Benjamin v. United States of America

Filing 14

ORDER ADOPTING 11 REPORT AND RECOMMENDATIONS. This Court ORDERS that the plaintiffs Complaint [Doc. 1 be DISMISSED WITHOUT PREJUDICE. Plaintiffs Motion for Leave to Proceed in forma pauperis [Doc. 2 and plaintiffsMotion for Preliminary Injunct ion [Doc. 9 are DENIED AS MOOT. Plaintiffs Motion Requesting Additions to be Added to Federal Tort Claim [Doc. 7 is DENIED. This Court further ORDERS that this matter be STRICKEN from the active docket of this Court and DIRECTS the Clerk to enter judgment in favor of respondent. Signed by District Judge John Preston Bailey on 11/27/18. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 11/27/2018: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
NEAL BENJAMIN,
Plaintiff,
v.

CIVIL ACTION NO. 2:18-CV-26
(BAILEY)

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge James P. Mazzone
[Doc. 11]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate
Judge Mazzone for submission of a proposed report and recommendation (“R&R”).
Magistrate Judge Mazzone filed his R&R on October 29, 2018, wherein he recommends
plaintiff’s Complaint [Doc. 1] be dismissed without prejudice. Further, he recommends
plaintiff’s Motion for Leave to Proceed in forma pauperis [Doc. 2] and Motion for Preliminary
Injunction [Doc. 9] be denied as moot.

Finally, Magistrate Judge Mazzone also

recommends plaintiff’s Motion Requesting Additions to be Added to Federal Tort Claim
[Doc. 7] be denied.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or

1

recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Mazzone’s R&R were due within
fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
The docket reflects that service was accepted on November 5, 2018 [Doc. 12]. To date,
no objections have been filed. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 11] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report.

Accordingly, this Court

ORDERS that the plaintiff’s Complaint [Doc. 1] be DISMISSED WITHOUT PREJUDICE.
Further, plaintiff’s Motion for Leave to Proceed in forma pauperis [Doc. 2] and plaintiff’s
Motion for Preliminary Injunction [Doc. 9] are DENIED AS MOOT. Finally, plaintiff’s Motion
Requesting Additions to be Added to Federal Tort Claim [Doc. 7] is DENIED. This Court
further ORDERS that this matter be STRICKEN from the active docket of this Court and
DIRECTS the Clerk to enter judgment in favor of respondent.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein
and to mail a copy to the pro se petitioner.

2

DATED: November 27, 2018.

3