Umberger v. Underwood

Filing 10

MEMORANDUM OPINION AND ORDER: adopting the 9 Proposed Findings and Recommendations; granting 3 Motion to Dismiss Christy Underwood and Substitute the United States of America; granting 5 Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by United States of America; denying as moot 8 Motion to Dismiss Without Prejudice filed by Christopher Umberger; dismissing this case from the docket. Signed by Judge Thomas E. Johnston on 2/3/2009. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION CHRISTOPHER UMBERGER, Plaintiff, v. CHRISTY UNDERWOOD, et al., Defendants. CIVIL ACTION NO. 5:08-cv-00883

MEMORANDUM OPINION AND ORDER Pending before the Court are the Motion to Dismiss Defendant Christy Underwood and Substitute the United States of America [Docket 3], the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction [Docket 5], and Plaintiff's Motion to Dismiss Without Prejudice [Docket 8]. By Standing Order entered on August 1, 2006, and filed in this case on July 1, 2008, this action was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings and a recommendation (PF&R). Magistrate Judge VanDervort filed his PF&R [Docket 9] on January 7, 2009, recommending that this Court GRANT the United States' motion to substitute and motion to dismiss and DENY AS MOOT Plaintiff's motion to dismiss. 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 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 the Petitioner's right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989);

United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de novo review when a party "makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R in this case were due on January 26, 2009. To date, no objections have been filed. Accordingly the Court ADOPTS the PF&R [Docket 9], GRANTS the Motion to Dismiss Defendant Christy Underwood and Substitute the United States of America [Docket 3], GRANTS the United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction [Docket 5], DENIES AS MOOT Plaintiff's Motion to Dismiss Without Prejudice [Docket 8], and DISMISSES the case from the docket. A separate Judgment Order will enter this day implementing the rulings contained herein. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: February 3, 2009

_________________________________________ THOMAS E. JOHNSTON UNITED STATES DISTRICT JUDGE

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