Ward v. Plymale et al

Filing 25

ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDATIONS The Court accepts and incorporates herein the findings and recommendations of the Magistrate Judge and Dismisses this action With Prejudice from the docket of the Court; the Court also Denies With Prejudice Plaintiff's Motion for Expedited Relief 24 ; the Court Denies a certificate of appealability. Signed by Judge Robert C. Chambers on 11/25/2013. (cc: attys; any unrepresented party) (skm)

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

MARK DELANE WARD,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-06186

LAUREN PLYMALE, Cabell
County Assistant Prosecutor, et al.,
Defendants.
ORDER
Currently pending before this Court is Plaintiff Mark Delane Ward’s pro se
Complaint filed pursuant to 42 U.S.C. ' 1983. This action was referred to the Honorable Cheryl
A. Eifert, United States Magistrate Judge, for submission to this Court of proposed findings of
fact and recommendations for disposition pursuant to 28 U.S.C. ' 636(b)(1)(B). The Magistrate
Judge has submitted findings of fact and recommended that this Court dismiss this action.
Plaintiff has filed two letter-form objections to the Magistrate Judge=s findings and
recommendations on the grounds that he was entitled to a preliminary hearing and he should not
have been indicted. 1

1

The Court’s review is limited to these issues. In his objections, Plaintiff makes a general
and conclusory statement that he “object[s] to every claim that this Court stated in this Petition
that was wrong following this main argument according to the denial of my rights.” Pl.’s Obj.,
ECF No. 22, at *4. The Court will not address general and conclusory objections. See Smith v.
Washington Mut. Bank FA, 308 Fed. Appx. 707, at 708 (4th Cir. 2009) (per curiam) (stating a
court “need not conduct 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’” (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see
Fed.R.Civ.P. 72(b)).

As explained by the Magistrate Judge, this action is one of five proceedings
Plaintiff has filed in this Court challenging many of the same issues. 2 Although this action was
filed pursuant to § 1983, and the other actions were filed as habeas petitions, Plaintiff raises the
same issues as his objections. Upon de novo review, the Court again finds Plaintiff’s arguments
without merit for the reasons set forth in the Proposed Findings and Recommendations entered in
this case and for the same reasons set forth by this Court and two Magistrate Judges in Plaintiff’s
other actions.

Accordingly, the Court accepts and incorporates herein the findings and

recommendations of the Magistrate Judge and DISMISSES this action WITH PREJUDICE
from the docket of the Court.

Last week, Plaintiff also filed a Motion for Expedited Relief in which he asks this
Court to direct the state court judge to release him on the same grounds as raised in his
objections.

As the Court has dismissed the Complaint, the Court also DENIES WITH

PREJUDICE Plaintiff’s Motion for Expedited Relief. ECF No. 24.

The Court additionally has considered whether to grant a certificate of
appealability. See 28 U.S.C. ' 2253(c). A certificate will not be granted unless there is Aa
substantial showing of the denial of a constitutional right.@ Id. at ' 2253(c)(2). The standard is
2

The other actions filed by Petitioner were resolved as follows: Ward v. Crawford, Civ.
Act. No. 3:13-22243 (adopting the Magistrate Judge’s Proposed Findings and
Recommendations, over Petitioner’s objections, and dismissing Petition filed pursuant to 28
U.S.C. § 2254); Ward v. Clark, Civ. Act. No. 3:12-07928, 2013 WL 4478021 (S.D. W. Va. Apr.
9, 2013) (adopting the Magistrate Judge’s Proposed Findings and Recommendations, over
Petitioner’s objections, and dismissing Petition filed pursuant to 28 U.S.C. § 2241); Ward v.
Clark, Civ. Act. No. 3:12-07283, 2013 WL 1437615 (S.D. W. Va. Apr. 9, 2013) (adopting the
Magistrate Judge’s Proposed Findings and Recommendations, over Petitioner’s objections, and
dismissing Petition filed pursuant to 28 U.S.C. § 2241); Ward v. Clark, Civ. Act. No. 3:12-06386
(dismissing action at Petitioner’s request).

satisfied only upon a showing that reasonable jurists would find that any assessment of the
constitutional claims by this Court is debatable or wrong and that any dispositive procedural
ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The
Court concludes that the governing standard is not satisfied in this instance. Accordingly, the
Court DENIES a certificate of appealability.

The Court DIRECTS the Clerk to send a copy of this Order to Magistrate Judge
Eifert, counsel of record, and any unrepresented parties.

ENTER:

November 25, 2013