United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
Preston Bailey, Judge
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Robert W. Trumble. [Doc. 6]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Trumble for submission of a proposed Report
and Recommendation (“R&R”). Magistrate Judge
Trumble filed his R&R on October 28, 2016, wherein he
recommends this Court dismiss Plaintiff's Complaint as
frivolous and dismiss Plaintiff's Motion to Proceed
in forma pauperis as moot.
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 an objection is
this 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).
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). Here, objections to Magistrate Judge
Trumble's R&R were due within fourteen (14) days of
service, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). The docket reflects that service was
accepted on October 31, 2016. [Doc. 8]. Plaintiff timely
filed his Objection on November 9, 2016. [Doc. 9].
Accordingly, this Court will review the portions of the
R&R to which Plaintiff objects under a de novo
standard of review. The remainder of the R&R will be
reviewed for clear error.
reviewing as discussed above, this Court is of the opinion
that the magistrate judge's Report and Recommendation
should be and is hereby ORDERED ADOPTED.
was incarcerated in St. Mary's Correctional Center after
being convicted of: (1) 1st Degree Robbery; (2) Bank Robbery;
(3) Child Neglect Causing Serious Risk of Injury or Death;
and (4) Felon in Possession of a Firearm. Plaintiff was
granted a release on parole on July 7, 2015. On February 10,
2016, an Order of Revocation of Parole was entered against
Plaintiff by the Parole Board. This Order found Plaintiff
guilty of five violations of the Rules and Regulations
governing his parole including: (1) failing to complete an
alcohol/substance abuse treatment program; (2) changing his
residence without notifying his parole officer; (3)
threatening the safety of Jerica Taylor by physically
assaulting her; (4) failing to register with the West
Virginia State Police within three days of release; and (5)
manifesting behavior which threatened the safety of himself
and others that could result in imprisonment by being
arrested for the offense of domestic battery. [Doc. 6]. The
Order also stated that Plaintiff would again be eligible for
parole in December 2016. [Id.]. Magistrate Judge
Trumble's R&R notes that Plaintiff's projected
release date was May 14, 2017. [Id.]. According to
the West Virginia Division of Correction's website, this
projection was accurate, as Plaintiff is no longer listed as
being in custody.
alleges that the revocation of his parole represented a
violation of his rights to due process and equal protection
under 42 U.S.C. § 1983. [Doc. 1]. As relief, Plaintiff
requests immediate release and monetary damages.
[Id.]. However, the request for immediate release
would now be moot as Plaintiff has already been released.
Additionally, Plaintiff requests a jury trial for declaratory
judgment curtailing “this activity in the
future.” Finally, Plaintiff seeks expungement and
“to be prevented from stepping foot in the State of
West Virginia ever again!” [Id.].
begins his Objection with an admission that this action is
premature and that the West Virginia Supreme Court has
already been tasked with resolving the issue of the validity
of the Revocation via Plaintiff's request that the
Supreme Court issue a writ of mandamus compelling production
by the West Virginia Attorney General. [Doc. 9]. This is the
same production Plaintiff hopes to achieve through compelling
discovery via his Objection. [Id.]. Next, Plaintiff
reaches what appears to be his primary objection, that the
Complaint is not only against the defendants in their
official capacities, but in their individual capacities as
well. According to Plaintiff, this should permit Plaintiff to
reach the discovery process regardless of whether the action
is frivolous and, therefore, moot. Plaintiff wishes to reach
the discovery process as he believes it would allow him to
discover evidence which would lead to the invalidation of the
Revocation of Parole. [Id.]. The Objection ends with
a lengthy list of cases asserting that due process should
apply in Plaintiff's situation. However, this list seems
to be incomplete as it is cut off in the middle of a
citation. Further, the Objection contains no signature page.
R&R, Magistrate Judge Trumble engages in an in-depth
discussion of the development of the body of law surrounding
42 U.S.C. § 1983 as it intersects with the federal
habeas corpus statute, specifically the attempts of prisoners
to use § 1983 to gain immediate release or damages by
challenging the constitutionality of their convictions. [Doc.
6]. However, the issue of Plaintiff's request for
immediate release from the St. Mary's Correctional Center
is now moot, as Plaintiff's release has already been
secured, and does not warrant further discussion. This leaves
only Plaintiff's claim for damages stemming from his
allegation of a violation of due process. [Id.].
Plaintiff objects that this request for relief should be
allowed to move forward against the defendants in their
individual capacities to allow him to reach the discovery
stage, regardless of mootness. [Doc. 9].
made by a state prisoner is not cognizable under § 1983
if a favorable outcome would necessarily imply the invalidity
of the challenged judgment, here the Revocation of Parole.
Edwards v. Balisok, 520 U.S. 641, 656-68 (1997). In
his R&R, Magistrate Judge Trumble delivers a thorough
explanation of the case law leading to the Supreme
Court's decision in Edwards, which does not
require repetition. [Doc. 6]. In Wilkinson v.
Dotson, 544 U.S. 74 (2005), the Supreme Court evaluated
this chain of case law, and put forth the following synopsis:
[A] state prisoner's § 1983 action is barred (absent
prior invalidation) - no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings)- if success in that action would ...