Lewis v. Smith et al
ORDER granting 12 Motion to Dismiss ; granting 15 Motion to Dismiss ; affirming 21 Memorandum and Recommendations.. Signed by District Judge Max O. Cogburn, Jr on 3/1/16. (Pro se litigant served by US Mail.)(ssh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:15-cv-00606-MOC-DSC
ARCHIE L. SMITH III
SMITH, DEBNAM, NARRON, DRAKE,
SAINTISING & MYSERS
KELLY S. KING
BRANCH BANKING & TRUST COMPANY
JEFF D. ROGERS,
MEMORAND OF DECISION AND
THIS MATTER is before the court on review of a Memorandum and
Recommendation issued in this matter. 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.
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.
The court has given careful consideration to the pro se plaintiff’s “Affidavit to
Answer Magistrate Judge and to Move the Equity Court and Chancellor and Complaint”
(#22), construed those arguments in a light most favorable to her, and considered that
pleading to be her Objection to Judge Cayer’s recommendation that the Complaint be
dismissed in accordance with Rule 12(b)(6), Federal Rules of Civil Procedure. Careful
review of that Objection has uncovered no substantive arguments of specific error as to
any portion of the Memorandum and Recommendation. Rather, the Objections may best
be described as general and conclusory. Finally, the court has fully considered the
Complaint alongside the Motions to Dismiss and determined that Judge Cayer has correctly
recommended that those motions be allowed and that the Complaint be dismissed in
accordance with Rule 12(b)(6) as plaintiff has failed to state a viable claim and has
impermissibly attempted to attack a state court judgment in federal court in violation of the
Rooker-Feldman doctrine, which is further compounded by plaintiff failing to allege any
facts, much less plausible ones, which would give this court any indication that she has
standing to bring this action as no relationship between her and the property foreclosed
upon (in a county outside the Western District of North Carolina) was alleged.
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.
IT IS, THEREFORE, ORDERED that the Memorandum and Recommendation
(#21) is AFFIRMED, defendants’ Motions to Dismiss (#12 & #15) are GRANTED and
this action is DISMISSED with prejudice.
The Clerk of Court is instructed to enter a Judgment consistent with this Order.
Signed: March 1, 2016
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