United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
this Court are an Application to Proceed Without Prepayment
of Fees and Costs, (ECF No. 1), and a Complaint, (ECF No. 2),
filed by Plaintiff Douglas Allen Clark
(“Plaintiff”). By standing order entered on
January 4, 2016, and filed in this case on October 25, 2018,
this action was referred to United States Magistrate Judge
Dwane L. Tinsley for submission of proposed findings and a
recommendation for disposition (“PF&R”). (ECF
No. 3.) Magistrate Judge Tinsley entered his PF&R on
April 9, 2019, recommending that this Court dismiss the
complaint and deny Plaintiff's application to proceed
without prepayment of fees and costs. (ECF No. 5.)
reasons explained more fully herein, this Court
OVERRULES Plaintiff's objections, (ECF
Nos. 6, 7), and ADOPTS the PF&R, (ECF
No. 5). Plaintiff's complaint, (ECF No. 2), is
DISMISSED. His application to proceed
without prepayment of fees and costs, (ECF No. 1), is
brings this action against Defendant Sabrina Deskins
(“Defendant”) pursuant to 42 U.S.C. § 1983.
(See ECF No. 2.) He alleges that Defendant, the
family court judge who presided over his divorce proceeding
in Mingo County, West Virginia, violated his constitutional
rights by not informing him of a hearing, by awarding certain
property to his ex-wife, and by not recusing herself from
Plaintiff's divorce proceeding because she knew his
former brother-in-law. (Id.)
Judge Tinsley filed his PF&R on April 9, 2019. (ECF No.
5.) Plaintiff filed timely objections on April 25, 2019. (ECF
No. 6.) On April 30, 2019, Plaintiff filed amended
objections. (ECF No. 7.) As such, this matter is fully briefed
and ripe for adjudication.
Review of PF&R
receipt of a PF&R, this Court “may accept, reject,
or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). This Court “make[s] a de
novo determination of those portions of the [PF&R] to
which objection is made.” Id.; see Kerr v.
Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th
Cir. 2016). However, this Court is not required to review,
“under a de novo or any other standard,
” the factual or legal conclusions of the magistrate
judge “when neither party objects to those
findings.” 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 [PF&R].” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Proceedings In Forma Pauperis
indigent litigant files an application to proceed without
prepayment of fees and costs, this Court has “a duty to
screen initial filings.” Eriline Co. S.A. v.
Johnson, 440 F.3d 648, 656 (4th Cir. 2006) (citing 28
U.S.C. § 1915(e)(2)). This Court must review the
complaint and “shall dismiss the case at any
time” if it determines that the action “is
frivolous or malicious”; “fails to state a claim
on which relief may be granted”; or “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). In other
words, this Court “independently assess[es] the merits
of in forma pauperis complaints” and dismisses
“suits that have no arguable basis in law or
fact.” Eriline Co., 440 F.3d at 656 (quoting
Nasim v. Warden, Md. House of Corr., 64 F.3d 951,
954 (4th Cir. 1995)).
Plaintiff's Objections to the PF&R's
Characterization of His Claims
first argues that the PF&R improperly characterizes his
claims against Defendant. (See ECF No. 7 at 2, 3;
ECF No. 6 at 2-4.) He explains that Defendant violated his
constitutional rights by holding a hearing in his divorce
proceedings without him present and depriving him of certain
personal property at that hearing. (ECF No. 7 at 2; ECF No. 6
at 2-3.) The PF&R recommends that Plaintiff's claims
be dismissed because, among other reasons, they amount ...