United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION
GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation (AR&R@)
of United States Magistrate Judge Robert W. Trumble. ECF No.
29. Pursuant to this Court's Local Rules, this action was
referred to Magistrate Judge Trumble for submission of a
proposed R&R. Magistrate Judge Trumble issued his R&R
to Deny Plaintiff's Motion for Temporary Restraining
Order on April 30, 2019.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's
findings where objection is made. However, the Court is not
required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate
judge to which no objection is made. Thomas v. Arn,
474 U.S. 140, 150 (1985). Failure to file timely objections
constitutes a waiver of de novo review and of a
plaintiff's right to appeal this Court's Order.
28.U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The Plaintiff accepted service
on May 3, 2019. ECF No. 31. The Plaintiff filed his
objections to the R&R on May 16, 2019. ECF No. 33.
Accordingly, the Court will review the Plaintiff's
objections to the R&R de novo. The Court will
review the remainder of the R&R for clear error.
R&R, Magistrate Judge Trumble recommends denying the
Plaintiff's Motion for an Expedited Restraining Order.
Construing the Plaintiff's motion liberally, Magistrate
Judge Trumble considered the Plaintiff's request as a
motion for a temporary restraining order (“TRO”)
and a preliminary injunction. Regarding the Plaintiff's
request for a TRO, Magistrate Judge Trumble found that
maintaining the status quo of the Plaintiff's property
will occur without the issuance of a TRO because the property
is in the custody of West Virginia law enforcement. In making
this finding, Magistrate Judge Trumble noted that the
Plaintiff has not provided documentation which establishes
when, where or by whom the damage to his property was caused.
Regarding the Plaintiff's request for a preliminary
injunction, Magistrate Judge Trumble found the Plaintiff
cannot meet the four-part Winter test. Specifically,
the Plaintiff has not shown he is likely to succeed on the
merits of his claim, he has not demonstrated that he is
likely to suffer irreparable harm in the absence of
preliminary relief, he has failed to show that the balance of
equities tips in his favor and he has not demonstrated that
an injunction is in the public interest.
Plaintiff's objections, he provides additional
documentation to support his motion for expedited restraining
order. However, as noted by Magistrate Judge Trumble in his
R&R, the documentation provided by the Plaintiff fails to
establish when, where or by whom the damage to his property
was caused. The documentation also fails to support the
Plaintiff's claim that further damage to the automobile
is imminent. The additional documentation the Plaintiff
attached to his objections, including the apparent
“[s]tatements by witnesses, ” [ECF No. 33 at 3]
does not change the Court's analysis.
Plaintiff also makes several unsupported arguments. He first
states that “[t]hroughout the possession of the vehicle
by the State Police Defendants, the vehicle has been subject
to retaliatory vandalism and abuse of which the exhibits
represent clearly.” Id. at 1. He further
states that the issues herein “would shock the
conscience of any citizen of the United States and would
amount to terrorism, ” that he has clearly shown
“immediate and irreparable harm” and that
“the public interest requires the injunction he
seeks.” Id. at 2. The Court does not find any
support, in law or fact, for the Plaintiff's arguments.
Accordingly, the Plaintiff's objections are without merit
and are hereby OVERRULED.
careful review of the R&R, it is the opinion of this
Court that Magistrate Judge Trumble's Report and
Recommendation [ECF No. 29] should be, and is hereby,
ORDERED ADOPTED for the reasons more fully
stated therein. Therefore, the Plaintiff's motion [ECF
No. 28] is DENIED.
Clerk of Court is DIRECTED to mail a copy of
this Order to the pro se Plaintiff by certified
mail, return receipt requested, at his last ...