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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`Wheeling
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`CIVIL ACTION No. 5:24-CV-53
`Judge Bailey
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`FARRIS E. MALLO,
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`Plaintiff,
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`v.
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`RUSSELL MASTON, Superintendent,
`MRS. KRISTEN NICHOLS, Unit Manager 76-1,
`MRS. NICHOLS, l.P.O., and
`MR. MARTIN LOGAN, 76-1 Counsel,
`RYAN E. BEALS, Parole Officer, and
`RUSSELL KNUCKLES, Parole Officer,
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`Defendants.
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`ORDER
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`The above-styled matter came before this Court for consideration of the Report and
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`Recommendation of United States Magistrate Judge Mazzone [Doc. 11]. Pursuant to this
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`Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission
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`of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
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`R&R on March 29, 2024, wherein he recommends that plaintiff’s case be dismissed with
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`prejudice for failure to state a claim. Magistrate Judge Mazzone further recommends that
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`the Motion to Add Two More Defendants [Doc. 5],
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`the Motion to Prevent Division of
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`Correction and Rehabilitation and/or Any of
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`its Employee or
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`its Actor Within the
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`D.C.R. [Doc. 6], and the Motion for Appointment of Guardian Ad Litem [Doc. 9] be denied.
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`For the reasons that follow, this Court will adopt the R&R.
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`1
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 2 of 10 PageID #: 94
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`I. BACKGROUND & STANDARD OF REVIEW
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`Plaintiff, a state inmate incarcerated at Saint Marys Correctional Center in St. Marys,
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`West Virginia, filed a pro se Complaint against the above-named defendants pursuant to
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`42 U.S.C. § 1983.
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`In the Complaint, plaintiff alleges that defendants have violated his due process
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`rights. Although the basis of this claim is unclear, it appears that plaintiff is challenging the
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`denial of parole and argues that his home plan should not have been rejected.
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`In his
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`second claim, he states that defendant Mrs. K. Nichols needs to submit the home plan an
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`inmate gives her and not “hold them in her office or make up some policy that does not
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`exist.”
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`[Doc.
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`1 at 7—8]. Third, he challenges the role of defendant Ryan E. Beals, who
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`plaintiff alleges stated “he would never parole me out to my mother address (sic).” [Id. at
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`8]. Fourth, he states that defendant Russell Knuckles has not visited plaintiff’s mother and
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`that he needs to call her to set up an appointment. [Id.]. Fifth, he alleges that defendant
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`Mrs. Nickols needs to continue submitting his home plan regardless of the reason for it
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`being rejected. [Id.]. Finally, in a motion to amend submitted alongside his initial complaint,
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`plaintiff adds a claim challenging the constitutionality of the West Virginia statutes “that
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`would allow State Court to illegally doubling charges from a single action, violating Due
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`Process” and allow longer sentences. [Doc. 5 at 1].
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`Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
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`review of those portions of the magistrate judge’s findings to which objection is made.
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`However, the Court is not required to review, under a de novo or any other standard, the
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`factual or legal conclusions of the magistrate judge as to those portions of the findings or
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`2
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 3 of 10 PageID #: 95
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`recommendation to which no objections are addressed. Thomas v~ Am, 474 U.S. 140,
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`150 (1985). Nor is this Court required to conduct a de novo review when the party makes
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`only “general and conclusory objections that do not direct the court to a specific error in the
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`magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
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`44, 47 (4th Cir. 1982).
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`In addition, failure to file timely objections constitutes a waiver of de novo review and
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`the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
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`F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
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`1984). Pro se filings must be liberally construed and held to a less stringent standard than
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`those drafted by licensed attorneys, however, courts are not required to create objections
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`where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
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`R2d 1147, 1151 (4th Cir. 1971).
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`Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
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`days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules
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`of Civil Procedure. Plaintiff filed three (3) documents/motions on April 8, 2024.
