Pizzuto v. Smith et al

Filing 207

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S SCHEDULING MOTIONS, OVERRULING OBJECTIONS, AFFIRMING ORDER OF THE MA GISTRATE JUDGE AND DENYING PLAINTIFF'S MOTION TO STRIKE AND PLAINTIFF'S MOTION TO TAKE JUDICIAL NOTICE AND ADMISSION OF EVIDENCE: Granting 164 Motion for Summary Judgment; Denying 166 Motion to Amend/Correct; Denying as moot 188 Mo tion to Amend/Correct; Denying as moot 189 Motion for Extension of Time to Complete Discovery; Adopting Report and Recommendations re 198 Report and Recommendations for 198 Order on Motion to Compel, Order on Motion to Strike, Order on Publ ic Motion, Order on Motion for Sanctions, Order on Motion for Hearing, Report and Recommendations; Denying 204 Motion for Discovery; Denying 205 Motion to Strike ; re 198 REPORT AND RECOMMENDATIONS re 158 MOTION to Strike 154 Obj ections, 155 Objections filed by Carol L. Gray Pizzuto, 177 MOTION to Strike 169 MOTION To Retain Experts filed by S. A. Zimmerman, 188 MOTION to Amend/Correct. Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 5/22/14. (soa)(copy to Pltff by cert. mail) (Additional attachment(s) added on 5/22/2014: # 1 Certified Mail Return Receipt) (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL L. GRAY PIZZUTO,
Plaintiff,
v.

Civil Action No. 5:12CV149
(STAMP)

SCOTT R. SMITH, KEITH C. GAMBLE,
STEPHEN M. FOWLER, D. LUKE FURBEE,
OFFICER S.A. ZIMMERMAN,
OFFICER D.L. ROBINSON,
HONORABLE JAMES P. MAZZONE,
HONORABLE ARTHUR M. RECHT,
HONORABLE RONALD E. WILSON,
KENNETH W. BLAKE, JULIE L. KREEFER,
and TONI VANCAMP,
individually and collectively,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF’S SCHEDULING MOTIONS,
OVERRULING OBJECTIONS,
AFFIRMING ORDER OF THE MAGISTRATE JUDGE AND
DENYING PLAINTIFF’S MOTION TO STRIKE AND
PLAINTIFF’S MOTION TO TAKE JUDICIAL NOTICE
AND ADMISSION OF EVIDENCE
I.

Background

The pro se1 plaintiff initiated this action in this Court by
filing a civil rights complaint which alleges that all of the named
defendants have conspired to deprive her of fair access to the
courts.

1

The plaintiff’s complaint alleges violations of the First

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

and Fourteenth Amendments of the United States Constitution and
asserts causes of action under 42 U.S.C. §§ 1981, 1982, 1983, and
1985.

Pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 636, this

Court then referred the plaintiff’s complaint to the Honorable
James E. Seibert, United States Magistrate Judge, for report and
recommendation.
Thereafter, the defendants all filed motions to dismiss.2
Following the full briefing of all of the defendants’ motions,
Magistrate

Judge

Seibert

issued

a

report

and

recommendation

recommending that this Court dismiss the plaintiff’s complaint as
to

all

defendants

(“Zimmerman”).

except

defendant

Officer

S.A.

Zimmerman

This Court affirmed the report and recommendation

in its entirety.

Thus, Zimmerman is the only defendant that

remains in this action.

A more detailed history of the case is

provided in this Court’s July 1, 2013 order.

ECF No. 107.

The parties then engaged in a series of exchanges which
ultimately led to the plaintiff filing a motion to compel the
defendant’s deposition.

The magistrate judge entered an order

denying the plaintiff’s motion to compel without an oral hearing.
The

magistrate

judge

found

that

2

the

plaintiff’s

motion

was

Defendants Blake, Fowler, and Gamble filed a joint motion to
dismiss (ECF No. 20).
Defendants Mazzone, Recht, Wilson, and
Kreefer also filed a joint motion to dismiss (ECF No. 22),
defendants Robinson, and Zimmerman filed a joint motion to dismiss
(ECF No. 24), and defendants Furbee and VanCamp filed a joint
motion to dismiss (ECF No. 28). Finally, defendant Smith filed an
individual motion to dismiss (ECF No. 26).
2

premature and that the plaintiff had not satisfied the requirement
of good faith conferral with Zimmerman.

