Greer v. State of West Virginia

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 47 AND DISMISSING CASE WITH PREJUDICE. Court OVERRULES Greers objections dkt. no. 49 , ADOPTS the R&R in its entirety dkt. no. 47 , GRANTS the States motion dkt. no. 17 , and DISMISSES this case WITH PREJUDICE. The Court DIRECTS the Clerk to enter a separate judgment order and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 8/23/2017. (copy pro se plaintiff via certified mail)(jmm) (Additional attachment(s) added on 8/23/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BERNARD L. GREER,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV142
(Judge Keeley)

STATE OF WEST VIRGINIA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 47] AND DISMISSING CASE WITH PREJUDICE
On June 28, 2016, the pro se plaintiff, Bernard L. Greer
(“Greer”), a convicted felon, filed a class action complaint
against the State of West Virginia (“State”) on behalf of himself
and all others similarly situated (dkt. no. 1). Greer’s complaint
alleges

that

West

Virginia

Code

§

61-7-7(a)(1),

prohibiting

convicted felons from owning antique firearms, is unconstitutional
and in conflict with federal felon dispossession laws, which carve
out an antique firearm exemption. The complaint asserts four causes
of action, including: (1) violation of the Supremacy Clause; (2)
violation of the Second and Fourteenth Amendments; (3) violation of
the Ninth Amendment right to subsistence hunting; and (4) violation
of the Commerce, Privileges and Immunities, and Equal Protection
Clauses of the United States Constitution.
Pursuant to Title 28, United States Code §§ 636(b)(1)(A) and
636(b)(1)(B) and L.R. Civ. P. 7.02(c) and 72.01(d)(6), the Court
referred this case to the Honorable Michael J. Aloi, United States

GREER V. STATE OF WEST VIRGINIA

1:16CV142

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 47] AND DISMISSING CASE WITH PREJUDICE
Magistrate Judge, to conduct a scheduling conference and issue a
scheduling

order,

for

written

orders

or

reports

and

recommendations, as the case may be, regarding any motions filed,
and to dispose of any other matters that may arise (dkt. no. 3).
On September 12, 2016, the defendant State moved to dismiss
Greer’s complaint, arguing that cases decided by both the Fourth
Circuit Court of Appeals and the Supreme Court of the United States
foreclose Greer’s claims. On July 20, 2017, Magistrate Judge Aloi
entered a Report and Recommendation (“R&R”), recommending that the
Court grant the motion and dismiss Greer’s complaint with prejudice
for failure to state a claim (dkt. no. 47). Specifically, the R&R
concluded

that

the

Supremacy

Clause

of

the

United

States

Constitution was not implicated because there was no preemption
issue and West Virginia Code § 61-7-7(a)(1) could easily co-exist
with the federal statute. Id. at 7-9. The R&R next concluded that,
because Greer was a convicted felon, he had no right under the
Second Amendment to bear arms

—

antique or otherwise; thus, his

Second and Fourteenth Amendment claims failed as a matter of law.
Id. at 9-17. As to his third claim, relying on several circuit
court decisions, the R&R concluded that felon dispossession laws do
not violate the Ninth Amendment. Id. at 17-18. Finally, the R&R

2

GREER V. STATE OF WEST VIRGINIA

1:16CV142

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 47] AND DISMISSING CASE WITH PREJUDICE
concluded that West Virginia Code § 61-7-7(a)(1), cited by Greer,
did not violate the Commerce, Privileges and Immunities, or Equal
Protection Clauses of the United States Constitution, as these
clauses were wholly inapplicable in this case. Id. at 18.
The R&R also specifically warned Greer that he had fourteen
days in which to file any written objections, and that his failure
to object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on the issue. Id. at 19.
Greer filed timely objections to the R&R on August 4, 2017 (dkt.
no. 49), and the State responded to the objections on August 17,
2017 (dkt. no. 52).
STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions of the R&R to which an objection is
timely made. See 28 U.S.C. § 636(b)(1)(C). The Court need not
conduct a de novo review when 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.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In such cases,
“the Court may adopt, without explanation, any of the magistrate
judge’s recommendations to which the [parties] do[] not object.”

