Bach v. CIA

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrule Plaintiff's objections, adopts the Report and Recommendation (ECF No. 10 ), and incorporates it herein. Therefore, it is the judgment of the Court that Plaintiff's action is DISMISSED WITHOUT PREJUDICE. IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 3/31/2016. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
DAVID CHARLES BACH,
Plaintiff,
vs.
CIA,
Defendant.

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§ Civil Action No. 4:15-04915-MGL-KDW
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ORDER ADOPTING THE REPORT AND RECOMMENDATION
AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE
This is a 42 U.S.C. § 1983 action. Plaintiff is proceeding pro se. The matter is before the
Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge
suggesting to the Court that Plaintiff’s action be dismissed without prejudice. The Report was made
in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
The Magistrate Judge filed the Report on February 11, 2016. Although Plaintiff’s objections
to the Report were due no later than February 29, 2016, he failed to file any document titled

“Objections.” Instead, on February 23, 2016, the Clerk of Court entered Plaintiff’s “Notice of
Appeal.” But, the Fourth Circuit’s jurisdiction is limited to consider only final orders, 28 U.S.C.
§ 1291, and certain interlocutory and collateral orders, 28 U.S.C. 1292. The Report does not fit into
any of these three categories.
Because the Court is required to liberally construe pro se pleadings, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), holding them to a less stringent standard than those drafted by
attorneys, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and because Plaintiff’s “Notice of Appeal” was
filed within the time-frame that objections were to be filed, the Court has no choice other than to
construe Plaintiff’s “Notice of Appeal” as his objections to the Report, see, e.g., Hester v. N.C. Atty.
Gen., 199 F.3d 1327 (4th Cir. 1999) (unpublished table decision) (interpreting a “Notice of Appeal”
as “Objections to the Report” when the petitioner filed a notice of appeal instead of objections to
the Report during the time period for filing objections to the Report).
This Court need not conduct a de novo review of the record “when a party makes general and
conclusory objections that do not direct the court to a specific error in the [Magistrate Judge’s]
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see
also Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991) (holding that
general objections are insufficient to preserve appellate review). In this case, Plaintiff made the
most general of objections by merely stating his desire to appeal. Plaintiff was warned of the
consequences of failing to file specific objections. Report 5. In that Plaintiff neglected to specify
the portions of the Report to which he objected, this Court holds that he has waived appellate
review.
After a thorough de novo review of the Report and the record in this case, the Court
overrules Plaintiff’s objections, adopts the Report, and incorporates it herein. Therefore, it is the
judgment of the Court that Plaintiff’s action is DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Signed this 31st day of March, 2016, in Columbia, South Carolina.
s/ Mary G. Lewis
MARY G. LEWIS
UNITED STATES DISTRICT JUDGE

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty days from the date
hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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