United States District Court, D. South Carolina, Columbia Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss. ECF No. 29. Plaintiff filed a Response in
Opposition. ECF No. 32. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this
matter was referred to United States Magistrate Judge Shiva
V. Hodges for pre-trial proceedings and a Report and
Recommendation (“Report”). On May 9, 2018, the
Magistrate Judge issued a Report recommending that the Motion
to Dismiss be granted. ECF No. 34. Plaintiff filed objections
to the Report. ECF No. 36.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See U.S.C. § 636(b). The Court
will review the Report only for clear error in the absence of
an objection. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of 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.” (citation omitted)).
proceeding pro se, brings this action pursuant to the Federal
Tort Claims Act (“FTCA”). ECF No. 1. In her
objections, Plaintiff argues that the Magistrate failed to
consider her “physical abuse” claim. ECF No. 36
at 1. Liberally construing Plaintiff's pro se Complaint,
the Court agrees that Plaintiff may have alleged a claim for
assault and battery that was acknowledged but not
independently considered in the Report. However, even
liberally construing Plaintiff's argument, she has failed
to state a plausible claim for relief.
a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.” FDIC v. Meyer, 510 U.S.
471, 475 (1994). “Sovereign immunity is jurisdictional
in nature.” Id.; see also United States v.
Sherwood, 312 U.S. 584, 586 (1941) (“[T]erms of
[the United States'] consent to be sued in any court
define that court's jurisdiction to entertain the
suit.”); J.C. Driskill, Inc. v. Abdnor, 901
F.2d 383, 385 n. 4 (4th Cir.1990) (“Waiver of sovereign
immunity is a jurisdictional prerequisite in the nature of,
but not the same as, subject matter jurisdiction, in that
unless sovereign immunity be waived, there may be no
consideration of the subject matter.”); Rich v.
United States, 158 F.Supp.2d 619, 630 (D. Md.2001)
(“When a plaintiff has failed to establish a waiver of
sovereign immunity, a federal court lacks jurisdiction to
hear the case.” (citing Global Mail Ltd. v. U.S.
Postal Serv., 142 F.3d 208, 210 (4th Cir.1998))); 14
Charles Alan Wright et al., Federal Practice and Procedure
§ 3654 (3d ed. 2004) (“The natural consequence of
the sovereign immunity principle is that the absence of
consent by the United States is a fundamental defect that
deprives the district court of subject matter
FTCA provides a limited waiver of the United States'
sovereign immunity “for certain torts committed by
federal employees.” Ignacio v. United States,
674 F.3d 252, 253 (4th Cir.2012) (quoting FDIC, 510 U.S. at
475). However, the FTCA provides that the United States'
limited waiver of sovereign immunity as to negligence
committed by government employees shall not apply to
“[a]ny claim arising out of assault, battery, . .
.” or certain other listed torts. 28 U.S.C. §
the United States retained its sovereign immunity under the
FTCA as to claims for assault and battery, Plaintiff's
claims are jurisdictionally barred. See Weinraub v.
United States, 927 F.Supp.2d 258, 261-66 (E.D. N.C.
2012) (dismissing claims of assault and battery against the
United States as barred by sovereign immunity). Accordingly,
Plaintiff's claims for assault and battery should be
also appears to argue that Defendant's ADR
Statement/Certification, ECF No. 33, is evidence of
Defendant's intention to settle this case. ECF No. 36 at
2. This is a standard form required to be filed by the Court
scheduling order, ECF No. 23, that does not indicate any
willingness to settle with Plaintiff. This objection is
makes no specific objection regarding the Magistrate
Judge's recommendation that her medical malpractice claim
under the FTCA should be dismissed for failing to file an
affidavit of an expert witness. After considering the record
in this case, the applicable law, and the Report of the
Magistrate Judge, the Court finds no clear error and agrees
with the Report's recommendation that Plaintiff's
medical malpractice claim should be dismissed.
the Court adopts, as modified herein, the Report.