Penley v. McDowell County Board of Education et al

Filing 75

ORDER that the Objections 73 Appeal of Magistrate Judge Decision to District Court, are OVERRULED, and the 71 Order on Motion to Compel, is AFFIRMED. Signed by District Judge Max O. Cogburn, Jr on 01/06/2016. (thh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:14-cv-00170-MOC-DLH
STANLEY JEFFREY PENLEY,

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Plaintiff,
Vs.
MCDOWELL COUNTY BOARD OF
EDUCATION
ROBERT GILLESPIE
GERRI MARTIN
H. RUSSELL NEIGHBORS
NATALIE GOUGE,
Defendants.

ORDER

THIS MATTER is before the court on review of a non-dispositive Order (#71)
issued by Honorable Dennis L. Howell, United States Magistrate Judge, in this matter.
Plaintiff has filed Objections (#73) to such Order and defendants have filed a timely
Response (#74) to such Objections.
The district court has authority to assign non-dispositive pretrial matters pending
before the court to a magistrate judge to “hear and determine.” 28 U.S.C. § 636(b)(1)(A).
When reviewing an objection to a magistrate judge’s order on a non-dispositive matter, the
district court must set aside or modify any portion of that order which is clearly erroneous
or contrary to law. Fed.R.Civ.P. 72(a). To show that a magistrate judge’s order is contrary
to law, the objecting party must show that the magistrate judge failed to apply or misapplied
statutes, case law, or procedural rules. See Catskill Dev. LLC v. Park Place Entm’t Corp.,

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206 F.R.D. 78, 86 (S.D.N.Y.2002). The court has carefully reviewed the Order as well as
the Objections, and has determined that the Order of the magistrate judge is fully consistent
with and supported by current law and is in no matter clearly erroneous. Based on such
determination, the court will overrule the Objections and fully affirm the Order.
Counsel for plaintiff are reminded of this court’s expectations of collegiality
between counsel and civility with the court, and that there simply is no need to personally
attack a respected, hard-working judge of this court by describing his decision as “flat out,
clearly, and ineluctably wrong!” Objections (#73) at 2 (exclamation point1 in the original).
Equally, plaintiff’s counsel aids their client’s cause little by stating that the magistrate
judge acted “inexplicably,” id. at 14, especially where that judge actually explained his
decision in a 19-page opinion. Not only are such statements beneath the abilities of
plaintiff’s counsel, they are incorrect as review of the transcript and the Order disclose that
Judge Howell carefully considered the arguments of the parties, gave the parties hours of
court time to explain their positions, and then fully explained his reasoning in a well-written
19-page opinion that is fully consistent with law.
While civility is a trait that is difficult to acquire and seldom imposed, plaintiff’s
counsel should reflect on what they have placed on the public record and what steps they
can take to make amends.

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In reading the objections, the court noted that counsel for plaintiff employed exclamation points 12 times in
their brief.

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ORDER
IT IS, THEREFORE, ORDERED that the Objections (#73) are OVERRULED,
and the Order (#71) is AFFIRMED.

Signed: January 6, 2016

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