DePinto v. Bogue et al

Filing 7

ORDER adopting Report and Recommendations re 4 ; denying as moot the motion for leave to proceed ifp 1 ;This action is hereby DISMISSED WITHOUT PREJUDICE. Signed by District Judge Harry S Mattice, Jr on 5/23/2013. (AWH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
FRANK DEPINTO,
Plaintiff,
v.
GRADY BOGUE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 1:13-cv-135
Judge Mattice
Magistrate Judge Carter

ORDER
On April 25, 2013, Plaintiff filed an application to proceed in forma pauperis and
a pro se Complaint. (Docs. 1, 2). Insofar as a cogent claim may be discerned from the
Complaint, it is this: Plaintiff seeks several million dollars in damages under “US Tort
Law” for assault and intentional infliction of emotional distress.
On May 2, 2013, United States Magistrate Judge William B. Carter filed a Report
and Recommendation (“R&R”) (Doc. 4) pursuant to 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b). Magistrate Judge Carter recommended that Plaintiff’s
Complaint be dismissed with prejudice, per 28 U.S.C. § 1915(e)(2), and that his
application to proceed in forma pauperis be denied as moot.
Plaintiff has filed no objections to the Magistrate Judge’s R&R.1 Nevertheless, the
Court has reviewed the Report and Recommendation as well as the record, and it agrees
with Magistrate Judge Carter’s well-reasoned conclusions.

Magistrate Judge Carter specifically advised Plaintiff that he had 14 days in which to object to the Report
and Recommendation and that failure to do so would waive his right to appeal. (Doc. 4 at 3 n.2); see Fed.
R. Civ. P. 72(b)(2); see also Thomas v. Arn, 474 U.S. 140, 148-51 (1985) (noting that “[i]t does not appear
that Congress intended to require district court review of a magistrate's factual or legal conclusions, under
a de novo or any other standard, when neither party objects to those findings”). The Court notes that

1

The Court makes one modification to the Magistrate Judge’s recommendation.
Because the Court, like the Magistrate Judge, concludes that it lacks subject matter
jurisdiction, this case will be dismissed without – rather than with – prejudice. See,
e.g., Revere v. Wilmington Fin., 406 F. App’x 936, 937 (6th Cir. 2011) (“Dismissal for
lack of subject-matter jurisdiction should normally be without prejudice . . . .”).
Accordingly, the Court ACCEPTS and ADOPTS Magistrate Judge Carter’s
Report and Recommendation AS MODIFIED, and this action is hereby DISMISSED
WITHOUT PREJUDICE. Plaintiffs’ application to proceed in forma pauperis (Doc.
1) is DENIED AS MOOT.

SO ORDERED this 23rd day of May, 2013.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

Plaintiff did, however, file an amended application to proceed in forma pauperis. That amended
application has no material bearing on the Magistrate Judge’s well-reasoned conclusions.
2