Petition for Writ of Certiorari — Robert Wazney, Petitioner v. Sharon Wazney

No.

IN THE SUPREME COURT

OF THE UNITED STATES

ROBERT WILLIAM WAZNEY, Pro-se (forced) - Petitioner

vs.

Slaron Renee Wazney a/j^a Slaron Renee Clobassole - Respondent

ON PETITION FOR A WRIT OF CERTIORARI

APPENDIX

ROBERT WILLIAM WAZNEY, Pro-se (forced)

990 Wisacky Hwy.

Bislopville, SC 29010

Inidgent (forced)

Convict (forced)

Pro se (forced)

803-428-2800

TABLE OF CONTENTS

C

D

8/28/18, Judgment, USCA4

10/30/18, Order USCA4

4/13/18, Order, S.C. District Court

4/13/18, Order, S.C. District Court

E

F

3/26/18,

3/27/18,

A

B

Order, S.C. District Court

Order, S.C. District Court

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FILED: August 28, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6466

(3:17-cv-02873-HMH)

SHARON WAZNEY

Plaintiff - Appellee

v.

ROBERT WAZNEY

Defendant - Appellant

JUDGMENT

In accordance with the decision of this court, this appeal is dismissed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6466

SHARON WAZNEY,

Plaintiff - Appellee,

v.

ROBERT WAZNEY.

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at

Columbia. Henry M. Herlong, Jr., Senior District Judge. (3:17-cv-02873-HMH)

Submitted: August 23, 2018

Decided: August 28, 2018

Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Robert Wazney, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 18-6466

PER CURIAM:

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'A

Robert Wazney appeals from the district court’s order adopting the report and

recommendation of the magistrate judge and remanding the underlying divorce

proceeding back to state court. We dismiss the appeal. Remand orders are generally “not

reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d) (2012). The Supreme Court

has explained that the appellate restrictions of Ҥ 1447(d) must be read in pari materia

with § 1447(c), so that only remands based on grounds specified in § 1447(c) [i.e., lack of

subject matter jurisdiction and defects in removal procedures] are immune from review

under § 1447(d).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995).

Whether a remand order is reviewable is not based on a district court’s explicit citation to

§ 1447(c); “[t]he bar of § 1447(d) applies to any order invoking substantively one of the

grounds specified in § 1447(c).” Borneman v. United States, 213 F.3d 819, 824-25 (4th

Cir. 2000).

Here, the district court dismissed for lack of subject matter jurisdiction, citing

§ 1447(c). Accordingly, we lack jurisdiction to review the merits of the district court’s

order. Thus, we dismiss the appeal. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

DISMISSED

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pT1

A•

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-6466

(3:17-CV-02873-HMH)

SHARON WAZNEY

Plaintiff - Appellee

v.

ROBERT WAZNEY

Defendant - Appellant

ORDER

The court denies the petition for rehearing.

Entered at the direction of the panel: Judge Duncan, Judge Floyd, and Senior

Judge Hamilton.

For the Court

/s/ Patricia S. Connor. Clerk

Date Filed 04/13/18

3:i/'-CV-UZ8/'3-HMH

Entry Number 33

Page 1 of 3

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Sharon Wazney,

Plaintiff,

vs.

Robert Wazney, #363679,

Defendant.

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C.A. No. 3:17-2873-HMH-KFM

OPINION & ORDER

This matter is before the court on Robert Wazney’s (“Wazney”) pro se motions pursuant

to Rule 59(e) and 60(b) of the Federal Rules of Civil Procedure. After consideration, the court

denies Wazney’s motions.

The court previously adopted the Report and Recommendation and remanded this case to

state court for lack of subject matter jurisdiction in an order dated March 26, 2018. (Mar. 26,

2018 Order, ECF No. 27.) On April 9, 2018,1 Wazney filed a motion to alter or amend the

judgment. (Mot. Alter or Amend, ECF No. 31.) Wazney also filed a motion for reconsideration

pursuant to Rule 60(b) of the Federal Rules of Civil Procedure on April 9, 2018. Id This

matter is now ripe for consideration.

A motion to alter or amend the judgment under Rule 59(e) may be made on three

grounds: “(1) to accommodate an intervening change in controlling law; (2) to account for new

evidence not available at trial; or (3) to correct a clear error of law or prevent manifest

Houston v. Lack, 487 U.S. 266 (1988).

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■ injustice.” Hutchinson v. Staton. 994 F.2d 1076, 1081 (4th Cir. 1993). “Rule 59(e) motions

may not be used, however, to raise arguments which could have been raised prior to the issuance

of the judgment. . . .” Pac. Ins. Co, v. Am. Nat’l Fire Ins. Co.. 148 F.3d 396, 403 (4th Cir.

1998). “In general reconsideration of a judgment after its entry is an extraordinary remedy

which should be used sparingly.” Id. (internal citation and quotation marks omitted).

