Luster v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

DAVID ANTOINE LUSTER,

Petitioner,

V. CIVIL ACTION NO. 5:23-CV-29

Judge Bailey

R. BROWN, Warden,

Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

The above referenced case is before this Court upon the magistrate judge’s report

and recommendation (“R&R”) that petitioner's petition [Doc. 1] be denied and dismissed

without prejudice. [Doc. 6].

This Court is charged with conducting a de novo review of any portion of the

magistrate judge’s report to which a specific objection is registered, and may accept, reject,

or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C.

§ 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that

Congress did not intend for the district court to review the factual and legal conclusions of

the magistrate judge. Thomas v. Arn, 474 U.S. 140 (1985). Additionally, any party who

fails to file timely, written objections to the magistrate judge’s report pursuant to 28 U.S.C.

§ 636(b)(1) waives the right to raise those objections at the appellate court level. United

States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984).

Petitioner timely filed his objections [Doc. 8] on May 8, 2023. Accordingly, this Court will

review those portions of the R&R to which petitioner objected under a de novo review. The

remainder of the R&R will be reviewed for clear error.

Here, the magistrate judge bases his recommendation for dismissal upon the correct

conclusion that petitioner is attempting to raise the identical issue he previously asserted

in Civil Action No. 1:21-CV-84 before this very Court. See [Doc. 6 at 5]. As such, the

magistrate judge correctly found that the petition in this case is a successive petition

seeking to relitigate a previously addressed claim therefore warranting dismissal. [Id.].

In his objections, petitioner notes that contrary to the R&R’s introduction, he is not

petitioning this Court concerning an award of time credits. [Doc. 8 at 1]. Based on this

Court’s review, it appears that the sentence contained in the R&R’s introduction

referencing time credits constitutes a mere scrivener’s error, the inclusion of which does

nothing to alter the R&R’s correct analysis that the successive petition in this case should

be dismissed.

As to the remaining objections, “[w]hen 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.3d 723, 730 (S.D. W.Va. 2009) (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,

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

recommendation... 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.

Here, the remainder of petitioner's objections simply reraise arguments previously

asserted in his petition, and in the prior petition which has already been dismissed by this

Court. Accordingly, petitioner's objections do not cause this Court to alter the sound

reasoning provided by the magistrate judge in the R&R.

CONCLUSION

For these reasons, petitioner's objections [Doc. 8] are OVERRULED, and the R&R

[Doc. 6] is ADOPTED. As such, petitioner’s petition [Doc. 1] is DENIED and DISMISSED,

and the Clerk is directed to STRIKE this matter from the active docket of this Court.

Itis so ORDERED.

The Clerk is directed to forward a copy of this Order to all counsel of record and to

mail a copy to petitioner.

DATED: May 9, 2023.

UNITED STATES DISTRICT JUDGE