Brown v. Hudgins et al

Filing 71

ORDER ADOPTING 69 REPORT AND RECOMMENDATION. Signed by District Judge Gina M Groh on 1/17/2023. Copy to pro se pls by cm,rrr.(cmd) (Additional attachment(s) added on 1/17/2023: # 1 Certified Mail Return Receipt) (cmd).

Case 3:21-cv-00146-GMG Document 71 Filed 01/17/23 Page 1 of 3 PageID #: 591

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
CARLTON BROWN,
Plaintiff,
v.

CIVIL ACTION NOS.: 3:21-CV-146
5:21-CV-159
(GROH)

UNITED STATES OF AMERICA,
R. HUDGINS,
CAPTAIN HAGGAMYER, and
DOE,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
Now before the Court is a Report and Recommendation (“R&R”) issued by United
States Magistrate Judge Robert W. Trumble. ECF No. 69 in 3:21-CV-146. Pursuant to
this Court’s Local Rules, this civil action was referred to Judge Trumble for submission of
a proposed R&R. LR Civ P 72.01. Judge Trumble issued the R&R on October 21, 2022,
recommending that the Plaintiff’s Complaint against the United States of America
pursuant to the Federal Tort Claims Act (“FTCA”) [ECF No. 1 in 5:21-CV-159] be
dismissed with prejudice for failure to state a claim upon which relief may be granted and
recommending that the Plaintiff’s Complaint against Defendants R. Hudgins, Captain
Haggamyer and Doe pursuant to Bivens [ECF No. 1 in 3:21-CV-146] be dismissed with
prejudice based on the adverse disposition of the Plaintiff’s FTCA complaint.
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

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factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). Failure to file timely objections constitutes a waiver of de novo review and of
a party’s 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).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three
days of the Plaintiff being served with a copy of the same. 28 U.S.C. ' 636(b)(1); Fed. R.
Civ. P. 72(b). The Plaintiff accepted service of the R&R on October 28, 2022. ECF No.
70. As of the date of this Order, no objections have been filed. Therefore, after allowing
additional time for transit in the mail, the Court finds that the deadline to submit objections
to the R&R has passed. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the R&R, it is the opinion of this Court that Magistrate Judge
Trumble=s Report and Recommendation [ECF No. 69] should be, and is hereby,
ORDERED ADOPTED.

For the reasons more fully stated in the R&R, this Court

ORDERS that the Defendants’ Motion to Dismiss [ECF No. 35] be GRANTED, that the
Plaintiff’s Complaint against the United States of America pursuant to the FTCA [ECF No.
1 in 5:21-CV-159] be DISMISSED WITH PREJUDICE for failure to state a claim upon
which relief may be granted and that the Plaintiff’s Complaint against Defendants R.
Hudgins, Captain Haggamyer and Doe pursuant to Bivens [ECF No. 1 in 3:21-CV-146]
be DISMISSED WITH PREJUDICE based on the adverse disposition of the Plaintiff’s
FTCA complaint. Lastly, the Court ORDERS that the Plaintiff’s Motion to Enter Evidence
Into the Record Due to Inadvertence and Mistake/Affidavit [ECF No. 67] be

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TERMINATED as MOOT.
The Clerk of Court is DIRECTED to STRIKE both cases from the Court’s active
docket. The Clerk is FURTHER DIRECTED to transmit copies of this Order to all counsel
of record herein and mail a copy of this Order to the pro se Plaintiff by certified mail, return
receipt requested, at his last known address as reflected on the docket sheet.
DATED: January 17, 2023

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