Machnik v. Jewell et al

Filing 19

ORDER that the Defendant's Objections to the Memorandum and Recommendation 15 are OVERRULED; the Memorandum and Recommendation 14 is ACCEPTED; and the Defendant's Motion to Dismiss and Alternative Motion for Summary Judgment 9 is DENIED. See Order for further details. Signed by District Judge Martin Reidinger on 03/03/17. (Pro se litigant served by US Mail.)(emw)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00104-MR-DLH

PATRICIA BLOKER MACHNIK,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Defendant’s Motion to
Dismiss and Alternative Motion for Summary Judgment [Doc. 9]; the
Magistrate Judge’s Memorandum and Recommendation [Doc. 14] regarding
the disposition of that motion; and the Defendant’s Objections to the
Memorandum and Recommendation [Doc. 15].
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 and to submit a
recommendation for its disposition.
On November 28, 2016, the Magistrate Judge filed a Memorandum
and Recommendation in this case containing conclusions of law in support

of a recommendation regarding the motion to dismiss. [Doc. 14]. 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. The Defendant timely filed Objections on November 29, 2016. [Doc.
15]. The Plaintiff filed her Reply to the Defendant’s Objections on December
16, 2016. [Doc. 16].
After careful consideration of the Memorandum and Recommendation
and the Defendant’s Objections thereto, the Court finds that the Magistrate
Judge’s proposed conclusions of law are correct and consistent with current
case law.

Particularly, Defendant’s arguments are dependent upon

supplementing the allegations of the Complaint with facts that are “simple,
straightforward and not subject to dispute.” [Doc. 15 at 2].

Such

supplementation, however, removes this matter from the posture of a Motion
to Dismiss.

As for the Defendant’s alternative Motion for Summary

Judgment, such is premature. Accordingly, the Court hereby overrules the
Defendant’s

Objections

and

accepts

the

Magistrate

Judge’s

recommendation that the motion to dismiss be denied and the alternative
motion for summary judgment be denied as premature.
IT IS, THEREFORE, ORDERED that the Defendant’s Objections to the
Memorandum and Recommendation [Doc. 15] are OVERRULED; the
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Memorandum and Recommendation [Doc. 14] is ACCEPTED; and the
Defendant’s Motion to Dismiss and Alternative Motion for Summary
Judgment [Doc. 9] is DENIED.
IT IS FURTHER ORDERED that upon the filing of the Defendant’s
Answer, the parties shall confer and file a Certificate of Initial Attorneys’
Conference. In the exercise of its discretion, the Court declines to refer this
matter to the Court’s Pro Se Settlement Assistance Program.
IT IS SO ORDERED.
Signed: March 3, 2017

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