Further, he ordered that

the plaintiff’s deposition be taken first. Despite her objections,
the plaintiff participated in a deposition.

Based on this series

of events, the plaintiff filed two more motions to compel the
defendant’s deposition and a motion to strike her deposition
testimony.

Further, the plaintiff’s most recent motions, a motion

for this Court to take judicial notice and a motion to strike
deposition testimony as hearsay, arise out of the same exchange.
After the plaintiff filed the motion to compel and the motion
to strike, the defendant filed a motion for summary judgment based
on testimony she gave at her deposition in which she testified that
she did not personally have a claim against Zimmerman.

The

plaintiff then filed a motion to amend her complaint in order to
add two more defendants, a motion to retain experts, two motions to
strike the defendant’s reply, two motions to amend the scheduling
order and deadlines in this action, and a motion for contempt. The
defendant, in response, filed a motion for sanctions and a motion
to strike the plaintiff’s motion to retain experts.
Magistrate Judge Seibert issued a report and recommendation
recommending that this Court grant the defendant’s motion for
summary judgment and deny as moot the plaintiff’s scheduling
motions.

Further, the magistrate judge held that the remaining

motions were denied.

The plaintiff has filed objections to the

3

recommendations

and

findings

of

the

magistrate

judge.

The

defendant did not file objections. However, the defendant did file
a

response

to

the

plaintiff’s

objections

to

the

report

and

recommendation in which he argued that the plaintiff’s objections
should

not

be

considered

by

this

Court

because

of

their

generality.3
For the reasons that follow, this Court affirms and adopts the
magistrate judge’s recommendations that the motion for summary
judgment be granted and the plaintiff’s two scheduling motions be
denied as moot. Further, this Court affirms the magistrate judge’s
holdings as to the other motions that were pending in this action
for which objections were received. Finally, this Court denies the
plaintiff’s

motion

to

strike

and

the

plaintiff’s

motion

for

judicial notice.
II.
A.

Applicable Law

Motion for Summary Judgment and Plaintiff’s Scheduling Motions
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct

a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

As to those

portions of a recommendation to which no objection is made, a

3

In an abundance of caution, this Court will consider the
objections by the plaintiff.
The Court has considered five
allegations made by the plaintiff as objections to the defendant’s
motion for summary judgment and has considered the remainder of the
plaintiff’s objections as objections to the magistrate judge’s
denial of the plaintiff’s nondispositive motions pursuant to a
clearly erroneous standard. See supra *7.
4

magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
§ 636(b)(1)(A).

28 U.S.C.

The plaintiff has filed objections and this Court

will review the portions of the magistrate judge’s report and
recommendations with which these objections take issue de novo.
All portions of the report and recommendations to which the
plaintiff has not objected are reviewed for clear error.
B.

Nondispositive Pretrial Motions
As to nondispositive pretrial matters, a magistrate judge’s

ruling may be reversed only on a finding that the order is “clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a); 28 U.S.C.

§ 636(b)(1). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake
has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).

In light of the broad discretion given

to a magistrate judge in the resolution of nondispositive discovery
disputes, the court should only overrule a magistrate judge’s
determination if this discretion is abused.

Detection Sys., Inc.

v. Pittway Corp., 96 F.R.D. 152, 154 (W.D. N.Y. 1982).

5

III.
A.

Discussion

Motion for Summary Judgment and Plaintiff’s Scheduling Motions
1.

Motion for Summary Judgment

To

reiterate,

this

Court

has

dismissed

several

of

the

defendants in this action and claims that were initially brought by
the plaintiff. Thus, the only remaining claim the plaintiff has in
this action is her allegation that Zimmerman leaked information in
order to deprive the plaintiff of her constitutional rights.

