Bowman v Panepinto, No. 1:2019cv00172 - Document 18 (N.D.W. Va. 2020)

Court Description: MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION, ECF NO. 14 AND DISMISSING COMPLAINT WITH PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Thomas S. Kleeh on 5/11/20. (mh) (To PS Plaintiff via cert mail)

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Bowman v Panepinto Doc. 18 Case 1:19-cv-00172-TSK Document 18 Filed 05/11/20 Page 1 of 4 PageID #: 108 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MICHAEL DANIEL BOWMAN, Plaintiff, v. Civ. Action No. 1:19-CV-172 (Kleeh) MARK D. PANEPINTO, Defendant. MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 14] AND DISMISSING COMPLAINT WITH PREJUDICE Pending before the Court is a Report and Recommendation (“R&R”) by United States Magistrate Judge Michael J. Aloi. The R&R recommends that the Court dismiss Plaintiff’s Complaint with prejudice and deny as moot the pending Motion of Joinder. For the reasons discussed herein, the Court adopts the R&R. I. BACKGROUND AND PROCEDURAL HISTORY On September 6, 2019, the Plaintiff, Michael Daniel Bowman (“Plaintiff”), filed a civil rights claim pursuant to 42 U.S.C. § 1983. He (“Defendant”), alleges who that served the as Defendant, Plaintiff’s Mark D. counsel Panepinto during his underlying criminal prosecution, conspired with prosecutors to conceal the fact that someone other than the grand jury foreperson signed the indictments. The Magistrate Judge granted Plaintiff leave to proceed in forma pauperis. Plaintiff then Dockets.Justia.com Case 1:19-cv-00172-TSK Document 18 Filed 05/11/20 Page 2 of 4 PageID #: 109 BOWMAN V. PANEPINTO 1:19-CV-172 MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 14] AND DISMISSING COMPLAINT WITH PREJUDICE filed a Motion of Joinder, asking the Court to joint this action with Case No. 1:19-CV-255. II. THE R&R In the R&R, the Magistrate Judge recommended that the Court find the Complaint frivolous and dismiss it with prejudice. He therefore recommended that the Court deny as moot the Motion of Joinder. The Magistrate Judge also warned Plaintiff about the “Three Strikes Rule” and the possibility of future sanctions. The Magistrate Judge informed Plaintiff that he had fourteen (14) days from the date of service of the R&R to file “specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection.” Plaintiff was further warned that the “[f]ailure to file written objections . . . shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals.” Plaintiff timely filed an objection on October 30, 2019. III. STANDARD OF REVIEW When reviewing a magistrate judge’s R&R, the Court must review de novo only the portions to which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt, without recommendations” explanation, to any which of there 2 the are magistrate no judge’s objections. Case 1:19-cv-00172-TSK Document 18 Filed 05/11/20 Page 3 of 4 PageID #: 110 BOWMAN V. PANEPINTO 1:19-CV-172 MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 14] AND DISMISSING COMPLAINT WITH PREJUDICE Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a recommendation to which no objection has been made unless they are clearly erroneous. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). IV. DISCUSSION Plaintiff made only one objection to the R&R. He asks the Court to dismiss the Complaint without prejudice, as opposed to with prejudice. The Court overrules this objection. “The question with respect to a dismissal with prejudice is often whether ‘it appears that frivolous factual allegations could be remedied through a more specific pleading.’” Adams v. Rice, 40 F.3d 72, 75 (1994) (footnote). The Court here finds that Plaintiff’s claims are frivolous as a matter of law under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and cannot be remedied through more specific pleading. See Adams, 40 F.3d at 75 (footnote) (writing that because claims were “frivolous as a matter of law, the district court was entitled to believe that they could not be remedied through more specific pleading”). Plaintiff has not objected to the Magistrate Judge’s finding that his Complaint is frivolous. After careful review of the remainder of the R&R, to which Plaintiff did not object, the 3 Case 1:19-cv-00172-TSK Document 18 Filed 05/11/20 Page 4 of 4 PageID #: 111 BOWMAN V. PANEPINTO 1:19-CV-172 MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 14] AND DISMISSING COMPLAINT WITH PREJUDICE Court finds no clear error. The Court agrees that Plaintiff’s Complaint is frivolous and agrees with the Magistrate Judge that it should be denied with prejudice. V. CONCLUSION For the reasons discussed above, the Court ADOPTS the R&R [ECF No. 14] and DENIES AS MOOT the Motion of Joinder [ECF No. 11]. This action is DISMISSED WITH PREJUDICE and STRICKEN from the Court’s active docket. It is so ORDERED. The Clerk is directed to transmit copies of this Memorandum Opinion and Order to the pro se Plaintiff, via certified mail, return receipt requested, and to file a separate entry of judgment. DATED: May 11, 2020 /s/ Thomas S. Kleeh THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE 4

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