3

GREER V. STATE OF WEST VIRGINIA

1:16CV142

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 47] AND DISMISSING CASE WITH PREJUDICE
Dellaciprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Further, courts will uphold those portions of a recommendation to
which

no

objection

has

been

made

unless

they

are

“clearly

erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
A failure to file specific objections waives appellate review
of both factual and legal questions. See United States v. Schronce,
727 F.2d 91, 94 & n. 4 (4th Cir. 1984); Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991). Finally, objections that reiterate
the same arguments already presented and fully addressed in the R&R
“lack the specificity required by Rule 72 and have the same effect
as a failure to object.” Phillips v. Astrue,

2011 WL 5086851, at

*2 (W.D.Va. Oct. 25, 2011 ) (citing Veney v. Astrue, 539 F.Supp.2d
841, 845 (W.D.Va. 2008)).
DISCUSSION
Greer’s

objections

mainly

reiterate

arguments

previously

raised in his complaint, all of which were thoroughly analyzed by
Magistrate Judge Aloi. The thrust of these objections is that
federal law allows convicted felons to possess antique firearms and
therefore preempts the West Virginia Code.

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This argument was

GREER V. STATE OF WEST VIRGINIA

1:16CV142

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 47] AND DISMISSING CASE WITH PREJUDICE
addressed in the R&R (dkt. no. 47 at 7-9 and 9-17). Therefore,
because most of Greer’s objections simply reiterate his earlier
arguments,

the

conclusions

of

the

R&R

pertaining

to

those

objections are subject only to clear error review.1 Phillips, 2011
WL 5086851, at *2. Finding no clear error, the Court ADOPTS the
recommendation of R&R as to these arguments.
Greer does raise two new issues in his objections, but they
are without merit. First, Greer argues that Magistrate Judge Aloi
improperly relied on Pohlabel v. State, 268 P.3d 1264 (Nev. 2012),
which is not a West Virginia case and also is distinguishable. The
R&R’s reference to Pohlabel was simply to cite it as persuasive
authority in support of Magistrate Judge Aloi’s recommendation.
Ultimately, what Magistrate Judge Aloi relied on was the statutory
language of West Virginia Code § 61-7-7(a)(1), which he concluded
could co-exist with federal law, and that Greer therefore had no
Second Amendment right to bear arms. The objection to a supporting

1

It should be noted that, on August 22, 2017, Greer also filed
a last minute reply to the State’s response to his objections (dkt.
no. 56). The brief reply simply disputes the State’s conclusions
and reiterates his claim that, because it could not establish any
antique gun violence in West Virginia, the state law is
unconstitutional. Greer’s opinion, however, was previously raised
in his complaint and in his objections, and the reply therefore
adds nothing and does not alter the Court’s analysis.
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GREER V. STATE OF WEST VIRGINIA

1:16CV142

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 47] AND DISMISSING CASE WITH PREJUDICE
case from another jurisdiction therefore does not bear materially
on the outcome of the R&R.
Next, Greer objects to Magistrate Judge Aloi’s reference to
evidence offered at his felony trial as a basis to dismiss his
Second Amendment claim. Inasmuch as Greer does not dispute the fact
that he is a convicted felon, a finding that is the basis for the
conclusion in the R&R, any evidence adduced at the trial which
resulted in his conviction is not material to the outcome here.
CONCLUSION
For

the

reasons

discussed,

the

Court

OVERRULES

Greer’s

objections (dkt. no. 49), ADOPTS the R&R in its entirety (dkt. no.
47), GRANTS the State’s motion (dkt. no. 17), and DISMISSES this
case WITH PREJUDICE. The Court DIRECTS the Clerk to enter a
separate judgment order and to remove this case from the Court’s
active docket.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to pro se plaintiff and counsel of record.
DATED: August 23, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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