Rule 60(b) “invest[s] federal courts with the power in certain restricted circumstances to

vacate judgments whenever such action is appropriate to accomplish justice.” Compton v. Alton

S.S. Co., 608 F.2d 96, 101-02 (4th Cir. 1979) (internal quotation marks omitted). “The remedy

provided by the Rule, however, is extraordinary and is only to be invoked upon a showing of

exceptional circumstances.” Id. at 102. Rule 60(b) “does not authorize a motion merely for

reconsideration of a legal issue.” United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982).

“Where the motion is nothing more than a request that the district court change its mind ... it is

not authorized by Rule 60(b).” Id. at 313.

Upon review, Wazney’s Rule 59(e) motion fails to identify any intervening change in

controlling law, new evidence, or clear error _Qfla,w. Further, Wazney is attempting to generally

reallege his arguments. In addition, in his Rule 60(b) motion, Wazney reasserts his arguments

and fails to show any exceptional circumstances. Based on the foregoing, Wazney’s motions are

denied.

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Entry Number 33

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Therefore, it is

ORDERED that Wazney’s motion to alter or amend, docket number 31, is denied. It is

further

ORDERED that Wazney’s motion for reconsideration pursuant to Rule 60(b), docket

number 32, is denied.

IT IS SO ORDERED.

s/Henry M. Herlong, Jr.

Senior United States District Judge

Greenville, South Carolina

April 13,2018

NOTICE OF RIGHT TO APPEAL

The Plaintiff is hereby notified that he has the right to appeal this order within thirty (30)

days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate

Procedure.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Sharon Wazney,

Plaintiff,

vs.

Robert Wazney, #363679,

Defendant.

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C.A. No. 3:17-2873-HMH-KFM

OPINION & ORDER

This matter is before the court with the Report and Recommendation of United States

Magistrate Judge Kevin F. McDonald, made in accordance with 28 U.S.C. § 636(b)( I) and Local

Civil Rule 73.02 of the District of South Carolina.1 The Defendant, proceeding pro se, filed a

notice of removal in an effort to remove an action for divorce, that was initially filed in Sumter

County Family Court and then appealed to the South Carolina Court of Appeals, to federal court.

In his Report and Recommendation, Magistrate Judge McDonald recommends remanding this

case for lack of subject matter jurisdiction.

The Defendant filed objections to the Report and Recommendation. Objections to the

Report and Recommendation must be specific. Failure to file specific objections constitutes a

waiver of a party’s right to further judicial review, including appellate review, if the

recommendation is accepted by the district judge. See United States v. Schronce, 727 F.2d 91,

94 & n.4 (4th Cir. 1984). In the absence of specific objections to the Report and

1 The recommendation has no presumptive weight, and the responsibility for making a

final determination remains with the United States District Court. See Mathews v. Weber. 423

U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those

portions of the Report and Recommendation to which specific objection is made. The court may

accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge

or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

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Recommendation of the magistrate judge, this court is not required to give any explanation for

adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).

Upon review, the court finds that the Defendant’s objections are non-specific, unrelated

to the dispositive portions of the magistrate judge’s Report and Recommendation, or merely

restate his arguments. Therefore, after a thorough review of the magistrate judge’s Report and

the record in this case, the court adopts Magistrate Judge McDonald’s Report and

Recommendation and incorporates it herein by reference.

It is therefore

ORDERED that this action is remanded to the Sumter County Family Court because the

federal court lacks subject matter jurisdiction over this matter. It is further

ORDERED that the Defendant’s motions to proceed in forma pauperis, docket number 2,

and amend his complaint, docket number 17, are denied as moot.

IT IS SO ORDERED.

s/Henry M. Herlong, Jr.

Senior United States District Judge

Greenville, South Carolina

March 26, 2018

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified that they have the right to appeal this order within thirty

(30) days from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate

Procedure.

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Entry Number 28

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AO 450 (SCD 04/2010) Judgment in a Civil Action

United States District Court

\Sf

for the

District of South Carolina

Sharon Wazney

)

)

)

)

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Plaintiff

v.

Robert Wazney,

Defendant

Civil Action No.

3:17-cv-2873-HMH

JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

□ the plaintiff (name)

recover from the defendant (name)

the amount of

which includes prejudgment interest at the rate of___ %, plus postjudgment interest at the rate of

dollars ($_),

%, along with

costs.

□ the plaintiff recover nothing, the action be dismissed on the merits, and the defendant (name)

recover costs from the plaintiff (name)________________ .

■ other: This action is remanded to the Sumter County Family Court

This action was (check one):

□ tried by a jury, the Honorable

□ tried by the Honorable

presiding, and the jury has rendered a verdict.

presiding, without a jury and the above decision was reached.

■ decided by the Honorable Henry M. Herlong, Jr.

Date: March 27, 2018

CLERK OF COURT

s/Kathy Rich, deputy clerk

Signature of Clerk or Deputy Clerk

Additional material

from this filing is

available in the

Clerk's Office.