Worthy v. Ray

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION 6 . Petitioner's objections 8 are OVERRULED. Petitioner's Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 1 is DENIED and DISMISSED WITHOUT PREJUDICE. This Court further DIREC TS the Clerk to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 5/22/2023. (ag)(pro se PET cm rrr) (Additional attachment(s) added on 5/22/2023: # 1 Certified Mail Return Receipt) (ag).

Case 5:23-cv-00032-JPB Document 9 Filed 05/22/23 Page 1 of 4 PageID #: 59

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
HASAN WORTHY,
Petitioner,
v.

Civil Action No. 5:23-CV-32
Judge Bailey

WARDEN RAY,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above referenced case is before this Court upon the magistrate judge’s
recommendation that petitioner’s Petition be denied and dismissed without prejudice. See
[Doc. 6].
This Court is charged with conducting a de novo review of any portion of the
magistrate judge’s reportto which a specific objection is registered, and may accept, reject,
or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C.

§ 636(b)(1). However, absent prompt objection by a dissatisfied party, it appears that
Congress did not intend for the district court to review the factual and legal conclusions of
the magistrate judge. Thomas v. Am, 474 U.S. i 40 (1985). Additionally, any party who
fails to file timely, written objections to the magistrate judge’s report pursuant to 28 U.S.C.

§ 636(b)(1) waives the right to raise those objections at the appellate court level. United
States v. Schronce, 727 F.2d 91(4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984).
Petitioner timely filed objections on May 18, 2023. See [Doc. 8].
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Case 5:23-cv-00032-JPB Document 9 Filed 05/22/23 Page 2 of 4 PageID #: 60

Petitioner asserts four (4) objections to Magistrate Judge Mazzone’s Report and
Recommendation (“R&R”). First, petitioner argues that subject-matter jurisdiction exists
in this case because there is an actual case or controversy. See [Doc. 8 at 2]. Second,
petitioner argues that summary denial is not proper because the complaints are well
pleaded and in compliance with Rule 9(b) of the Federal Rules of Civil Procedure. See
[id. at 3]. Third, petitioner argues that summary denial and dismissal is not warranted
because the petition presents facts concerning subject-matter jurisdiction. See [id.].
Fourth, petitionerargues that he has no remedy otherthan the remedy afforded by the writ
of habeas corpus pursuant to

§ 2241. See [id. at 4].

“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.3d 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.” VViIIiams v. New York State Div. of Parole, 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

recommendation.

.

.

and unsupported by legal authority, [are] not sufficient.” Mario, 313

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Case 5:23-cv-00032-JPB Document 9 Filed 05/22/23 Page 3 of 4 PageID #: 61

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.
Petitioner’s first objection is an attempt to argue that this Court does have subject
matter jurisdiction and can hear his case. However, as laid out in the R&R, this Court is
without jurisdiction to consider his petition because petitioner is unable to show that § 2255
is an inadequate or ineffective remedy. His first objection is overruled.
Assuming arguendo that petitioner’s complaint is well plead and in compliance with
Federal Rule of Civil Procedure 9(b), that does not allow this Court to assert jurisdiction
over the case. Petitioner’s second objection is overruled.
Petitioner’s third objection also pertains to subject matter jurisdiction and is
overruled because this Court is without jurisdiction to consider his petition because
petitioner is unable to show that

§ 2255 is an inadequate or ineffective remedy.

Lastly, petitioner’s argument that he has no remedy other than the remedy afforded
by the writ of habeas corpus pursuant to
to show that

§ 2241 is overruled. Petitioner has been unable

§ 2255 is an inadequate or ineffective remedy.

Accordingly, the magistrate judge’s report and recommendation [Doc. 6] is
ADOPTED and petitioner’s objections [Doc. 8] are OVERRULED. Petitioner’s Petition for
Habeas Corpus Pursuant to 28 U.S.C.

§ 2241 [Doc. 1] is DENIED and DISMISSED

WITHOUT PREJUDICE. This Court further DIRECTS the Clerk to STRIKE this case from
the active docket of this Court.
It is so ORDERED.

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Case 5:23-cv-00032-JPB Document 9 Filed 05/22/23 Page 4 of 4 PageID #: 62

The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: May~~, 2023.

BAILEY
DISTRICT JUDGE

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