Jarrell v. Dyer

Filing 31

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION (ECF NO. 28 ), OVERRULING OBJECTIONS (ECF NO. 29 ), AND DISMISSING CASE WITH PREJUDICE. Defendant's Motion to Dismiss (ECF No. 11 ) is GRANTED and Plaintiff's Motion for Summary Judgement (ECF No. 23 ) is DENIED. Any other pending motions are DENIED AS MOOT. Jarrell's Complaint is DISMISSED WITH PREJUDICE and the Court DIRECTS the Clerk to strike this case from the Court's active docket. Signed by Chief District Judge Thomas S Kleeh on 3/6/2025. (Copy PS Plaintiff by CM,RRR) (dk) (Additional attachment(s) added on 3/6/2025: # 1 Certified Mail Return Receipt) (dk).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON C. JARRELL,
Plaintiff,
v.

Civil Action No. 1:24-cv-32

TOM DYER, DYER LAW OFFICES,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[ECF NO. 28], OVERRULING OBJECTIONS [ECF NO. 29], AND DISMISSING
CASE WITH PREJUDICE
I.

BACKGROUND AND REPORT AND RECOMMENDATION

On March 29, 2024, Plaintiff Jason C. Jarrell (“Plaintiff” or
“Jarrell”) filed a pro se complaint alleging his former attorney,
Tom Dyer, violated his civil rights while representing him in
revocation proceedings in Gilmer County, West Virginia Circuit
Court. ECF No. 1. Pursuant to 28 U.S.C. § 636 and the local rules,
the Court referred the action to United States Magistrate Judge
Michael J. Aloi (the “Magistrate Judge”) for initial review. ECF
No. 7.
On April 10, 2024, Defendant Tom Dyer moved to dismiss the
case pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No.
1.

On

April

29,

2024,

Plaintiff

filed

a

motion

for

summary

judgment. ECF No. 23. On July 22, 2024, the Magistrate Judge
entered

a

Report

and

Recommendation

(“R&R”)

[ECF

No.

28],

recommending the Court grant Defendant’s motion to dismiss [ECF

No. 11], deny Plaintiff’s motion for summary judgment [ECF No. 23]
and dismiss Plaintiff’s complaint with prejudice [ECF No. 1].
The R&R informed the parties that they had fourteen (14) days
plus an additional three (3) days from the date of the filing 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 for such objection.” It further warned them
that

the

“[f]ailure

to

timely

file

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.” ECF
No. 28 at pp. 7-8. Jarrell timely filed objections to the R&R on
July 25, 2024. ECF No. 29.
II.

STANDARD OF REVIEW

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
2

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
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).
III. DISCUSSION
Plaintiff objects to the magistrate judge’s recommendation to
dismiss his case pursuant to Federal Rule of Civil Procedure
3

12(b)(6) and alleges several issues with the R&R. First, Defendant
objects to the magistrate judge’s factual finding that the subject
lawsuit ensued because Plaintiff was dissatisfied with the outcome
of a Gilmer County, West Virginia case. ECF No. 29 at p. 1. Second,
Plaintiff objects to the factual finding that Tom Dyer was retained
only for subsequent revocation proceedings in Gilmer County. Id.
at p. 2. Third, Defendant contends that Tom Dyer never informed
him that there was not a valid basis for appealing his probation
revocation. Id. Fourth, Plaintiff objects to the finding that
Defendant was not acting under the color of law – as required for
a 42 U.S.C. § 1983 claim. Id. at p. 5. Thus, Plaintiff contends
the case should proceed to trial. Id. at p. 4. For the following
reasons, Defendant’s objections [ECF No. 29] are OVERRULED and
dismissal of Plaintiff’s Complaint is appropriate.
A. Jarrell’s First Objection is Overruled.
Plaintiff’s

objection

to

the

magistrate

judge’s

factual

finding that Plaintiff was dissatisfied with the outcome of a
Gilmer County matter is overruled. The referenced “state criminal
matter” in the R&R refers to the revocation proceedings in which
Tom Dyer was retained to represent Jarrell. Plaintiff was clearly
dissatisfied with the revocation of his probation because he sought
to appeal the decision. Thus, this factual finding is not improper.
Moreover,

the

R&R

does

not

mischaracterize

Plaintiff’s

claimed basis for the subject lawsuit. Plaintiff states in his
4

objection that the basis for the lawsuit is a violation of his
civil

rights,

arising

from

Tom

Dyer’s

refusal

to

appeal

the

revocation decision. ECF No. 29 at p. 1. Similarly, the R&R’s
factual

summary

liberally

construes

the

pro

se

Complaint

as

asserting “a cause of action under 42 U.S.C. § 1983. . .. Defendant
deprived him of civil rights by, namely, (1) depriving Plaintiff
of the Second Amendment right to carry a firearm and (2) depriving
Plaintiff of the right to file an appeal in the state criminal
action.” Thus, Plaintiff’s first objection does not provide a legal
basis or a relevant factual distinction to refute the magistrate
judge’s R&R and is therefore OVERRULED.
B. Jarrell’s Second Objection Is Overruled.
Plaintiff’s second objection to the R&R is overruled because
the ultimate scope of Tom Dyer’s representation is not dispositive
to assessing whether Jarrell has stated a claim upon which relief
can be granted. Plaintiff claims Tom Dyer was retained to replace
his previous counsel and that he expected the representation would
extend through any appeals. ECF No. 1 at p. 2. In contrast,
Defendant contends he was retained strictly to handle the probation
revocation proceedings in Gilmer County Circuit Court. ECF No. 18
at

p.

