United States District Court, N.D. West Virginia, Martinsburg
JOENELL L. RICE, Plaintiff,
LT. SMITH, CO WALTZS and CO MCDUFFY, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. ECF No. 24. 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 on June 28, 2019. In his
R&R, Magistrate Judge Trumble recommends that the
Plaintiff's complaint [ECF No. 1] be denied and dismissed
28, 2019, the Plaintiff filed a civil action pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). At the time of filing,
the Plaintiff was incarcerated at USP Hazelton in Bruceton
Mills, West Virginia. In his complaint, the Plaintiff alleges
that he was assaulted by the Defendants and that he believes
it was in retaliation for his earlier reporting of misconduct
by a separate correctional officer. The Plaintiff further
alleges that after his assault, he was denied medical care.
Plaintiff stated that he has filed a BP 8, 9, 10 and 11, but
has not received a response. On June 6, 2019, the Plaintiff
filed a letter with the Clerk which stated that the
Plaintiff's BP 11 administrative grievance had been
referred to another department for review. ECF No. 14.
Standard of Review
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).
“[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)). “When only a general objection is
made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the
report-recommendation to only a clear error review.”
Williams v. New York State Div. of Parole, No.
9:10-CV-1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July
12, 2012). Courts have also held that when a party's
objection lacks adequate specificity, the party waives that
objection. See Mario v. P & C Food Markets,
Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that
even though a party filed objections to the magistrate
judge's R&R, they were not specific enough to
preserve the claim for review). Bare statements “devoid
of any reference to specific findings or recommendations . .
. and unsupported by legal authority, [are] not
sufficient.” Mario 313 F.3d at 766. Finally,
the Fourth Circuit has long held, “[a]bsent objection,
we do not believe that any explanation need be given for
adopting [an R&R].” Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983) (finding that without an
objection, no explanation whatsoever is required of the
district court when adopting an R&R).
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 Court granted the
Plaintiff an extension to file objections on or before August
22, 2019. ECF No. 32. The Plaintiff filed his objections on
August 9, 2019. ECF No. 35. Having timely filed objections,
the Court will conduct a de novo review of the
portions of the R&R to which the Plaintiff objects.
Judge Trumble recommends that the complaint be dismissed
because the Plaintiff has failed to exhaust all available
administrative remedies. Specifically, the Plaintiff's
claims are still being considered by the institution.
Moreover, the Plaintiff has not presented a claim that is
substantial or serious enough that would deter a similarly
situated prisoner of ordinary fitness from pursuing
Plaintiffs objections, he states that he just put in a BP8
pertaining to his claims and they have not responded back to
him yet. He further states that when they do respond he will
notify the Court and will then put the BP9 to the Warden. He
also says he will send copies of the BP10 and BP11 responses.
Plaintiff has not provided the Court with any information
leading to a conclusion that he has exhausted his
administrative remedies. Rather, a review of the complaint,
his supplemental filings and his objections show a failure to
exhaust all administrative remedies prior to filing of his
complaint. Accordingly, the Plaintiffs objections, inasmuch
as they oppose dismissal of the complaint, are