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`Accordingly, this Court will review the portions of the R&R to which objection was
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`filed under a de novo standard of review. The remainder of the R&R will be reviewed for
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`clear error.
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`1.
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`Motion for Appointment of Counsel [Doc. 13]
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`II. DISCUSSION
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`The first document/motion is a Motion for Appointment of Counsel for Good Cause
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`Shown [Doc. 13]. Plaintiff states counsel “is needed that he/her may obtain interview,
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`3
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 4 of 10 PageID #: 96
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`documentations, and statements from Mrs. Nichols IPO, Mrs. Kristen Nichols, Unit
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`Manager of 76-1; Mr. Martin Logan, Council of 76-1; Mr. Russell Maston, Superintendent;
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`Mr. Russell Knuckles Parole Officer; and Mr. Ryan E. Beals Parole Officer.” See [Doc. 14
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`at 1].
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`In contrast to a criminal proceeding in which the Court has a duty to assign counsel
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`to represent an indigent defendant in accordance with his constitutional rights, the Court
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`in a civil case has the discretion to request an attorney to represent a person unable to
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`employ counsel. See 28 U.S.C. § 1915(e)(1).
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`It is well settled that in a civil action, the
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`Court should appoint counsel to represent an indigent only after a showing of a particular
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`need or exceptional circumstances. See Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).
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`“The question of whether such circumstances exist in any particular case hinges on
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`characteristics of the claim and the litigant.” Whisenantv. Yuam, 739 F.2d 160, 163(4th
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`Cir. 1984).
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`Upon consideration, the undersigned finds that the circumstances and nature of the
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`claims presented, and the characteristics of the plaintiff do not weigh in favor of granting
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`the appointment of counsel. Thus, this Court DENIES plaintiff’s Motion for Appointment
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`of Counsel for Good Cause Shown [Doc. 131.1
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`2.
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`Notice of Appeal Document [Doc. 14]
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`Despite being labeled as a Notice of Appeal, this Court construes this document as
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`plaintiff’s objections to Magistrate Judge Mazzone’s R&R. For relief, plaintiff states:
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`In the R&R, Magistrate Judge Mazzone held the same. See [Doc. 11 at 4].
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`1
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`4
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 5 of 10 PageID #: 97
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`[He] is in need of an order to reinstate his action to the court docket for
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`further review, guardian ad litem is needed to interview said respondent
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`since Mr. Mallo is not permitted to interview said respondents, and to obtain
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`needed documents from said respondents or the court can order that the St.
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`Marys Correction Center to permit Mr. Mallo to interview and record all said
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`respondents, have the St. Marys Correctional Center to take Mr. Mallo to
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`obtain the documentation he need for his case, and permit Mr. Mallo to
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`accompanythe parole officerso Mr. Mallo can showthe parole officerwhere
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`the home is and let them in to see it.
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`[Doc. 14 at 3].
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`Plaintiff’s objection to Magistrate Judge Mazzone’s recommendation that the case
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`be dismissed without prejudice is that he “is a ward of the State of West Virginia and as
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`such,
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`the State of West Virginia having custody of him, need to be sure,
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`that no
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`government worker violates, denied, deprived Mr. Mallo, his substantive constitutional
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`rights, laws, immunities, and/or privileges herein.” See [Doc. 14 at 1]. Plaintiff argues that
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`he has accused the State of West Virginia court(s) of denying, violating, and/or depriving
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`him of his rights to guardian ad litem as provided by the Sixth Amendment.
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`Moreover, plaintiff states he is “in need of a guardian ad litem to interview the
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`respondents, to get the paper work the petitioner’s is unable to inquired upon his own (the
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`interview reports of all respondents involved, get Parole Sheet reason home plan was turn
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`down, the reason parole personal is unable to make a phone call to see said home, the log
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`in and out mileage sheet for the car use to check the home plan, the parole person went
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`5
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 6 of 10 PageID #: 98
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`out and done the interview at said address, the gas receipt to prove that the parole
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`personal try to see the home plan, and/or any and all documentation from the government
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`worker upon said petitioner case), in the above named case, .
