Myers v. General Motors

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 10/29/2018. Copy sent certified mail, return receipt to pro se Plaintiff.(tlg) (Additional attachment(s) added on 10/29/2018: # 1 Certified Mail Return Receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

KENNETH MYERS,
Plaintiff,
v.

CIVIL ACTION NO.: 3:17-CV-122
(GROH)

GENERAL MOTORS,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION
Currently pending before the Court is a Report and Recommendation (“R&R”)
issued by United States Magistrate Judge Robert W. Trumble. ECF No. 27. Pursuant
to this Court’s Local Rules, this action was referred to Magistrate Judge Trumble for
submission of an R&R. On October 15, 2018, Magistrate Judge Trumble issued his
R&R, recommending that this Court dismiss the Plaintiff’s amended complaint without
prejudice and deny as moot his application to proceed in forma pauperis.
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, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner
constitutes a waiver of de novo review and a plaintiff’s right to appeal this Court’s order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Moreover, “[w]hen a party

does make objections, but these objections are so general or conclusory that they fail to
direct the district court to any specific error by the magistrate judge, de novo review is
unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730 (S.D. W. Va. 2009)
(citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure, objections to Magistrate Judge Trumble’s R&R were due within fourteen days
after being served with a copy of the same. The R&R was sent to the Plaintiff by certified
mail, return receipt requested, on October 15, 2018.

ECF No. 27.

The Plaintiff

accepted service on October 18, 2018. ECF No. 28. The Plaintiff filed his objections on
October 25, 2018.

ECF No. 30.

However, the Plaintiff did not make any specific

objections. Rather, he reiterated his amended complaint and averred that he “stated a
claim [upon] which relief can be granted.” ECF No. 30 at 1. Accordingly, without any
specific objections, de novo review is waived.
Nevertheless, upon review, the Court finds that Magistrate Judge Trumble
correctly concluded that the Plaintiff fails to state a claim upon which relief may be
granted. In his amended complaint [ECF No. 25], the Plaintiff alleges that he was driving
home from work when “suddenly right in the middle of the road, the car caught on [fire].”
ECF No. 25.

This is the sole fact upon which the Plaintiff bases his case.

Consequently, there is insufficient factual content to allow the Court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Therefore, upon careful review and finding no clear error, the Court ORDERS that
Magistrate Judge Trumble’s Report and Recommendation [ECF No. 27] is ADOPTED for
the reasons more fully stated therein. The Plaintiff’s Amended Complaint [ECF No. 25]

is DISMISSED WITHOUT PREJUDICE and the Plaintiff’s Motion for Leave to Proceed In
Forma Pauperis [ECF No. 5] is DENIED AS MOOT.
The Clerk is DIRECTED to strike this case from the Court’s active docket and
transmit a copy of this Order to the pro se Plaintiff by certified mail, return receipt
requested.
DATED: October 29, 2018