The

magistrate judge found in his report and recommendation that it was
clear that Zimmerman was a state actor when the actions complained
of occurred.
plaintiff

Thus, the magistrate judge focused on whether the

has

shown

that

Zimmerman

violated

the

plaintiff’s

constitutional rights by leaking information.
The defendant, in his motion for summary judgment, argued that
there

was

no

genuine

issue

of

material

fact

supporting

the

plaintiff’s claim because she admitted in her deposition that it
was Dennis Givens who gave Zimmerman the alleged confidential
documents and that the documents were not related to her nor
belonged to her.

Thus, the plaintiff cannot show that she has a

legitimate expectation of privacy in the documents or that she was
foreclosed

from

unrelated to her.

use

of

the

courts

by

the

leak

of

documents

The magistrate judge found that the deposition

transcript was credible and thus adopted Zimmerman’s argument to

6

find that there were no genuine issues of material fact in this
action.
Further, the magistrate judge found that the plaintiff could
not support her argument for more discovery under Federal Rule of
Civil Procedure 56(d).

The magistrate judge found that the

plaintiff’s request to depose the defendant would not unearth
evidence that would create a genuine issue of material fact.
Additionally, the magistrate judge reasoned that the plaintiff was
not entitled to more discovery as she was the one who foreclosed an
opportunity to depose Zimmerman (by not fulfilling her discovery
obligations).
The plaintiff provides several objections to the magistrate
judge’s report and recommendations granting the motion for summary
judgment: (1) Keith Gamble has been indicted for utterance which is
evidence that something has gone awry here; (2) the plaintiff has
not had the opportunity to depose the defendant; (3) Zimmerman was
aware that the documents were her documents because of previous
encounters they had while in state court; (4) Zimmerman also failed
to fully investigate her criminal complaint; and (5) the deposition
transcript is incorrect and the plaintiff was misled by Zimmerman’s
attorney.

She also provides the same arguments as made in her

numerous motions, for example, that Zimmerman cited the West
Virginia Rules of Civil Procedure instead of the Federal Rules of
Civil Procedure in the notice of her deposition.

7

The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.” Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)).

However, as the United States Supreme

Court noted in Anderson, “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but
. . . must set forth specific facts showing that there is a genuine
issue for trial.”

Id. at 256.

“The inquiry performed is the

threshold inquiry of determining whether there is the need for a
trial-whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.”

Id. at 250;

see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979) (Summary judgment “should be granted only in those cases
where it is perfectly clear that no issue of fact is involved and
inquiry into the facts is not desirable to clarify the application
of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d
390, 394 (4th Cir. 1950))).

8

Further, summary judgment is generally appropriate only after
adequate time for discovery.

Evans v. Technologies Applications &

Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
must

be

refused

where

the

nonmoving

“[S]ummary judgment

party

has

not

had

the

opportunity to discover information that is essential to his
opposition.”

Anderson, 477 U.S. at 250 n.5.

However, “great

weight [is placed] on the [Federal Rule of Civil Procedure] Rule
[56(d)] affidavit, believing that a party may not simply assert in
its brief that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirements of Rule
[56(d)] to set out reasons for the need for discovery in an
affidavit.”

Evans, 80 F.3d at 961.

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
First, this Court will not consider the plaintiff’s objection
(number 4 above) that Zimmerman failed to fully investigate her
criminal complaint as that claim has been dismissed by this Court.
Further, as explained below, this Court finds that the magistrate
judge’s recommendation to grant the defendant’s motion for summary
judgment should be affirmed and adopted.
The plaintiff’s first objection, that Keith Gamble has been
indicted for utterance which is evidence that something has gone
awry here, does not provide a genuine issue of material fact.

9

The

conduct of Keith Gamble is not at issue here, rather, the conduct
of Zimmerman is at issue.

This objection is thus overruled as it

does not provide evidence that would support a finding that the
plaintiff should be allowed to continue this litigation based on
the claim that Zimmerman dispersed confidential information in
violation of her constitutional rights.
The next objection by the plaintiff, that the plaintiff has
not had the opportunity to depose the defendant, must also be
overruled.

