Kornegay v. Brown

Filing 12

ORDER. Magistrate judge's #5 report and recommendation is hereby ORDERED ADOPTED. Petitioner's #11 Response/Objections are OVERRULED and the Motion to Amend within the objections is DENIED. The #1 Petition is DENIED and DISMISSED WITH PREJUDICE. This Court further DIRECTS the Clerk to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 8/28/24. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 8/28/2024: #1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
RAYMOND KORNEGAY,
Plaintiff,
v.

CIVIL ACTION NO. 5:24-CV-136
Judge Bailey

(W) R. BROWN,
Defendant.
ORDER
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone. [Doc. 5]. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
R&R on July 24, 2024, wherein he recommends that the Petition be denied and dismissed
with prejudice. [Id.] For the reasons that follow, this Court will adopt the R&R.
I. BACKGROUND1 & 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, 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

This Court fully adopts and incorporates herein the “Background” section of the
R&R. See [Doc. 5 at 1—2].
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recommendation to which no objections are addressed. Thomas v. Am, 474

u.s.

140,

150 (1985). Nor is this Court required to conduct a de novo review when the party makes
only “general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiver of de novo review and
the 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). Pro se filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
days of receipt, pursuant to 28 U.S.C.

§ 636(b)(1) and Rule 72(b)(2) of the Federal Rules

of Civil Procedure. Petitioner timely filed his Objection to the Report and Recommendations
[Doc. 11] on August 26, 2024. In addition to his objections, petitioner also included a
Motion to Amend. [Id.]. Accordingly, this Court will review the portions of the R&Rto which
objection was filed under a de novo standard of review. The remainder of the R&R will be
reviewed for clear error.
II. DISCUSSION
In the R&R, Magistrate Judge Mazzone found that the Petition should be dismissed
with prejudice because the determinations for which relief is sought in this matter “are not

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reviewable by this Court.” See [Doc. 5 at 5]. Petitioner seeks review of his recidivism level
and a reduction of that level from “medium” to “low” or “minimum.” [Doc. 11]. Petitioner is
seeking that reduction in order to be eligible to have time credits applied under 18 U.s.c.

§ 3624(g). [Id.]. A prisoner’s PATTERN Score and recidivism level are decisions made
under

§ 3624 and are therefore not reviewable by this Court. [Doc. 5 (citing Nevel v.

Brown, No. 5:23-CV-285, 2023 WL 8505881, at *6 (N.D. W.Va. Oct. 27, 2023) (Mazzone,

M.J.))].
In his Objections, petitioner advances the argument that LoperBright Enterprises
v. Raimondo “abrogates the Magistrate Judge’s report and recommendation.” See
[Doc. 11 at 1—2 (citing Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244(2024)].
This Court disagrees. The decision in Loper Bright Enterprises only alters the
requirement of courts to defer to agencies in the interpretation of ambiguous statutes, and
does not invalidate reports and recommendations issued by courts. Id.
Petitioner further argues that he should have the ability to amend his pleading to
avoid a dismissal with prejudice in this case. [Doc. 11]. Petitioner argues that Magistrate
Judge Mazzone’s report and recommendation reasoned that the petition did not conform
with the Federal Rules of Civil Procedure. [Id.]. This Court disagrees. It was not a
procedural deficiency, but a substantive deficiency in the claim that caused Magistrate
Judge Mazzone to recommend dismissal. See [Doc. 5]. Therefore, the arguments that this
Court should allow petitioner to cure procedural defects or amend the Petition are not
relevant.

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The relief sought in this case is a review of a decision not within the Court’s power
to review, therefore the Petition will be denied and dismissed.
III. CONCLUSION
Aside from the arguments addressed herein, a de novo review of the record
indicates that the magistrate judge’s report accurately summarizes this case and the
applicable law. Accordingly, the magistrate judge’s report and recommendation [Doc. 5]
is hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s
report. Petitioner’s Response/Objections [Doc. 11] are OVERRULED and the Motion to
Amend within the objections is DENIED.

The Petition [Doc. 1] is DENIED and

DISMISSED WITH PREJUDICE.
This Court further DIRECTS the Clerk to STRIKE this case from the active docket
of this Court.
It is so ORDERED.
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: August 28, 2024.

JO
ON BAILEY
UNITED STATES DISTRICT JUDGE
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