Hester v. State of North Carolina et al

Filing 14

ORDER granting 3 Motion for Leave to Proceed in forma pauperis; denying 6 Motion for Default Judgment; denying 7 Motion to Expedite; denying 8 Motion to Expedite; adopting 9 Memorandum and Recommendations; denying 12 Motion to sue under the FTCA. Signed by Chief Judge James C. Dever III on 10/16/2017. (Briggeman, N.)

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IN Tiffi UNITED STATES DISTRICT COURT FOR Tiffi EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:17-CV-174-D VALERIE K. HESTER, Plaintiff, v. ) ) ) ) ORDER ) STATE OF NORTH CAROLINA, OFFICE OF DISABILITY ADJUDICATION AND REVIEW, NANCY A. BERRYIDLL, Acting Commissioner of Social Security, and JONATHAN BLAIR BISER, Defendants. ) ) ) ) ) ) ) ) On May 1, 2017, Valerie K. Hester ("Hester''), appearing pro se, filed a motion to proceed in forma pauperis under28 U.S.C. § 1915 [D.E. 3]. OnMay3, 2017, the court referred the motion to Magistrate Judge Swank for frivolity review [D.E. 5]. On September 13, 2017, Magistrate Judge Swank issued a Memorandum and Recommendation ("M&R~') [D.E. 9] and recommended that Hester's application to proceed in forma pauperis be granted and that the complaint be dismissed as frivolous. On September 29, 2017, Hester objected to the M&R [D.E. 11] and filed a motion to sue under the Federal Tort Claims Act ("FTCA") [D.E. 12]. On October 6, 2017, Hester filed an addendum to her motion to sue under the FTCA [D.E. 13]. "The Federal Magistrates Act requires a district courl to make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations towhichobjectionismade." Diamond v. ColonialLife&Accidentlns. Co.,416F.3d310, 315 (4th Cir. 2005) (emphasis, alteration, and quotation omitted); see 28 U.S.C. § 636(b). Absent a timely objection, "a district court need not conduct a de novo review, but instead must only satisfy itselfthat there is no clear error on the face of the record in order to accept the recommendation." Diamond, 416 F.3d at 315 (quotation omitted). The court has reviewed the M&R, the record, and Hester's objections. As for those portions of the M&R to which Hester made no objection, the court is satisfied that there is no clear error on the face of the record. As for the objections, the court has reviewed the objections and the M&R de novo. Hester's objections are baseless and are overruled. The court adopts the conclusions in the M&R. - The court construes Hester's motion to sue under the FTCA and her addendum as a motion to amend her complaint to add an FTCA claim. The court denies the motion to amend as futile. In sum, Hester's application to proceed in forma pauperis [D.E. 3] is GRANTED, and Hester's complaint is DISMISSED as frivolous. Hester's motion for default judgment [D.E. 6], motions to expedite [D.E. 7, 8], and motion to sue under the FTCA [D.E. 12] are DENIED. The clerk shall close the case. S~ ORDERED. This~ day of October 2017. 2

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