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`.
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`. appeal(s) to the United
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`States District Court for an Appeal from the Magistrate order, to collect off an indigent
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`incarcerated American, not to appoint guardian ad litem (for a ward of the state) to do
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`interview and obtain documentation, and/or the fact
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`that
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`the honorable court’s is
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`recommending to dismissthe case with prejudice without appointment of guardian ad litem,
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`due process of laws and/or equal protection as a ward of the State of West Virginia.”
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`See [DoG. 14 at 2—3].
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`The Sixth Amendment states, in pertinent part: “In all criminal prosecutions, the
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`accused shall enjoy. .
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`. hav[ing] the assistance of counsel for his defense.” This Court,
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`as did Magistrate Judge Mazzone, construes this as a request for the appointment of
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`counsel. Construing this as a request for counsel
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`is further supported by the laundry list
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`of items plaintiff seeks help in doing. As noted above,
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`the circumstances and nature of
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`the claims presented, and the characteristics of the plaintiff do not weigh in favor of
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`granting the appointment of counsel.
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`If plaintiff is requesting the appointment of a guardian ad litem, this Court notes that
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`under Federal Rule of Civil Procedure 17(c)(2), the court must appoint a guardian adlitem
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`to protect a minor or incompetent person who is unrepresented. The undersigned notes,
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`as did Magistrate Judge Mazzone, that plaintiff has provided essentially no information
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`supporting the need for a guardian ad litem, and in light of the undersigned’s finding that
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`the case should be dismissed, finds that appointment of a guardian ad litem would be
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`inappropriate.
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`6
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 7 of 10 PageID #: 99
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`In his objections, plaintiff next argues that defendants Mrs. Kristen Nichols and
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`Mrs. Nichols are “men haters” and are “[d]iscriminating against him because of his crime
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`and the fact that he is a man.” Plaintiff states this has been a problem since both
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`defendants Mrs. Kristen Nichols and Mrs. Nichols took their positions at St. Marys
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`Correctional Center.
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`“When a party does make objections, but these objections are so general or
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`conclusory that they fail to direct the district court to any specific error by the magistrate
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`judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F.Supp.3d 723, 730
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`(S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47(4th Cir. 1982)).
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`“When
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`only
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`a
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`general
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`objection
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`is made to
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`a
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`portion of
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`a magistrate judge’s
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`report-recommendation, the Court subjects that portion of the report-recommendation to
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`only a clear error review.” Williams v. New York State Div. ofParole, 2012 WL 2873569,
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`at *2 (N.D.N.Y. July 12, 2012).
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`A party waives any objection to an R&R that lacks adequate specificity. See Mario
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`v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that a party’s
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`objections to the magistrate judge’s R&R were not specific enough to preserve the claim
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`for
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`review).
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`Bare statements “devoid of any reference to specific findings or
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`recommendation. .
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`. and unsupported by legal authority, [are] not sufficient.” Mario, 313
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`F.3d at 766. Pursuant to the Federal Rules of Civil Procedure and this Court’s Local Rules,
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`“referring the court to previously filed papers or arguments does not constitute an adequate
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`objection.” Id.; see also Fed. R. Civ. P. 72(b); LR PL P 12.
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`7
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 8 of 10 PageID #: 100
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`Plaintiff provides no specific objection to any portion of the R&R. Plaintiff generally
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`argues that two (2) of the defendants are “men haters” and they are discriminating against
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`against him because he is a man.
