United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
March 20, 2017, the pro se plaintiff, William Allen
LaRue ("LaRue"), filed a complaint pursuant to 42
U.S.C. § 1983 (dkt. no. 1), alleging that the defendants
sexually assaulted him on February 19, 2017. Further, LaRue
filed a motion to proceed in forma pauperis
("IFP"), which would allow him to proceed without
prepayment of the necessary fees (dkt. no. 2). The Court
referred the complaint to United States Magistrate Judge
Robert W. Trumble for initial screening and a Report and
Recommendation ("R&R") in accordance with LR PL
April 12, 2017, Magistrate Judge Trumble issued his R&R,
recommending that the Court dismiss without prejudice
LaRue's complaint for failure to pay the required filing
fees (dkt. no. 11). After reviewing LaRue's litigation
history, the R&R concluded that he was a serial
litigator, filing no less than twenty-one cases in federal
court, at least three of which qualify as strikes under 28
U.S.C. § 1915(g) . Furthermore, it concluded that LaRue
could not demonstrate any imminent danger of serious physical
injury from the defendants because he did not allege the
behavior was so continuous he was still in danger.
Id. at 3. LaRue filed timely objections to the
R&R (dkt. no. 13).
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 Cambv 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 Venev v. Astrue, 539 F.Supp.2d 841, 845
(W.D.Va. 2008)) .
objects to the R&R's conclusion that he is subject to
the three-strikes rule. He does not dispute that he has had
three or more suits dismissed as "frivolous, malicious,
or fail[ing] to state a claim upon which relief may be
granted." 28 U.S.C. § 1915(g) . Rather, he contends
that he is excused from the three-strikes rule because he is
"under imminent danger of serious physical injury."
Id. In support, he attached to his objections his
own sworn affidavit largely reiterating the allegations in
his complaint (dkt. no. 13-2) .
objection, however, raises no new argument, as Magistrate
Judge Trumble clearly addressed whether LaRue was under
imminent danger of serious physical injury. The R&R
thoroughly analyzed that issue, noting that LaRue's
allegations of sexual assault stem from a lone incident that
occurred on February 19, 2017, and that he has made no
allegations of inappropriate conduct since that date (dkt. no.
11 at 2-3). Because a plaintiff has to be in physical danger
at the time the complaint is filed,  the R&R concluded that
LaRue was not under imminent danger of serious physical
injury from the defendants. Id. at 2-3.
objections are merely a reiteration of the factual
allegations of his complaint. He does not argue that the
R&R misapplied or somehow misinterpreted the law; he
simply does not like the outcome. His chief objection is that
he is still at imminent risk of physical harm, noting
"constant fear, anxiety, general pain, chest and ribs
pain, chronic nightly nightmares, difficulty sleeping, and
difficulty getting in and out of bed, and lack of sleep"
(dkt. no. 13 at 1).
R&R, however, clearly addressed this issue. It noted that
vague, speculative, or conclusory allegations are
insufficient to invoke the exception of § 1915(g);
rather, the inmate must make "specific allegations of
ongoing serious physical injury, or a pattern of misconduct
evidencing the likelihood of imminent serious physical
injury." Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003); see also Dickson, 2017 WL 1086215,
at *3 (noting requirement that imminent danger must be
"real and proximate" and "specific or
crdible") . LaRue does not allege that the
defendants' conduct was so continuous that he is still in
danger; indeed, his complaint makes no allegation of any
conduct whatsoever by the defendants towards him following
February 19, 2017. Accordingly, because LaRue presents no
"specific error of the magistrate's review, "
and simply reiterates arguments previously presented and
addressed in the R&R, the Court need not conduct a de
novo review. Orpiano, 687 F.2d at 47.
reviewed the record and the R&R, and finding no clear
error, the Court ADOPTS the R&R in its entirety (dkt. no.
11), OVERRULES LaRue's objections (dkt. no. 13), DENIES
his motion to proceed IFP (dkt. no. 2), DISMISSES his
complaint WITHOUT PREJUDICE (dkt. no. 1), ...