United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
30], GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTION TO DISMISS [DKT. NO. 11], SUBSTITUTING DEPARTMENT OF
ENERGY AS DEFENDANT, AND DISMISSING DEFENDANTS BOCHENEK,
MALIE, AND COTERO
M. KEELEY, UNITED STATES DISTRICT JUDGE.
November 6, 2017, the pro se plaintiff, Ayyakkannu
Manivannan (“Manivannan”), filed a complaint
against multiple employees of the Department of Energy's
National Energy Technology Laboratory (NETL) in Morgantown,
West Virginia (Dkt. No. 1), citing the Freedom of Information
Act (FOIA), 5 U.S.C. § 552(a)(6)(C)(i), and alleging
violations of 18 U.S.C. §§ 21, 1701, and 1702.
Id. Pursuant to 28 U.S.C. § 636 and the local
rules, the Court referred any motions in this case to the
Honorable Michael J. Aloi, United States Magistrate Judge,
for written orders or reports and recommendations (Dkt. No.
5). On January 8, 2018, the defendants moved to dismiss the
complaint for lack of subject-matter jurisdiction and for
failure to state a claim (Dkt. No. 11).
Report and Recommendation (“R&R”) entered by
Magistrate Judge Aloi recommended that the Court grant in
part and deny in part the defendants' motion to dismiss
(Dkt. No. 30). In doing so, the R&R considered in turn
each of Manivannan's claims as a possible basis for the
Court's jurisdiction. First, the R&R concluded that
the criminal code provisions cited in the complaint do not
authorize a private right of action, and therefore cannot
serve as a basis for the Court's subject-matter
jurisdiction. Id. at 11.
the R&R concluded that the Federal Tort Claims Act (FTCA)
and Administrative Procedure Act (APA) similarly fail to
provide a basis for the Court's jurisdiction in this
action. More particularly, the R&R concluded that
Manivannan had failed to exhaust his administrative remedies
as required by § 2675(a) of the FTCA. Id. at
11-13. The R&R also concluded that, to the extent the
complaint could be read as a request for injunctive relief
under § 702 of the APA, Manivannan had failed to
identify any final agency action for review. Id. at
the R&R concluded that, when liberally construed, the
complaint states a plausible claim for relief under FOIA, and
therefore the Court has subject-matter jurisdiction.
Id. at 14-15. Finding that defendant Grace M.
Bochenek (“Bochenek”) had been sued in her
official capacity as the Director of NETL, the R&R
further concluded that the Department of Energy must be
substituted for Bochenek as the proper defendant in this
case. Id. at 16.
R&R also informed the parties of their right to file
“written objections identifying the portions of the
Report and Recommendation to which objection is made, and the
basis for such objection.” Id. at 17. It
further warned that the failure to do so may result in waiver
of the right to appeal. Id. Neither party has filed
any objections to the R&R.
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.”
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
neither party has objected, the Court is under no obligation
to conduct a de novo review. Dellacirprete,
479 F.Supp.2d at 603-04. Upon review of the R&R and the
record for clear error, the Court:
1) ADOPTS the R&R (Dkt. No. 30);
2) GRANTS in PART the defendants' motion
to dismiss (Dkt. No. 11) and DISMISSES
Manivannan's claims for violations of 18 U.S.C.
§§ 21, 1701, and 1702;
3) DENIES in PART the defendants' motion
to dismiss Manivannan's FOIA claim (Dkt. No. 11);
4) ORDERS the Department of Energy to be
SUBSTITUTED as the defendant in this action;
5) DISMISSES defendants Grace M. Bochenek,
Susan Malie, and Isabel Cotero from ...