United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge
matter is before the Court for consideration of
Plaintiff's objection to the Amended Report and
Recommendation (“R & R”) of United States
Magistrate Judge Kaymani D. West. See ECF Nos. 26
& 29. The Magistrate Judge recommends partial summary
dismissal of Plaintiff's complaint.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
brings this case pursuant to the Federal Tort Claims Act
(“FTCA”) seeking monetary damages for alleged
medical malpractice relating to her cancer treatment at
Veterans Affairs (“V.A.”) facilities.
See ECF No. 1. The Magistrate Judge recommends that
the Court summarily dismiss all defendants except Arle,
Gordon, and the United States. R & R at pp. 3-4.
Specifically, the Magistrate Judge recommends dismissing the
V.A. (a federal agency) and the individual defendants
Sengstaken, Acselrod, Sharma, and Lowe (federal employees
and/or officials) because suit under the FTCA lies only
against the United States. Id. at p. 3.
lodges a cursory objection to the dismissal of Sengstaken,
Acselrod, Sharma, and Lowe, asserting they can be sued under
the FTCA. See ECF No. 29. However, as the Magistrate
Judge correctly explained, these defendants cannot be sued
under the FTCA because “[t]he FTCA does not . . .
create a cause of action against individual defendants acting
within the scope of government employment. The cause of
action created by the FTCA must be exclusively brought
against the United States government.” Starling v.
United States, 664 F.Supp.2d 558, 570 (D.S.C. 2009)
(citing 28 U.S.C. § 2679(b)(1)). The United States is
the only proper defendant under the FTCA. See 28
U.S.C. 1346(b)(1); see, e.g., Joyner v.
Kim, No. CV 3:17-2089-MBS-SVH, 2017 WL 3912977, at *2
(D.S.C. Aug. 15, 2017), adopted by, 2017 WL 3896361
(D.S.C. Sept. 6, 2017) (“Plaintiff's complaint is
also subject to summary dismissal because the United States
is the only proper defendant in a FTCA claim, see 28
U.S.C. [§] 1346(b)(1). Plaintiff's complaint asserts
claims against a United States agency and its employees who
may not be sued under the FTCA.”). Accordingly, the
Court will overrule Plaintiff's objection and adopt the R
foregoing reasons, the Court overrules Plaintiff's
objection, adopts and incorporates by reference the R & R
[ECF No. 26], and summarily DISMISSES
Defendants V.A., Sengstaken, Acselrod, Sharma, and Lowe
without prejudice and without issuance and service of
IS SO ORDERED.
 The Magistrate Judge issued the R
& R in accordance with 28 U.S.C. § 636(b) and Local
Civil Rule ...