Owens v. MAKO Medical Labs

Filing 22

ORDER adopting 12 Memorandum and Recommendations; denying 15 Motion for Return of Money; dismissing as moot 16 Motion to Vacate. Signed by District Judge James C. Dever III on 11/18/2021. (Sellers, N.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DMSION No. S:21-CV-364-D MICHAEL W. OWENS, Plaintiff, v. MAKO MEDICAL LABS, Defendant. ) ) ) ) ) ) ) ) ) ORDER On September 10, 2021, Michael W. Owens ("Owens" or ''plaintiff''), appearing P!'.Q se, filed a complaint in this court [D.E. 1]. On September 16, 2021, the court ordered plaintiff to correct filing deficiencies and directed plaintiffto pay the filing fee or submit a motion to proceed in forma pauperis [D.E. 2]. On October S, 2021, plaintiff filed a motion to proceed in forma pauperis [D.E. S]. Pursuant to 28 U.S.C. § 636(b)(l), the court referred the matter to Magistrate Judge Robert B. Jones, Jr., for a memorandum and recommendation on the plaintiff's motion to proceed in forma pauperis and for a frivolity review [D.E. 9]. On October 20, 2021, Magistrate Judge Jones issued a Memorandum and Recommendation ("M&R") and recommended that the complaint be dismissed as frivolous for failure to state a claim. See [D.E. 12]. On October 27, 2021, Magistrate Judge Jones ordered that because plaintiff is incarcerated, plaintiff shall pay the filing fee [D.E. 14]. See 28 U.S.C. § 191S(b). On November 8, 2021, plaintiff moved for return of money [D.E. 15] and filed a motion to vacate the judgment [D.E. 16]. "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 Case 5:21-cv-00364-D Document 22 Filed 11/18/21 Page 1 of 3 to which objection is made." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 31 S (4th i Cir. 200S) (cleaned up); 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 itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond, 416 F.3d at 31 S (quotation omitted). If a party makes only general objections, de novo review is not required. See Wells v. Shriners Hosp.• 109 F.3d 198,200 (4th Cir. 1997). In "order to preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." Martin v. Du:ffy.-8S8 F.3d 239, 24S (4th Cir. 2017) (quotation omitted); see United States v. Midgette, 478 F.3d 616,622 (4th Cir. 2007). Owens did not make any such sufficiently specific objections. Therefore, the court reviews for clear error. The court has reviewed the M&R and the record. There is no clear error on the face of the record. See Diamond, 416 F.3d at 31S. Thus, ~e court adopts the conclusion in the M&R I that the complaint is frivolous and fails to state a claim. Plaintiff's motion to proceed in forma pauperis is granted and, because plaintiffis incarcerated, his motion for return offiling fee is denied. Because the court has not yet entered its judgment, plaintiff's motion to vacate the judgment [D.E. 16] is dismissed as moot. In sum, the court GRANTS plaintiff's motion to proceed in forma pauperis [D.E. S], DENIES plaintiff's motion for return of money [D.E. IS], and DISMISSES AS MOOT plaintiff's motion to vacate the judgment [D.E. 16]. The court ADOPTS the conclusions in-the M&R [D.E. 12] and DISMISSES plaintiff's complaint for failure to state a claim. The clerk shall close the case. 2 Case 5:21-cv-00364-D Document 22 Filed 11/18/21 Page 2 of 3 SO ORDERED. This JE... day ofNovember, 2021. J~c~D~m United States District Judge 3 Case 5:21-cv-00364-D Document 22 Filed 11/18/21 Page 3 of 3

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