Ruff v. Warden Saab

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 22 AND DENYING AND DISMISSING PETITION WITH PREJUDICE [DKT. NO. 1 . The Court adopts the Magistrate Judge's 22 Report and Recommendation in its entirety, OVERRULES Ruff's 24 Objec tions, GRANTS the Respondent's 12 Motion for Summary Judgment and DENIES and DISMISSES WITH PREJUDICE Ruff's 1 Petition. The Clerk is directed to enter a separate judgment order and remove this case from the Court's active docket. Signed by District Judge Irene M. Keeley on 6/30/17. (To PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 6/30/2017: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT A. RUFF,
Petitioner,
v.

CIVIL ACTION NO. 1:16CV196
(Judge Keeley)

WARDEN SAAD,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 22] AND DENYING AND DISMISSING
PETITION WITH PREJUDICE [DKT. NO. 1]
Pending before the Court is the Report and Recommendation
(“R&R”) by United States Magistrate Judge Robert W. Trumble,
recommending that the Court deny and dismiss the petition filed by
the petitioner, Robert A. Ruff (“Ruff”). For the reasons that
follow, the Court ADOPTS the R&R in its entirety, GRANTS the
respondent’s

motion

for

summary

judgment,

OVERRULES

Ruff’s

objections, DENIES the petition, and DISMISSES this case WITH
PREJUDICE.
I. 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.”

RUFF V. SAAD

1:16CV196
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 22] AND DENYING AND DISMISSING
PETITION WITH PREJUDICE [DKT. NO. 1]

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 prisoner does not object.”
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)).

2

RUFF V. SAAD

1:16CV196
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 22] AND DENYING AND DISMISSING
PETITION WITH PREJUDICE [DKT. NO. 1]
II. DISCUSSION

On October 6, 2016, Ruff filed his petition pursuant to 28
U.S.C. § 2241, contending that, as a result of an altercation with
another inmate, the Bureau of Prisons (“BOP”) has unlawfully taken
good time credit from him.1 He argues that the BOP’s action is a
violation of “[his] Fifth and Sixth Amendment rights to Due
Process,” and has caused him to be “mis-represented at [his] latest
parole hearing.”2 Dkt. No. 1 at 1. Pursuant to 28 U.S.C. § 636 and
LR PL P 2, the Court referred the petition to Magistrate Judge
Trumble for an initial review and R&R. On December 5, 2016, Saad
moved to dismiss the petition or, in the alternative, for summary
judgment. Ruff responded to Saad’s motion on December 27, 2017.
On June 1, 2017, Magistrate Judge Trumble issued his R&R,
recommending that the Court grant Saad’s motion to dismiss or,
alternatively, for summary judgment, and that it deny and dismiss
Ruff’s

petition

because

he

had

failed

to

fully

exhaust

his

1

The R&R contains a detailed and thorough discussion of the
factual background related to this petition, which the Court
adopts.
2

It is clear form the petition that Ruff is not contending
that he was not afforded representation of some kind at his parole
hearing. Rather, he means to suggest that the record of his conduct
while incarcerated was now misrepresented due to the BOP’s
disciplinary action against him.
3

RUFF V. SAAD

1:16CV196
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 22] AND DENYING AND DISMISSING
PETITION WITH PREJUDICE [DKT. NO. 1]

administrative remedies, and because he did not assert a cognizable
liberty

interest

as

required

by

§

2241.

Ruff

filed

timely

objections to the R&R.
Ruff’s objections reiterate the same claims and arguments
contained in his petition, and provide only conclusory statements
that

the

R&R

objections

is

“failed

mistaken.
to

Indeed,

refer

to

the

any

statements

specific

in

error

Ruff’s
of

the

magistrate’s review,” and were instead “general and conclusory, and
thus

do

not

warrant

de

novo

review

by

the

District

Court.”

McPherson v. Astrue, 605 F.Supp.2d 744 (S.D.W.Va. 2009) (citing
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see also Green
v. Rubenstein, 644 F.Supp.2d 723 (S.D.W.Va. 2009) (“[G]eneral and
conclusory objection to magistrate judge’s recommendation that
summary judgment be granted . . . did not warrant de novo review of
the issues raised by prisoner . . . .”).
Ruff’s chief objection remains that he did not receive the
Discipline

Hearing

Officer’s

(“DHO”)

Report,

and

that

prison

officials did not bring his witnesses to the DHO Hearing. These
claims, were previously raised in his petition and were thoroughly
addressed by Magistrate Judge Trumble in the R&R. The R&R concluded
that Ruff had, in fact, received a copy of the DHO report, that he
4

RUFF V. SAAD

1:16CV196
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 22] AND DENYING AND DISMISSING
PETITION WITH PREJUDICE [DKT. NO. 1]

had had a fair opportunity to present witnesses, and that he had
received all of the process to which he was due. Ruff raises
nothing in his objections that was not clearly analyzed in the R&R.
Consequently, Ruff’s objections do not warrant de novo review.
As an aside, Ruff also asserts that he was never at FCI
Lisbon. Although the R&R states Ruff was transferred from FCI
Lisbon to FCI Gilmer, there is no FCI Lisbon. This is clearly a
typographical error as FCI Elkton is located in Lisbon, Ohio, and
the record is clear that Ruff was indeed at FCI Elkton. In
addition, the Court notes that Ruff makes several statements that
have no material relationship to the claims in his petition, or the
conclusions in the R&R; thus, the Court need not consider them.
Ultimately, Ruff simply reiterates claims about what has happened
to him while incarcerated, how he has been unable to get the relief
he wants, and how he has been unable to exhaust his administrative
remedies. As these were all raised in his petition, and addressed
in the R&R, the Court need only conduct a clear error review.
IV. CONCLUSION
After reviewing the R&R for clear error, and finding none, the
Court:
•

ADOPTS the R&R in its entirety (Dkt. No. 22);
5

RUFF V. SAAD

1:16CV196
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 22] AND DENYING AND DISMISSING
PETITION WITH PREJUDICE [DKT. NO. 1]

•

OVERRULES Ruff’s objections (Dkt. No. 24);

•

GRANTS the respondent’s motion for summary judgment (Dkt.
No. 12);

•

DENIES and DISMISSED WITH PREJUDICE Ruff’s petition (Dkt.
No. 1).

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail and
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: June 30, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

6