United States District Court, N.D. West Virginia
BERNARD L. GREER, Plaintiff,
STATE OF WEST VIRGINIA, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
47] AND DISMISSING CASE WITH PREJUDICE
M. KEELEY UNITED STATES DISTRICT JUDGE.
28, 2016, the pro se plaintiff, Bernard L. Greer
(“Greer”), a convicted felon, filed a class
action complaint against the State of West Virginia
(“State”) on behalf of himself and all others
similarly situated (dkt. no. 1). Greer's complaint
alleges that West Virginia Code § 61-7-7(a)(1),
prohibiting convicted felons from owning antique firearms, is
unconstitutional and in conflict with federal felon
dispossession laws, which carve out an antique firearm
exemption. The complaint asserts four causes of action,
including: (1) violation of the Supremacy Clause; (2)
violation of the Second and Fourteenth Amendments; (3)
violation of the Ninth Amendment right to subsistence
hunting; and (4) violation of the Commerce, Privileges and
Immunities, and Equal Protection Clauses of the United States
to Title 28, United States Code §§ 636(b)(1)(A) and
636(b)(1)(B) and L.R. Civ. P. 7.02(c) and 72.01(d)(6), the
Court referred this case to the Honorable Michael J. Aloi,
United States Magistrate Judge, to conduct a scheduling
conference and issue a scheduling order, for written orders
or reports and recommendations, as the case may be, regarding
any motions filed, and to dispose of any other matters that
may arise (dkt. no. 3). On September 12, 2016, the defendant
State moved to dismiss Greer's complaint, arguing that
cases decided by both the Fourth Circuit Court of Appeals and
the Supreme Court of the United States foreclose Greer's
20, 2017, Magistrate Judge Aloi entered a Report and
Recommendation (“R&R”), recommending that the
Court grant the motion and dismiss Greer's complaint with
prejudice for failure to state a claim (dkt. no. 47).
Specifically, the R&R concluded that the Supremacy Clause
of the United States Constitution was not implicated because
there was no preemption issue and West Virginia Code §
61-7-7(a)(1) could easily co-exist with the federal statute.
Id. at 7-9. The R&R next concluded that, because
Greer was a convicted felon, he had no right under the Second
Amendment to bear arms - antique or otherwise; thus, his
Second and Fourteenth Amendment claims failed as a matter of
law. Id. at 9-17. As to his third claim, relying on
several circuit court decisions, the R&R concluded that
felon dispossession laws do not violate the Ninth Amendment.
Id. at 17-18. Finally, the R&R concluded that
West Virginia Code § 61-7-7(a)(1), cited by Greer, did
not violate the Commerce, Privileges and Immunities, or Equal
Protection Clauses of the United States Constitution, as
these clauses were wholly inapplicable in this case.
Id. at 18.
R&R also specifically warned Greer that he had fourteen
days in which to file any written objections, and that his
failure to object to the recommendation would result in the
waiver of any appellate rights he might otherwise have on the
issue. Id. at 19. Greer filed timely objections to
the R&R on August 4, 2017 (dkt. no. 49), and the State
responded to the objections on August 17, 2017 (dkt. no. 52).
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 [parties] do 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
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
objections mainly reiterate arguments previously raised in
his complaint, all of which were thoroughly analyzed by
Magistrate Judge Aloi. The thrust of these objections is that
federal law allows convicted felons to possess antique
firearms and therefore preempts the West Virginia Code. This
argument was addressed in the R&R (dkt. no. 47 at 7-9 and
9-17). Therefore, because most of Greer's objections
simply reiterate his earlier arguments, the conclusions of
the R&R pertaining to those objections are subject only
to clear error review. Phillips, 2011 WL 5086851, at *2.
Finding no clear error, the Court ADOPTS the
recommendation of R&R as to these arguments.
does raise two new issues in his objections, but they are
without merit. First, Greer argues that Magistrate Judge Aloi
improperly relied on Pohlabel v. State, 268 P.3d
1264 (Nev. 2012), which is not a West Virginia case and also
is distinguishable. The R&R's reference to
Pohlabel was simply to cite it as persuasive
authority in support of Magistrate Judge Aloi's
recommendation. Ultimately, what Magistrate Judge Aloi relied
on was the statutory language of West Virginia Code §
61-7-7(a)(1), which he concluded could co-exist with federal
law, and that Greer therefore had no Second Amendment right
to bear arms. The objection to a supporting case from another
jurisdiction therefore does not bear materially on the
outcome of the R&R.
Greer objects to Magistrate Judge Aloi's reference to
evidence offered at his felony trial as a basis to dismiss
his Second Amendment claim. Inasmuch as Greer does not
dispute the fact that he is a convicted felon, a finding that
is the basis for the conclusion in the R&R, any evidence
adduced at the trial which resulted in his conviction is not
material to the outcome here.
reasons discussed, the Court OVERRULES
Greer's objections (dkt. no. 49), ADOPTS
the R&R in its entirety (dkt. no. 47),
GRANTS the State's motion (dkt. no. 17),
and DISMISSES this case WITH
PREJUDICE. The Court DIRECTS the
Clerk to enter a ...