Phillips v. Payne Jones ( 2020 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:20-cv-00007-RJC-DCK DAVID LEE PHILLIPS, ) ) Plaintiff, ) ) v. ) ) ORDER DR. CARROLL PAYNE JONES, ) ) Defendant. ) ) THIS MATTER comes before the Court on Defendant’s motion to dismiss, (Doc. No. 4), and the Magistrate Judge’s Memorandum and Recommendation (“M&R”), (Doc. No. 9). I. BACKGROUND On January 6, 2020, Plaintiff filed his pro se complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) The complaint asserts eight counts of negligence arising out of a foot surgery performed by Defendant. On January 16, 2020, Defendant filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. No. 4.) In the M&R, the Magistrate Judge recommended that this Court grant Defendant’s motion and dismiss Plaintiff’s complaint for lack of subject matter jurisdiction. (Doc. No. 9, at 6.) The Magistrate Judge advised the parties of their right to file objections within fourteen days, (Doc. No. 9, at 6–7); however, no objections were filed, and the time for doing so has expired. II. STANDARD OF REVIEW The district court may assign dispositive pretrial matters pending before the court to a magistrate judge for “proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(B). The Federal Magistrate Act provides that a district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note). III. DISCUSSION As no objection to the M&R has been made, the parties have waived their right to de novo review of any issues covered in the M&R. After review of the M&R and the entire record, the Court concludes that the recommendation of the Magistrate Judge to grant Defendant’s motion to dismiss for lack of subject matter jurisdiction is fully consistent with and supported by current law. Therefore, the Court adopts the M&R. IV. CONCLUSION IT IS THEREFORE ORDERED that: 1. The Magistrate Judge’s M&R, (Doc. No. 9), is ADOPTED; 2. Defendant’s motion to dismiss, (Doc. No. 4), is GRANTED; and 3. The Clerk of Court is directed to close this case. soll Robert J. Conrad, Jr. hed. J es te sue United States District Judge Signed: August 13, 2020