United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge
matter is before the Court on Plaintiff's untimely
objections to the Report and Recommendation (“R &
R”) of United States Magistrate Judge Kaymani D.
West. See ECF Nos. 19 & 46. The
Magistrate Judge recommends summarily dismissing
Plaintiff's pro se complaint without prejudice. R & R
at p. 6.
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. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which specific written
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 timely filed
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). 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 Snyder v. Ridenour, 889 F.2d
1363, 1366 (4th Cir. 1989); Carr v. Hutto, 737 F.2d
433, 434 (4th Cir. 1984).
to an R & R must be filed within fourteen days of the
date of service. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(2). When service of the R & R is made
by mail (as in this case), the objecting party has three
additional days to file objections. See Fed. R. Civ.
P. 6(d). A paper is filed when it is delivered to the Clerk
(or a judge), not when it is mailed. See Fed. R. Civ. P.
proceeding pro se and in forma pauperis, filed a complaint in
this federal Court on October 20, 2017, alleging she
sustained numerous injuries after tripping and falling in a
Horry County library on April 12, 2013, received improper
medical treatment, and was abandoned in an “apartment
on a hospital mattress.” See ECF Nos. 1 & 14.
Plaintiff asserts tort claims against various entities and
individuals named as defendants (such as the library where
she fell and the hospitals where she was treated). The
Magistrate Judge has entered an R & R recommending that
the Court summarily dismiss Plaintiff's complaint for
lack of jurisdiction. See R & R at pp. 3-6.
Specifically, the Magistrate Judge determined there is
neither diversity nor federal question jurisdiction over this
action. Id. at pp. 4-6; see generally 28
U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C.
§ 1332 (diversity jurisdiction).
Initially, the Court notes Plaintiff has filed
untimely objections to the R &
See Pl.'s Objs. [ECF No. 46]. The Magistrate
Judge entered the R & R on January 8, 2018, and the Clerk
mailed Plaintiff a copy of the R & R that same day.
See ECF Nos. 19 & 20. Plaintiff's objections
were therefore due by January 25, 2018. Id.
However, the Clerk did not receive Plaintiff's objections
until February 7, 2018. See ECF No. 46. Because
Plaintiff's objections are untimely, the Court need not
consider them and “must only satisfy itself that there
is no clear error on the face of the record.”
Diamond, 416 F.3d at 315 (internal quotation mark
omitted). The Court discerns no clear error and will
therefore adopt the R & R.
event, the Court has reviewed Plaintiff's objections and
notes they would not change its decision to adopt the R &
R. Plaintiff does not specifically object to the Magistrate
Judge's proposed finding that no diversity jurisdiction
exists. She does, however, mention “federal question
jurisdiction” and suggests that such jurisdiction may
exist under the Americans with Disabilities Act
(“ADA”). See, e.g., Pl.'s Objs. at
pp. 5, 7, 11-12.
a plaintiff may properly invoke federal jurisdiction through
the ADA, she must also allege facts which bring her claims
within the ambit of that statute.” Doreen Shing v.
Maryland Developmental Disabilities Admin., 2017 WL
1468903, at *4 (D. Md. Apr. 25, 2017), aff'd,
698 Fed.Appx. 70 (4th Cir. 2017). Although Plaintiff appears
to believe that her alleged injuries constitute a
“disability” within the meaning of the ADA and
that “discrimination” has occurred as a result of
her allegedly inadequate medical treatment, see
Pl.'s Objs. at p. 11, her claims are at best state law
tort claims for ordinary and professional negligence. This
action is essentially a personal injury and medical
malpractice case, and the ADA does not provide a remedy for
negligence. See, e.g., Bryant v. Madigan,
84 F.3d 246, 249 (7th Cir. 1996) (“[The plaintiff] is
complaining about incompetent treatment of his paraplegia.
The ADA does not create a remedy for medical
malpractice.”); Shing, 2017 WL 1468903, at *4
(“As plaintiffs' claims for benign neglect and
gross indifference are not ADA violations, but, rather,
independent tort claims, the ADA does not provide a basis for
federal jurisdiction in this case.”); Taylor v.
Pulliam, 2015 WL 4920788, at *6 n.12 (W.D. Va. Aug. 18,
2015) (“[The plaintiff's] allegations of inadequate
medical care do not give rise to any cognizable ADA claim,
because they do not suggest any discrimination because of a
disability.”), aff'd, 679 Fed.Appx. 264
(4th Cir. 2017).
the Court agrees with the Magistrate Judge that diversity
jurisdiction is absent due to a lack of complete diversity.
See R & R at pp. 4-5; Elliott v. Am. States
Ins. Co., 883 F.3d 384, 394 (4th Cir. 2018) (“When
original jurisdiction is based on diversity of citizenship,
the cause of action must be between parties of completely
diverse state citizenship, that is, no plaintiff may be a
citizen of the same state as any defendant . . . .”
(citing 28 U.S.C. § 1332(a)(1))). Thus, because neither
federal question nor diversity jurisdiction exists, the Court
lacks subject matter jurisdiction over this action and must
dismiss it. See Fed. R. Civ. P. 12(h)(3) (“If
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
foregoing reasons, the Court finds no clear error and
therefore adopts and incorporates by reference the R & R
[ECF No. 19] of the Magistrate Judge. Accordingly, the Court
DISMISSES Plaintiff's complaint
without prejudice and without issuance and service of
process. The Court DENIES AS PREMATURE AND
MOOT Plaintiff's ...