Hutton v. U.S. Department of Veterans Affairs

Filing 7

ORDER adopting Report and Recommendation regarding 4 Memorandum and Recommendations of the magistrate judge, and the plaintiff's action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2). The clerk is directed to close the case. Signed by District Judge Louise Wood Flanagan on 12/30/2014. (Rudd, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:14-CV-847-FL

RONALD HUGH HUTTON,
Plaintiff,
v.
U.S. DEPARTMENT
AFFAIRS,

OF

Defendant.

VETERANS

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This matter is before the court on the memorandum and recommendation (“M&R”) of
Magistrate Judge Robert T. Numbers, II, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.
72(b), wherein it is recommended that the court dismiss plaintiff’s complaint on frivolity review
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff filed objection to M&R. In this posture, the issues
raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the
magistrate judge.
DISCUSSION
The district court reviews de novo those portions of a magistrate judge’s M&R to which
specific objections are filed. 28 U.S.C. § 636(b). The court does not perform 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). Absent a specific and timely filed objection, the court reviews only for
“clear error,” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th

Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Plaintiff filed an application to proceed in forma pauperis on November 20, 2014, asserting
claims for injunctive relief against the U.S. Department of Veterans Affairs (“VA”), asserting that
defendant failed to remove his designation by the VA as disabled veteran, which status plaintiff
suggests has negatively impacted his ability to secure employment. This court previously dismissed
as frivolous a similar claim for relief. See Hutton v. U.S. Dep’t of Veterans’ Affairs, No. 5:13-CV417-FL, 2014 WL 2112668 (E.D.N.C. May 20, 2014). In the instant matter, the magistrate judge
granted the in forma pauperis application, but the magistrate judge again determined on frivolity
review that this court lacks subject matter jurisdiction to consider plaintiff’s claims because
jurisdiction over claims challenging benefits determinations by the VA lie with the Board of
Veterans’ Appeals and then the U.S. Court of Appeals for the Federal Circuit. (M&R at 3). In his
objection to the M&R, plaintiff reiterates his claims, suggesting that his designation by the VA is
not appropriate. (Obj. at 1).
Under 28 U.S.C. § 1915(e)(2), the court may dismiss an action that is frivolous or malicious,
fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant
who is immune from such relief. A case is “frivolous” if it lacks an arguable basis in either law or
fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Upon de novo review, the court finds that plaintiff’s general objection provides no reason
to disturb the cogent analysis contained in the M&R. The Veterans Judicial Review Act of 1988,
38 U.S.C. § 511(a) provides the exclusive process by which veterans may adjudicate claims relating
to veterans’ benefits. See Butler v. United States, 702 F.3d 749, 753 (4th Cir. 2012) (stating that “§
511 precludes jurisdiction over cases where adjudicating veterans’ claims requires the district court

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to determine whether the VA acted properly in handling a veteran’s request for benefits and also to
those decisions that may affect such cases”) (internal quotations omitted). Accordingly, plaintiff’s
claim seeking to have the court review the VA decision regarding his benefits status, and decisions
related thereto, must be dismissed for lack of subject matter jurisdiction.
CONCLUSION
Based on the foregoing, upon de novo review of the record and the recommendation in the
M&R, the court ADOPTS the recommendation of the magistrate judge, and plaintiff’s action is
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2). The clerk is directed to close this case.
SO ORDERED, this the 30th day of December, 2014.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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