Kesterson v. Toler et al

Filing 40

MEMORANDUM OPINION AND ORDER adopting Magistrate Judge Stanley's 35 Proposed Findings and Recommendation; DISMISSING plantiff's complaint pursuant to 28 U.S.C. 1915A; denying plaintiff's 20 and 32 Requests for a court order for evidence from the Raleigh County Public Defender's Office and DIRECTS the Clerk to remove this action from the active docket of this court. Signed by Judge David A. Faber on 7/7/2009. (cc: plaintiff, attys) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON

ROY KESTERSON, Plaintiff, v. DAVE TOLER, et al., Defendants. CIVIL ACTION NO. 2:09-0085

MEMORANDUM OPINION AND ORDER Pending before the court are plaintiff's complaint under 42 U.S.C. § 1983 (Doc. No. 1) and requests for a court order for evidence from the Raleigh County Public Defender's Office (Doc. Nos. 20, 32). By Standing Order entered August 1, 2006, and

filed in this case on January 30, 2009, this matter was referred to United States Magistrate Judge Mary E. Stanley. Pursuant to

28 U.S.C. § 636(b), the Standing Order directs Magistrate Judge Stanley to submit proposed findings and recommendation concerning the disposition of this matter. Magistrate Judge Stanley

submitted her Proposed Findings and Recommendation ("PF & R") on February 24, 2009, recommending that this court dismiss plaintiff's complaint under 28 U.S.C. § 1915A for failure to state a claim upon which relief can be granted, and deny plaintiff's requests for evidence. (Doc. No. 35.)

In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted ten days, plus three mailing days, in which

to file any objections to Magistrate Judge Stanley's PF & R. Under § 636(b), the failure of any party to file objections within the appropriate time frame constitutes a waiver of that party's right to a de novo review by this court. Snyder v.

Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985). Moreover, this court need not conduct a de novo

review when a party "makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." F.2d 44, 47 (4th Cir. 1982). Plaintiff submitted his objections on March 2, 2009. No. 36.) (Doc. Orpiano v. Johnson, 687

In his objections, plaintiff restates the relief he

seeks through his complaint, but does not address the grounds on which the magistrate judge recommended dismissal: that plaintiff's challenge to his confinement must be brought through a petition for a writ of habeas corpus, pursued first in state court; and that plaintiff must demonstrate that his conviction or sentence has been reversed, expunged, or declared invalid before he may pursue damages for unconstitutional imprisonment through a § 1983 action. (Doc. No. 35 at 5.) His objections are therefore

irrelevant and unresponsive to the reasoning contained in the PF & R, and must be overruled on that ground, as they do not "direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano, 687 F.2d at 47.

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Having reviewed the Proposed Findings and Recommendation filed by Magistrate Judge Stanley, the court (1) ADOPTS the findings and conclusions set forth therein; (2) DISMISSES plaintiff's complaint pursuant to 28 U.S.C. § 1915A; (3) DENIES plaintiff's requests for a court order for evidence from the Raleigh County Public Defender's Office (Doc. Nos. 20, 32); and (4) DIRECTS the Clerk to remove this action from the active docket of this court. The Clerk is further directed to forward a copy of this Memorandum Opinion and Order to plaintiff and to all counsel of record. It is SO ORDERED this 7th day of July, 2009. ENTER: David A. Faber Senior United States District Judge

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