Feather-Gorbey v. Williams

• Court: District Court, S.D. West Virginia
• Decided: July 8, 2022
• Docket: 5:21-cv-00673
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

(CHIEF) COL. MICHAEL S. OWL FEATHER-GORBEY,

Plaintiff,

v. CIVIL ACTION NO. 5:21-cv-00673

WILLIAMS, et al.,

Defendants.

ORDER

This action was referred to the Honorable Cheryl Eifert for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636. On May 19, 2022, Judge Eifert submitted her Proposed Findings & Recommendation [ECF No. 14] (“PF&R”) recommending that Feather-Gorbey’s application to proceed IFP [ECF No. 1] and his complaint [ECF No. 2] be DISMISSED and REMOVED from the docket of the court, and that his motions seeking to recuse several federal judges [ECF No. 6], receive an emergency hearing [ECF No. 7], and for the court to take judicial notice of his arguments [ECF No. 8], be DENIED as moot. Because Feather-Gorbey asked to proceed IFP despite having had more than three prior cases dismissed as frivolous, the Magistrate Judge thoroughly reviewed Feather-Gorbey’s IFP application and complaint to determine whether he met the relevant standard to proceed – that is, whether he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The Magistrate Judge determined Feather-Gorbey was not under such imminent danger and therefore should not be permitted to proceed IFP and his case should be dismissed. Feather-Gorbey

submitted timely objections to the PF&R. [ECF No. 15]. A district court “shall make a de novo determination of those of the report or proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C) (emphasis added); Fed. R. Civ. P. 72(b)(3). Failure to file objections pursuant to 28 U.S.C. § 636(b)(1)(C) . . . may be construed by any reviewing court as a waiver of such objection.” , 539 F. Supp. 2d 841, 845 (W.D. Va. 2008); , 478 F.3d 616, 622 (4th Cir. 2007)

(“[T]o preserve for appeal an issue in a magistrate judge’s report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.”). General objections do not meet the requirements set forth in 28 U.S.C. § 636(b)(1)(C) or Rule 72(b), and, therefore, constitute a waiver of de novo review. , 987 F. Supp. 469, 474 (W.D. N.C. 1997).

Having reviewed Feather-Gorbey’s objections, the court find that many of them are unspecific and others are irrelevant to the finding that he is not under imminent danger. As to the relevant objections, the court has reviewed each of Feather-Gorbey’s claims of imminent danger de novo and has determined that they do not meet the relevant standard for all of the reasons discussed in Judge Eifert’s thorough and well- reasoned PF&R. The court accepts and incorporates herein the PF&R and orders judgment consistent therewith. The court DENIES Feather-Gorbey’s application to proceed IFP [ECF No. 1] and DISMISSES his complaint [ECF No. 2]. Feather-Gorbey’s motions seeking to recuse several federal judges [ECF No. 6], receive an emergency hearing [ECF No. 7], and for the court to take judicial notice of his arguments [ECF No. 8] are DENIED as moot. The court DISMISSES this action and DIRECTS that it be removed from the docket. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

ENTER: July 8, 2022 G 6G pe STATES DISTRICT JUDGE