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`As held by Magistrate Judge Mazzone:
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`For claims I through 5, although plaintiff frames his Complaint as an attack
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`on the failure to implement his proposed home plan, it is clear that plaintiff
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`is, in fact, challenging the denial of parole. A claim under 42 U.S.C. § 1983
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`is an appropriate remedy for a state prisoner challenging a condition of
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`confinement. Preiserv. Rodriguez, 411 U.S. 475,499(1973). However, In
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`Heckv. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court
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`found:
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`in order to recover damages for allegedly unconstitutional
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`conviction or imprisonment, or for other harm caused by
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`actions whose unlawfulness would render a conviction or
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`sentence invalid, a § 1983 plaintiff must prove that
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`the
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`conviction or sentence has been reversed on direct appeal,
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`expunged by executive order, declared invalid by a state
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`tribunal authorized to make such a determination, or called into
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`question by a federal court’s issuance of a writ of habeas
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`corpus
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`Heck at 487 (footnote omitted). Moreover, the Supreme Court stated that
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`one reason for imposing such a requirement
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`is to prevent a convicted
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`8
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 9 of 10 PageID #: 101
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`criminal defendant from collaterally attacking his criminal conviction through
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`a civil suit. Heck at 484.
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`Here, plaintiff complains of various failures by state employees to
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`ensure that plaintiff’s proposed home plan is approved—he complains that
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`defendant Nichols should continue resubmitting the plan, that defendant Beal
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`should not object to the home plan, and that defendant Knuckles should
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`inspect the residence plaintiff proposes to stay at. It is clear, however, that
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`his ultimate goal is challenging the decisions to deny this home plan, and he
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`complains that the defendants have thus denied his freedom for over a year.
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`Clearly, a judgment for the plaintiff would necessarily imply the invalidity of
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`plaintiff’s sentence. However, the parole board’s decision has not been
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`invalidated.
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`[DoG. 11 at 5—6]. Plaintiff does not object to any specific finding in the R&R. Thus,
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`because the objections lack specificity, the objections are OVERRULED.
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`3.
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`Motion for Leave to Appeal In Forma Pauperis [Doc. 15]
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`The third document/motion is plaintiff’s request to appeal in forma pauperis. See
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`[Doc. 15]. Under Federal Rule of Appellate Procedure 24(a), if the appellant proceeded
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`in forma pauperis at the district court and the district court has not withdrawn its finding of
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`indigent status, appellant’s in forma pauperis status continues on appeal. See Fed. R.
`App. P.24(a); 28 U.S.C. § 1915(a).
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`In light of this Court’s previous March 28,2024 Order
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`granting plaintiff’s In Forma Pauperis, his subsequent Motion for Leave to Appeal In Forma
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`Pauperis [Doc. 15] is hereby DENIED AS MOOT.
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`9
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`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 10 of 10 PageID #: 102
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`III. CONCLUSION
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`Aside from the arguments addressed herein, a de novo review of the record
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`indicates that the magistrate judge’s report accurately summarizes this case and the
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`applicable law. Accordingly, the magistrate judge’s report and recommendation [Doc. 11]
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`is hereby ORDERED ADOPTED forthe reasons more fully stated in the magistrate judge’s
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`report. Plaintiffs response/objections [DoG. 14] are OVERRULED.
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`Plaintiff’s Complaint [Doc. 1] is hereby DISMISSED WITH PREJUDICE for failure
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`to state a claim. The Motion to Add Two More Defendants [Doc. 5], the Motion to Prevent
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`Division of Correction and Rehabilitation and/or Any of its Employee or its Actor Within the
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`D.C.R. [Doc. 6], the Motion for Appointment of Guardian Ad Litem [Doc. 9], the Motion for
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`Appointment of Counsel for Good Cause Shown [Doc. 13] are DENIED.
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`The Motion for
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`Leave to Appeal
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`In Forma Pauperis [Doc. 15]is DENIED AS MOOT.
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`This Court further DIRECTS the Clerk to enter judgment in favor of defendants and
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`to STRIKE this case from the active docket of this Court.
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`It is so ORDERED.
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`The Clerk is directed to transmit copies of this Order to any counsel of record and
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`to mail a copy to the pro se petitioner.
`DATED: April 12, 2024.
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`~U
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`NITED STATES DISTRICT J
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`___
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`10
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