Stout v. Preston County Sherriff (sic) Department et al
Filing
49
ORDER ADOPTING REPORT AND RECOMMENDATION ECF NO. 46 AND OVERRULING OBJECTIONS ECF NO. 48 . Plaintiffs pending Rule 16 Motion to Present Discovery Evidence ECF No. 45 is DENIED as moot. The Motion to Dismiss is GRANTED ECF No. 33 and the Pla intiffs Complaint is DISMISSED WITH PREJUDICE. The Court DIRECTS the Clerk to enter judgment and ORDERS that this action be DISMISSED WITH PREJUDICE and STRICKEN from the docket. Signed by District Judge Thomas S. Kleeh on 3/31/2021. (copy pro se Plaintiff via certified mail)(jmm) (Additional attachment(s) added on 3/31/2021: # 1 Certified Mail Return Receipt) (jmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
DONALD CARL STOUT,
Plaintiff,
v.
Civ. Action No. 1:19-CV-123
(Kleeh)
PRESTON COUNTY SHERIFF’S DEPARTMENT,
SHERIFF DANIEL LOUGHRIE, DEPUTY RANDY
STOCKETT, AND OFFICER OKAN,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
AND OVERRULING OBJECTIONS [ECF NO. 48]
On June 14, 2019, the pro se Plaintiff, Donald Carl Stout
(“Plaintiff”), filed a Complaint pursuant to 42 U.S.C. § 1983.
Plaintiff alleges, among other things, that the defendants were
deliberately indifferent to his well-being and that the defendant
used excessive force and demonstrated improper training during his
July 1, 2017, arrest at the “back waters of Little Sandy Creek,
Bruceton Mills, WV.” Compl., ECF No. 1. On June 2, 2020, all
Defendants moved to dismiss Plaintiff’s Complaint in its entirety
with respect to Defendants Preston County Sheriff’s Department,
Sheriff Daniel Loughrie, Officer Okan – K-9 Dog, and in part as to
Deputy Randy Stockett. [ECF Nos. 33, 34]. On June 23, 2020,
Plaintiff filed a response in opposition to the defendants’ motion
to dismiss. [ECF No. 39].
STOUT v. PRESTON CO. SHERIFF’S DEPT., et al.
1:19-CV-123
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
AND OVERRULING OBJECTION [ECF NO. 48]
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred the action to United States Magistrate Judge Michael J.
Aloi for initial review. On January 14, 2021, the Magistrate Judge
entered
a
Report
and
Recommendation
(“R&R”)
[ECF
No.
46],
recommending that the Court grant Defendants’ motion to dismiss
[ECF No. 33] and that Plaintiff’s Complaint be dismissed with
prejudice for the failure to state a claim upon which relief can
be granted pursuant to 28 U.S.C. § 1915(e)(2)(ii).
The R&R also informed the parties of their right to file
specific written objections to the magistrate judge’s report and
recommendation. Under Local Rule 12 of the Local Rules of Prisoner
Litigation Procedure of the Northern District of West Virginia,
“[a]ny
party
disposition
may
by
object
filing
to
and
a
magistrate
serving
judge’s
written
recommended
objections
within
fourteen (14) calendar days after being served with a copy of the
magistrate judge’s recommended disposition.” LR PL P 12. Further,
the magistrate judge allotted an extra three (3) days to account
for mailing and service of any objections. [ECF No. 46]. Therefore,
parties have seventeen (17) calendar days from the date of service
of the R&R to file “specific written objections, identifying the
portions of the Report and Recommendation to which objection is
made, and the basis of such objection.” The R&R further warned the
parties that the “[f]ailure to file written objections . . . shall
2
STOUT v. PRESTON CO. SHERIFF’S DEPT., et al.
1:19-CV-123
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
AND OVERRULING OBJECTION [ECF NO. 48]
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals.” The
docket reflects that Plaintiff accepted service of the R&R on
January 19, 2021. [ECF No. 47]. Plaintiff filed objections to the
R&R on February 3, 2021. [ECF No. 48].
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
explanation,
any
of
the
magistrate
judge’s
recommendations” to which there are no objections. Dellarcirprete
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).
“When a party does make objections, but these objections are
so general or conclusory that they fail to direct the district
court to any specific error by the magistrate judge, de novo review
is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730
(S.D. W. Va. 2009) (emphasis added) (citing Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982)). “When only a general objection
is made to a portion of a magistrate judge’s report-recommendation,
the Court subjects that portion of the report-recommendation to
3
STOUT v. PRESTON CO. SHERIFF’S DEPT., et al.
1:19-CV-123
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
AND OVERRULING OBJECTION [ECF NO. 48]
only a clear error review.” Williams v. New York State Div. of
Parole,
No.
9:10-CV-1533
(GTS/DEP),
2012
WL
2873569,
at
*2
(N.D.N.Y. July 12, 2012).
A party waives any objection to an R&R that lacks adequate
specificity. See Mario v. P & C Food Markets, Inc., 313 F.3d 758,
766 (2d Cir. 2002) (finding that a party’s objections to the
magistrate judge’s R&R were not specific enough to preserve the
claim for review). Bare statements “devoid of any reference to
specific findings or recommendations . . . and unsupported by legal
authority, [are] not sufficient.” Mario, 313 F.3d at 766. Pursuant
to the Federal Rules of Civil Procedure and this Court’s Local
Rules, “referring the court to previously filed papers or arguments
does not constitute an adequate objection.” Id.; see also Fed. R.
Civ. P. 72(b); LR PL P 12.
The Court finds that Plaintiff’s objections are conclusory,
restate and clarify the allegations of his Complaint, and are not
specific to the findings and recommendation of the Magistrate Judge
with respect to the necessary standard for the allegations lodged
in
the
Complaint
deliberate
of
excessive
indifference.
force,
Because
improper
Plaintiff’s
training,
and
objections
are
insufficient, the Court is under no obligation to conduct a de
novo review. Accordingly, the Court reviewed the R&R for clear
error. Upon careful review, and finding no clear error, the Court
4
STOUT v. PRESTON CO. SHERIFF’S DEPT., et al.
1:19-CV-123
ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 46]
AND OVERRULING OBJECTION [ECF NO. 48]
ADOPTS the R&R [ECF No. 46]. The Motion to Dismiss is GRANTED [ECF
No. 33] and the Plaintiff’s Complaint is DISMISSED WITH PREJUDICE
for failure to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2)(ii). Plaintiff’s pending “Rule
16 Motion to Present Discovery Evidence” [ECF No. 45] is DENIED as
moot.
The Court DIRECTS the Clerk to enter judgment in favor of
these Defendants as it relates to the remaining claims.
The Court ORDERS that this action be DISMISSED WITH PREJUDICE
and STRICKEN from the docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record via electronic means and to the pro se Plaintiff
via certified mail, return receipt requested.
DATED: March 31, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE
5
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