Brizuela v. DeRiso
1:22-cv-00069
| N.D.W. Va. | Jun 13, 2023Background
- Pro se plaintiff Felix Brizuela sued his former attorney, Michael DeRiso, by complaint filed August 10, 2022.
- The case was referred to Magistrate Judge Aloi for initial review under 28 U.S.C. § 636.
- Magistrate Judge issued an initial R&R recommending dismissal without prejudice; Brizuela filed objections and later an Amended Complaint.
- A second R&R recommended dismissal of the Amended Complaint without prejudice and warned that specific written objections were required to preserve de novo review.
- Brizuela filed a document construed as objections but did not identify or specifically challenge any findings in the second R&R.
- The district court found no clear error, adopted the R&R in part, dismissed the action with prejudice, denied in forma pauperis status, and denied the first R&R as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brizuela preserved de novo review by objecting to the R&R | Brizuela filed objections and an Amended Complaint, asserting his claims | Objections were general/unspecific and thus did not preserve issues for de novo review | Objections were not sufficiently specific; de novo review waived; court reviewed for clear error |
| Whether the Amended Complaint states a claim | Brizuela maintained his allegations against his former attorney | Magistrate Judge concluded allegations were insufficient to state a claim | Court agreed with R&R that the pleading failed to state a claim and adopted R&R in part |
| Appropriate disposition: dismissal with or without prejudice | Brizuela sought to proceed and had filed an Amended Complaint | Magistrate recommended dismissal without prejudice | Court dismissed the action with prejudice and struck it from the active docket |
| Motion to proceed in forma pauperis (IFP) | Brizuela moved for IFP status | Court and R&R treated dismissal on merits as basis to deny IFP | Court denied the IFP motion |
Key Cases Cited
- Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600 (N.D.W. Va. 2007) (court may adopt a magistrate judge’s recommendation without explanation when there are no objections)
- Camby v. Davis, 718 F.2d 198 (4th Cir. 1983) (discusses adoption of magistrate recommendations absent objections)
- Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (court will uphold unobjected-to portions of an R&R unless clearly erroneous)
- Orpiano v. Johnson, 687 F.2d 44 (4th Cir. 1982) (general or conclusory objections do not require de novo review)
- United States v. Midgette, 478 F.3d 616 (4th Cir. 2007) (an objection must be sufficiently specific to preserve an issue for appellate review)