Sellers v. Baskerville ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JERRY SELLERS,
    Petitioner-Appellant,
    v.                                                             No. 98-7078
    ALTON BASKERVILLE, Warden,
    Respondent-Appellee.
    JERRY SELLERS,
    Plaintiff-Appellant,
    v.
    SECOND GENESIS, INCORPORATED;
    No. 98-7738
    CATHLEEN STAFFORD, Clinical
    Manager; ROBERT THOMAS, Senior
    Counselor; WILL FARLEY, Counselor,
    Defendants-Appellees.
    Appeals from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    Robert E. Payne, District Judge;
    Robert R. Merhige, Jr., Senior District Judge.
    (CA-97-777, CA-98-291)
    Submitted: February 26, 1999
    Decided: May 6, 1999
    Before WILKINS and HAMILTON, Circuit Judges, and
    HALL, Senior Circuit Judge.
    _________________________________________________________________
    No. 98-7078 dismissed and No. 98-7738 affirmed in part and dis-
    missed in part by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Jerry Sellers, Appellant Pro Se. Linwood Theodore Wells, Jr., Assis-
    tant Attorney General, Richmond, Virginia, for Appellees.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    These are consolidated appeals arising out of Jerry Sellers' convic-
    tion and subsequently suspended sentence for statutory burglary. In
    No. 98-7078, Sellers appeals the district court's denial of his 
    28 U.S.C.A. § 2254
     (West 1994 & Supp. 1998) petition. In No. 98-7738,
    he appeals the district court's dismissal of his 
    42 U.S.C.A. § 1983
    (West Supp. 1998), Americans with Disabilities Act, and Rehabilita-
    tion Act claims against the drug treatment center which he attended
    in conjunction with his suspended sentence.
    Addressing appeal No. 98-7078, we have reviewed the record and
    the district court's opinion and find no reversible error. Accordingly,
    we deny a certificate of appealability and dismiss the appeal on the
    reasoning of the district court. See Sellers v. Baskerville, No.
    CA-97-777 (E.D. Va. June 5 & July 16, 1998).
    Turning to appeal No. 98-7738, we note that the district court dis-
    missed Sellers' action on the grounds that: (1) Second Genesis, the
    drug treatment center at issue, was not acting under color of state law,
    thus eviscerating Sellers' § 1983 claim; and (2) Sellers failed to cure
    the defects noted by the magistrate judge's report and recommenda-
    2
    tion in conjunction with his ADA and RA claims. Without expressing
    opinion as to whether Second Genesis was acting under color of state
    law, we find that Sellers has failed to establish a constitutional viola-
    tion, and accordingly we affirm the district court's dismissal of Sell-
    ers' § 1983 claims on this alternative ground. Turning to Sellers'
    ADA and RA claims, we agree with the district court that Sellers
    failed to respond to the deficiencies noted by the magistrate judge's
    report and recommendation in his objections thereto. We therefore
    find that he has waived appellate review and we dismiss those claims.
    Accordingly, we deny a certificate of appealability and dismiss in
    No. 98-7078, and affirm in part and dismiss in part in No. 98-7738.
    We dispense with oral argument because the facts and legal conten-
    tions are adequately presented in the materials before the court and
    argument would not aid the decisional process.
    No. 98-7078 - DISMISSED
    No. 98-7738 - AFFIRMED IN PART
    AND DISMISSED IN PART
    3
    

Document Info

Docket Number: 98-7078

Filed Date: 5/6/1999

Precedential Status: Non-Precedential

Modified Date: 4/17/2021