United States District Court, W.D. North Carolina, Asheville Division
PAUL E. OWEN, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND RECOMMENDATION
Carleton Metcalf, United States Magistrate Judge
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.
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).
has not responded to the Motion.
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)).
regard, the facts are as follows:
of 2011, Plaintiff, a resident of Transylvania County, North
Carolina, was charged with four violations of the Code of
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. ...