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Rydbom v. Boggs

United States District Court, S.D. West Virginia, Charleston Division

September 7, 2017

DENNIS RYDBOM, Plaintiff,
v.
LISA BOGGS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPR R. GOODWIN UNITED STATES DISTRICT JUDGE

         Pending before the court is the defendants' Motion to Dismiss [ECF No. 14]. The Motion to Dismiss was referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission of proposed findings of fact and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted proposed findings of fact and has recommended that the court grant the defendants' Motion to Dismiss [ECF No. 26].

         Thereafter, the petitioner filed timely Objections to the Magistrate's Proposed Findings and Recommendation [ECF No. 27]. When a Magistrate Judge issues a recommendation on a dispositive matter, the court reviews de novo those portions of the Magistrate Judge's report to which specific objections are filed. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The court has reviewed de novo those portions of the Proposed Findings and Recommendation to which the petitioner has filed specific objections. For the reasons set forth below, I FIND that the petitioner's objections lack merit. Accordingly, I ADOPT and incorporate herein the Magistrate Judge's Proposed Findings and Recommendation and GRANT the defendants' Motion to Dismiss [ECF No. 14].

         BACKGROUND

         After de novo review of those portions of the Magistrate Judge's Proposed Findings and Recommendation to which objections were filed, the court ADOPTS the statement of relevant facts and procedural history set forth in the Magistrate Judge's Proposed Findings and Recommendation.

         LEGAL STANDARD

         1. Standard of Review of Proposed Findings of Fact and Recommendation

         A district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court is not, however, 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, this court need not conduct a de novo review when a party “makes 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). When reviewing portions of the report de novo, this court will consider the fact that the plaintiff is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

         2. Motion to Dismiss

         A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts allowing the court to draw the reasonable inference that the defendant is liable, moving the claim beyond the realm of mere possibility. Id. Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” are insufficient. Twombly, 550 U.S. at 555.

         DISCUSSION

         The petitioner makes eight objections to the Magistrate Judge's proposed findings and recommendation. I will review each objection.

         1. Objection #2

         The petitioner objects to the Magistrate Judge's finding that the item withheld from the petitioner pursuant to the prison's mail policy was the National Academy of Science's Report on eyewitness testimony (“the Report”). Pet'r Obj. 1-2 [ECF No. 27]. The petitioner himself alleged in his complaint that it was the Report which was withheld from him pursuant to the prison's mail policy. Compl. 5-6, 11 [ECF No. 2]. On a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6), the court takes as true the well-pleaded facts in the complaint. See Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). Since the petitioner himself ...


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