In this action, the plaintiff foreclosed the need for

a deposition of the defendant by stating that her claim was
frivolous and that in fact she had no right to bring the claim on
behalf of Dennis Givens.

Thus, the plaintiff’s objection is not

supported by the deposition transcript (see ECF No. 198 *2-5 for
pertinent deposition testimony by the plaintiff) and the series of
events that have occurred in this action to make it unnecessary for
Zimmerman’s deposition to be taken.
conduct

of

not

completing

her

Further, the plaintiff’s own

deposition

also

foreclosed

an

opportunity to depose the defendant as she did not comply with the
magistrate

judge’s

underlying

order

that

her

completed first before the defendant’s deposition.
As

to

the

plaintiff’s

third

and

fifth

deposition

be

ECF No. 151.

objections,

that

Zimmerman was aware that the documents were her documents because
of previous encounters they had while in state court and that the
deposition transcript is incorrect and the plaintiff was misled by

10

Zimmerman’s attorney, these claims are unfounded.

The plaintiff

has provided no evidence for such assertions in her objections
other than a letter from the court reporter who recorded her
deposition, her own assertions, and an affidavit completed by Greg
Givens.
The letter from the court reporter actually provides more
support for the defendant’s version of the plaintiff’s deposition
than that of the plaintiff’s position.

The letter states that the

court reporter is unaware of any unauthorized versions of the
plaintiff’s deposition and further states that the court reporter
has “never been ‘strong armed’ into making additions, deletions, or
alterations” to the plaintiff’s deposition.

ECF No. 202-1.

This

eyewitness testimony of the deposition provides this Court with an
insight into what happened at the deposition, along with the
provided

deposition

transcript,

and

does

not

support

the

accusations made by the plaintiff in her objections. Additionally,
the

plaintiff

provides

no

evidence

other

than

her

own

bare

assertions that Zimmerman was aware that the documents she gave him
were her own.

To the contrary, the plaintiff has testified

inapposite to the argument the plaintiff is now asserting.
Finally, the affidavit of Greg Givens provides a possibly
biased piece of evidence to support the plaintiff’s assertions as
Mr. Givens has an action now pending against Zimmerman in this
Court, Givens v. Smith, et al., Civil Action No. 5:12CV155 (N.D. W.

11

Va.). However, even without taking into account the possible bias,
the affidavit provides nothing more than bare assertions that
Zimmerman’s deposition testimony in the Givens case would provide
evidence to support a finding that the motion for summary judgment
should not be granted.
Again, “a party may not simply assert in its brief that
discovery was necessary . . . .”
the

plaintiff’s

unfounded

Evans, 80 F.3d at 961.

allegations

and

the

Based on

plaintiff’s

misrepresentation of evidence, this Court finds that the plaintiff
has done just that, merely asserted without basis that discovery is
still necessary and summary judgement should not be granted in this
action.
2.

Plaintiff’s Scheduling Motions

The magistrate judge recommended that the plaintiff’s motion
to amend the scheduling order and the plaintiff’s motion to extend
deadlines be denied as moot.
affirmed

the

magistrate

As this Court has adopted and

judge’s

recommendation

to

grant

the

defendant’s motion for summary judgment and thus dismiss this
action,

this

Court

also

upholds

the

magistrate

judge’s

recommendation to deny these scheduling motions as moot.
B.

Nondispositive Pretrial Motions
As stated previously, several nondispositive motions were

filed by the parties throughout the litigation of this matter. The
defendant did not file objections to the magistrate judge’s order

12

denying the defendant’s motion to strike the plaintiff’s motion to
retain experts or the defendant’s motion for sanctions.

As such,

this Court will not review those motions. However, given the broad
objections by the plaintiff, this Court will dispose of the
plaintiff’s remaining motions below.
1.

Plaintiff’s Motion to Compel

The plaintiff argues in this motion that the defendant should
be

compelled

to

complete

a

deposition

as

the

plaintiff

has

completed her deposition pursuant to the magistrate judge’s order.
The magistrate judge found, however, that the plaintiff did not
complete her deposition and thus the defendant was not required to
provide dates for his deposition.

