Lineberger v. Lowe et al

Filing 65

ORDER denying as moot and without prejudice 54 Motion for Summary Judgment; affirming 58 Memorandum and Recommendations. Signed by District Judge Richard Voorhees on 6/10/2016. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:14-CV-00137-RLV-DCK
ALVIN LINEBERGER,
Plaintiff,
v.
NEWTON POLICE DEPARTMENT, ET
AL.,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Defendants’ Motion for Summary
Judgment (Doc. No. 54) and the Memorandum and Recommendation (the “M&R”) of Judge David
Keesler (Doc. No. 58). In the M&R, Judge Keesler recommends that the Defendants’ Motion be
denied-as-moot and without prejudice because leave was granted to the Plaintiff to file a Second
Amended Complaint. A Second Amended Complaint was filed on May 16, 2016. See [Doc. No.
59]. The parties have not filed objections to the M&R, and the time for doing so has expired. See
Fed. R. Civ. Pro. 72(b)(2).
II.

DISCUSSION
A.

Standard of Review

The Federal Magistrate Act provides that a court may “designate a magistrate judge to
conduct hearings . . . and to submit . . . proposed findings of fact and recommendations for the
disposition [of dispositive motions.]” 28 U.S.C. § 636(b)(1)(B). “[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); accord Fed. R. Civ. Pro. 72(b)(3). “By contrast, in the absence of a timely
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filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.’”
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R.
Civ. P. 72, Advisory Committee Note).
B.

Analysis

Under Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), a
district court judge shall make a de novo determination of any portion of an M&R to which specific
written objection has been made. A party’s failure to make timely objection is accepted as an
agreement with the conclusions of the Magistrate Judge. See Thomas v. Arn, 474 U.S. 140, 14950 (1985). No objection to the M&R having been filed, and the time for doing so having expired,
the parties have waived their right to de novo review of any issue discussed in the M&R.
After a careful review of the record, the Court finds that Judge Keesler’s M&R is supported
by the record and is consistent with and supported by law. Finding no clear error, the Court
ADOPTS the recommendation of the Magistrate Judge as its own. See [Doc. No. 58]. Because the
Second Amended Complaint (Doc. No. 59) supersedes the First Amended Complaint (Doc. No.
14), Defendants’ Motion for Summary Judgment (Doc. No. 54) is hereby DENIED-AS-MOOT
and without prejudice.
SO ORDERED.
Signed: June 10, 2016

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