Klein v. United States Treasury

Filing 36

ORDER RULING ON REPORT AND RECOMMENDATION granting 26 Motion to Dismiss filed by United States, accepting 33 Report and Recommendation. Signed by Honorable J Michelle Childs on 2/16/17. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Chris Robert Klein,

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Plaintiff,
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v.
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United States,
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Defendant.
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____________________________________)

Civil Action No. 8:16-cv-00444-JMC

ORDER

Plaintiff brought this action alleging damages under 26 U.S.C. § 7422. This matter is
before the court upon review of Magistrate Judge Jacquelyn D. Austin’s Report and
Recommendation (“Report”), filed on December 15, 2016, recommending that Defendant’s
motion to dismiss (ECF No. 33) be granted on the grounds that Plaintiff failed to wait the
required six-month period under 26 U.S.C. § 6532(a)(1) before filing this action for damages due
to alleged unauthorized collection actions by the Internal Revenue Service (“IRS”). The Report
details the relevant facts and legal standards on this matter, and this court incorporates the
Magistrate Judge’s recommendation herein without a recitation.
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a
recommendation to this court that has no presumptive weight—the responsibility to make a final
determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
The court reviews de novo only those portions of a Magistrate Judge’s Report to which
specific objections are filed, and it reviews those portions not objected to—including those
portions to which only “general and conclusory” objections have been made—for clear error.
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis,

718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The
court may accept, reject, or modify—in whole or in part—the recommendation of the Magistrate
Judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
Plaintiff was advised of his right to file objections to the Report “within fourteen (14)
days of the date of service” of the Report (ECF No. 33-1).

However, Plaintiff filed no

objections. In the absence of objections to the Magistrate Judge’s Report, this court is not
required to provide an explanation for adopting the recommendation. See Camby, 718 F.2d at
199. Furthermore, failure to timely file specific written objections to the Report results in a
party’s waiver of the right to appeal from the judgment of the District Court based upon such
recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins,
766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Therefore, after a thorough and careful review of the Report and the record in this case,
this court finds the Report provides an accurate summary of the facts and law. The court
ACCEPTS the Report and Recommendation (ECF No. 33) with the modification that this action
be dismissed without prejudice. For the reasons articulated by the Magistrate Judge, this court
GRANTS Defendant’s Motion to Dismiss (ECF No. 26), and this action is DISMISSED
without prejudice.
IT IS SO ORDERED.

United States District Judge
February 16, 2017
Columbia, South Carolina

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