This Court finds that the

finding by the magistrate judge is not clearly erroneous and must
be affirmed because the deposition transcript provides evidence
that the plaintiff did not complete her deposition and thus the
defendant was not required to provide dates for his deposition.
See ECF No. 198 *2-5 (providing pertinent testimony from the
plaintiff’s deposition).
2.

Plaintiff’s Motion to Strike the Plaintiff’s Deposition

The plaintiff argues in this motion that she was not provided
proper notice of her deposition because the defendant cited the
West Virginia Rules of Civil Procedure rather than the Federal
Rules

of

Civil

Procedure

in

the

notice

for

the

deposition.

Further, the plaintiff contends that the deposition transcript has

13

been changed to make it seem like the plaintiff had agreed to
dismiss this action. The magistrate judge found the first argument
to be moot as the parties had discussed the rules to be applied
prior to her deposition being taken and found the second argument
as frivolous and unfounded. Again, this Court must uphold the
finding of the magistrate judge as the deposition transcript shows
that the parties had discussed the rules to be applied prior to the
plaintiff’s deposition and the plaintiff has been unable to provide
substantiated

evidence

deposition transcript.

that

changes

have

been

made

to

her

See ECF No. 198 *2-5 (providing pertinent

testimony from the plaintiff’s deposition); ECF No. 202-1 (wherein
the court reporter states that she is unaware of altered versions
of the plaintiff’s deposition transcript).
3.

Plaintiff’s Motion to Amend Complaint

The plaintiff seeks to add two new defendants to the complaint
but does not seek any other amendments to the complaint.

The

magistrate judge found that the amendment proposed would be futile
and subject to immediate dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6). This Court finds that the proposed
amendment by the plaintiff would be futile as the amendment simply
makes the same claims against the two new defendants as the
plaintiff has made against Zimmerman.
Leave to amend should be denied “only when the amendment would
be prejudicial to the opposing party, there has been bad faith on

14

the part of the moving party, or the amendment would be futile.”
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)
(citation omitted).

The amendment the plaintiff seeks to add

reiterates the same arguments the plaintiff has made against
Zimmerman but simply attempts to add the defendants as they were
“part and parcel” to the complained of conduct by Zimmerman.

This

Court has already found that summary judgment is appropriate as the
plaintiff

has

Zimmerman.

been

unable

to

substantiate

the

claim

against

Accordingly, the same claim, without evidence to

substantiate it, would be futile.

Thus, the Court finds that the

magistrate judge’s denial of the plaintiff’s motion was not clearly
erroneous pursuant to Federal Rule of Civil Procedure 15 because
the amendment would be futile.
4.

As such, the finding is affirmed.

Plaintiff’s Motion to Retain Experts

As to the plaintiff’s motion to retain experts, the magistrate
judge denied this motion because the plaintiff is free to retain
experts without the Court’s permission.

Further, the magistrate

judge found that if this was an expert witness disclosure, it did
not comply with Federal Rule of Civil Procedure 26(a)(2).

At a

minimum, a witness disclosure must provide “(i) the subject matter
on which the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts
and opinions to which the witness is expected to testify.”

Fed R.

Civ. P. 26(a)(2). As the magistrate judge found, the plaintiff did

15

not provide the information described above (which does not even
include the additional requirements for an expert witness) in
either her motion to retain experts or her disclosure of possible
witnesses.

Thus, the magistrate judge’s finding was not clearly

erroneous.
5.

Plaintiff’s Motions to Strike the Defendant’s Replies

The plaintiff argues in two separate motions, a motion to
strike the defendant’s reply to response to motion for sanctions
and a motion to strike the defendant’s reply to response to motion
for summary judgment, that the Local Rules of Civil Procedure do
not allow the filing of reply briefs.

The magistrate judge notes

in his order that he had previously informed the plaintiff that the
Local Rules do not allow surreplies without leave of court but do
allow replies.

