Cook, Jr. v. Lanham

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling

JAMES EDWARD COOK, JR., Plaintiff, Vv. Civil Action No. 5:22-CV-234 Judge Bailey B. KELLY LANHAM and AARON LINN, Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION The above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Mazzone [Doc. 23]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his R&R on November 4, 2022, wherein he recommends plaintiffs case be dismissed with prejudice for failure to state a claim and as frivolous. Further, Magistrate Judge Mazzone recommends that plaintiffs Motion Requesting a Lie Detector Test [Doc. 21] and Motion for Issuance of Subpoenas [Doc. 22] be denied as moot. For the reasons that follow, this Court will adopt the R&R. ll. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge’s findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the

factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Nor is this Court required to conduct a de novo review when the party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 - F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Pro se filings must be liberally construed and held to a less stringent standard than those drafted by licensed attorneys, however, courts are not required to create objections where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1971). Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure. Plaintiff timely filed his objections [Doc. 27] on November 10, 2022.' Accordingly, this Court will review the portions of the R&R to which objection was filed under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

‘This Court construes plaintiff's Motion Requesting Leave of Court re Issuance of Subpoenas [Doc 27] as his objections to the R&R.

lil. DISCUSSION A. Objections to R&R Plaintiff objects to the R&R claiming that he never received the special instructions related to his release and that his parole was revoked due to not receiving those instructions. See [Doc. 27 at 3]. The Court is of the opinion that Magistrate Judge Mazzone’s R&R accurately reflects the law applicable to the facts and circumstances before the Court in the above-styled action. Accordingly, having found no clear error in the remainder of the magistrate judge’s well-reasoned review of the pleadings, plaintiff's objections [Doc. 27] are OVERRULED, and it is the opinion of this Court that the Report and Recommendation [Doc. 23] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report. Accordingly, this Court ORDERS that plaintiff's Complaint [Doc. 1] is DENIED and DISMISSED WITH PREJUDICE. Further, plaintiffs Motion Requesting Lie Detector Test [Doc. 21], Motion Requesting that Subpoenas be Issued [Doc. 25] are DENIED AS MOOT. Insofar as plaintiffs Motion is requesting leave of court to issue subpoenas, the Motion [Doc. 27] is DENIED AS MOOT. The Clerk is hereby DIRECTED to STRIKE the above-styled case from the active docket of this Court. It is so ORDERED. The Clerk is directed to transmit copies of this Order to any counsel of record and to mail a copy to the pro se plaintiff.

DATED: November b 2022.

JOHN PRESTON BAILEY = UNITED STATES DISTRICT JUDGE