Mercer v. Ballard et al

Filing 79

ORDER the Court ADOPTS the 77 Proposed Findings and Recommendation by Magistrate Judge; DISMISSES the 59 Second Amended Complaint and this civil action pursuant to the provisions of 28 U.S.C. § 1915A and the dictates of Twombly and Iqbal; and DENIES the plaintiff's 54 and 57 Applications to Proceed Without Prepayment of Fees and Costs; and waives the applicable filing fee. Signed by Judge Thomas E. Johnston on 11/17/2017. (cc: plaintiff; counsel of record; any unrepresented party) (taq)

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

EDWARD J. MERCER,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-01912

WARDEN DAVID BALLARD, et al.,
Defendants.

ORDER

Pending before the Court is Plaintiff’s Second Amended Complaint, (ECF No. 59), and
two Applications to Proceed Without Prepayment of Fees and Costs. (ECF Nos. 54 & 57.) By
Standing Order entered on May 7, 2014, this action was referred to United States Magistrate Judge
Dwane L. Tinsley for submission of proposed findings and a recommendation for disposition
(“PF&R”).

(ECF No. 2.)

Magistrate Judge Tinsley filed his PF&R on October 4, 2017,

recommending that this Court dismiss the Second Amended Complaint, (ECF No. 59), and this
civil action, pursuant to the provisions of 28 U.S.C. § 1915A and the dictates of Twombly and
Iqbal, and deny Plaintiff’s Applications to Proceed Without Prepayment of Fees and Costs, (ECF
Nos. 54 and 57), and waive the applicable filing fee. (ECF No. 77.)
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 the Plaintiff’s right to appeal this

Court’s order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). 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).
Objections to the PF&R in this case were due on October 23, 2017. (ECF No. 77 at 8.)
Plaintiff filed his objections on October 17, 2017. (ECF No. 78.) However, Plaintiff makes no
specific objections. Plaintiff makes a general and conclusory objection to the entire PF&R by
stating that he “objects to all the dississions [sic] of said Judge.” Id. Plaintiff then describes his
desire to file a complaint against two West Virginia state court judges for false imprisonment and
makes further statements that are irrelevant to the PF&R. Plaintiff concludes by stating “I would
[l]ike for you [t]o [r]elease me from [p]rison [a]s [s]oon [a]s you [c]an [w]ithout [a]ny Precussions
[sic] Judge Johnston.” Id. Plaintiff also requests that he be provided with “[t]he [c]orrect
[a]ddress [t]o [t]he Propper [sic] venue [i]n order for me to bring such claims.” Id.
There is nothing in Plaintiff’s objections that point the Court to a specific error in the
magistrate’s PF&R. Plaintiff merely objects to all of the decision of Magistrate Judge Tinsley
and his PF&R. Furthermore, Plaintiff was notified that the Southern District of West Virginia
was the improper venue for his claim after the filing of his Amended Complaint, yet he proceeded
to file his Second Amended Complaint with this Court. (ECF No. 77 at 5–6.) Therefore, this
Court finds that based on the precedent set by the Fourth Circuit, there is no need to conduct a de
novo review due to the lack of specific objections by Plaintiff.
Accordingly the Court ADOPTS the PF&R, DISMISSES the Second Amended
Complaint, (ECF No. 59), and this civil action, pursuant to the provisions of 28 U.S.C. § 1915A

and the dictates of Twombly and Iqbal, and DENIES the plaintiff’s Applications to Proceed
Without Prepayment of Fees and Costs, (ECF Nos. 54 and 57), and waives the applicable filing
fee.
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:

November 17, 2017