Due v. Saad ( 2018 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG RANDALL DAVID DUE, Petitioner, v. CIVIL ACTION NO.: 3:18-CV-29 (GROH) JENNIFER SAAD, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION Pending before the Court is the Report and Recommendation (AR&R@) of United States Magistrate Judge Robert W. Trumble. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed R&R. Magistrate Judge Trumble issued his R&R [ECF No. 12] on October 30, 2018. Therein, Magistrate Judge Trumble recommends that the Petitioner=s § 2241 petition [ECF No. 1] be denied and dismissed without prejudice. Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court is required to make a de novo review of those portions of the magistrate judge=s findings to which objection is made. However, 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 of a Petitioner’s right to appeal this Court’s Order. 28.U.S.C..'.636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Moreover, “[w]hen a party does make objections, but these objections are so general or conclusory that they fail to direct the district court to any specific error by the magistrate judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730 (S.D. W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When only a general objection is made to a portion of a magistrate judge’s report- recommendation, the Court subjects that portion of the report-recommendation to only a clear error review.” Williams v. New York State Div. of Parole, No. 9:10-CV-1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). Courts have also held that when a party’s objection lacks adequate specificity, the party waives that objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that even though a party filed objections to the magistrate judge’s R&R, they were not specific enough to preserve the claim for review). Bare statements “devoid of any reference to specific findings or recommendations . . . and unsupported by legal authority, [are] not sufficient.” Mario 313 F.3d at 766. Finally, the Fourth Circuit has long held, “[a]bsent objection, we do not believe that any explanation need be given for adopting [an R&R].” Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no explanation whatsoever is required of the district court when adopting an R&R). Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three days of the Petitioner being served with a copy of the same. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). The R&R was mailed to the Petitioner by certified mail on October 30, 2018. ECF No. 12. The Petitioner accepted service on November 5, 2018. ECF No. 13. The Petitioner filed objections on November 13, 2018. ECF No. 14. Accordingly, this Court will review the portions of the R&R to which the Petitioner objects de novo. Magistrate Judge Trumble recommends that that this action be dismissed without prejudice because Petitioner does not seek relief under any permissible ground in his § 2241 petition, rather the relief sought should have been sought through direct appeal or a § 2255 petition. ECF No. 12 at 13. In his objections, the Petitioner states case law and states the Court should show cause. However, the Petitioner does not provide specific objections. Therefore, the Court finds that de novo review is not required because the Petitioner has failed to make specific objections to the magistrate judge’s analysis as found within his R&R. Nevertheless, upon careful review of the R&R and the Petitioner’s objections, it is the opinion of this Court that Magistrate Judge Trumble’s Report and Recommendation [ECF No. 12] should be, and is hereby, ORDERED ADOPTED for the reasons more fully stated therein. Therefore, the Petitioner's § 2241 Petition [ECF No. 1] is DENIED and DISMISSED WITHOUT PREJUDICE. Further, Petitioner's motion for default judgment [ECF No. 9] and demand show cause [ECF No. 11] are TERMINATED AS MOOT. The Clerk is DIRECTED to strike this matter from the Court’s active docket. The Clerk is further DIRECTED to transmit copies of this Order to all counsel of record herein and to mail a copy of this Order to the pro se Petitioner by certified mail, return receipt requested. DATED: December 19, 2018 A oo 7 A □ GINA M.GROH CHIEF UNITED STATES DISTRICT JUDGE