NEAL v. CAPITAL ONE BANK USA NA et al

Filing 9

ORDER signed by JUDGE THOMAS D. SCHROEDER on 06/20/2016, that court therefore adopts the Magistrate Judge's Recommendation, and that this action is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) (B). A Judgment dismissing this action will be entered contemporaneously with this Order. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CRYSTAL E. NEAL,
Plaintiff,
v.
CAPITAL ONE BANK USA NA,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:15CV837

ORDER
The Recommendation of the United States Magistrate Judge
(Doc. 6) was filed with the court in accordance with 28 U.S.C.
§ 636(b) and, on December 17, 2015, was served on the parties in
this action.

Plaintiff objected to the Recommendation.

(Doc. 8.)

The court is obliged to conduct a de novo determination as to
“those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1);
accord Fed. R. Civ. P. 72(b)(2)-(3). An objecting party is required
to identify specifically those findings objected to and to support
such objection with the basis for it.

Suntrust Mortg., Inc. v.

Busby, 651 F. Supp. 2d 472, 476 (W.D.N.C. 2009).

“A general

objection, or one that merely restates the arguments previously
presented[,] is not sufficient to alert the court to alleged errors
on the part of the magistrate judge.

An ‘objection’ that does

nothing more than state a disagreement with a magistrate’s suggested

resolution, or simply summarizes what has been presented before, is
not an ‘objection’ as that term is used in this context.”

Id.

(quoting Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich.
2004)); see United States v. O’Neill, 27 F. Supp. 2d 1121, 1126
(E.D. Wis. 1998) (“Without specific reference to portions of the
magistrate’s

decision

and

legal

discussion

on

the

objected

portion, the district court’s duty to make a de novo determination
does not arise.” (citations, alterations, and internal quotation
marks omitted)).

Similarly, general or conclusory objections that

do not point to specific error do not require this court’s de novo
review and could result in the waiver of appellate review.

E.g.,

Smith v. Wash. Mut. Bank FA, 308 F. App’x 707, 708 (4th Cir. 2009)
(unpublished per curiam opinion) (citing Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982)).

In the absence of a valid objection,

the court must “only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.”
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
“A finding is clearly erroneous when, although there is evidence to
support it, on the entire evidence the reviewing court is left with
the definite and firm conviction that a mistake has been committed.”
Faulconer v. Comm’r of Internal Revenue, 748 F.2d 890, 895 (4th Cir.
1984) (citing United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).
2

Here, Neal has failed to raise a valid objection to any of
the factual findings or legal conclusions in the Magistrate Judge’s
report.

Neal’s basic argument is that dismissal is improper

because “[t]here is not one document in the records submitted by
defendants as verified evidence” to contradict her claims.
Doc. 8 at 4.)

(See

Neal misunderstands the procedural posture of the

Magistrate Judge’s ruling.

The issue before the Magistrate Judge

was whether the factual allegations in Neal’s complaint, accepted
as true, state a plausible claim upon which relief could be
granted.

(Doc. 6 at 2–3 (citing Aschroft v. Iqbal, 556 U.S. 662,

678 (2009)).)

The Defendants have no burden to produce evidence

at this stage because, for the purposes of the Recommendation, the
Magistrate Judge assumed that all well-pleaded factual allegations
in Neal’s complaint are true.

(See id.)

Because Neal has failed to raise a valid objection, the court
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 (quoting Fed. R. Civ. P. 72 advisory committee’s note).
After

reviewing

the

Magistrate

Judge’s

report,

the

court

is

satisfied that there is no clear error on the face of the record.
In sum, the court has appropriately reviewed the portions of
the Magistrate Judge’s report to which objection was made and has
made a determination which is in accord with the Magistrate Judge’s

3

report.

The

court

therefore

adopts

the

Magistrate

Judge’s

Recommendation.
IT IS THEREFORE ORDERED that this action is dismissed for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).

A

Judgment dismissing this action will be entered contemporaneously
with this Order.

/s/
Thomas D. Schroeder
United States District Judge
June 20, 2016

4