United States District Court, S.D. West Virginia, at Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge.
Standing Order, this action was referred to United States
Magistrate Judge Cheryl A. Eifert for submission of findings
and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted
to the court her Findings and Recommendation on January 20,
2016, in which she recommended that the court grant
defendant's motion to dismiss, dismiss this matter with
prejudice, and remove the matter from the court's docket.
accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days and three mailing days
in which to file any objections to Magistrate Judge
Eifert's Findings and Recommendation. The failure of any
party to file such objections within the time allowed
constitutes a waiver of such party's right to a de
novo review by this court. Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989).
February 8, 2016, plaintiff filed several letters with the
court which the court has construed as her objections. (ECF
Nos. 12 and 13). With respect to those objections, the court
has conducted a de novo review.
November 13, 2015, defendant moved to dismiss plaintiff's
complaint arguing that it was not timely filed. Magistrate
Judge Eifert informed plaintiff that she had a deadline of
December 13, 2015 in which to respond to the motion to
dismiss and that, “a failure to respond will support a
conclusion that Defendant's contentions are undisputed
and may result in a dismissal of the complaint.” (ECF
No. 10). Plaintiff did not file anything with the court by
December 13, 2015 and the PF&R was issued.
to plaintiff, she “faxed an appeal letter on December
8, 2015 to Jennifer Mankin [the AUSA assigned to the case] to
appeal the denial of my original application. I sent it to
the fax number on the letter, but apparently it was sent to
the wrong place. I then followed up with many calls to
confirm the receipt of the letter, with no response.”
(ECF No. 13).
letter that was presumably sent to AUSA Mankins which should
have been filed with the court stated:
I am appealing the decision to close my case regarding
application for Social Security Childhood Disability.
Apparently, my paperwork was sent in a few days too late. I
apologize for the delay.
I would like to plead my case:
1) I have pursued this case for the past 4 years. I believe I
am eligible to receive the Childhood Disability Social
Security since I was medically treated for Lupus before the
age of 22 yrs. I am currently receiving Black Lung Childhood
2) I was working closely with a staff member in the Social
Security office, seeking information to help me with filing
procedures. I was under the impression that I had sufficient
time to submit the paperwork by the deadline.
Please consider opening the case by reviewing the medical
records, and my hard fought efforts for a positive ...