Thus, the magistrate judge denied these motions as

the plaintiff should now be aware of the proper motions practice in
this Court and her motions are unfounded.

This Court affirms the

magistrate judge’s finding as it is not clearly erroneous pursuant
to Local Rule of Civil Procedure 7.02 which states that a reply may
be filed without leave but that the filing of a surreply requires
leave of court.
6.

Plaintiff’s Motion for Contempt

The plaintiff argues in this motion that the defendant should
be held in contempt for not providing dates for his deposition.
The magistrate judge found that because the plaintiff did not

16

fulfill her deposition obligation, the defendant was not required
to provide dates.

This Court has previously upheld the magistrate

judge’s order that the plaintiff complete her deposition before the
defendant was required to complete his.

ECF No. 200.

As such,

this Court finds that the magistrate judge’s finding denying the
plaintiff’s motion for contempt is not clearly erroneous as the
plaintiff did not complete her deposition.
C.

See ECF No. 198 *2-5.

Plaintiff’s Motion to Strike and Motion for Judicial Notice
1.

Motion to Strike

In her motion to strike, the plaintiff argues that there is a
discrepancy in Zimmerman’s pleadings and filings and that any
testimony given by her during her deposition that is deemed hearsay
should be excluded.

The plaintiff cites Federal Rule of Evidence

801 in support of her assertion that her testimony should be
stricken.
However, a party admission is not hearsay pursuant to the
Federal Rules of Evidence. The rule cited by the plaintiff herself
states that if a “statement is offered against an opposing party
and . . . was made by the party in an individual or representative
capacity,” it is not hearsay.

Fed. R. Evid. 801.

In this case,

the statements the plaintiff is attempting to strike are her own
from the deposition testimony.

Thus, those statements are party

admissions as they were made by the plaintiff in her individual
capacity and are offered by the defendant (an opposing party) in

17

his motion for summary judgment against the plaintiff.

Thus, the

plaintiff’s motion must be denied.
2.

Motion for Judicial Notice

In her motion for judicial notice, the plaintiff again asserts
her allegations against Keith Gamble and offers the same evidence
that this Court has now found is unsupported or does not have a
determinative effect on this action.

As such, the Court declines

to take judicial notice of the plaintiff’s allegations and evidence
in her motion for judicial notice.
IV.

Thus, the motion is denied.

Conclusion

Based on the above, the report and recommendation of the
magistrate judge (ECF No. 198) is AFFIRMED and ADOPTED and the
plaintiff’s

objections

thereto

are

OVERRULED.

As

such,

the

defendant’s motion for summary judgment (ECF No. 164) is GRANTED;
the plaintiff’s motion to amend the scheduling order (ECF No. 188)
is DENIED AS MOOT; and the plaintiff’s motion to extend deadlines
(ECF No. 189) is DENIED AS MOOT.
Further,

the

order

of

the

magistrate

judge

as

to

the

nondispositive motions is AFFIRMED and the plaintiff’s objections
thereto are OVERRULED. Thus, the plaintiff’s motions to compel the
defendant’s deposition (ECF Nos. 157 and 174) are DENIED; the
plaintiff’s motion to strike deposition testimony (ECF No. 158) is
DENIED; the plaintiff’s motion for leave to amend complaint (ECF
No. 166) is DENIED; the plaintiff’s motion to retain experts (ECF

18

No. 169) is DENIED; the plaintiff’s motion to strike defendant’s
reply to response to motion for sanctions (ECF No. 186) is DENIED;
the plaintiff’s motion to strike defendant’s reply to response to
motion for summary judgement (ECF No. 187) is DENIED; and the
plaintiff’s motion for contempt (ECF No. 196) is DENIED.
Finally, the plaintiff’s motion to take judicial notice (ECF
No.

204)

and

the

plaintiff’s

motion

to

strike

statement

of

plaintiff deemed hearsay (ECF No. 205) are DENIED.
It is further ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, she is ADVISED that she
must file a notice of appeal with the Clerk of this Court within 30
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and by certified mail
to the pro se plaintiff.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

19

DATED:

May 22, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

20