Opinion
Case No. 1:05cv294.
May 19, 2006
OPINION AND ORDER
Before the Court is Magistrate Judge Blacks's November 18, 2005 Report and Recommendation (hereinafter "Report") (Doc. 17). Plaintiff Charles Young (hereinafter "Plaintiff") filed Objections to the Magistrate Judge's Report on November 30, 2005 (Doc. 18). Defendant JoAnne B. Barnhart, Commissioner of Social Security (hereinafter "Defendant") filed a Response to Plaintiff's Objections on December 14, 2005
(Doc. 19).
Defendant seeks dismissal of Plaintiff's Complaint for lack of jurisdiction pursuant to Fed.R.Civ.Pro. 12(b)(1). Specifically Defendant contends Plaintiff failed to exhaust administrative appellate remedies and, as such, his Complaint seeking judicial review must be dismissed.
In the Report, the Magistrate Judge recommends granting the August 19, 2005 Motion of Defendant to Dismiss (Doc. 11); denying the September 20, 2005 Motion of Plaintiff for Order to Moot Defendant's Motion to Dismiss (Doc. 13); denying the September 20, 2005 Motion of Plaintiff for Summary Judgment (Doc. 14); and that this action be closed.
The Court notes in the Report, the Magistrate Judge indicated Defendant's Motion to Dismiss is Doc. 7. However, Doc. 7 is a May 13, 2005 Summons issued to Defendant.
In his objections, Plaintiff, proceeding pro se, contends he attempted a few times to seek a remedy within the Agency but was informed each time that the 60 day appeal time limit had expired. As such, Plaintiff argues the Agency prevented him from being able to exhaust his administrative remedies. Further, he maintains he is unable to follow the Agency's protocol due, not to his inability to exhaust his administrative remedies, but due to the Agency's inability to see that it should have allowed him to file "out of time."
When objections are received to a magistrate judge's Report and Recommendation on a dispositive matter, the assigned district judge "shall make a de novo determination . . . of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." Fed.R.Civ.P. 72(b). After review, the district judge "may accept, reject or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id; see also 28 U.S.C. 636(b)(1)(B). General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate [judge]'s report has the same effects as would a failure to object." Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).
Upon de novo review of the Report, the Court concludes Plaintiff's objections are without merit. As concluded by the Magistrate Judge, Plaintiff failed to request a hearing before an administrative law judge after he received the award letter from the Social Security Administration. Thus, a final decision has not been issued. As such, Plaintiff failed to exhaust his administrative remedies and this Court lacks jurisdiction to review his claim.
Accordingly, the November 18, 2005 Report of Magistrate Judge Black (Doc. 17) is ADOPTED; the August 19, 2005 Motion of Defendant to Dismiss (Doc. 11) is hereby GRANTED; the September 20, 2005 Motion of Plaintiff for Order to Moot Defendant's Motion to Dismiss (Doc. 13) is hereby DENIED; the September 20, 2005 Motion of Plaintiff for Summary Judgment (Doc. 14) is hereby DENIED; and this matter is terminated from the docket of this Court.
IT IS SO ORDERED.