Toler v. United States of America et al

Filing 25

MEMORANDUM OPINION AND ORDER: adopting the 12 Proposed Findings and Recommendations of the Magistrate Judge; dismissing the Plaintiff's 1 Complaint as to United States Probation Officer Brett Taylor and as to the United States Probation Off ice for the Southern District of West Virginia; referring this matter back to Magistrate Judge Aboulhosn for further proceedings on the Plaintiff's FTCA claim against the remaining Defendant, the United States of America. Signed by Judge Irene C. Berger on 8/29/2017. (cc: Magistrate Judge Aboulhosn; attys; any unrepresented party) (btm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

GARRY L. TOLER,
Plaintiff,
v.

CIVIL ACTION NO. 5:17-cv-02382

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

On April 18, 2017, the Plaintiff, proceeding pro se, filed his Claim for Damage, Injury or
Death (Document 1) which has been construed by this Court as a Complaint seeking relief pursuant
to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. By Standing Order
(Document 2) entered that same date, this action was referred to the Honorable Omar J. Aboulhosn,
United States Magistrate Judge, for submission to this Court of proposed findings of fact and
recommendation for disposition, pursuant to 28 U.S.C. § 636.
On August 4, 2017, the Magistrate Judge submitted a Proposed Findings and
Recommendation (Document 12) wherein it is recommended that this Court dismiss the Plaintiff’s
Complaint as to United States Probation Officer Brett Taylor and as to the United States Probation
Office for the Southern District of West Virginia, and that the Court refer the matter back to the
Magistrate Judge for further proceedings on the Plaintiff’s FTCA claim.

1

Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due
by August 21, 2017, and none were timely filed by either party. 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 a party’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).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS that the Plaintiff’s Complaint (Document 1) is DISMISSED as
to United States Probation Officer Brett Taylor and as to the United States Probation Office for
the Southern District of West Virginia.

The Court further ORDERS that this matter is

REFERRED back to Magistrate Judge Aboulhosn, pursuant to 28 U.S.C. § 636, for further
proceedings on the Plaintiff’s FTCA claim against the remaining Defendant, the United States of
America.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, counsel of record, and any unrepresented party.
ENTER:

2

August 29, 2017