throbber
Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 1 of 10 PageID #: 93
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`Wheeling
`
`CIVIL ACTION No. 5:24-CV-53
`Judge Bailey
`
`FARRIS E. MALLO,
`
`Plaintiff,
`
`v.
`
`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,
`
`Defendants.
`
`ORDER
`
`The above-styled matter came before this Court for consideration of the Report and
`
`Recommendation of United States Magistrate Judge Mazzone [Doc. 11]. Pursuant to this
`
`Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission
`
`of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
`
`R&R on March 29, 2024, wherein he recommends that plaintiff’s case be dismissed with
`
`prejudice for failure to state a claim. Magistrate Judge Mazzone further recommends that
`
`the Motion to Add Two More Defendants [Doc. 5],
`
`the Motion to Prevent Division of
`
`Correction and Rehabilitation and/or Any of
`
`its Employee or
`
`its Actor Within the
`
`D.C.R. [Doc. 6], and the Motion for Appointment of Guardian Ad Litem [Doc. 9] be denied.
`
`For the reasons that follow, this Court will adopt the R&R.
`
`1
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 2 of 10 PageID #: 94
`
`I. BACKGROUND & STANDARD OF REVIEW
`
`Plaintiff, a state inmate incarcerated at Saint Marys Correctional Center in St. Marys,
`
`West Virginia, filed a pro se Complaint against the above-named defendants pursuant to
`
`42 U.S.C. § 1983.
`
`In the Complaint, plaintiff alleges that defendants have violated his due process
`
`rights. Although the basis of this claim is unclear, it appears that plaintiff is challenging the
`
`denial of parole and argues that his home plan should not have been rejected.
`
`In his
`
`second claim, he states that defendant Mrs. K. Nichols needs to submit the home plan an
`
`inmate gives her and not “hold them in her office or make up some policy that does not
`
`exist.”
`
`[Doc.
`
`1 at 7—8]. Third, he challenges the role of defendant Ryan E. Beals, who
`
`plaintiff alleges stated “he would never parole me out to my mother address (sic).” [Id. at
`
`8]. Fourth, he states that defendant Russell Knuckles has not visited plaintiff’s mother and
`
`that he needs to call her to set up an appointment. [Id.]. Fifth, he alleges that defendant
`
`Mrs. Nickols needs to continue submitting his home plan regardless of the reason for it
`
`being rejected. [Id.]. Finally, in a motion to amend submitted alongside his initial complaint,
`
`plaintiff adds a claim challenging the constitutionality of the West Virginia statutes “that
`
`would allow State Court to illegally doubling charges from a single action, violating Due
`
`Process” and allow longer sentences. [Doc. 5 at 1].
`
`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
`
`2
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 3 of 10 PageID #: 95
`
`recommendation to which no objections are addressed. Thomas v~ Am, 474 U.S. 140,
`
`150 (1985). Nor is this Court required to conduct a de novo review when the party makes
`
`only “general and conclusory objections that do not direct the court to a specific error in the
`
`magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
`
`44, 47 (4th Cir. 1982).
`
`In addition, failure to file timely objections constitutes a waiver of de novo review and
`
`the 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). Pro se filings must be liberally construed and held to a less stringent standard than
`
`those drafted by licensed attorneys, however, courts are not required to create objections
`
`where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
`
`R2d 1147, 1151 (4th Cir. 1971).
`
`Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
`
`days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules
`
`of Civil Procedure. Plaintiff filed three (3) documents/motions on April 8, 2024.
`
`Accordingly, this Court will review the portions of the R&R to which objection was
`
`filed under a de novo standard of review. The remainder of the R&R will be reviewed for
`
`clear error.
`
`1.
`
`Motion for Appointment of Counsel [Doc. 13]
`
`II. DISCUSSION
`
`The first document/motion is a Motion for Appointment of Counsel for Good Cause
`
`Shown [Doc. 13]. Plaintiff states counsel “is needed that he/her may obtain interview,
`
`3
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 4 of 10 PageID #: 96
`
`documentations, and statements from Mrs. Nichols IPO, Mrs. Kristen Nichols, Unit
`
`Manager of 76-1; Mr. Martin Logan, Council of 76-1; Mr. Russell Maston, Superintendent;
`
`Mr. Russell Knuckles Parole Officer; and Mr. Ryan E. Beals Parole Officer.” See [Doc. 14
`
`at 1].
`
`In contrast to a criminal proceeding in which the Court has a duty to assign counsel
`
`to represent an indigent defendant in accordance with his constitutional rights, the Court
`
`in a civil case has the discretion to request an attorney to represent a person unable to
`
`employ counsel. See 28 U.S.C. § 1915(e)(1).
`
`It is well settled that in a civil action, the
`
`Court should appoint counsel to represent an indigent only after a showing of a particular
`
`need or exceptional circumstances. See Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).
`
`“The question of whether such circumstances exist in any particular case hinges on
`
`characteristics of the claim and the litigant.” Whisenantv. Yuam, 739 F.2d 160, 163(4th
`
`Cir. 1984).
