Davis v. Colvin et al

Filing 13

OPINION AND ORDER adopting Magistrate Judge Catherine M. Salinas Report and Recommendation 8 and denying Plaintiffs Emergency Motion for Injunctive Relief 7 . Signed by Judge William S. Duffey, Jr on 2/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LARRY D. DAVIS, SR.,
Plaintiff,
v.

1:16-cv-04246-WSD-CMS

CAROLYN W. COLVIN, Acting
Commissioner for Social Security
Administration, and KIM BROACH,
Field Office Director for Social
Security Administation,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Catherine M. Salinas’
Report and Recommendation [8] (“R&R”). The R&R recommends the Court deny
Plaintiff Larry D. Davis, Sr.’s (“Plaintiff”) Emergency Motion for Injunctive Relief
[7] (“Emergency Motion”).
I.

BACKGROUND
On January 3, 2017, Plaintiff filed his Emergency Motion. In it, Plaintiff

seeks a hearing in this matter because he was denied a hearing in the underlying
administrative proceeding, which, he claims, was a violation of the Social Security
Administration’s administrative policies and a violation of his due process rights

under the Fifth and Fourteenth Amendments to the United States Constitution.
([7]). Plaintiff states that he has been “unable to prepare a plan for managing his
financial affairs for 2017” due to the uncertainty of his Social Security benefits.
([7] at 2).
On January 13, 2017, the Magistrate Judge filed her R&R. In it, she found
that Plaintiff’s Emergency Motion “fails to establish good cause to grant an
immediate hearing and fails to show that irreparable injury, loss, or damage will
result if a hearing is not held within 72 hours, as requested.” (R&R at 2). The
Magistrate Judge recommended denial of Plaintiff’s Emergency Motion.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation,
a court conducts only a plain error review of the record. United States v. Slay, 714
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F.2d 1093, 1095 (11th Cir. 1983) (per curiam). The parties here do not object to
the R&R and the Court thus reviews it for plain error.
B.

Analysis

Plaintiff does not provide compelling reasons why the Court must hold an
immediate hearing in this action. The Magistrate Judge found that Plaintiff failed
to show that “irreparable injury, loss, or damage will result” if a hearing were not
held within 72 hours. (R&R at 2). The Court finds no plain error in this finding
and recommendation. See Slay, 714 F.2d at 1095. Accordingly, Plaintiff’s
Emergency Motion is denied.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Catherine M. Salinas’

Report and Recommendation [8] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Emergency Motion for
Injunctive Relief [7] is DENIED.
SO ORDERED this 2nd day of February, 2017.

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