McAdoo v. United States of America et al
Filing
80
ORDER AFFIRMING 77 Memorandum and Recommendation; granting 73 Defendant Nash's Motion to Dismiss; and the Complaint and claims therein asserted against Defendant Nash are DISMISSED with prejudice. Signed by District Judge Max O. Cogburn, Jr. on 4/4/2017. (Pro se litigant served by US Mail.) (khm)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:14-cv-00239-MOC-DLH
CARL E. MCADOO,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
Vs.
JOYCE ANN NASH,
et al.,
Defendants.
ORDER
THIS MATTER is before the Court on review of a Memorandum and
Recommendation issued in this matter.
This is the Second Memorandum and
Recommendation and addresses the Motion to Dismiss (#73) filed by the only remaining
defendant, Joyce Ann Nash. In that motion, Defendant Nash seeks dismissal for the same
reason the previously terminated defendants sought dismissal, the statute of limitations.
The Court notes that Defendant Nash preserved her Rule 12(b)(6) motion based on the
Statute of Limitations in her Answer as her Fourth Defense. Answer (#14 at ¶¶ 7-8). The
Honorable Dennis L. Howell, United States Magistrate Judge, considered Defendant
Nash’s motion and, for the same reasons provided in his First Memorandum and
Recommendation, recommended dismissal of the plaintiff’s claims against her as time
barred. This Court notes that it affirmed the First Recommendation and dismissed the
action as to the other defendants. Plaintiff’s appeal of that Order was, in turn, dismissed
by the Court of Appeals for the Fourth for want of jurisdiction. McAdoo v. United States,
No. 15-1938 (4th Cir. Dec. 21, 2015).
1
In the Memorandum and Recommendation, the magistrate judge advised the parties
of the right to file objections within 14 days, all in accordance with 28, United States Code,
Section 636(b)(1)(c). Objections have been filed within the time allowed.
FINDINGS AND CONCLUSIONS
I.
Applicable Standard
The Federal Magistrates Act of 1979, as amended, provides that “a district court
shall 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. § 636(b)(1); Camby
v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may be
dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo
review is not required by the statute “when a party makes general or conclusory objections
that do not direct the court to a specific error in the magistrate judge’s proposed findings
and recommendations.” Id. Moreover, the statute does not on its face require any review
at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149
(1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for
the final determination and outcome of the case, and accordingly the Court has conducted
a careful review of the magistrate judge’s recommendation.
II.
Discussion
The Court has given careful consideration to each possible objection and conducted
a de novo review as warranted. Here, defendant has filed a 27-page “Objections to Stay
and Memorandum and Recommendation” (Objections (#78)) and a document captioned
2
“Submission of Plaintiffs’ Exhibits” (Submission (#79)). In conducting such review, the
Court has carefully searched for any argument that could be construed as a reason why the
three year statute of limitations is either not applicable or why it should be tolled. There
simply is no argument that would suggest that anything Judge Howell found in either his
First or Second Recommendation was either factually or legally wrong. The Court
incorporates fully its previous Order finding that plaintiff’s 2014 Complaint seeking
redress for wrongs that allegedly occurred in 2010 as time barred under the three year
Statute of Limitations.
After such careful review, the Court determines that the recommendation of the
magistrate judge is fully consistent with and supported by current law. Further, the factual
background and recitation of issues is supported by the applicable pleadings. Based on
such determinations, the Court will fully affirm the Memorandum and Recommendation
and grant relief in accordance therewith.
ORDER
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
(#77) is AFFIRMED, Defendant’ Nash’s Motion to Dismiss is GRANTED, the
Complaint and claims therein asserted against Defendant Nash are DISMISSED with
prejudice, and the Clerk of Court is instructed to enter Judgment against plaintiff and in
favor of all defendants dismissing this action in its entirety with prejudice and providing
that plaintiff have and take nothing of these defendants.
Signed: April 4, 2017
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?