`
`Upon consideration, the undersigned finds that the circumstances and nature of the
`
`claims presented, and the characteristics of the plaintiff do not weigh in favor of granting
`
`the appointment of counsel. Thus, this Court DENIES plaintiff’s Motion for Appointment
`
`of Counsel for Good Cause Shown [Doc. 131.1
`
`2.
`
`Notice of Appeal Document [Doc. 14]
`
`Despite being labeled as a Notice of Appeal, this Court construes this document as
`
`plaintiff’s objections to Magistrate Judge Mazzone’s R&R. For relief, plaintiff states:
`
`In the R&R, Magistrate Judge Mazzone held the same. See [Doc. 11 at 4].
`
`1
`
`4
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 5 of 10 PageID #: 97
`
`[He] is in need of an order to reinstate his action to the court docket for
`
`further review, guardian ad litem is needed to interview said respondent
`
`since Mr. Mallo is not permitted to interview said respondents, and to obtain
`
`needed documents from said respondents or the court can order that the St.
`
`Marys Correction Center to permit Mr. Mallo to interview and record all said
`
`respondents, have the St. Marys Correctional Center to take Mr. Mallo to
`
`obtain the documentation he need for his case, and permit Mr. Mallo to
`
`accompanythe parole officerso Mr. Mallo can showthe parole officerwhere
`
`the home is and let them in to see it.
`
`[Doc. 14 at 3].
`
`Plaintiff’s objection to Magistrate Judge Mazzone’s recommendation that the case
`
`be dismissed without prejudice is that he “is a ward of the State of West Virginia and as
`
`such,
`
`the State of West Virginia having custody of him, need to be sure,
`
`that no
`
`government worker violates, denied, deprived Mr. Mallo, his substantive constitutional
`
`rights, laws, immunities, and/or privileges herein.” See [Doc. 14 at 1]. Plaintiff argues that
`
`he has accused the State of West Virginia court(s) of denying, violating, and/or depriving
`
`him of his rights to guardian ad litem as provided by the Sixth Amendment.
`
`Moreover, plaintiff states he is “in need of a guardian ad litem to interview the
`
`respondents, to get the paper work the petitioner’s is unable to inquired upon his own (the
`
`interview reports of all respondents involved, get Parole Sheet reason home plan was turn
`
`down, the reason parole personal is unable to make a phone call to see said home, the log
`
`in and out mileage sheet for the car use to check the home plan, the parole person went
`
`5
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 6 of 10 PageID #: 98
`
`out and done the interview at said address, the gas receipt to prove that the parole
`
`personal try to see the home plan, and/or any and all documentation from the government
`
`worker upon said petitioner case), in the above named case, .
`
`.
`
`. appeal(s) to the United
`
`States District Court for an Appeal from the Magistrate order, to collect off an indigent
`
`incarcerated American, not to appoint guardian ad litem (for a ward of the state) to do
`
`interview and obtain documentation, and/or the fact
`
`that
`
`the honorable court’s is
`
`recommending to dismissthe case with prejudice without appointment of guardian ad litem,
`
`due process of laws and/or equal protection as a ward of the State of West Virginia.”
`
`See [DoG. 14 at 2—3].
`
`The Sixth Amendment states, in pertinent part: “In all criminal prosecutions, the
`
`accused shall enjoy. .
`
`. hav[ing] the assistance of counsel for his defense.” This Court,
`
`as did Magistrate Judge Mazzone, construes this as a request for the appointment of
`
`counsel. Construing this as a request for counsel
`
`is further supported by the laundry list
`
`of items plaintiff seeks help in doing. As noted above,
`
`the circumstances and nature of
`
`the claims presented, and the characteristics of the plaintiff do not weigh in favor of
`
`granting the appointment of counsel.
`
`If plaintiff is requesting the appointment of a guardian ad litem, this Court notes that
`
`under Federal Rule of Civil Procedure 17(c)(2), the court must appoint a guardian adlitem
`
`to protect a minor or incompetent person who is unrepresented. The undersigned notes,
`
`as did Magistrate Judge Mazzone, that plaintiff has provided essentially no information
`
`supporting the need for a guardian ad litem, and in light of the undersigned’s finding that
`
`the case should be dismissed, finds that appointment of a guardian ad litem would be
`
`inappropriate.
`
`6
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 7 of 10 PageID #: 99
`
`In his objections, plaintiff next argues that defendants Mrs. Kristen Nichols and
`
`Mrs. Nichols are “men haters” and are “[d]iscriminating against him because of his crime
`
`and the fact that he is a man.” Plaintiff states this has been a problem since both
`
`defendants Mrs. Kristen Nichols and Mrs. Nichols took their positions at St. Marys
`
`Correctional Center.
`
`“When 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.3d 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. ofParole, 2012 WL 2873569,
`
`at *2 (N.D.N.Y. July 12, 2012).
`
`A party waives any objection to an R&R that lacks adequate specificity. See Mario
`
`v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that a party’s
`
`objections to the magistrate judge’s R&R were not specific enough to preserve the claim
`
`for
`
`review).
`
`Bare statements “devoid of any reference to specific findings or
`
`recommendation. .
