United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is a Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge Robert W. Trumble. ECF No. 7. Pursuant to this
Court's Local Rules and 28 U.S.C. § 1915(e)(2)(B),
this action was referred to Magistrate Judge Trumble for a
preliminary review to determine whether the Plaintiff's
complaint sets forth any viable claims. ECF No. 4. On July
11, 2019, Magistrate Judge Trumble issued his R&R,
recommending that the Court dismiss the Plaintiff's
complaint without prejudice and deny as moot his application
to proceed in forma pauperis. ECF No. 7.
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
conduct a de novo review of those portions of the
magistrate judge's findings to which objection is made.
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 to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a plaintiff's right
to appeal this Court's order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984). Moreover, “[w]hen a party
does make objections, but these objections are so general or
conclusory that they fail to direct the district court to any
specific error by the magistrate judge, de novo review is
unnecessary.” Green v. Rubenstein, 644
F.Supp.2d 723, 730 (S.D. W.Va. 2009) (citing Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, objections to Magistrate
Judge Trumble's R&R were due within fourteen days
after being served with a copy of the same. The R&R was
sent to the Plaintiff by certified mail, return receipt
requested, on July 11, 2019. ECF No. 7. The Plaintiff
accepted service on July 15, 2019. ECF No. 9. The Plaintiff
filed his objections on July 26, 2019. ECF No. 11.
Accordingly, the Court will review the portions of the
R&R to which the Plaintiff objects de novo.
complaint, the Plaintiff alleges several state and federal
claims against Officer Lawrence of the Martinsburg Police
Department and the City of Martinsburg. ECF No. 1. Although
not entirely clear, the Plaintiff appears to allege the
29, 2019, the Plaintiff was using his phone in the First
Baptist Church parking lot in Martinsburg, West Virginia.
Id. at 7. Although Plaintiff was not committing any
violations or crimes, Officer Lawrence forced him to leave
the First Baptist Church parking lot and go to the public
library square. The Plaintiff alleges that he was in fear for
his life when Officer Lawrence told him to move from the
First Baptist Church parking lot to the public library
square. Id. At the public library square, there was
a sign which stated “no trespassing at 9:00 p.m. to
6:00 a.m.” Id. at 8. From these facts, the
Plaintiff alleges that Officer Lawrence violated his First
and Fourth Amendment Rights. He also alleges state claims
including entrapment, harassment, stalking, defamation of
character, lying, and abuse.
Judge Trumble recommends that all of the Plaintiff's
federal claims be dismissed because the claims are frivolous
and fail to state a claim upon which relief may be granted.
ECF No. 7 at 6. Magistrate Judge Trumble further recommends
that the Court decline to exercise supplemental jurisdiction
over the Plaintiff's state law claims. Id. at 7.
Accordingly, Magistrate Judge Trumble recommends that the
Plaintiff's complaint be dismissed in its entirety
without prejudice. Id. at 9.
Plaintiff does not object to Magistrate Judge Trumble's
findings with respect to his Fourteenth Amendment claims or
entrapment claim, to the extent that the Plaintiff alleges
entrapment as a constitutional violation. Accordingly, having
reviewed the R&R, the Court adopts Magistrate Judge
Trumble's findings with respect to these issues. The
Plaintiff's sole objection is that his claim alleging a
violation of his freedom of religion under the First
Amendment is a viable claim. The Plaintiff therefore argues
that the Court also has supplemental jurisdiction over his
state law claims.
Plaintiff's sole factual basis for his claim alleging
that Office Lawrence violated his First Amendment right to
freedom of religion is that Officer Lawrence directed him to
leave the First Baptist Church parking lot. However, the
Plaintiff does not allege that he was engaged in any
religious activities, that he belonged to the First Baptist
Church, or that his freedom to practice religion was in some
way impaired or impacted by Officer Lawrence's actions.
Therefore, there is no factual basis for his First Amendment
claim, and it must be dismissed as failing to state a claim
upon which relief can be granted.
found that all of the Plaintiff's federal claims must be
dismissed, the Court must now determine whether his state law
claims survive. The Court cannot exercise diversity
jurisdiction over the Plaintiff's state law claims
because both the Plaintiff and Defendant are citizens of West
Virginia, and thus, there is no diversity of citizenship.
Nevertheless, the Plaintiff's state law claims arise out
of the same transaction and occurrence as his federal claims.
Therefore, the Court may exercise its supplemental
jurisdiction over these claims pursuant to 28 U.S.C. §
1367(a). However, the Court may “decline to exercise
supplemental jurisdiction over a claim” if “the
district court has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). In
this case, the Court has found that all federal claims must
be dismissed. Accordingly, the Court declines to exercise
supplemental jurisdiction over the Plaintiff's state law