Toler v. United States of America et al

Filing 29

MEMORANDUM OPINION AND ORDER: adopting the 28 Proposed Findings and Recommendations of the Magistrate Judge; dismissing without prejudice the Plaintiff's 1 , 6 and 11 Complaints; denying as moot the United States' 16 , 20 and 21 Motions to Dismiss; removing this matter from the Court's docket. Signed by Judge Irene C. Berger on 1/3/2018. (cert. 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,
Defendant.

MEMORANDUM OPINION AND ORDER

On April 18, 2017, the Plaintiff, acting pro se, filed a Claim for Damages, Injury, or Death
(Document 1), the same being construed as a Complaint by this Court. The Plaintiff subsequently
filed two amended Complaints (Documents 6 and 11) on May 15, 2017, and July 18, 2017,
respectively. Also before the Court are the original, amended, and second amended motions to
dismiss filed by the United States of America (Documents 16, 20, and 21).
By Standing Order (Document 2) entered on April 18, 2017, 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
December 5, 2017, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 28) wherein it is recommended that the Plaintiff’s Complaints (Documents 1, 6 & 11)
be dismissed without prejudice, that the United States’ Motions to Dismiss (Documents 16, 20 &

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21) be denied as moot, and that this matter be removed from the Court’s docket. Objections to
the Magistrate Judge=s Proposed Findings and Recommendation were due by December 22, 2017.
Neither party has timely filed objections to the Magistrate Judge=s Proposed Findings and
Recommendation. 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 the Plaintiff’s Complaints (Documents 1, 6 & 11) be
DISMISSED WITHOUT PREJUDICE, that the United States’ Motions to Dismiss (Documents
16, 20 & 21) be DENIED AS MOOT, and that this matter be REMOVED from the Court’s
docket.
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:

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January 3, 2018