United States District Court, E.D. North Carolina, Western Division
GREGGORY G. MOSHER, JR., Plaintiff,
MUNICIPALITY OF ONSLOW COUNTY, et al., Defendants.
C. DEVER III Chief United States District Judge.
23, 2016, Magistrate Judge Numbers issued a Memorandum and
Recommendation ("M&R") [D.E. 11]. In that
M&R, Judge Numbers recommended that the court dismiss
Greggory G. Mosher, Jr.'s ("Mosher") 42 U.S.C.
§ 1983 complaint. On July 1, 2016, Mosher filed
objections to the M&R [D.E. 14].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co.. 416 F.3d 310,
315 (4th Cir. 2005) (emphasis, alteration, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond. 416 F .3d at 315
(quotation omitted). Moreover, the court need not conduct a
de novo review where a 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); Wells v. Shriners Hosp.. 109
F.3d 198, 200-01 (4th Cir. 1997). "Section 636(b)(1)
does not countenance a form of generalized objection to cover
all issues addressed by the magistrate judge; it contemplates
that a party's objection to a magistrate judge's
report be specific and particularized, as the statute directs
the district court to review only those portions of the
report or specified proposed findings or recommendations to
which objection is made." United States v.
Midgette. 478 F.3d 616, 621 (4th Cir. 2007).
Mosher's objections reiterate arguments stated in his
complaint, and do not meaningfully rebut Judge Numbers'
recommendations. Compare M&R [D.E. 11]
with Objs. [D.E. 14]. Because Mosher's
objections fail to meaningfully address the M&R, de novo
review is not required. See, e.g., Wells. 109 F.3d
at 200-01; Orpiano. 687 F.2d at 47.
Mosher's objections lack merit. In his complaint, Mosher,
a state inmate proceeding pro se, seeks monetary damages and
injunctive relief because he "was tried when lacking
mental capacity to proceed." PI. Ex. [D.E. 1-1] 4.
Mosher's conviction, however, has not been overturned or
invalidated. Thus, Mosher may not pursue his claim for
monetary damages under section 1983. See, e.g., Wilkinson
v. Dotson 544 U.S. 74, 81-83 (2005); Heck v.
Humphrey. 512 U.S. 477, 486-87 (1994); Thigpen v.
McDonnell. 273 F.App'x 271, 272 (4th Cir. 2008) (per
curiam) (unpublished). Moreover, the court declines to
convert Mosher's section 1983 complaint into a petition
for habeas corpus pursuant to 28 U.S.C. § 2254, because
Mosher already has a section 2254 petition pending in this
district. See Mosher v. Perry. No. 5:16-HC-2047-BO.
the crux of Mosher's complaint is that he seeks the
reversal of his conviction, the M&R granted Mosher's
motion to amend his complaint to include a request for
injunctive relief. See M&R 2. Mosher's
motion to amend his complaint also requested that "this
court. . . issue an emergency injunction ordering...
[defendants] to schedule an appointment... for [Mosher] to
have surgery." Mot. [D.E. 7] 1.
may grant a temporary restraining order or a preliminary
injunction if the moving party demonstrates "that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest." Winter v.
Nat'l Res. Def. Council. Inc.. 555 U.S. 7, 20
(2008). In Winter. the Supreme Court rejected the
"standard that allowed the plaintiff to demonstrate only
a 'possibility' of irreparable harm because that
standard was inconsistent with [the Court's]
characterization of injunctive relief as an extraordinary
remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief." Real Truth
About Obama. Inc. v. FEC. 575 F.3d 342, 346 (4th Cir.
2009) (quotation omitted), vacated on other
grounds. 559 U.S. 1089 (2010). reissued in
relevant part. 607 F.3d 355 (4th Cir. 2010) (per
has not plausibly alleged that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm absent
injunctive relief, that the balance of equities tips in his
favor, or that an injunction is in the public interest.
Rather, he requests that this court order defendants to
provide him with a specific treatment. A prisoner, however,
is not entitled to choose his course of treatment. See
United States v. Clawson. 650 F.3d 530, 538 (4th Cir.
2011) (collecting cases); Russell v. Sheffer. 528
F.2d 318, 318-19 (4th Cir. 1975) (per curiam). Thus, the
claim fails. Moreover, even if Mosher had alleged a viable
deliberate indifference claim, the defendants he has named
are not amenable to suit. See Bd. of Cnty- Comm'rs v.
Brown. 520 U.S. 397, 403 (1997); Pierson v.
Ray. 386 U.S. 547, 553-54 (1967); Polk County v.
Dodson. 454 U.S. 312, 325 (1981); Imbler v.
Pachtman. 424 U.S. 409, 431 (1976).
also objects that the M&R "failed to address the
amendments which are against Dr. John Doe, Greene
Correctional Institution Medical Department[, ] and the
Veterans Administration." Objs. 2. Mosher's
complaint and his motion to amend his complaint did not name
Dr. John Doe, Greene Correctional Institution Medical
Department, or the United States Department of Veterans
Affairs as defendants. Thus, the court overrules the
after Mosher filed his objections, Mosher filed a
supplemental declaration [D.E. 17]. In this declaration, he
describes an incident in which he was allegedly injured on
September 29, 2016. Mosher does not request any specific
relief after describing this incident, nor does he
specifically request to amend his claims. Mosher must file
any claim concerning this alleged incident in a separate
civil rights action after he has fully exhausted his
after reviewing the M&R, the record, and Mosher's
objections, the court is satisfied that there is no clear
error on the face of the record. Accordingly, Mosher's
objections [D.E. 14] are OVERRULED, and the court adopts the
conclusions in the M&R [D.E. 11]. Mosher's complaint
is DISMISSED, and the clerk shall close the case.