Rydbom v. Boggs et al
Filing
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MEMORANDUM OPINION AND ORDER adopting and incorporating the 26 Proposed Findings and Recommendation by Magistrate Judge; granting the defendants' 14 Motion to Dismiss; directing that this action be DISMISSED with prejudice and stricken from the docket. Signed by Judge Joseph R. Goodwin on 9/7/2017. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DENNIS RYDBOM,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-cv-12155
LISA BOGGS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the defendants’ Motion to Dismiss [ECF No. 14].
The Motion to Dismiss was referred to the Honorable Dwane L. Tinsley, United
States Magistrate Judge, for submission of proposed findings of fact and
recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate
Judge has submitted proposed findings of fact and has recommended that the court
grant the defendants’ Motion to Dismiss [ECF No. 26].
Thereafter, the petitioner filed timely Objections to the Magistrate’s Proposed
Findings and Recommendation [ECF No. 27]. When a Magistrate Judge issues a
recommendation on a dispositive matter, the court reviews de novo those portions of
the Magistrate Judge’s report to which specific objections are filed. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). The court has reviewed de novo those portions of
the Proposed Findings and Recommendation to which the petitioner has filed specific
objections. For the reasons set forth below, I FIND that the petitioner’s objections
lack merit. Accordingly, I ADOPT and incorporate herein the Magistrate Judge’s
Proposed Findings and Recommendation and GRANT the defendants’ Motion to
Dismiss [ECF No. 14].
BACKGROUND
After de novo review of those portions of the Magistrate Judge’s Proposed
Findings and Recommendation to which objections were filed, the court ADOPTS the
statement of relevant facts and procedural history set forth in the Magistrate Judge’s
Proposed Findings and Recommendation.
LEGAL STANDARD
1. Standard of Review of Proposed Findings of Fact and Recommendation
A district court “shall 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). This court is not, however, 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). When
reviewing portions of the report de novo, this court will consider the fact that the
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plaintiff is acting pro se, and his pleadings will be accorded liberal construction.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295
(4th Cir. 1978).
2. Motion to Dismiss
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a
complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A
pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion
to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.
at 570). To achieve facial plausibility, the plaintiff must plead facts allowing the court
to draw the reasonable inference that the defendant is liable, moving the claim
beyond the realm of mere possibility. Id. Mere “labels and conclusions” or “formulaic
recitation[s] of the elements of a cause of action” are insufficient. Twombly, 550 U.S.
at 555.
DISCUSSION
The petitioner makes eight objections to the Magistrate Judge’s proposed
findings and recommendation. I will review each objection.
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1. Objection #2
The petitioner objects to the Magistrate Judge’s finding that the item withheld
from the petitioner pursuant to the prison’s mail policy was the National Academy of
Science’s Report on eyewitness testimony (“the Report”). Pet’r Obj. 1–2 [ECF No. 27].
The petitioner himself alleged in his complaint that it was the Report which was
withheld from him pursuant to the prison’s mail policy. Compl. 5–6, 11 [ECF No. 2].
On a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6), the court
takes as true the well-pleaded facts in the complaint. See Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). Since the petitioner
himself repeatedly alleges that it was the Report which was withheld, he cannot now
demand skepticism from the court as to what was withheld. Accordingly, I FIND this
objection is without merit.
2. Objection #3
The petitioner objects to the Magistrate Judge’s finding that he has alternative
means of obtaining the Report within the prison’s mail policy. Pet’r Obj. 3. The
prison’s mail policy allows inmates to purchase books directly from the publisher or
book retailer. See Proposed Findings and Rec. 10 [ECF No. 26]. That the petitioner
has been unsuccessful in his attempts to obtain a free copy of the Report does not
mean that he has no reasonable alternative for obtaining it. The prison policy
explicitly allows him to purchase a copy directly from the publisher. Accordingly, I
FIND that this objection is without merit.
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3. Objection #4
The petitioner objects to the Magistrate Judge’s finding that he lacks standing
to assert free speech rights on the behalf of commercial publishers. Pet’r Obj. 3. This
objection misunderstands the notion of legal standing. Accordingly, I FIND that this
objection is without merit.
4. Objection #5
The petitioner objects to the Magistrate Judge’s finding that the prison mail
policy is rationally related to legitimate penological interests by claiming that the
policy is overbroad. Pet’r Obj. 3. This objection is conclusory. Accordingly, I FIND that
this objection is without merit.
5. Objection #6
The petitioner’s objection number six does not state an objection to the
Magistrate Judge’s findings sufficiently specific for this court to review. Pet’r Obj. 4.
Accordingly, I FIND that this objection is without merit.
6. Objection #7
The petitioner objects to the Magistrate Judge’s finding that the prison’s mail
policy and its appeals process comport with due process requirements. Pet’r Obj. 4.
He argues that he should be given a meaningful statement of reasons for why his
mail was withheld. Id. However, the case law is clear that due process only requires
that (1) the prisoner be notified that his mail has been withheld, that (2) the prisoner
be provided a reasonable opportunity to protest that decision, and that (3) the
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prisoner’s protest of the decision be decided by a different official than the one who
made the original determination. See Procunier v. Martinez, 416 U.S. 396, 418–19
(1974). Due process does not require the “meaningful statement of reasons” that the
petitioner contends it does. In this case, the petitioner received notice his mail was
withheld, he was given a reasonable opportunity to protest, and his protest was
reviewed by a different official than the one who made the original determination.
Compl. 4. Accordingly, I FIND that this objection is without merit.
7. Objections #8 and #9
These objections are conclusory and do not point the court to a specific error in
the Magistrate Judge’s Proposed Findings and Recommendation. Pet’r Obj. 5.
Accordingly, I FIND that these objections are without merit.
Having reviewed the petitioner’s objections de novo and having found that they
are without merit, I ADOPT and incorporate herein the Magistrate Judge’s Proposed
Findings and Recommendation [ECF No. 26] in full and GRANT the defendants’
Motion to Dismiss [ECF No. 14]. Accordingly, I ORDER this action be DISMISSED
with prejudice and DIRECT this action to be stricken from the docket.
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 7, 2017
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