Dockery v. Social Security Administration

Filing 20

MEMORANDUM ORDER (Adopting Report and Recommendation of the Magistrate Judge) The Court HEREBY ACCEPTS and ADOPTS the Magistrate Judge's Report and Recommendation in full as the OPINION of this Court. The Court ORDERS that Defendant's Mo tion to Dismiss (ECF No. 9) is GRANTED, Plaintiffs Motion for a Hearing (ECF No. 4) is DENIED AS MOOT, and Plaintiffs Complaint (EOF No. 3) is DISMISSED WITH PREJUDICE. Signed by District Judge Henry E. Hudson on 03/27/2019. Copy mailed to pro se plaintiff. (tjoh, )

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MAR 27 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

CLERK, U.S. DISTRICT COURT
RICHMOND, VA

Richmond Division

LEVIAN DOCKERY,

Plaintiff,
Civil Action No. 3:18-CV-56-HEH

V.

NANCY A. BERRYHILL,

Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM ORDER

(Adopting Report and Recommendation of the Magistrate Judge)
This matter comes before the Court following a Magistrate Judge's Report and

Recommendation("R&R"), drafted in accordance with 28 U.S.C. § 636(b)(1)(B) and
issued on January 3,2019(ECF No. 17). On January 17,2019,Levian Dockery {pro se
"Plaintiff)timely filed his "Objections to the Findings, Conclusions, and
Recommendations ofthe Magistrate Judge,"("Plaintiffs Objections," ECF No. 18),

which triggered this Court's de novo review ofthe R&R. See 28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b)(3). In conducting its review, this Court may accept, reject, or

modify, in whole or in part, the Magistrate Judge's recommended disposition ofthe case.
Id.

The relevant facts and procedural history are as follows:

Plaintiff filed a form Complaint in this Court on January 29,2018. (ECF No. 3.)

In his pleading. Plaintiff alleges that the Social Security Administration("SSA")has been

unlawfully garnishing his retirement benefits since 2013. (Compl. 4.) Thereafter, the

SSA's Acting Commissioner, Nancy Berryhill("Commissioner"), filed a Motion to
Dismiss(the "Motion," ECF No.9)and an accompanying Briefin Support(ECF No. 10).
In her Motion,the Commissioner makes two arguments. First, the Commissioner argues

that Plaintiffs Complaint is barred by res judicata because a virtually identical dispute

between the same parties was resolved on the merits by a district court in the District of

Maryland. See Dockery v. Comm 'r, Soc. Sec., No. 15-2650,2016 WL 3087453(D. Md.

June 1, 2016),R&R adopted(D. Md. Nov. 18, 2016).' Second,the Commissioner argues
that sovereign immunity prevented Plaintiff from challenging the garnishment of his
social security benefits. Consistent with the Commissioner's arguments,the Magistrate

Judge concluded that the defenses of res judicata and sovereign immunity combined to
bar Plaintiffs Complaint under Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6).
(R&R 6-11.)

Despite these explicit findings by the Magistrate Judge, Plaintiff fails to

specifically object to the Magistrate Judge's conclusions regarding res judicata, sovereign
immunity, and the applicability ofthese principles to the current case. {See generally
Plaintiffs Objections 1-2.) In fact. Plaintiff makes no legal argument on either issue and
he offers no authority to contradict the Magistrate Judge's conclusions. Rather,

Plaintiffs Objections merely restate the allegations and arguments that he raised in his
'
This Court takes judicial notice ofthe District of Maryland's decision. See United States v.
Harris, 331 F.2d 600,601 (6th Cir. 1964)("[I]t [is not] necessary that the Court be requested to
take judicial notice ofa fact before it is authorized to do so. The Court may take judicial notice
sua sponte.").

Complaint and in his Response to Defendant's Motion to Dismiss(ECF No. 12). (See
id.)

Here,the Court finds that the Magistrate Judge has thoroughly and thoughtfully

considered Plaintiffs previous arguments, and therefore, the Court views Plaintiffs
failure to make specific objections to the R&R as a fimctional waiver ofits stated

conclusions. 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...."); Page v. Lee, 337 F.3d 411,
416 n.3 (4th Cir. 2003)("[Pjetitioner's failure to object to the magistrate judge's

recommendation with the specificity required by the Rule is, standing alone, a sufficient

basis upon which to affirm thejudgment ofthe district court...."); see also Van Harris v.
United States, A13 F. Supp. 2d 723,724(S.D. W.Va. 2007)("The failure ofa party to

object to a Magistrate's findings and recommendation constitutes a waiver of de novo

review by the district court and a waiver of appellate review by the circuit court of
appeals."(citations omitted)).

Therefore, having reviewed the Magistrate Judge's conclusions, and having
received no new argument from the parties as to why the R&R should be
reconsidered, the Court HEREBY ACCEPTS and ADOPTS the Magistrate Judge's

Report and Recommendation in full as the OPINION ofthis Court.
Furthermore,the Court ORDERS that Defendant's Motion to Dismiss

(ECF No.9)is GRANTED,Plaintiffs Motion for a Hearing(ECF No.4)is DENIED AS

MOOT,and Plaintiffs Complaint(EOF No. 3)is DISMISSED WITH PREJUDICE.
Should Plaintiff wish to appeal this Order, written notice of appeal must be filed
with the Clerk of Court within thirty(30)days ofthe date of entry hereof. Failure to file

a notice of appeal within the stated period may result in the loss ofthei right to appeal.
The Clerk is directed to send a copy ofthis Order to all counsel ofrecord and to
the Plaintiff who is pro se.
It is so ORDERED.

/s/

Henry E. Hudson
Senior United States District Judge
Date:

Richmond, VA