Cooper v. Johnson et al

Filing 66

ORDER overruling 65 Response in Opposition. Signed by District Judge Martin Reidinger on 1/27/12. (Pro se litigant served by US Mail.)(nll)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv102

THALIA D. COOPER, et al.,
Plaintiffs,
vs.
LISA JOHNSON, et al.,
Defendants.

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ORDER

THIS MATTER is before the Court on the “Affidavit” filed by Thalia D.
Cooper on January 26, 2012 [Doc. 65].
On December 30, 2011, the Magistrate Judge filed a Memorandum and
Recommendation in this case containing proposed conclusions of law in
support of a recommendation regarding the Defendants’ motions. [Doc. 62].
The parties were advised that any objections to the Magistrate Judge's
Memorandum and Recommendation were to be filed in writing within fourteen
(14) days of service. When no written objections to the Memorandum and
Recommendation were filed in the time prescribed, the Court entered an
Order adopting the Magistrate Judge’s Recommendation and dismissing this
case on January 23, 2012. [Doc. 63].

On January 26, 2012, the Plaintiff Thalia D. Cooper filed the present
“Affidavit” in which she states that she never received a copy of the
Memorandum and Recommendation and therefore was not aware that she
was required to respond to it. The Plaintiff charges that the fact that she
never received a copy of the Magistrate Judge’s Memorandum and
Recommendation “is evidence of conspiracy to deprive me of my
constitutional rights.”

[Doc. 65].

She further asserts that she has a

constitutional right to a jury trial in this matter. [Id.].
The Court’s record indicates that copies of the Magistrate Judge’s
Memorandum and Recommendation were mailed to the Plaintiffs on
December 30, 2011. The Court did not receive anything in return from the
U.S. Postal Service indicating that the Plaintiffs did not receive these mailings.
It therefore appears that the Plaintiffs were timely served with the
Memorandum and Recommendation and were thus required to file their
objections thereto within fourteen (14) days of service.
Moreover, even if the Court were to accept the Plaintiff’s representations
as set forth in her Affidavit as true, it would be insufficient to change the result.
Plaintiff’s Affidavit fails to state any substantive objection to anything in the
Memorandum and Recommendation. Plaintiff makes no assertion of any error

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therein. 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.” United States v. Midgette, 478 F.3d 616, 622 (4th
Cir. 2007). The Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge to which no
objections have been raised. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985). Additionally, the Court need not conduct a de
novo review where a party makes only “general and conclusory objections
that do not direct the court to a specific error in the magistrate's proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982). Even taken in the light most favorable to the Plaintiff, her Affidavit
is no more than precisely such a “general and conclusory objection.” For the
reasons as stated previously, the Court remains convinced that the Magistrate
Judge’s proposed conclusions were correct and that in accord with the law
that this action must be dismissed in its entirety.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Affidavit, which the
Court construes as an Objection to the Magistrate Judge’s Memorandum and
Recommendation [Doc. 65], is OVERRULED.

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IT IS SO ORDERED.

Signed: January 27, 2012

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