Due v. Saad

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 12/19/2018. Copy sent certified mail, return receipt to pro se Petitioner.(tlg) (Additional attachment(s) added on 12/19/2018: # 1 Certified Mail Return Receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

RANDALL DAVID DUE,
Petitioner,

v.

CIVIL ACTION NO.: 3:18-CV-29
(GROH)

JENNIFER SAAD,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation (AR&R@) of United
States Magistrate Judge Robert W. Trumble. Pursuant to this Court’s Local Rules, this
action was referred to Magistrate Judge Trumble for submission of a proposed R&R.
Magistrate Judge Trumble issued his R&R [ECF No. 12] on October 30, 2018. Therein,
Magistrate Judge Trumble recommends that the Petitioner=s § 2241 petition [ECF No. 1]
be denied and dismissed without prejudice.
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, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). Failure to file timely objections constitutes a waiver of de novo review and
of a Petitioner’s right to appeal this Court’s Order. 28.U.S.C..'.636(b)(1); Snyder v.

Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984).
Moreover, “[w]hen 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) (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 reportrecommendation, 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). Courts have also held
that when a party’s objection lacks adequate specificity, the party waives that objection.
See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that
even though a party filed objections to the magistrate judge’s R&R, they 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. Finally, the Fourth Circuit has long held, “[a]bsent
objection, we do not believe that any explanation need be given for adopting [an R&R].”
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no
explanation whatsoever is required of the district court when adopting an R&R).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three
days of the Petitioner being served with a copy of the same. 28 U.S.C. ' 636(b)(1); Fed.
R. Civ. P. 72(b). The R&R was mailed to the Petitioner by certified mail on October 30,
2018. ECF No. 12. The Petitioner accepted service on November 5, 2018. ECF No.

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13. The Petitioner filed objections on November 13, 2018. ECF No. 14. Accordingly,
this Court will review the portions of the R&R to which the Petitioner objects de novo.
Magistrate Judge Trumble recommends that that this action be dismissed without
prejudice because Petitioner does not seek relief under any permissible ground in his §
2241 petition, rather the relief sought should have been sought through direct appeal or
a § 2255 petition. ECF No. 12 at 13. In his objections, the Petitioner states case law
and states the Court should show cause. However, the Petitioner does not provide
specific objections.

Therefore, the Court finds that de novo review is not required

because the Petitioner has failed to make specific objections to the magistrate judge’s
analysis as found within his R&R.
Nevertheless, upon careful review of the R&R and the Petitioner’s objections, it is
the opinion of this Court that Magistrate Judge Trumble’s Report and Recommendation
[ECF No. 12] should be, and is hereby, ORDERED ADOPTED for the reasons more fully
stated therein. Therefore, the Petitioner’s § 2241 Petition [ECF No. 1] is DENIED and
DISMISSED WITHOUT PREJUDICE. Further, Petitioner’s motion for default judgment
[ECF No. 9] and demand show cause [ECF No. 11] are TERMINATED AS MOOT.
The Clerk is DIRECTED to strike this matter from the Court’s active docket. The
Clerk is further DIRECTED to transmit copies of this Order to all counsel of record herein
and to mail a copy of this Order to the pro se Petitioner by certified mail, return receipt
requested.
DATED: December 19, 2018

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