Wesley v. American Registry of Radiologic Technologists

Filing 12

OPINION & ORDER: (1) The Magistrate Judge's 7 Order denying certification is ADOPTED and INCORPORATED by reference. (2) Plaintiff's 3 Motion is DENIED and DISMISSED WITH PREJUDICE. (3) Judgment will be entered contemporaneously with this Opinion and Order in favor of Dft. Signed by Judge Karl S. Forester on February 6, 2012. (AWD) cc: Plaintiff via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 5:11-MC-381-KSF
MISTY LYNN WESLEY
vs.

PLAINTIFF
OPINION AND ORDER

AMERICAN REGISTRY OF
RADIOLOGIC TECHNOLOGISTS

DEFENDANT
********

This matter is before the Court on appeal from Magistrate Judge Robert E. Wier’s denial
of certification on the ground that Plaintiff’s claims are frivolous.
I.

BACKGROUND
On February 14, 2007, Judge Joseph M. Hood entered General Order 07-6 finding that

Misty Lynn Wesley had a “documented history of filing abusive litigation in this Court” and
permanently barring and enjoining her from filing any new civil action without first obtaining a
certification from the Magistrate Judge that the claims asserted are not frivolous. [DE1]. Wesley
tendered the present action on November 30, 2011. After reviewing the claims asserted and
construing them liberally, Magistrate Judge Robert E. Wier held that the allegations under the Fair
Credit Reporting Act, Fair Debt Collection Practices Act, Fair Credit Billing Act, Racketeer
Influenced and Corrupt Organizations Act, and Civil Rights Act were frivolous and without factual
or legal support. He found that the first three allegations, which all related to the Defendant failing
to follow its regulations, may have an arguable basis in either law or fact. [DE 7, pp. 5-6]. However,
Wesley failed to show any proper basis for federal court jurisdiction. Id. at 6-7. Accordingly,
Magistrate Judge Wier did not certify the claim but said the Court “would consider a supplemental
filing from Wesley showing a non-frivolous jurisdictional basis.” Id. at 7.
Wesley did not submit a filing showing a non-frivolous jurisdictional basis. Instead, she filed
a timely motion to proceed under Rule 72(b) and presented an unverified dialog full of hearsay that

she claims “proves the alleged conspiracy in the Plaintiff’s complaint.” [DE 11, p. 2]. No objections
were made to any of the findings or conclusions in the Magistrate Judge’s Order.
II.

ANALYSIS
The time for filing any objections to Magistrate Judge Wier’s findings or conclusions in his

Order has passed. Although this Court must make a de novo determination of those portions of
the Magistrate Judge’s recommendations to which objection is made, 28 U.S.C. § 636(b)(1)(c), “[i]t
does not appear that Congress intended to require district court review of a magistrate’s factual or
legal conclusions, under a de novo or any other standard, when neither party objects to those
findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to file objections
to a Magistrate Judge’s proposed findings of fact and recommendation waives the right to appeal.
See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Nevertheless, having examined
the record and having made a de novo determination, the Court is in agreement with the Magistrate
Judge’s Order.
III.

CONCLUSION
Accordingly, IT IS ORDERED as follows:
1.

The Magistrate Judge’s Order denying certification [DE 7] is ADOPTED and
INCORPORATED by reference;

2.

The Plaintiff’s Motion [DE 3] is DENIED and DISMISSED WITH PREJUDICE; and

3.

Judgment will be entered contemporaneously with this Opinion and Order in favor
of Defendant.

This February 6, 2012.

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