Estepp v. McKeen et al

Filing 34

ORDER OVERRULING PLAINTIFFS 32 OBJECTIONS. Signed by District Judge John Preston Bailey on 6/7/18. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 6/7/2018: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
DONALD ESTEPP,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-CV-57
(BAILEY)

SGT. McKEEN, et al.,
Defendants.
ORDER OVERRULING PLAINTIFF’S OBJECTIONS
Pending before this Court is plaintiff’s Objections [Doc. 32] to the Report and
Recommendation (“R&R”) of United States Magistrate Judge Robert W. Trumble [Doc. 27].
Objections to Magistrate Judge Trumble’s R&R were due within fourteen (14) days of
service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). The docket reflects
service was accepted on May 10, 2018 [Doc. 28]. Plaintiff filed his Objections on June 6,
2018, which was well after his allotted objection period and a week after this Court adopted
the R&R [Doc. 30]. Accordingly, plaintiff’s Objections are untimely. However, this Court
will nonetheless consider plaintiff’s Objections.
The following is this Court’s standard of review:
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de
novo review of those portions of the magistrate judge’s findings to which
objection is made. However, objections to a magistrate judge’s R&R must
be specific. See Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir. 1982); see
also Park v. Comm’r of Soc. Sec., No. 4:11cv00030, 2012 WL 1356593, at
*3 (W.D. Va. Apr. 19, 2012). General objections or mere reiterations of
arguments already presented to the magistrate judge “have the same effects
as a failure to object” and do not warrant de novo review. Parker, 2012 WL
1356593, at *3 (internal quotations and citation omitted); see also United
States v. Midgette, 478 F.3d 616, 621–22 (4th Cir. 2007); Page v. Lee, 337
F.3d 411, 416 n.3 (4th Cir. 2003). The Court is aware of the [plaintiff’s] pro
se status. Pro se pleadings are held to less stringent standards than those

drafted by licensed attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978). Accordingly, the Court construes liberally the [plaintiff’s]
arguments in opposition to the R&R, but it will not create objections where
none exist. Thus, the Court will review de novo only those portions of the
R&R to which the [plaintiff] has made specific objections. The remainder of
the R&R to which “general and conclusory” objections have been made will
be reviewed for clear error. See McGhee v. Colvin, 6:14-cv-02644-JMC,
2015 WL 5707866, at *1 ([D.S.C.] Sept. 25, 2015) (internal quotations and
citation omitted).
Hunt v. Ballard, 2017 WL 3485029, at *2 (N.D. W.Va. Aug. 14, 2017) (Groh, C.J.).
Here, plaintiff makes no specific objections to the R&R. In stating that “plaintiff isn’t
compelled to directly reply to specific allegations of U.S. Magistrate Trumble but does so
reply by a denial in general terms,” [Doc. 32 at 1], plaintiff simply disagrees with the
decision of the magistrate judge by way of general objection. Thus, in the absence of
specific objections to the R&R, this Court is only required to review the R&R for clear error.
Having again reviewed the R&R for clear error, this Court finds no reason to change its
earlier decision to adopt the R&R.
Accordingly, upon consideration of the above, plaintiff’s Objections [Doc. 32] are
OVERRULED.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to any counsel of record
herein and to mail a copy to the pro se plaintiff.
DATED: June 7, 2018.