Cook v. United States of America

Filing 39

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION adopting 36 Report and Recommendation, granting 18 Motion to Dismiss. Signed by Honorable Mary G Lewis on 11/7/2012. (jpet, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA

Darryl L. Cook,

) Civil Action No. 0:12-216-MGL-PJG
)
Plaintiff, )
)
vs.
)
ORDER AND OPINION
)
United States of America,
)
)
Defendant. )
__________________________________
Plaintiff Darryl L. Cook (“Plaintiff”), a federal prisoner proceeding pro se, filed this
action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (“FTCA”) against
the United States of America (“Defendant”). (ECF No. 1.) Defendant moves to dismiss
this action asserting that it is duplicative of a case filed by Plaintiff which was recently
decided by another Judge of this court. See Cook v. United States, C/A No.
0:11-0320-RMG-PJG.
In Cook v. United States, Civil Action No. 0:11-0320-RMG-PJG, Defendant filed a
Motion for Summary Judgment. (ECF No. 53.) Defendant asserted that Plaintiff’s back
injury claim was precluded under the FTCA and Plaintiff had failed to state a claim upon
which relief can be granted. (Id.) Defendant argues that this case should be dismissed,
because the issue presented here is identical to the companion case, Cook v. United
States, Civil Action No. 0:11-0320-RMG-PJG.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) D.S.C. this
matter was referred to United States Magistrate Judge Paige J. Gossett for pretrial
handling. On September 28, 2012, Magistrate Judge Gossett issued a Consolidated
Report and Recommendation in Civil Action 0:11-3210-RMG-PJG and in this action

recommending inter alia that the Court grant Defendant’s Motion to Dismiss (ECF No. 36)
as it is duplicative of his previously filed case. (ECF No. 36.) The Report sets forth in
detail the relevant facts and legal standards on this matter which the court incorporates
herein without a recitation.
The Magistrate Judge makes only a recommendation to this court.
recommendation has no presumptive weight.

The

The responsibility to make a final

determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1). The court may
also receive further evidence or recommit the matter to the Magistrate Judge with
instructions. The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objections are made.
On October 16, 2012, Plaintiff filed timely objections to the Magistrate Judge’s
Report and Recommendation. (ECF No. 38.) Although Plaintiff filed several objections, the
court finds that Plaintiff's objections are not specific but merely restatements of the
arguments made in his initial filings, only set forth negative assertions against the
Magistrate Judge and the United States Attorney, and do not alert the court to any matters
that were erroneously considered by the Magistrate Judge. Moreover, Plaintiff fails to
direct the court to any evidence in the record to support his contentions that the Magistrate
Judge erred in her decision to recommend the grant of summary judgment to Defendant.
Objections to the Report and Recommendation must be specific. In the absence of
specific objections to the Magistrate Judge's Report and Recommendation, this court is
not required to give any explanation for adopting the recommendation. See Camby v.
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Davis, 718 F.2d 198, 199 (4th Cir.1983).
Accordingly, after a thorough review of the record, the applicable law, the
Magistrate Judge’s Report and Recommendation and Plaintiff’s objections, the Court finds
the Magistrate Judge’s recommendation to be proper. The Court overrules Plaintiff’s
objections and adopts the Magistrate Judge’s Report and Recommendation and
incorporates it herein.

For the reasons stated in the Consolidated Report and

Recommendation, Defendant’s Motion to Dismiss is GRANTED and this case is
DISMISSED as duplicative.
IT IS SO ORDERED.

/s/ Mary G. Lewis
United States District Judge

Spartanburg, South Carolina
November 7, 2012

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