Saunders v. Wilson et al

Filing 29

MEMORANDUM OPINION AND ORDER directing that the findings made in the magistrate judge's 19 Proposed Findings and Recommendations be, and hereby are, ADOPTED by the court and incorporated herein; Plaintiff's claims, except those asserted a gainst defendants Lilly, Vaughn, McArthur, Bennet, Petter (or Pete), and Petterson (or Peterson) contained in paragraphs 6, 2631, and 45 of the complaint stating First Amendment retaliation claims, be, and hereby are, DISMISSED; and this matter is referred to the magistrate judge for further proceedings. Signed by Senior Judge John T. Copenhaver, Jr. on 9/24/2024. (cc: counsel of record, any unrepresented parties, United States Magistrate Judge) (jsa)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
QUAUNTEL SAUNDERS,
Plaintiff,
v.

Civil Action No. 2:21-cv-00261

SRG. WILSON, CPL. LILLY,
CO VAUGH, CO CROCKER,
CO PONITER, RICHARD BESS,
CPL. BENNET, SRG. LEGG,
SRG. PETE, CO II PETERSON,
CPL. MOLES, CAPT. TONEY,
CAPT. CLIFFORD, LT. WILSON,
CO DEMPSEY, CPL. HENDRIX,
CO TRE McDOWELL, CO PATOWSKI,
WARDEN AMES, ASS. FRAME,
COMMISSIONER BETSY JIVIDEN, and
CO McARTHUR,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff’s complaint (ECF No. 2), filed
April 22, 2021, a supplemental complaint (ECF No. 7), filed May
14, 2021, and two Applications to Proceed Without Prepayment of
Fees or Costs (ECF Nos. 1, 11), filed April 22, 2021, and August
4, 2022.

As defendant has proceeded pro se, this action was

referred to the Honorable Dwane L. Tinsley, United States
Magistrate Judge, for submission of Proposed Findings and
Recommendations (“PF&R”).

Judge Tinsley entered his PF&R (ECF

No. 19) on June 24, 2024, to which plaintiff filed an objection
(ECF No. 22), received on July 17, 2024.

Although the objection

was received late, the court will consider it as the plaintiff,
who is incarcerated, dated it July 7, 2024, one day before the
July 8 deadline.
The court need not 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 and
recommendations to which no objection has been made.
v. Arn, 474 U.S. 140 (1985).

See Thomas

Failure to timely file objections

constitutes a waiver of de novo review and the plaintiff’s right
to appeal the order of the court.

See 28 U.S.C. § 636(b)(1);

see also United States v. De Leon-Ramirez, 925 F.3d 177, 181
(4th Cir. 2019) (parties typically may not “appeal a magistrate
judge’s findings that were not objected to below, as § 636(b)
doesn’t require de novo review absent objection”); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989).
Upon objection to the PF&R, the court reviews de novo
only “those portions of the report . . . to which objection is
made.”

28 U.S.C. § 636(b)(1); see also United States v.

Midgette, 478 F.3d 616, 622 (4th Cir. 2007); Opriano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982).

“De novo review is not

required or necessary when a party makes general or conclusory
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objections that do not direct the court to a specific error in
the magistrate judge’s [PF&R].”

Howard’s Yellow Cabs, Inc. v.

United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997) (citing
Opriano, 687 F.2d at 47).

“Absent a specific and timely filed

objection, the court reviews only for ‘clear error,’ and need
not give any explanation for adopting the [PF&R].”

United

States v. Hernandez-Aguilar, 359 F. Supp. 3d 331, 334 (E.D.N.C.
2019).
Judge Tinsley, in the PF&R, recommends dismissal of
many of plaintiff’s claims, but finds that the complaint does
state some plausible First Amendment retaliation claims.
PF&R at 36.

See

He also recommends that plaintiff’s requests for

declaratory and injunctive relief be declared moot because those
claims related to treatment at Mount Olive Correctional Center,
where plaintiff is no longer in custody, and that plaintiff’s
remaining assertion of claims for damages against defendants in
their official capacities be dismissed for failure to state a
claim upon which relief can be granted, as the Eleventh
Amendment bars private claims against state officials.
34–36.

Id. at

Because there are no objections to any of these

recommendations, the court adopts the PF&R’s findings as to
these issues.

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Judge Tinsley recommends dismissing the rest of
plaintiff’s claims, explaining that some are precluded under the
doctrine of res judicata and the rest fail to state a claim upon
which relief can be granted.

See PF&R at 11, 15.

Plaintiff

objects to the application of res judicata and dismissal for
failure to state a claim, though the objections are broad,
general statements that reiterate the claims and do not point to
specific errors made by the magistrate judge.

See Obj. at 1–2.

As to the application of res judicata, plaintiff
appears to argue that he did not raise the harassment and
retaliation claim in the previous preclusive action(s) because
he did not know that such claims were available to him when he
filed those actions. 1

Id.

Plaintiff also asserts that “all of

those [cases] that [were] dismissed is open back & are in
process now.”

Id.

