United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE AND OVERRULING PLAINTIFF'S
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Armando Cardon Cortez, filed
this civil action asserting claims under Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). ECF No. 1. Plaintiff is a federal inmate incarcerated
at FCI Gilmer in Glenville, West Virginia. In his complaint,
plaintiff asserts that defendants implanted technology in his
head in violation of his Fourth Amendment rights and that
defendants violated plaintiff's Eighth Amendment rights
against cruel and unusual punishment by implanting technology
which “attack[s] [him] 24 hours [a] day.”
Id. at 12-13. The plaintiff further claims that his
thoughts are being transmitted through the radio to officials
and that the defendants threw away two of his teeth which
contained the implanted technology. Id. at 16. The
plaintiff further alleges that the “technology”
is in his head, eyes, legs and genitals and moves his eyes
and controls his arms and legs without force. Id. at
5. For relief, plaintiff seeks “compensatory money,
” an order “to take me the technology” and
his freedom. Id. at 23.
action was referred to United States Magistrate Judge James
P. Mazzone for submission of a proposed disposition pursuant
to 28 U.S.C. § 636(b)(1)(B). The magistrate judge filed
a report and recommendation recommending that the complaint
be dismissed with prejudice upon a finding that the
plaintiff's claims are frivolous. ECF No. 7. The
magistrate judge further recommended that the plaintiff's
motion to proceed in forma pauperis (ECF No. 2) and motion
for appointment of a lawyer (ECF No. 5) be terminated as
moot. Id. at 3. The magistrate judge informed the
plaintiff that if he objected to any portion of the report
and recommendation, he was required to file specific written
objections within 14 days after being served with copies of
the report and recommendation. Id. The plaintiff
then filed a single, general objection. ECF No. 10.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which an objection is timely
made. Because the plaintiff filed an objection to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the plaintiff objected. As to those findings to which
objections were not filed, all findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A).
the plaintiff did not file specific objections to the
magistrate judge's report and recommendation, all
findings and recommendations of the magistrate judge will be
upheld unless they are “clearly erroneous or contrary
to law.” Upon review of the report and recommendation,
this Court finds no clear error in the determinations of the
magistrate judge and thus upholds his recommendation to
dismiss the complaint with prejudice as frivolous and deny
the pending motions to proceed in forma pauperis and appoint
counsel as moot.
stated above, this Court finds that although the plaintiff
did file an objection to the magistrate judge's report
and recommendation (ECF No. 10), the objection was a vague
and general statement in which plaintiff asserts that he
objects to the report and recommendation “[b]ecause the
evidence that plaintiff presented is clearly.” ECF No.
10. In reviewing the record, the report and recommendation,
and the plaintiff's “objection, ” this Court
finds that the objection is without merit.
report and recommendation, the magistrate judge correctly
stated that a complaint is frivolous if it is without
arguable merit either in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Further, the
magistrate judge properly determined that the plaintiff's
complaint is subject to dismissal with prejudice because it
is indisputably meritless. ECF No. 7 at 3.
plaintiff's general and incomplete objection, this Court
finds that plaintiff has failed to make specific objections
to the report and recommendation, and that this Court has
conducted an appropriate de novo review of the
plaintiff's objection to the report and recommendation.
Thus, this Court upholds the magistrate judge's
recommendation and overrules the plaintiff's objection.
reasons discussed above, the report and recommendation of the
magistrate judge (ECF No. 7) is hereby AFFIRMED and ADOPTED
in its entirety. Accordingly, plaintiff's complaint (ECF
No. 1) is DISMISSED WITH PREJUDICE, and the motions to
proceed in forma pauperis (ECF No. 2) and motion to appoint