Manivannan v. Bochenek

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING DEFENDANT'S MOTION TO DISMISS, AND DISMISSING COMPLAINT WITHOUT PREJUDICE: It is ORDERED that Magistrate Judge Aloi's 20 Report and Recommendation is ADOPTED; Defendant's 6 Moti on to Dismiss is GRANTED, and Plaintiff's 1 Complaint is DISMISSED WITHOUT PREJUDICE. The Clerk is DIRECTED to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 5/21/18. (copy Plaintiff)(cnd) (Additional attachment(s) added on 5/21/2018: # 1 Certified Mail Return Receipt) (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AYYAKKANNU MANIVANNAN,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:17CV216
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20],
GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 6],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
On April 5, 2017, the pro se plaintiff, Ayyakkannu Manivannan
(“Manivannan”), filed a complaint in the Magistrate Court of
Monongalia County, West Virginia, naming Grace M. Bochenek, Ph.D.,
Director

of

the

National

Energy

Technology

Laboratory

(“Dr.

Bochenek”), as the sole defendant and stating only, “Help me
retrieve my personal belongings in my former office” (Dkt. No. 11). On December 14, 2017, despite the fact that Dr. Bochenek had
not yet been properly served, the United States removed the action
to this Court (Dkt. No. 1), and pursuant to 28 U.S.C. §§ 1441(a)(1)
and 2679(d)(2), also moved to substitute the United States as the
defendant (Dkt. No. 2).
Pursuant to 28 U.S.C. § 636 and the local rules, the Court
referred any motion in this case to the Honorable Michael J. Aloi,
United States Magistrate Judge, for written orders or reports and
recommendations (Dkt. No. 4). On December 27, 2017, the United

MANIVANNAN V. UNITED STATES

1:17CV216

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20],
GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 6],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
States moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(1) (Dkt. No. 6).
In a Report and Recommendation (“R&R”) entered on February 21,
2018, Magistrate Judge Aloi recommended that the Court dismiss the
complaint without prejudice for lack of subject-matter jurisdiction
(Dkt.

No.

20).1

More

particularly,

the

R&R

concluded

that

Manivannan had failed to exhaust his administrative remedies as
required by § 2675(a) of the Federal Tort Claims Act. Id. at 5-6.
The R&R further concluded that, to the extent the complaint could
be read as a request for injunctive relief under § 702 of the
Administrative Procedure Act, Manivannan had failed to identify any
final agency action to be reviewed. Id. at 6-8.
The R&R also informed the parties of their right to file
“written objections identifying the portions of the Report and
Recommendation to which objection is made, and the basis for such
objection.” Id. at 8. It further warned that the failure to do so
may

result

in

waiver

of

the

right

to

appeal.

Id.

Although

Manivannan received a copy of the R&R by certified mail on February
23, 2018 (Dkt. No. 21), neither party has filed any objections to
the R&R.
1

On the same day, Magistrate Judge Aloi granted the United
States motion to substitute (Dkt. No. 20 at 3).
2

MANIVANNAN V. UNITED STATES

1:17CV216

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20],
GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 6],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may
adopt,

without

recommendations

explanation,
to

which

any

the

of

the

prisoner

magistrate
does

not

judge’s
object.”

Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04 (N.D.W. Va.
2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)).
Courts will uphold those portions of a recommendation to which no
objection has been made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
Because neither party has objected, the Court is under no
obligation to conduct a de novo review. Dellacirprete, 479 F. Supp.
2d at 603-04. Upon review of the R&R and the record for clear
error, the Court:
1)

ADOPTS the R&R (Dkt. No. 20);

2)

GRANTS the defendant’s motion to dismiss (Dkt. No. 6);
and

3)

DISMISSES the complaint WITHOUT PREJUDICE (Dkt. No. 1).

It is so ORDERED.

3

MANIVANNAN V. UNITED STATES

1:17CV216

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 20],
GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 6],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail and
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: May 21, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

4