Howard v. Ballard

Filing 106

MEMORANDUM OPINION ORDER adopting the 104 Proposed Findings and Recommendation of the Magistrate Judge; denying plaintiff's 87 Amended Motion for injunctive relief; and denying plaintiff's 89 and 91 Motions for expedited relief ; the Court calls attention to plaintiff's practice of sending documents to various person (including this Court) and stating that failure to sign such documents or comply with other requests will be considered an admission of the conduct addr essed in the documents or requests and formally notifies plaintiff that any additional use of this practice may result in sanctions; the Court leaves this matter referred to Magistrate Judge Tinsley for additional proceedings concerning the plaintiff's remaining claims. Signed by Judge Thomas E. Johnston on 9/11/2015. (cc: plaintiff, pro se; counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JOSEPH EUGENE HOWARD,
Plaintiff,
CIVIL ACTION NO. 2:13-cv-11006

v.
DAVID BALLARD,
Defendant.

MEMORANDUM OPINION ORDER
Pending before the Court are Plaintiff’s amended motion for injunction (ECF 87) and two
motions for expedited relief. (ECF 89 & 91.)
The original complaint was filed on May 7, 2013 and referred to United States Magistrate
Judge Dwane L. Tinsley by Standing Order entered April 8, 2013. On February 10, 2015,
Magistrate Judge Tinsley filed a proposed findings and recommendations for disposition
(“PF&R”). (ECF 86.) Plaintiff timely filed objections to this PF&R. (ECF 88.) By Order entered
March 31, 2015, this Court overruled those objections and adopted the PF&R, granting a motion
to dismiss filed by then-named defendant David Ballard, James McCloud, Jim Rubenstein, and the
West Virginia Division of Corrections, and denying the plaintiff’s three motions for injunctive
relief. (ECF 94.) The Order left the matter referred to Magistrate Judge Tinsley for additional
proceedings concerning Plaintiff’s remaining claims. (Id.) On August 18, 2015, Magistrate Judge

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Tinsley filed a PF&R with respect to the pending motions, recommending that this Court deny
Plaintiff’s amended motion for injunctive relief and two motions for expedited relief. (ECF 104.)
This Court is required to “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C). 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).
In addition, 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.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Plaintiff timely filed objections, (ECF 105), to the August 18, 2015 PF&R on September
4, 2015.1 As his basis for objection, Plaintiff states only that he objects “for the reasons already
stated on record.” (ECF 105.) Plaintiff does not make any specific objection or otherwise direct
this Court’s attention to specific errors in the PF&R. Because Plaintiff makes only “general and
conclusory allegations that do not direct the Court to a specific error in the magistrate’s proposed
findings and recommendations,” Orpiano, 687 F.2d at 47, the Court need not conduct a de novo
review of any part of the August 18, 2015 proposed findings and recommendations. Accordingly,
the Court ADOPTS the PF&R, DENIES Plaintiff’s amended motion for injunctive relief, (ECF
87), and DENIES Plaintiff’s two motions for expedited relief, (ECF 89 & 91).

The objections also include a request that this Court extends the Plaintiff’s time for filing the objections document.
Plaintiff’s request appears to be based on a concern that the Court wouldn’t receive the objections by the filing deadline
of September 4, 2015. See ECF 105 (Plaintiff noting that he “did not receive the Court Proposed Findings and
Recommendation until August 25, 2015 and because MOCC staff are not forwarding his legal mail promptly”). The
Court received Plaintiff’s objections before the filing deadline and accordingly finds no reason to extend the time for
filing in this case.

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Further, the Court calls attention to the plaintiff’s practice of sending documents to various
persons (including this Court) and stating that failure to sign such documents or comply with other
requests will be considered an admission of the conduct addressed in the documents or requests.
The plaintiff has been warned repeatedly that this practice has no legal significance. The Court
now formally NOTIFES Plaintiff that any additional use of this practice may result in sanctions.
The Court leaves this matter referred to Magistrate Judge Tinsley for additional proceedings
concerning the Plaintiff’s remaining claims.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 11, 2015