McEntyre v. Greene et al

Filing 20

MEMORANDUM OF DECISION AND ORDER overruling Pltf's 19 Response/Motion for Reconsideration construed as Objections to the Memorandum and Recommendation; accepting 18 Memorandum and Recommendations; granting Deft Atkin son's 10 Motion to Dismiss, and Pltf's claims against this Deft. are dismissed with prejudice. FURTHER ORDERED Clerk of Court shall send pro se Pltf a Notice of Availability of the Settlement Assistance Program, and Pltf shall have 14 days (the Opt in Period) to decide whether to participate in Pro Se Settlement Assistance Program and return completed Notice form to Clerk of Court in Asheville. Deadline for conducting an IAC tolled during this Opt in Period. Signed by District Judge Martin Reidinger on 4/4/14. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-00238-MR-DLH

TERRY LEE McENTYRE,

)
)
Plaintiff,
)
)
vs.
)
)
)
DUDLEY GREENE, et al.,
)
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Defendants.
)
__________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Defendant T.T. Atkinson’s
Motion to Dismiss [Doc. 10]; the Magistrate Judge’s Memorandum and
Recommendation [Doc. 18] regarding the disposition of said motion; and
the pro se Plaintiff’s Response, which the Court construes as Objections to
the Memorandum and Recommendation [Doc. 19].
I.

PROCEDURAL BACKGROUND
On September 11, 2013, the Plaintiff, proceeding pro se, brought this

action pursuant to 42 U.S.C. § 1983 against Defendants Dudley Greene,
the McDowell County Sheriff (“Greene”); James Manis, a Detective with the
McDowell County Sheriff’s Department (“Manis”); and T.T. Atkinson, a

Magistrate in McDowell County (“Atkinson”), for claims arising, in part, from
a felony arrest warrant issued by Defendant Atkinson.

[Doc. 1].

Defendants Greene and Manis filed an Answer to the Plaintiff’s Complaint
on December 23, 2013. [Doc. 17].
Defendant Atkinson moved to dismiss the Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 10]. Pursuant to 28
U.S.C. § 636(b) and the Standing Orders of Designation of this Court, the
Honorable Dennis L. Howell, United States Magistrate Judge, was
designated to consider the Defendant’s Motion to Dismiss and to submit a
recommendation for its disposition. On March 14, 2014, the Magistrate
Judge issued a Memorandum and Recommendation, which recommended
that the Defendant’s motion to dismiss be granted. [Doc. 18].
On March 31, 2014, the Plaintiff filed a pleading entitled “Denie
Dismised [sic]” [Doc. 19], which the Court construes as Objections to the
Memorandum and Recommendation.
II.

STANDARD OF REVIEW
The Federal Magistrate Act requires a district court to “make a de

novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. §

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636(b)(1). 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 (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).
III.

DISCUSSION
The Plaintiff has filed what purports to be objections to the Magistrate

Judge’s Memorandum and Recommendation.

The Plaintiff’s filing,

however, does not identify any specific error in the Magistrate Judge’s
proposed conclusions of law.

Rather, the Plaintiff simply restates the

allegations made in his Complaint and the arguments asserted in his
Response to Defendant Atkinson’s Motion to Dismiss. These kinds of
objections do not warrant a de novo review of the Magistrate Judge’s

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reasoning. Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004) (“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.”).
After a careful review of the Memorandum and Recommendation, the
Court concludes that the Magistrate Judge’s proposed conclusions of law
are correct and are consistent with current case law.

Accordingly, the

Court hereby accepts the Magistrate Judge’s recommendation that
Defendant Atkinson’s motion to dismiss be granted.
IV.

CONCLUSION
Having conducted a careful review of the Memorandum and

Recommendation, the Court concludes that the Magistrate Judge’s
proposed conclusions of law are supported by and are consistent with
current case law.
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s
Objections to the Magistrate Judge’s Memorandum and Recommendation

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[Doc. 19] are OVERRULED, and the recommendation of the Magistrate
Judge [Doc. 18] is ACCEPTED.
IT IS FURTHER ORDERED that Defendant Atkinson’s Motion to
Dismiss [Doc. 10] is GRANTED, and the Plaintiff’s claims against this
Defendant are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that The Clerk of Court shall send the
pro se Plaintiff a Notice of Availability of the Settlement Assistance
Program. The Plaintiff shall have fourteen (14) days (the “Opt in Period”) to
decide whether to participate in the Pro Se Settlement Assistance Program
and return the completed Notice form to the Clerk of Court in Asheville.
The deadline for conducting an initial attorneys’ conference is tolled during
this Opt in Period.
IT IS SO ORDERED.

Signed: April 4, 2014

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