`
`. and unsupported by legal authority, [are] not sufficient.” Mario, 313
`
`F.3d at 766. Pursuant to the Federal Rules of Civil Procedure and this Court’s Local Rules,
`
`“referring the court to previously filed papers or arguments does not constitute an adequate
`
`objection.” Id.; see also Fed. R. Civ. P. 72(b); LR PL P 12.
`
`7
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 8 of 10 PageID #: 100
`
`Plaintiff provides no specific objection to any portion of the R&R. Plaintiff generally
`
`argues that two (2) of the defendants are “men haters” and they are discriminating against
`
`against him because he is a man.
`
`As held by Magistrate Judge Mazzone:
`
`For claims I through 5, although plaintiff frames his Complaint as an attack
`
`on the failure to implement his proposed home plan, it is clear that plaintiff
`
`is, in fact, challenging the denial of parole. A claim under 42 U.S.C. § 1983
`
`is an appropriate remedy for a state prisoner challenging a condition of
`
`confinement. Preiserv. Rodriguez, 411 U.S. 475,499(1973). However, In
`
`Heckv. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court
`
`found:
`
`in order to recover damages for allegedly unconstitutional
`
`conviction or imprisonment, or for other harm caused by
`
`actions whose unlawfulness would render a conviction or
`
`sentence invalid, a § 1983 plaintiff must prove that
`
`the
`
`conviction or sentence has been reversed on direct appeal,
`
`expunged by executive order, declared invalid by a state
`
`tribunal authorized to make such a determination, or called into
`
`question by a federal court’s issuance of a writ of habeas
`
`corpus
`
`Heck at 487 (footnote omitted). Moreover, the Supreme Court stated that
`
`one reason for imposing such a requirement
`
`is to prevent a convicted
`
`8
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 9 of 10 PageID #: 101
`
`criminal defendant from collaterally attacking his criminal conviction through
`
`a civil suit. Heck at 484.
`
`Here, plaintiff complains of various failures by state employees to
`
`ensure that plaintiff’s proposed home plan is approved—he complains that
`
`defendant Nichols should continue resubmitting the plan, that defendant Beal
`
`should not object to the home plan, and that defendant Knuckles should
`
`inspect the residence plaintiff proposes to stay at. It is clear, however, that
`
`his ultimate goal is challenging the decisions to deny this home plan, and he
`
`complains that the defendants have thus denied his freedom for over a year.
`
`Clearly, a judgment for the plaintiff would necessarily imply the invalidity of
`
`plaintiff’s sentence. However, the parole board’s decision has not been
`
`invalidated.
`
`[DoG. 11 at 5—6]. Plaintiff does not object to any specific finding in the R&R. Thus,
`
`because the objections lack specificity, the objections are OVERRULED.
`
`3.
`
`Motion for Leave to Appeal In Forma Pauperis [Doc. 15]
`
`The third document/motion is plaintiff’s request to appeal in forma pauperis. See
`
`[Doc. 15]. Under Federal Rule of Appellate Procedure 24(a), if the appellant proceeded
`
`in forma pauperis at the district court and the district court has not withdrawn its finding of
`
`indigent status, appellant’s in forma pauperis status continues on appeal. See Fed. R.
`App. P.24(a); 28 U.S.C. § 1915(a).
`
`In light of this Court’s previous March 28,2024 Order
`
`granting plaintiff’s In Forma Pauperis, his subsequent Motion for Leave to Appeal In Forma
`
`Pauperis [Doc. 15] is hereby DENIED AS MOOT.
`
`9
`
`

`

`Case 5:24-cv-00053-JPB Document 17 Filed 04/12/24 Page 10 of 10 PageID #: 102
`
`III. CONCLUSION
`
`Aside from the arguments addressed herein, a de novo review of the record
`
`indicates that the magistrate judge’s report accurately summarizes this case and the
`
`applicable law. Accordingly, the magistrate judge’s report and recommendation [Doc. 11]
`
`is hereby ORDERED ADOPTED forthe reasons more fully stated in the magistrate judge’s
`
`report. Plaintiffs response/objections [DoG. 14] are OVERRULED.
`
`Plaintiff’s Complaint [Doc. 1] is hereby DISMISSED WITH PREJUDICE for failure
`
`to state a claim. The Motion to Add Two More Defendants [Doc. 5], the Motion to Prevent
`
`Division of Correction and Rehabilitation and/or Any of its Employee or its Actor Within the
`
`D.C.R. [Doc. 6], the Motion for Appointment of Guardian Ad Litem [Doc. 9], the Motion for
`
`Appointment of Counsel for Good Cause Shown [Doc. 13] are DENIED.
`
`The Motion for
`
`Leave to Appeal
`
`In Forma Pauperis [Doc. 15]is DENIED AS MOOT.
`
`This Court further DIRECTS the Clerk to enter judgment in favor of defendants and
`
`to STRIKE this case from the active docket of this Court.
`
`It is so ORDERED.
`
`The Clerk is directed to transmit copies of this Order to any counsel of record and
`
`to mail a copy to the pro se petitioner.
`DATED: April 12, 2024.
`
`~U
`
`NITED STATES DISTRICT J
`
`___
`
`10
`
`

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.