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Owen v. United States

United States District Court, W.D. North Carolina, Asheville Division

September 17, 2019

PAUL E. OWEN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND RECOMMENDATION

          W. Carleton Metcalf, United States Magistrate Judge

         This matter is before the Court on the United States' Motion to Dismiss (Doc. 8), which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Having carefully considered the Motion, the record, and applicable authority, the undersigned respectfully recommends that the Motion be granted.

         I. Procedural Background

         Plaintiff Paul E. Owen filed his Complaint on January 16, 2019. (Doc. 1). The United States filed its Motion to Dismiss and a supporting brief on March 22, 2019. (Docs. 8, 9).

         Plaintiff has not responded to the Motion.

         II. Factual Background

         Because the Motion to Dismiss is made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court is “to regard the pleadings' allegations as mere evidence ... and may consider evidence outside of the pleadings without converting the proceeding to one for summary judgment.” Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 654 (4th Cir. 2018) (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).

         In that regard, the facts are as follows:

         In June of 2011, Plaintiff, a resident of Transylvania County, North Carolina, was charged with four violations of the Code of Federal Regulations:

1. Violation Number FAIX00BM, removing any timber, tree or other forest product, in violation of 36 C.F.R. § 2616H;
2. Violation Number FAIX00BN, cutting or otherwise damaging any timber or tree, in violation of 36, C.F.R. § 2616A;
3. Violation Number FAIX00BO, using a vehicle off road in a manner which damages or unreasonably disturbs the land, in violation of 36 C.F.R. § 26115H; and
4. Violation Number FAIX00BP, giving false information to a USFS officer, in violation of 36 C.F.R. ...

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