Buzzard v. Ballard et al

Filing 21

MEMORANDUM OPINION AND ORDER adopting the 18 Proposed Findings and Recommendations by Magistrate Judge; denying as moot Plaintiff's 10 MOTION to Enjoin Defendants' from Obstructin the Plaintiff's Right to Access the Court which wa s construed as a motion for preliminary injunctive relief; denying as moot all other claims for declaratory and injunctive relief asserted in the 17 AMENDED COMPLAINT; dismissing all official capacity claims against the defendants named in the amended complaint; the Court retains jurisdiction over the personal capacity claims for money damages asserted in Plaintiffs amended complaint Signed by Judge Thomas E. Johnston on 3/3/2016. (cc: counsel of record; any unrepresented party) (tmh)

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

DAVID DEAN BUZZARD, JR.
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-06376

DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Enjoin Defendants from Obstructing the
Plaintiff’s Right to Access the Court, which has been construed as a motion for preliminary
injunctive relief. (ECF No. 10.) On May 18, 2015, this action was referred to United States
Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation
(“PF&R”). (ECF No. 5.) Magistrate Judge Tinsley filed a PF&R, (ECF No. 18), in response to
the instant motion on February 2, 2016, recommending that this Court deny Plaintiff’s motion and
all requests for declaratory and injunctive relief contained in Plaintiff’s amended complaint, (ECF
No. 17), as moot. The PF&R further recommends that this Court dismiss all official capacity
claims against the defendants named in the amended complaint insofar as those claims seek
declaratory and injunctive relief only.
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 a party’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 February 19, 2016. To date, no
objections have been filed.
Accordingly, the Court ADOPTS the PF&R, (ECF No. 18), and DENIES AS MOOT
Plaintiff’s motion for preliminary injunctive relief, (ECF No. 10), and all other claims for
declaratory and injunctive relief asserted in the amended complaint, (ECF No. 17). Further, the
Court DISMISSES all official capacity claims against the defendants named in the amended
complaint.1 The Court retains jurisdiction over the personal capacity claims for money damages
asserted in Plaintiff’s amended complaint.
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:

1

March 3, 2016

The Court notes that since the PF&R was entered, the plaintiff has moved for leave to file a second amended
complaint. (ECF No. 19.) That motion is currently pending before Magistrate Judge Tinsley. It does not contest
the disposition recommended in the PF&R, which is addressed to the claims asserted in Plaintiff’s first amended
complaint only, and accordingly has no effect on this Court’s decision to adopt that PF&R.