Greene v. Ballard et al

Filing 439

MEMORANDUM OPINION AND ORDER The Petitioner's 268 Objections to the Proposed Findings and Recommendation are overruled; the 266 Proposed Findings and Recommendation is modified on page 38 to correctly identify defendant "Sgt. Jamie Smit h" as "Sgt. Jessie Smith"; the Proposed Findings and Recommendation is adopted; all claims against the defendants listed herein are dismissed; all claims brought under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments of the U nited States Constitution and Article III, sections 1, 5, and 10 of the West Virginia Constitution are dismissed. Signed by Senior Judge John T. Copenhaver, Jr. on 12/7/2022. (cc: counsel of record; any unrepresented parties; United States Magistrate Judge) (kew)

Case 2:17-cv-02897 Document 439 Filed 12/07/22 Page 1 of 6 PageID #: 2424

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MICHAEL JERMAINE GREENE,
Plaintiff,
v.

Civil Action No. 2:17-cv-02897

DAVID BALLARD, Warden, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the objections to the Proposed Findings
and Recommendation (“PF&R”) of United States Magistrate Judge
Dwane L. Tinsley, filed by the plaintiff, on August 20, 2021.
ECF No. 268.
This action was previously referred to the magistrate
judge, who submitted a PF&R pursuant to 28 U.S.C. § 636(b)(1)(B).
On August 05, 2021, the magistrate judge recommended that this
court dismiss the following defendants and claims under 28 U.S.C.
§ 1915A and 1915(e)(2)(B) for failure to state a claim upon which
relief can be granted: “all claims against Commissioner Betsy
Jividen, Officer K. Bowlin, Officer David Ewing, Officer Edward
Myles, Officer Charles Johnson, Officer Kylee McCarthy, Officer
Jerrod Wilson, Officer Kelly Minter, Officer Dustin Bell, Officer
Gregory

Stover,

Officer

Beltcher,

Officer

Matthew

Ellis,

Lt.

Christopher Wilson, Lt. Andrew Hill, Lt. Josh Ward, Counselor Nancy

Case 2:17-cv-02897 Document 439 Filed 12/07/22 Page 2 of 6 PageID #: 2425

Johnson, Trustee Clerk Abbie Hart, Nurse Elizabeth Bailes, Nurse
Kristine Batten, Nurse Amanda Jones, Nurse Kelly Foster, M.R.C.
Allison Miller, H.S.A. Pam Givens, MHU Staff Brandon Deem, MHU
Staff Shannon Coleman, MHU Staff Tim Carper, MHU Staff Sara Cooper,
Operations Warden Teresa Gregory, Capt. David McKinney, and Acting
Warden Ralph Terry; as well as claims brought under the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments of the United
States Constitution and Article III, sections 1, 5, and 10 of the
West Virginia Constitution.”

ECF No. 266, at 38.

Upon an objection to the PF&R, the court reviews de
novo those portions of the PF&R properly and timely objected to.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); see also
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).

Upon review, the court “may accept, reject, or

modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.”
Fed. R. Civ. P. 72(b)(3).

“[T]o preserve for appeal an issue in

a magistrate judge's report, a party must object to the finding
or recommendation on that issue with sufficient specificity so
as reasonably to alert the district court of the true ground for
the objection.”

United States v. Midgette, 478 F.3d 616, 622

(4th Cir. 2007).

2

Case 2:17-cv-02897 Document 439 Filed 12/07/22 Page 3 of 6 PageID #: 2426

The court sets forth the plaintiff’s objections, in
their entirety, as follows:
“I only object to the PF&R dated 8/5/21 because I did state
a claim of which relief can be granted, etc When it comes
to the officers/staff that the court stated I failed to
state a claim.
The claim I raised of officers/staff the court say I failed
to state a claim was retaliation, AND retaliation only (if
not mistaken), so therefore, my objections is made on the
officers/staff that indicate problems in retaliation that
the court state I failed to state a claim when the actual
claim raised and mentioned in the 2nd Amended Complaint is
retaliation. (Note: My legal work was taken AND being
kepted [sic] from me in retaliation of pending lawsuit
against HCC, so for said reason, this is the best I can do
for objection of PF&R dated 8/5/21)”
ECF No. 268.
A document filed pro se is “to be liberally
construed,” and “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
3

Case 2:17-cv-02897 Document 439 Filed 12/07/22 Page 4 of 6 PageID #: 2427

Even under a liberal construction, Mr. Greene’s
“objections” amount to a single blanket objection that he has
made a claim of retaliation that goes to much of, if not the
entire, PF&R.

As the magistrate judge observed in the PF&R,

“Plaintiff’s contention that the defendants have retaliated
against him,” “[o]verarch[es] the rest of his claims.”
266, at 24.

ECF No.

As such, Mr. Greene’s general and conclusory

objection is insufficient to warrant de novo review under 28
U.S.C. § 636(b)(1)(C) or Rule 72(b). See Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982) (de novo review is unnecessary “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”); Midgette, 478 F.3d at
622.
In the absence of an objection, the court may accept
a magistrate judge’s PF&R when there is no clear error on the
face of the record.

See Diamond, 416 F.3d at 315 (citing Fed.

R. Civ. P. 72 advisory committee's note).

Having reviewed the

PF&R and finding no clear error, the court orders as follows:
1. That the petitioner’s objections to the PF&R be, and
they hereby are, overruled.

4

Case 2:17-cv-02897 Document 439 Filed 12/07/22 Page 5 of 6 PageID #: 2428

2. That the PF&R be, and it hereby is, modified on page
38 to correctly identify defendant “Sgt. Jamie
Smith” as “Sgt. Jessie Smith.”
3. That the magistrate judge’s Proposed Findings and
Recommendation be, and they hereby are, adopted.
4. That all claims against Commissioner Betsy Jividen,
Officer K. Bowlin, Officer David Ewing, Officer
Edward Myles, Officer Charles Johnson, Officer Kylee
McCarthy, Officer Jerrod Wilson, Officer Kelly
Minter, Officer Dustin Bell, Officer Gregory Stover,
Officer Beltcher, Officer Matthew Ellis, Lt.
Christopher Wilson, Lt. Andrew Hill, Lt. Josh Ward,
Counselor Nancy Johnson, Trustee Clerk Abbie Hart,
Nurse Elizabeth Bailes, Nurse Kristine Batten, Nurse
Amanda Jones, Nurse Kelly Foster, M.R.C. Allison
Miller, H.S.A. Pam Givens, MHU Staff Brandon Deem,
MHU Staff Shannon Coleman, MHU Staff Tim Carper, MHU
Staff Sara Cooper, Operations Warden Teresa Gregory,
Capt. David McKinney, and Acting Warden Ralph Terry
be, and hereby are, dismissed.
5. That all claims brought under the First, Fourth,
Fifth, Ninth, and Fourteenth Amendments of the
United States Constitution and Article III, sections
5

Case 2:17-cv-02897 Document 439 Filed 12/07/22 Page 6 of 6 PageID #: 2429

1, 5, and 10 of the West Virginia Constitution be,
and hereby are, dismissed.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
ENTER:

6

December 7, 2022