The failure to identify potential legal

claims does not preclude the application of res judicata or
allow a plaintiff a “do-over” to bring those claims later.
Further, the cases in which plaintiff had previously asserted
claims arising from the same facts and events at issue here –
Saunders v. Jividen, No. 2:21-cv-00250; Saunders v. Frame, No.
2:21-cv-00157, and Saunders v. Clifford, No. 2:21-cv-00299 –
The objection says: “I didn’t fail to bring these claims
because I couldn’t say for sure if my rights were violated at
the time.” Id. at 1–2.
1

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have not been reopened, as plaintiff claims.

Plaintiff has

provided no objection to Judge Tinsley’s application of the
doctrine of res judicata based on those prior dismissed cases
filed by plaintiff – he merely gives an excuse for failing to
raise those issues, which is insufficient – and the court finds
no error.

Accordingly, the court adopts the PF&R’s conclusions

as to these issues.
As to the determination that the rest of the claims
fail to state a claim upon which relief can be granted,
plaintiff again fails to raise specific objections to the
Judge Tinsley notes that aside

analysis performed in the PF&R.

from the allegations that are precluded by res judicata, no
specific factual allegations are raised against defendants
Jividen, Ames, Frame, Clifford, Hendrix, Wilson, Pete, or Moles.
PF&R at 15.

Plaintiff objects, says that he gave those

defendants “fair notice by filing Grievance & Request telling
them if they don’t stop I will be filing a civil suit against
them,” and reasserting that his rights were violated by all
named defendants.

Obj. at 2.

Filing a grievance and telling a

person that a suit will be filed against them fails to satisfy
the notice requirements that were properly detailed in the PF&R.
Plaintiff’s vague assertion that those defendants should have
known a case was being filed against them is insufficient, as is
plaintiff’s broad statement that the allegations are to be taken
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as true and all defendants named violated his First Amendment
rights.

See Obj. at 2.

Accordingly, the court adopts the

PF&R’s recommendation that the above-named defendants be
dismissed.
Similarly, plaintiff fails to raise specific
objections to Judge Tinsley’s recommendation that the First
Amendment retaliation claims – aside from those claims, noted
above, with which Judge Tinsley is continuing – be dismissed for
failure to state a claim.

See PF&R at 19–33.

The events

described by plaintiff are broadly categorized as (1) loss of
personal property, (2) issues with food trays, and (3) cell
searches and other related alleged retaliatory conduct.

Id.

Judge Tinsley concludes that none of these allegations state a
claim upon which relief can be granted, largely because they
contain blanket assertions that plaintiff’s rights were violated
and he was retaliated against, without giving specific factual
allegations that could plausibly show a causal connection
between plaintiff’s protected First Amendment activity and the
alleged retaliatory acts.

See id. at 20.

In these instances,

plaintiff either does not attribute alleged retaliatory conduct
to a specific defendant or does not allege that the defendant
was aware of the plaintiff’s protected First Amendment activity
(thus failing to allege a plausible causal connection necessary
for a retaliation claim), or, for the issue with food trays,
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that the alleged retaliatory event does not rise to the level of
retaliation under established case law.

See id. at 21–30.

As to the food tray issue, plaintiff says his
grievance-filing was specifically mentioned during those two
incidents; but that does not change the outcome because, as
Judge Tinsley noted, under precedential case law the food tray
issues as described by plaintiff are too minor to rise to the
level of First Amendment retaliatory conduct.
PF&R at 22–23.

See Obj. at 3;

Plaintiff does not challenge the case law or

provide other cases which support his position.

Similarly, on

the loss of personal property and cell search claims, plaintiff
says broadly that the action was done in retaliation for his
filing of grievances and civil actions and that the defendants
who participated in the alleged conduct knew about his protected
First Amendment activities because they had been named in the
grievances or mentioned his grievance-filing when they were
allegedly retaliating against him.

Obj. at 3–4.

To the extent

plaintiff attempts to add new evidence that his protected
activity was the stated cause for the cell searches and other
allegedly retaliatory acts, Plaintiff’s complaint must stand as
it was written; he is not entitled to add new evidence to
support his complaint at this stage.

Plaintiff does not argue

that Judge Tinsley overlooked allegations in the complaint that
would support finding a causal connection between the alleged
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retaliatory conduct and plaintiff’s filing of grievances and
civil cases.

Thus, the court adopts the PF&R’s conclusions as

to these issues.
Accordingly, it is ORDERED that:
1.

The findings made in the magistrate judge’s Proposed
Findings and Recommendations be, and hereby are,
ADOPTED by the court and incorporated herein;

2.

Plaintiff’s claims, except those asserted against
defendants Lilly, Vaughn, McArthur, Bennet, Petter (or
Pete), and Petterson (or Peterson) contained in
paragraphs 6, 26–31, and 45 of the complaint stating
First Amendment retaliation claims, be, and hereby
are, DISMISSED; and

3.

This matter is referred to the magistrate judge for
further proceedings.
The Clerk is directed to transmit copies of this order

to all counsel of record, any unrepresented parties, and the
United States Magistrate Judge.
ENTER: September 24, 2024

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