Dickson v. United States of America

Filing 33

ORDER ADOPTING 30 REPORT AND RECOMMENDATION; denying as moot 22 Plaintiff's Motion for Summary Judgment and 26 Motion for Leave to Proceed in forma pauperis; and denying and dismissing Plaintiff's 1 , 25 Complaints. Order 13 is VACATED and the Clerk is DIRECTED to enter judgment in favor of the Deft. Signed by Chief Judge Gina M. Groh on 3/21/2017. Copy sent certified mail, return receipt to pro se Plaintiff.(tlg) (Additional attachment(s) added on 3/21/2017: # 1 Certified Mail Return Receipt) (tlg).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG BRYAN KERR DICKSON, Plaintiff, v. CIVIL ACTION NO.: 3:16-CV-82 (GROH) UNITED STATES OF AMERICA; JEFF SESSION; LORETTA LYNN; ERIC HOLDER; CHARLES E. SAMUELS, JR.; THE DESIGNATION CENTER AND COMPUTATION CENTER, DSCC; C. EICHENLAUB; MATTHEW W. MELLADY; ZACHARY KETTON; TERRY O’BRIEN; JOHN GILLEY; FEDERAL AGENT/CORRECTIONAL OFFICER McGREGG; FEDERAL AGENT/ CORRECTIONAL AGENT ALLISON; FEDERAL AGENT/CORRECTIONAL AGENT BRADY; FEDERAL AGENT/CORRECTIONAL AGENT JOE DOE 1; M. WIENER; and LOTSPEICH, Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION This matter is before the Court for consideration of a Report and Recommendation (“R&R”) issued by United States Magistrate Judge James E. Seibert. Pursuant to the Court’s Local Rules, this action was referred to Magistrate Judge Seibert for submission of an R&R. On February 15, 2017, Magistrate Judge Seibert issued his R&R, recommending that this Court deny and dismiss without prejudice the Plaintiff’s complaints, vacate the order granting the Plaintiff’s motion for leave to proceed in forma pauperis, and deny the currently-pending motion for summary judgment and motion for leave to proceed in forma pauperis. 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, this Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner constitutes a waiver of de novo review and a petitioner’s right to appeal this Court’s order. 28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In this case, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, objections to Magistrate Judge Seibert’s R&R were due within fourteen days after being served with a copy of the same. The Plaintiff was served with the R&R on February 22, 2017, and timely filed objections. However, in his objections, the Plaintiff merely disagrees with the magistrate judge’s conclusion. Importantly, he does not dispute the legal analysis or factual information contained within the R&R. Rather, his objections are general and conclusory in nature. Specifically, he makes no reference to the “three strikes” provision of the Prison Litigation Reform Act or his previous filings in federal district courts. Furthermore, and most importantly, he does not demonstrate that he is in imminent danger. Because general and conclusory objections “have the same effect as a failure to object,” this Court will review the R&R for clear error. See Parker v. Comm’r of Soc. Sec., No. 4:11cv00030, 2012 WL 1356593, at *3 (W.D. Va. Apr. 19, 2012) (internal quotations omitted); see also United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). 2 Upon review, and finding no error, the Court ORDERS that Magistrate Judge Seibert’s Report and Recommendation [ECF No. 30] should be, and is, hereby ADOPTED for the reasons more fully stated therein. Accordingly, the Order Granting Plaintiff’s Motion to Proceed In Forma Pauperis [ECF No. 13] is VACATED, the Plaintiff’s complaints [ECF Nos. 1, 25] are DENIED and DISMISSED without prejudice, and the Plaintiff’s Motion for Summary Judgment [ECF No. 22] and Application to Proceed Without Prepayment of Fees [ECF No. 26] are DENIED as moot. The Clerk is DIRECTED to enter a separate judgment order in favor of the Defendants, strike this case from the Court’s active docket and mail a copy of this Order to the pro se Plaintiff by certified mail, return receipt requested. DATED: March 21, 2017 3

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