Velez v. McCarthy

Filing 30

ORDER adopting 29 Memorandum and Recommendations; granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim. Signed by District Judge James C. Dever III on 2/15/2021. Sent to Marianela Velez at P.O. Box 10882Southport, NC 28461 via US Mail. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DMSION
No. 7:20-CV-20-D

MARIANELA VELEZ,
Plaintiff,

v.
RYAN D. MCCARTHY, Secretary
oftheArmy,
Defendant.

)
)
)
)
)
)
)
)
)
)

ORDER

On January 30, 2020, Marianela Velez (''Velez'' or ''plaintiff"), filed a pro se complaint in

this court [D.E. 1]. On May 14, 2020, defendant mov(?d to dismiss the complaint and filed a
memorandum in support [D.E. 10, 11]. On June 4, 2020, plaintiff filed an amended complaint
[D.E. 13]. On July 1, 2020, the court referred defendant's motion to dismiss the complaint to
Magistrate Judge Numbers for frivolity review [D.E. 15]. On August 6, 2020, defendant filed a
motion to dismiss the amended complaint [D.E. 20] and a memorandum in support [D.E. 21 ]. On
September 22, 2020, Judge Numbers issued a Memorandum and Recommendation (''M&R'') and
recommended this court dismiss as moot defendant's motion to dismiss the complaint. See [D.E.
25]. On October 21, 2020, the court adopted ,the M&R and dismissed defendant's motion to
dismiss the complaint as moot [D.E. 26]. On November 2, 2020, the court referred defendant's
motion to dismiss the amended complaint to Judge Numbers for :frivolity review [D.E. 27]. On
January25,2021,JudgeNumbersissuedaM&Randrecommendedthatthiscourtgrantdefendant's
motion to dismiss the amended complaint in part and dismiss all plaintiff's claims except her sex-

Case 7:20-cv-00020-D Document 30 Filed 02/16/21 Page 1 of 3

discrimination claim. See [D.E. 29]. Neither party objected to the M&R.
"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." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,315

(4th Cir. 2005) (alteration, emphasis, 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
itself that 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). 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
ofthetruegroundfortheobjection." Martin v. Duffy, 858 F.3d239, 245 (4th Cir. 2017) (quotation
omitted); United States v. Midgette, 478 F.3d 616,622 (4th Cir. 2007).
The court has reviewed the M&R and the record. The court is satisfied that there is no clear
error on the face of the record. See Diamond, 416 F.3d at 315. Thus, the court adopts the
conclusion in the M&R that defendant's motion to dismiss the amended complaint should be
granted in part and denied in part. Whether the remaining claim will survive a motion for summary
judgment is an issue for another day.
In sum, the court ADOPTS the conclusions in the M&R [D.E. 29], and GRANTS in part

and DENIES in part defendant's motion to dismiss the amended complaint [D.E. 20]. Plaintiff's
sex-discrimination claim survives. Plaintiff's other claims are dismissed.

2

Case 7:20-cv-00020-D Document 30 Filed 02/16/21 Page 2 of 3

SO ORDERED. This r 5' day of February 2021.

JSC.DEVERID
United States District Judge

3

Case 7:20-cv-00020-D Document 30 Filed 02/16/21 Page 3 of 3