3.

This

objection

amounts

to

a

distinction

without

a

difference. Here, Tom Dyer did not file a notice of appeal because
he believed there was not a legal basis for such an appeal as to
the revocation. An appeal of the revocation decision would be
5

within the scope of the representation. This is distinct, however,
from the Harrison County, West Virginia charges which lead to the
subsequent

revocation

and

the

underlying

Gilmer

County,

West

Virginia charges in which Plaintiff received the term of probation.
Nonetheless, these facts do not change the ultimate outcome of
this case because, as elaborated upon below, Jarrell cannot state
a claim under 42 U.S.C. § 1983. Thus, the second objection to the
magistrate judge’s R&R is OVERRULED.
C. Jarrell’s Third Objection is Overruled.
Plaintiff’s third objection is overruled because whether Tom
Dyer informed Plaintiff that there was not a basis for appealing
the probation revocation is not dispositive to determining if
Plaintiff’s Complaint stated a claim upon which relief can be
granted. Plaintiff contends there is a difference between Tom Dyer
telling him that there was not an appeal and Dyer explaining to
him that no grounds for appeal existed. This is again a distinction
without a difference for purposes of reviewing the R&R.
Moreover,

Plaintiff

conflates

the

right

to

appeal

the

revocation sentence, with the right to appeal the underlying
misdemeanor charges in which he was convicted and sentenced to in
part, a term of probation. While Plaintiff is now appealing the
underlying

Gilmer

County

conviction,

which

could

impact

his

revocation sentence if successful, that does not mean a basis to
appeal the revocation existed, in and of itself. At the revocation
6

hearing, Plaintiff waived the right to an evidentiary hearing and
admitted to the conduct giving rise to the revocation proceedings.
Thus,

the

third

objection

to

the

magistrate

judge’s

R&R

is

OVERRULED and these facts do not change the ultimate outcome of
this case because, as elaborated upon below, Jarrell cannot state
a claim under 42 U.S.C. § 1983.
D. Jarrell’s Fourth Objection is Overruled.
The only legal objection Plaintiff raises relates to his
disagreement that he can bring a § 1983 claim against Tom Dyer.
Plaintiff does not provide any legal authority to support his
contention.
Rather,

“[t]o

establish

personal

liability

in

a

§ 1983

action, it is enough to show that the official, acting under color
of state law, caused the deprivation of a federal right.” Kentucky
v. Graham, 473 U.S. 159, 66 (1985) (internal citation omitted). As
recognized in the R&R, attorneys who are “retained to represent a
criminal defendant” are not subject to § 1983 liability because
they are not state actors. ECF No. 28 at p. 5; Deas v. Potts, 547
F.2d

800,

800

(4th

Cir.

1976)

(per

curiam).

See

Shelton

v.

Crookshank, 2017 WL 9565841, at *11 (N.D.W. Va. Nov. 17, 2017),
report and recommendation adopted, 2018 WL 527423 (N.D.W. Va. Jan.
24, 2018), aff'd as modified, 742 F. App'x 782 (4th Cir. 2018)
(finding that a privately retained attorney is not a “state actor[]
against whom an allegation of deprivation of constitutional rights
7

under color of law could be properly lodged.”); Skaggs v. Hoke,
2024 WL 5006789, at *6 (S.D.W. Va. July 18, 2024), report and
recommendation adopted, 2024 WL 4879867 (S.D.W. Va. Nov. 25,
2024)(collecting cases).
Here, Tom Dyer, as a private retained attorney, is not liable
under § 1983 because he was not a state actor acting under the
color

of

law

when

representing

Plaintiff

in

the

revocation

proceedings. Plaintiff’s fourth objection is contrary to law and
thus OVERRULED.
IV.

CONCLUSION

The Court reviewed the remainder of the R&R for clear error
and found none. For these reasons, the Court ADOPTS the R&R in its
entirety [ECF No. 28] and OVERRULES Jarrell’s objections [ECF No.
29]. Accordingly, Defendant’s Motion to Dismiss [ECF No. 11] is
GRANTED and Plaintiff’s Motion for Summary Judgement [ECF No. 23]
is DENIED. Any other pending motions are DENIED AS MOOT. Jarrell’s
Complaint is DISMISSED WITH PREJUDICE and the Court DIRECTS the
Clerk to strike this case from the Court’s active docket.
It is so ORDERED.
The Clerk shall transmit copies of this Order to counsel of
record via email and the pro se Plaintiff via certified mail,
return receipt requested.

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DATED: March 6, 2025
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

9