United States District Court, W.D. Virginia, Roanoke Division
MICHAEL S. GORBEY, Plaintiff,
LT. AVERY, et al., Defendants.
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
S. Gorbey, a federal inmate proceeding pro se,
commenced this civil action pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389 (1971). This matter is presently before me on a
report and recommendation after the magistrate judge
conducted evidentiary hearings about whether Plaintiff may
proceed without prepaying the civil action filing fee. See 28
U.S.C. §§ 1914(a), 1915(a)-(b), (g).
previously determined that Plaintiff was a "three
striker" under 28 U.S.C. § 1915(g) and that the
complaint implicated the exception to the three-strikes
provision for imminent danger of a serious physical injury.
Specifically, Plaintiff alleged that he was in imminent
danger from, inter alia, being housed in a cell with
a hostile, violent offender for several months while at the
United States Penitentiary in Lee County, Virginia ("USP
Lee"). Pursuant to 28 U.S.C. § 636(b)(1)(B), I
referred to a magistrate judge the question of whether
Plaintiff qualifies for the three-strikes exception of 28
U.S.C. § 1915(g), and I stayed adjudication of the
complaint until that question is resolved.
magistrate judge recommends that I allow Plaintiff to proceed
without prepaying the filing fee, but only as to the claim
involving the hostile cellmate. Plaintiff objected (ECF No. 84),
to which opposing counsel responded (ECF No. 85), and to
which thereafter Plaintiff replied (ECF No. 86). Also pending
is Plaintiffs motion for a hearing (ECF No. 87) and motion
for a transcript (ECF No. 92) of the teleconference held on
January 5, 2018. For the following reasons, I overrule
Plaintiffs objections, adopt the report and recommendation,
deny Plaintiffs motions, and dismiss all claims not involving
the hostile cellmate.
district court must review de novo any part of a
report and recommendation to which a party objects, and it
must provide its independent reasoning when a party raises
new evidence or a new argument in an objection. 28 U.S.C.
§ 636(b)(1)(C); Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). The reasoning need not be elaborate
or lengthy, but it must provide a specific rationale that
permits meaningful appellate review. See, e.g..
United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). However, de novo review is not required when
objections concern legal issues and not factual issues.
See, e.g., Orpiano, 687 F.2d at 47.
Notably, de novo review is not required "when a
party makes general or conclusory objections that do not
direct the court to a specific error in the magistrate
judge's proposed findings and recommendations."
Id. A district court is also not required to review
any issue when no party objects. See, e.g.,
Thomas v. Am, 474 U.S. 140, 149 (1985); Camby v.
Davis. 718 F.2d 198, 200 (4th Cir. 1983). Objections
that only repeat arguments raised before a magistrate judge
are considered general objections to the entirety of the
report and recommendation, which has the same effect as a
failure to object. Veney v. Astrue, 539 F.Supp.2d
841, 845 (W.D. Va. 2008).
filed seven "objections" in response to the report
and recommendation. First, Plaintiff challenges the magistrate
judge's decision to convene evidentiary hearings to
simultaneously resolve questions about imminent danger for
two of Plaintiff s cases in this court - 7:17-cv-00091 and
7:17-cv-00192 - instead of separate evidentiary hearings for
each, case. Second, Plaintiff believes the magistrate judge
should find that the alleged conditions of confinement he
experienced when filing this action constitute imminent
danger. Third, Plaintiff complains that he was unable to have
unknown inmates testify for him during the hearings. Fourth,
Plaintiff complains that he was deprived of personal property
during the pendency of this case. Fifth, Plaintiff challenges
the magistrate judge's denials of his motions for
recusal. Sixth, Plaintiff argues that mail tampering and the
denial of access to administrative remedies constitutes
imminent danger. Lastly, Plaintiff claims defendant Baker
delayed Plaintiffs transfer from USP Lee and
"manipulated" claims of staffs misconduct.
reviewing the record, including the transcripts, I find that
de novo review is precluded for Plaintiffs
"objections." None of them constitutes a new,
valid, and specific objection to the findings of facts and
conclusions of law discussed in the report and recommendation
for this case. The argument closest to being a valid
objection merely reiterates the arguments previously
presented to the magistrate judge, and this general objection
is the equivalent of a failure to object.
that, except for the claim about the hostile cellmate,
Plaintiff was not under an imminent danger of serious
physical injury when commencing this action despite having
"three strikes." Accordingly, I grant in part and
deny in part Plaintiffs motion for leave to file without
prepayment of the filing fee. The filing fee shall be
collected pursuant to 28 U.S.C. § 1915(b).
Eighth Amendment claims pursuant to Farmer v.
Brennan, 511 U.S. 825, 833 (1994), remain against
defendants Lt. Avery, Lt. Salcito, Unit Manager Collins,
Remedy Clerk Mrs. Bowles, and Warden Ratledge. (Compl. 3-4.)
All other defendants are terminated because the other claims,
which do not implicate an imminent danger of a serious
physical injury, are dismissed without prejudice. See,
e.g.. Fed.R.Civ.P. 21 (allowing a court to sever claims
and drop parties sua sponte); Pettus v. Morgenthau,
554 F.3d 293, 297 (2nd Cir. 2009) (recognizing the
three-strikes provision is to permit an indigent
three-striker to proceed without prepayment to obtain a
judicial remedy for the imminent danger only).
 Plaintiffs other moniker is Michael
 The other claims are about
segregation, medications, postage stamps, legal mail, legal
materials, and inmate account statements.
 Plaintiff also filed the motion for a
hearing and the motion for a transcript of a conference call.
The motions are denied because no recording of the conference
call exists and because a hearing is not warranted to
adjudicate the report and recommendation. While Plaintiffs
motion for a hearing also challenges both the report and
recommendation and opposing counsel's response, it was
not filed ...