Blatt v. McHugh

Filing 21

ORDER RULING ON REPORT AND RECOMMENDATION adopting 15 Report and Recommendation, dismissing the action without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 01/06/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Gary S. Blatt,
Plaintiff,
v.
The Honorable John McHugh
Secretary of the Army,
Defendants.
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C/A No.: 3:13-cv-02604-JFA

ORDER

Gary S. Blatt (“Plaintiff”), proceeding pro se, filed a complaint pursuant to 28 U.S.C. §
1915, which permits an indigent litigant to commence an action in federal court without
prepaying the administrative costs of proceeding with the lawsuit. In his complaint, Plaintiff
alleges a violation of his constitutional rights by John McHugh, Secretary of the Army
(“Defendant”).
Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e)
(D.S.C.), the Magistrate Judge assigned to this action1 prepared a thorough Report and
Recommendation (“Report”) wherein the Magistrate Judge suggests summarily dismissing
Plaintiff’s complaint without prejudice and without issuance and service of process. ECF No.
15. The Report sets forth in detail the relevant facts and standards of law on this matter, and this
court incorporates those facts and standards without a recitation. Id.
Plaintiff was advised of his right to object to the Report, which was entered on the docket
on December 6, 2013. Id. Plaintiff filed a response to the Report on December 13, 2013.

ECF

No. 19. This court is charged with making a de novo determination of those portions of the
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The Magistrate Judge makes only a recommendation to this court. The recommendation has no
presumptive weight, and the responsibility to make a final determination remains with the court.
Mathews v. Weber, 423 U.S. 261 (1976).

Report to which specific objections are made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). However, in the absence of
specific objections to the Report, this court is not required to give an explanation for adopting the
Magistrate Judge’s recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Here, Plaintiff’s submission appears to be merely a general response to the entirety of the
Report, and, thus, Plaintiff is not entitled to this court’s de novo review. See United States v.
Midgette, 478 F.3d 616, 621–22 (4th Cir. 2007) (“Section 636(b)(1) does not countenance a form
of generalized objection to cover all issues addressed by the magistrate judge; it contemplates
that a party’s objection to a magistrate judge’s report be specific and particularized. . . .”).
Liberally construing the pro se complaint, the Magistrate Judge in the Report carefully
analyzed Plaintiff’s claim under multiple legal theories to determine whether Plaintiff had pled
sufficiently, including (1) whether the court has subject-matter jurisdiction to decide a security
clearance revocation case; (2) whether the complaint contained enough facts for a claim asserting
alleged constitutional violations by a federal official; and (3) whether Plaintiff has exhausted the
administrative remedies necessary to obtain judicial review. In his response, Plaintiff provides
more facts leading up to his removal from federal service but does not specifically address the
findings of the Report. Furthermore, Plaintiff acknowledges that the Merit Systems Protection
Board (“MSPB”) scheduled a hearing on the matter for December 18, 2013. As pointed out in
the Report, judicial review of an MSPB decision on a non-discriminatory claim lies in the United
States Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1)(A).
Because this court finds that the Magistrate Judge already has considered the issues that
Plaintiff raises in his response, this court overrules Plaintiff’s objections, adopts the Report in its

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entirety, and summarily dismisses Plaintiff’s complaint without prejudice and without issuance
and service of process.

IT IS SO ORDERED.

January 6, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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