United States District Court, N.D. West Virginia
ROBERT A. RUFF, Petitioner,
WARDEN SAAD, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
22] AND DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT.
M. KEELEY, UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation
(“R&R”) by United States Magistrate Judge
Robert W. Trumble, recommending that the Court deny and
dismiss the petition filed by the petitioner, Robert A. Ruff
(“Ruff”). For the reasons that follow, the Court
ADOPTS the R&R in its entirety, GRANTS the
respondent's motion for summary judgment, OVERRULES
Ruff's objections, DENIES the petition, and DISMISSES
this case WITH PREJUDICE.
STANDARD OF REVIEW
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions of the R&R to
which an objection is timely made. See 28 U.S.C.
§ 636(b)(1)(C). The Court need not conduct a de
novo review when a 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 such cases, “the Court may
adopt, without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellaciprete v. Gutierrez, 479 F.Supp.2d 600, 603-04
(N.D. W.Va. 2007) (citing Camby v. Davis, 718 F.2d
198, 199 (4th Cir. 1983)). Further, courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
failure to file specific objections waives appellate review
of both factual and legal questions. See United States v.
Schronce, 727 F.2d 91, 94 & n. 4 (4th Cir. 1984);
Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991). Finally, objections that reiterate the same arguments
already presented and fully addressed in the R&R
“lack the specificity required by Rule 72 and have the
same effect as a failure to object.” Phillips v.
Astrue, 2011 WL 5086851, at *2 (W.D.Va. Oct. 25, 2011)
(citing Veney v. Astrue, 539 F.Supp.2d 841, 845
October 6, 2016, Ruff filed his petition pursuant to 28
U.S.C. § 2241, contending that, as a result of an
altercation with another inmate, the Bureau of Prisons
(“BOP”) has unlawfully taken good time credit
from him. He argues that the BOP's action is a
violation of “[his] Fifth and Sixth Amendment rights to
Due Process, ” and has caused him to be
“mis-represented at [his] latest parole
hearing.” Dkt. No. 1 at 1. Pursuant to 28 U.S.C.
§ 636 and LR PL P 2, the Court referred the petition to
Magistrate Judge Trumble for an initial review and R&R.
On December 5, 2016, Saad moved to dismiss the petition or,
in the alternative, for summary judgment. Ruff responded to
Saad's motion on December 27, 2017.
1, 2017, Magistrate Judge Trumble issued his R&R,
recommending that the Court grant Saad's motion to
dismiss or, alternatively, for summary judgment, and that it
deny and dismiss Ruff's petition because he had failed to
fully exhaust his administrative remedies, and because he did
not assert a cognizable liberty interest as required by
§ 2241. Ruff filed timely objections to the R&R.
objections reiterate the same claims and arguments contained
in his petition, and provide only conclusory statements that
the R&R is mistaken. Indeed, the statements in Ruff's
objections “failed to refer to any specific error of
the magistrate's review, ” and were instead
“general and conclusory, and thus do not warrant de
novo review by the District Court.” McPherson v.
Astrue, 605 F.Supp.2d 744 (S.D.W.Va. 2009) (citing
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982);
see also Green v. Rubenstein, 644 F.Supp.2d 723
(S.D.W.Va. 2009) (“[G]eneral and conclusory objection
to magistrate judge's recommendation that summary
judgment be granted . . . did not warrant de novo review of
the issues raised by prisoner . . . .”).
chief objection remains that he did not receive the
Discipline Hearing Officer's (“DHO”) Report,
and that prison officials did not bring his witnesses to the
DHO Hearing. These claims, were previously raised in his
petition and were thoroughly addressed by Magistrate Judge
Trumble in the R&R. The R&R concluded that Ruff had,
in fact, received a copy of the DHO report, that he had had a
fair opportunity to present witnesses, and that he had
received all of the process to which he was due. Ruff raises
nothing in his objections that was not clearly analyzed in
the R&R. Consequently, Ruff's objections do not
warrant de novo review.
aside, Ruff also asserts that he was never at FCI Lisbon.
Although the R&R states Ruff was transferred from FCI
Lisbon to FCI Gilmer, there is no FCI Lisbon. This is clearly
a typographical error as FCI Elkton is located in Lisbon,
Ohio, and the record is clear that Ruff was indeed at FCI
Elkton. In addition, the Court notes that Ruff makes several
statements that have no material relationship to the claims
in his petition, or the conclusions in the R&R; thus, the
Court need not consider them. Ultimately, Ruff simply
reiterates claims about what has happened to him while
incarcerated, how he has been unable to get the relief he
wants, and how he has been unable to exhaust his
administrative remedies. As these were all raised in his
petition, and addressed in the R&R, the Court need only
conduct a clear error review.
reviewing the R&R for clear error, and finding ...