DISMISSED from this case. Further, all claims pleaded by

Plaintiff Zapata-Vicente are hereby DISMISSED as to all

defendants. See LR PL P 6. The pending Plaintiffs’ claims shall

remain against the remaining defendants until further order of the

Court. Finally, Plaintiff Thetford’s motion for extension of time

[ECF No. 131] is GRANTED as moot. Defendant Ware’s motion for

extension of time [ECF No. 135] is also GRANTED as moot.

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: September 23, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE