# Thetford v. Ware

> District Court, N.D. West Virginia · September 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10726056

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 23, 2021
- **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/10726056

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726056. Public record. Not legal advice.