Lopez v. Veteran Affairs et al

Filing 13

ORDER adopting magistrate judge's 8 Report and Recommendation. Ordered that the reference to the magistrate judge is vacated. Signed by Judge Thad Heartfield on 11/21/08. (bjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION

GEORGE L. LOPEZ V. VETERAN AFFAIRS, ET AL.

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1:08-CV-404

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The court referred this matter to the Honorable Earl S. Hines, United States magistrate judge, for pretrial proceedings pursuant to General Order 05-07. The court has received and considered the report of the United States magistrate judge, who recommends that the court dismiss plaintiff's case without prejudice for lack of subject matter jurisdiction. Plaintiff filed a "Notice of Injunction to Recommendation of United States Magistrate Judge" which the court construes as objections to the magistrate judge's findings, conclusions, and analysis. This requires a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). Plaintiff's objections are largely unintelligible, or have no applicability to the magistrate judge's recommendation or to plaintiff's case generally. None impugns the magistrate judge's correct conclusion that this court lacks subject matter jurisdiction in a proceeding to compel the United States Department of Veterans Affairs to increase a disability rating and the amount of monthly benefits paid to a veteran. Moreover, plaintiff's reference to 28 U.S.C. § 1916 (which authorizes a seaman to proceed without prepayment of fees or costs) has no relevance because plaintiff was previously granted the right to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and also because plaintiff's indigence has no bearing on the separate question of the court's

jurisdiction. After conducting the required de novo review, the court concludes that the magistrate judge's findings, conclusions and analysis are correct. Accordingly, plaintiff's objections are

OVERRULED, and the magistrate judge's report is hereby ADOPTED. A judgment dismissing this action will be entered separately. The purpose of the referral having been served, it is further ORDERED that the reference to the magistrate judge is VACATED.
SIGNED this the 21 day of November, 2008.

____________________________ Thad Heartfield United States District Judge