Short v. Boyd et al

Filing 61

ORDER: Plaintiff's 60 OBJECTIONS to Magistrate Judge's Order are hereby OVERRULED and the Magistrate Judge's 59 Order is hereby AFFIRMED. The Plaintiff's REQUEST for a Hearing is hereby DENIED. See Order for further details. Signed by Chief Judge Martin Reidinger on 6/3/2024. (cly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00207-MR-WCM

TODD W. SHORT,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL BOYD, FBI Special Agent, )
in his individual capacity; and
)
JOHN DOES, FBI Special Agents
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1-6, in their individual capacities,
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Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s “Objections to the
Magistrate Judge’s April 16, 2024, Order and Request for Hearing” [Doc. 60].
I.

PROCEDURAL BACKGROUND
On August 4, 2023, the Plaintiff Todd W. Short filed this action against

Defendants Michael Boyd and John Does 1-6 in their individual capacities
as Federal Bureau of Investigation Special Agents pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971), asserting claims under the Fourth Amendment to the United States
Constitution for unreasonable search and seizure. [Doc. 1].

On October 23, 2023, the Plaintiff filed a motion seeking an ex parte
temporary restraining order, order to show cause, and other ancillary relief
on the basis that he believed that he was to be immediately arrested by the
Defendants. [Doc. 10]. Specifically, the Plaintiff moved the Court, inter alia,
to enjoin the Government from bringing an indictment against him or, if an
indictment has already been filed, to enjoin the Government from arresting
the Plaintiff. [Id. at 10]. He further requested that the Defendants, or anyone
involved in the Plaintiff’s criminal investigation, be enjoined from conducting
any further wiretaps or his communications or conducting any further
“unauthorized searches and seizure.” [Id.].
The Court denied this motion via text order the same day with an
indication that a written order would be forthcoming. [Text-Only (Ex Parte)
Order entered Oct. 24, 2023]. On October 24, 2023, the Plaintiff filed a
motion asking this Court to require the United States Attorney for the
Western District of North Carolina to disclose the names of the federal agents
investigating him. [Doc. 13].
In a written Order entered November 6, 2023, the Court denied the
Plaintiff’s request for injunctive relief as frivolous. [Doc. 15]. Noting that
counsel had made an appearance on behalf of the Defendants, the Court
held in abeyance the Plaintiff’s motion asking for the disclosure of the
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identities of the federal agents investigating him until the Defendants had an
opportunity to answer or otherwise respond to the Complaint. [Id. at 5]. In
December 2023, however, the United States filed a notice of its intent not to
answer or otherwise respond to the Complaint. [Doc. 20, as amended by
Doc. 22]. The United States Attorney also moved to withdraw from the case.
[Doc. 23]. The Plaintiff, in turn, moved for leave to file an amended complaint
[Doc. 21] and for an extension of time within which to serve process on the
Defendants [Doc. 28].
These pending motions were referred to the Honorable W. Carleton
Metcalf, United States Magistrate Judge, for disposition. Following a hearing
on January 10, 2024, Judge Metcalf entered an Order which, inter alia,
denied without prejudice the Plaintiff’s motion for the disclosure of the agents’
identities and gave the Plaintiff through and including March 1, 2024, to effect
service on the Defendants. [Doc. 32].
On January 26, 2024, the Plaintiff filed another motion for a temporary
restraining order. [Doc. 35]. The Court denied the Plaintiff’s motion on
January 29, 2024. [Doc. 37]. On February 12, 2024, the Plaintiff filed an
interlocutory appeal of the Order denying the Plaintiff’s second motion for a
temporary restraining order. [Doc. 38]. That interlocutory appeal remains
pending before the Fourth Circuit.
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In March 2024, the Plaintiff filed a series of motions, seeking leave to
file a motion for transcripts at the Government’s expense [Doc. 55]; to unseal
certain exhibits [Doc. 56]; and to unseal certain documents in his criminal
case [Doc. 57]. On April 16, 2024, Judge Metcalf entered an Order denying
the Plaintiff’s motion for leave to seek transcripts; granting in part and
denying in part the Plaintiff’s motions to unseal; and directing the Plaintiff to
show cause by May 3, 2024, why the Magistrate Judge should not
recommend that this case be dismissed because of the Plaintiff’s failure to
effectuate service on the Defendants. [Id. at 10].
On April 30, 2024, the Plaintiff filed the present Objections to Judge
Metcalf’s Order. [Doc. 60]. Specifically, the Plaintiff objects to the portion of
Judge Metcalf’s Order directing the Plaintiff to show cause regarding his
failure to effect service. He also seeks a de novo review of the portions of
the Order denying his motion to unseal documents from his criminal
proceeding. [Id. at 17-18]. He also requests a hearing on his Objections.
[Id. at 19].
II.

STANDARD OF REVIEW
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, a party

may submit objections to a Magistrate Judge’s ruling on a non-dispositive
pretrial motion and seek that the Order be set aside in whole or in part if it is
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“clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ.
P. 72(a).

Under this standard, “[a] finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir. 2006).
III.

DISCUSSION
With respect to the portions of Judge Metcalf’s Order denying the

Plaintiff’s motion to unseal, the Plaintiff requests that this Court review his
motion “de novo and reach its own conclusion.” [Doc. 60 at 18]. The Plaintiff,
however, raises no specific objection to Judge Metcalf’s ruling in this regard.
The Court is not required to review, under a de novo or any other standard,
the factual findings or legal conclusions of the magistrate judge to which no
objections have been raised. Thomas v. Arn, 474 U.S. 140, 150 (1985); see
also Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (noting that de novo
review is not required where a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate's
proposed findings and recommendations”). Nevertheless, having reviewed
the Magistrate Judge’s Order, the Court concludes that the denial of the

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Plaintiff’s motion to unseal was neither clearly erroneous nor contrary to law.
Accordingly, this portion of the Plaintiff’s Objections are overruled.
As for the show cause portion of the Magistrate Judge’s Order, the
Plaintiff argues that he should not be required to show cause regarding his
failure to effect service on the Defendants until after the Fourth Circuit has
ruled on his interlocutory appeal of the Order denying a temporary restraining
order. [Doc. 60 at 18]. The Plaintiff, however, offers no legal justification for
this delay. This matter has been pending for over nine months and, despite
being given generous extensions of time, the Plaintiff has failed to effectuate
service on any of the named Defendants.

Under these circumstances,

Judge Metcalf did not err in ordering the Plaintiff to show cause for his failure
to effect service. The Plaintiff’s Objection in this regard is overruled.
In sum, the Plaintiff’s Objections are overruled, and the Magistrate
Judge’s Order is affirmed in all respects. In lieu of requiring the Magistrate
Judge to issue a recommendation regarding dismissal of the Complaint
based on a failure of service, the Court will grant the Plaintiff thirty (30) days
from the entry of this Order to effect service on the Defendants. Failure to
effect service within the time required will result in the dismissal of this action
without prejudice.

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Based on the foregoing, the Plaintiff’s request for a hearing on his
Objections to Judge Metcalf’s April 16, 2024, Order is denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Objections to Judge
Metcalf’s April 16, 2024, Order [Doc. 60] are hereby OVERRULED, and the
Magistrate Judge’s Order [Doc. 59] is hereby AFFIRMED. The Plaintiff’s
request for a hearing [Doc. 60] is hereby DENIED.
IT IS FURTHER ORDERED that the Plaintiff shall have thirty (30) days
from the entry of this Order to effect service on the Defendants. Failure to
effect service within the time required will result in the dismissal of this action
without prejudice.
IT IS SO ORDERED.

Signed: June 3, 2024

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