United States District Court, S.D. West Virginia, Charleston Division
AMENDED MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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].
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 ADOPT
in part the Magistrate Judge's Proposed Findings
and Recommendation, and GRANT the
defendants' Motion to Dismiss [ECF No. 14].
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
Standard of Review of Proposed Findings of Fact and
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
Motion to Dismiss
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.
petitioner makes eight objections to the Magistrate
Judge's proposed findings and recommendation. I will
review each objection.
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 ...