Witham v. United States Government et al

Filing 19

ORDER denying as moot 5 Motion to Consolidate Cases and declining to adopt 6 Memorandum and Recommendation. The Clerk of Court is directed to resubmit this matter to Magistrate Judge Jones, who shall consider the documents filed in 5:20-CV-0 0446-M as if they were originally filed in this case. All future filings shall be made solely in this case. Signed by Chief US District Judge Richard E. Myers II on 1/8/2021. (Copy of Order sent to Judson Witham, 15215 Aiken Rd., Wake Forest, NC 27587 via US Mail.) (Waddell, K.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO: 5:20-CV-00385-M
JUDSON WITHAM,
Plaintiff,
V.

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UNITED STATES GOVERNMENT,
JUDGE TERRANCE BOYLE,
DEC NEW YORK STATE,
STATE OF NEW YORK,
GOVERNOR ANDREW CUOMO,
BASIL SEGGOS, DEC Commissioner,
STATE OF NORTH CAROLINA,
WARREN COUNTY NEW YORK,
THE LAKE GEORGE COMMISSION,
NEW YORK STATE CONSERVATION COM,
STATE OF VERMONT,
Defendants.

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ORDER

Before the Court is a Memorandum and Recommendation ("M&R") issued by Magistrate
Judge Robert B. Jones on October 5, 2020 (DE 6) and Plaintiffs Motion to Consolidate (DE 5).
In the M&R, Judge Jones recommends that this Court dismiss Plaintiffs Complaint. Plaintiff

timely filed an objection to the M&R on October 16, 2020 and filed a supplemental objection on
November 12, 2020. The Fourth Circuit instructs:
The Federal Magistrates Act requires a district court to make a de novo
determination of those portions of the magistrate judge's report or specified
proposed findings or recommendations to which objection is made. By contrast, in
the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.

Case 5:20-cv-00385-M Document 19 Filed 01/08/21 Page 1 of 2

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation marks, brackets, emphases, and citations omitted); see 28 U.S.C. § 636(b)(l); Fed. R.
Civ. P. 72.
Typically, in light of the objections filed by the Plaintiff, the Court would conduct a de
novo review of Judge Jones' recommendation to dismiss the Complaint. However, due to an
apparent filing error involving this case, this Court issued an order in 5 :20-cv-00446-M deeming
all documents filed in that case as filed in this case. Because the posture of the cases renders
possible an incomplete record in this case at the time Judge Jones issued his M&R, the Court will
decline to adopt the M&R and resubmit the matter to Judge Jones for his consideration and
recommendation of the disposition of the matter. In addition, the Court's order closing the matter
in 5:20-cv-00446-M renders moot the Plaintiffs motion to consolidate filed in this case.
Accordingly, the court DECLINES TO ADOPT the M&R and DIRECTS the Clerk of the
Court to resubmit this matter to Magistrate Judge Jones, who shall consider the documents filed in
5:20-CV-00446-M as if they were originally filed in this case. All future filings shall be made
solely in this case. In addition, the Court DENIES Plaintiffs motion to consolidate [DE 5] as
moot.

#- .

SO ORDERED this _u__ day of January, 2021.

Q,L/ C_ill/1(.-W<f T
RICHARD E. MYERS II
CHIEF UNITED STATES DISTRICT JUDGE

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