Cooper v. Johnson et al
Filing
68
ORDER that the Plaintiff Swanson's "Objection to Dismissal of Complaint" is overuled. Signed by District Judge Martin Reidinger on 2/6/2012. (Pro se litigant served by US Mail.)(pdf)
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 “Objection to Dismissal of
Complaint” filed by Plaintiff Melvin E. Swanson, Sr. [Doc. 67].
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 31, 2012, the Plaintiff Melvin D. Swanson, Sr. filed the
present Objection, claiming that he never received a copy of the
Memorandum and Recommendation.
[Id.].
Contrary to the Plaintiff’s
assertions, however, 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 true, it would be insufficient to change the result. Plaintiff’s Objection fails
to state any substantive objection to anything in the Memorandum and
Recommendation, and Plaintiff makes no assertion of any error therein.
Plaintiff’s filing [Doc. 76] makes clear that Plaintiff is now fully aware that the
Magistrate Judge has filed a Memorandum and Recommendation wherein he
recommends that this case be dismissed.
That Memorandum and
Recommendation is a public record and therefore the Plaintiff has complete
access to it and its contents. Nonetheless, Plaintiff has not objected to any
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conclusion or legal statement or any other portion of that Memorandum and
Recommendation. 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, his
Objection is no more than precisely such a “general and conclusory
objection.” Plaintiff has done nothing in compliance with the law to bring to
the Court’s attention any problem in the Memorandum and Recommendation
whereby the Court should not follow it. For the reasons as stated previously,
the Court remains convinced that the Magistrate Judge’s proposed
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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 Swanson’s “Objection
to Dismissal of Complaint” [Doc. 67] is OVERRULED.
IT IS SO ORDERED.
Signed: February 6, 2012
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