Antrobius v. Gain et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 21 , DENYING AS MOOT SECOND MOTION FOR APPOINTED COUNSEL DKT.NO. 20 , AND DISMISSING COMPLAINT AS FRIVOLOUS. The Court ADOPTS the Report and Recommendation Dkt. No. 21 in its entirety. The Court O RDERS that The second motion for appointed counsel Dkt. No. 20 be DENIED AS MOOT; the Complaint Dkt. No. 1 be DISMISSED WITH PREJUDICE as frivolous pursuant to 28 U.S.C. § 1915A(b)(1); and the matter be STRICKEN from the Courts active docket. Court DIRECTS the Clerk of Court to enter a separate judgment order. Signed by District Judge Thomas S. Kleeh on 3/26/2020 (copy pro Se Plaintiff via certified mail). (jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
FRANK EDWARD ANTROBIUS,
Plaintiff,
v.

Civil Action No. 1:18-CV-0003
(Judge Kleeh)

JASON T. GAIN, THOMAS A. BEDELL,
DAVID C. MIRHOSEINI, and ANDREA L.
ROBERTS,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
DENYING AS MOOT SECOND MOTION FOR APPOINTED COUNSEL [DKT.
NO. 20], AND DISMISSING COMPLAINT AS FRIVOLOUS
This matter is pending on the Second Motion for Appointed
Counsel [Dkt. No. 20] filed by pro se Plaintiff Frank Edward
Antrobius (“Antrobius”), and on the August 28, 2019, Report and
Recommendation

(“R&R”)

of

Magistrate

(“Magistrate Judge”) [Dkt. No. 21].

Judge

Michael

J.

Aloi

For the reasons set forth

below, the Court adopts the R&R, denies as moot the second motion
for appointed counsel [Dkt. No. 20], and dismisses the complaint
with prejudice as frivolous.
I.

BACKGROUND

Antrobius, an inmate currently incarcerated at the Mount
Olive Correctional Complex (“MOCC”) in Mount Olive, West Virginia,
filed a civil rights complaint under 42 U.S.C. § 1983 on January
1, 2018 [Dkt. No. 1].

Antrobius also filed a motion for leave to

proceed in forma pauperis (“IFP”) [Dkt. No. 2].

The IFP motion

ANTROBIUS V. GAIN, ET AL.

CIV. CASE NO. 1:18-CV-3

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
DENYING AS MOOT SECOND MOTION FOR APPOINTED COUNSEL [DKT.
NO. 20], AND DISMISSING COMPLAINT AS FRIVOLOUS

was granted on February 13, 2018, and Antrobius was directed to
pay an initial partial filing fee (“IPFF”) within 28 days [Dkt.
No. 7].

On March 19, 2018, Plaintiff paid the IPFF.

On February

12, 2019, Antrobius filed a motion to appoint counsel which was
denied by order entered on March 19, 2019 [Dkt. No. 17].

On June

25, 2019, Antrobius filed a second motion for the appointment of
an attorney [Dkt. No. 20].
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred this matter to the Magistrate Judge for initial screening
and

a

report

Magistrate

and

Judge

recommendation.
entered

a

R&R

On

August

recommending

28,

that

2019,

the

Plaintiff’s

complaint be dismissed with prejudice as frivolous pursuant to 28
U.S.C. § 1915A(b)(1) [Dkt. No. 21].

The R&R specifically warned

that the pro se Plaintiff had “fourteen days (filing of objections)
and then three days (mailing/service), from the date of the filing
this Report and Recommendation within which to file with the Clerk
of

this

Court,

specific

written

objections,

identifying

the

portions of the Report and Recommendation to which objection is
made, and the basis of such objection” [Id. at 6].
The R&R further stated that the failure to file written
objections “shall constitute a waiver of de novo review by the
District Court and a waiver of appellate review by the Circuit
Court of Appeals” [Dkt. No. 21 at 7].
2

See Wells v. Shriners Hosp.,

ANTROBIUS V. GAIN, ET AL.

CIV. CASE NO. 1:18-CV-3

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
DENYING AS MOOT SECOND MOTION FOR APPOINTED COUNSEL [DKT.
NO. 20], AND DISMISSING COMPLAINT AS FRIVOLOUS

109 F.3d 198, 199-200 (4th Cir. 1997); Snyder v. Ridenour, 889
F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985).
The R&R instructed that a “copy of such objections shall be served”
on the District Judge [Id. at 7]. The R&R was mailed to Petitioner,
via certified mail, on August 28, 2019 [Dkt. No. 21-1].

Service

of the R&R was accepted on August 30, 2019 [Dkt. No. 22].
On September 13, 2019, Antrobius filed another motion for
appointment of an attorney [Dkt. No. 23].

The motion was denied

by order entered on March 4, 2020 [Dkt. No. 25], and Antrobius was
directed to file specific written objections to the Magistrate
Judge’s R&R within “fourteen days (filing of objections) and then
three days (mailing/service)” from the entry of the March 4, 2020
order [Id.].

The order was received, via certified mail, on March

6, 2020 [Dkt. No. 26].

On March 16, 2020, Plaintiff filed a fourth

motion for appointed counsel [Dkt. No. 27], and the motion was
denied by order entered on the same date [Dkt. No. 28].

To date,

Antrobius has filed no objections to the R&R.
II.

DISCUSSION

When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C).

Otherwise, “the Court may adopt,

without

of

explanation,

any

the

magistrate

recommendations” to which there are no objections.
3

judge’s

Dellarcirprete

ANTROBIUS V. GAIN, ET AL.

CIV. CASE NO. 1:18-CV-3

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
DENYING AS MOOT SECOND MOTION FOR APPOINTED COUNSEL [DKT.
NO. 20], AND DISMISSING COMPLAINT AS FRIVOLOUS

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)).

Courts will

uphold 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).
Because pro se Plaintiff has not objected, the Court is under
no obligation to conduct a de novo review. Nevertheless, the Court
studied the record, reviewed the R&R for clear error, and agrees
that the complaint should be dismissed as frivolous.
III. CONCLUSION
Upon careful review, and finding no clear error, the Court
ADOPTS the Report and Recommendation [Dkt. No. 21] in its entirety.
The Court ORDERS that:
1)

The second motion for appointed counsel [Dkt. No.
20] be DENIED AS MOOT;

2)

The

Complaint

[Dkt.

No.

1]

be

DISMISSED

WITH

PREJUDICE as frivolous pursuant to 28 U.S.C. §
1915A(b)(1); and
3)

The matter be STRICKEN from the Court’s active
docket.

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court DIRECTS the Clerk
of Court to enter a separate judgment order and to transmit copies
4

ANTROBIUS V. GAIN, ET AL.

CIV. CASE NO. 1:18-CV-3

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
DENYING AS MOOT SECOND MOTION FOR APPOINTED COUNSEL [DKT.
NO. 20], AND DISMISSING COMPLAINT AS FRIVOLOUS

of both orders to the pro se Plaintiff, certified mail and return
receipt requested.
DATED:

March 26, 2020
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

5