Opinion
Civil Action 1:21-CV-50
12-09-2022
ZACHARY KNOTTS and ELLEN HEINE, Plaintiffs, v. BOARD OF DIRECTORS OF JW RUBY MEMORIAL HOSPITAL; CHRISTINE S. VAGLIENTI, ESQ.; SHONNETTE J. KINGSTON; ADAM BAUS; THE WV BOARD OF MEDICINE; and JOHN AND JANE DOE 1 THROUGH 10. Defendants.
JUDGE KLEEH
REPORT AND RECOMMENDATION, RECOMMENDING THAT MOTION TO DISMISS [ECF NO. 42] OF DEFENDANTS BOARD OF DIRECTORS OF JW RUBY MEMORIAL HOSPITAL AND CHRISTINE S. VAGLIENTI, ESQ. BE GRANTED
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
On April 19, 2021, pro se Plaintiffs Ellen Heine (“Heine”) and Zachary Knotts (“Knotts”), (collectively, “Plaintiffs”), filed a Complaint against Defendants Board of Directors of JW Ruby Memorial Hospital (“Ruby Hospital”), Christine S. Vaglienti, Esq. (“Vaglienti”), and others, in relation to a series of events which Plaintiffs allege began in the Spring of 2019. [ECF No. 1]. Plaintiffs failed to serve the original Complaint on any Defendant, and on October 26, 2021, the Court entered an Order dismissing the Complaint, without prejudice. [ECF Doc. 20]. On April 20, 2022, Plaintiffs moved for leave to amend the Complaint [ECF No. 23], and the Court granted the Motion on April 26, 2022. [ECF No. 24]. On May 9, 2022, Plaintiffs filed an Amended Complaint. [ECF No. 26].
By Order dated May 9, 2022 [ECF No. 27], the Hon. Thomas S. Kleeh, United States District Judge, referred the matter to the undersigned Magistrate Judge to review the record and issue written orders or reports and recommendations, as appropriate. On August 25, 2022, two Defendants - namely, Ruby Hospital and Vaglienti (collectively, “Defendants”) - filed a Motion to Dismiss and supporting Memorandum of Law with Exhibits. [ECF Nos. 42, 43]. On August 26, 2022, the Court entered a Roseboro notice [ECF No. 44] as to the pending Motion to Dismiss, affording Plaintiffs 21 days to respond to the motion. By a filing [ECF No. 54] of September 7, 2022, which the Court construed as a motion, Plaintiffs requested an extension of time to file a response. By Order [ECF No. 55] dated September 9, 2022, the Court granted Plaintiffs' request for an extension, directing that any such response be filed by October 17, 2022. Plaintiffs have not filed a response as of the date of this Report and Recommendation.
For the reasons stated herein, the undersigned respectfully RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED, and Plaintiffs' Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice as to these Defendants.
I. FACTUAL BACKGROUND
Beginning in September 2018, Knotts placed a number of telephone calls to Ruby Hospital in an attempt to obtain medical records reflecting time he spent at Sharpe Hospital. [ECF No. 43, at 2]. These calls to Ruby Hospital, which were numerous, began in September 2018. Id. Ruby Hospital staff informed Knotts that the records he sought were not part of the file held by Ruby Hospital. Id. In response, Knotts became “belligerent and vulgar” with those staffers. Id. Knotts persisted with these telephone calls, resulting in Vaglienti, Ruby Hospital's legal counsel, issuing a cease-and-desist letter. [ECF No. 43-1]. However, Knotts continued to call and appear in person at Ruby Hospital in similar fashion. [ECF No. 43, at 2]. Knotts's continued acts led to state criminal charges against Knotts, that being extortion or attempted extortion by threats. Id. [ECF No. 43-2]. An arrest warrant was issued on April 8, 2019. [ECF No. 43-2, at 2].
Shortly thereafter, on April 17, 2019, the events giving rise to this action began when Knotts and Heine allege that they were at a restaurant in Morgantown, West Virginia eating lunch. [ECF No. 1, at 2]. While there, Knotts had a seizure; the “ambulance report [confirmed] that the patient had a seizure.” Id. The ambulance transferred Knotts to Ruby Hospital where “the hospital report noted that the patient had mental issues even though the medical history provided indicated that the event was a seizure.” [ECF No. 1, at 2-3; ECF No. 26, at 2-3].
The hospital further directed Knotts be treated for psychological problems and sent him to Fairmont General Hospital for inpatient treatment. [ECF No. 1, at 3]. Plaintiffs allege that no neurologist was consulted. Id.
At approximately the same time that Plaintiffs first brought the instant action, Knotts filed a Complaint in the United States District Court for the Southern District of West Virginia on March 19, 2021, and an Amended Complaint on April 12, 2021, alleging violations of his First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendment rights, as well as healthcare fraud, violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and Americans with Disabilities Act (“ADA”) violations. [ECF Nos. 43-3, 43-4]. The Amended Complaint was filed against “WVU Medicine Litigating Council Members” and others. [ECF No. 43-4]. Motions resulted in dismissal of Knott's Complaint and Amended Complaint on February 18, 2022. [ECF Nos. 43-5, 43-6]. Knotts appealed to the judgment to the United States Court of Appeals for the Fourth Circuit, and on July 11, 2022, the Fourth Circuit dismissed the appeal for failure to prosecute. [ECF No. 43-7].
II. PARTIES' CONTENTIIONS
A. Plaintiff's Complaint [ECF No. 1]
In their original Complaint, Plaintiffs assert two causes of action: (1) Fraud and (2) “Constitutional Violations.” [ECF No. 1, at 3-4].
Plaintiffs base their cause of action for Fraud on Ruby Hospital's failure “to treat Knotts for services he required,” and instead, providing “fraudulent records” which would be used to re-enforce criminal complaints against him. Id. Further, Plaintiffs assert they were wrongly charged $900 due to “improper patient coding.” Id. Plaintiffs also allege Defendants are liable for “false imprisonment [and] false records that contribute to misdiagnosis on future medical visits and harm to the [] body.” Id.
Plaintiffs base their cause of action for Constitutional Violations on the conversations Knotts had with Defendants, Shonette Kingston (“Kingston”), Dr. Adam Baus (“Baus”), and Vaglienti, to inquire about the name of a neurologist. Id. Specifically, Plaintiffs assert “[Knott's] free speech in conversation with [D]efendants Vaglient[i], Kingston, and Baus was turned into a criminal investigation.” Id. Plaintiffs assert these phone calls led Ruby Hospital to engage in the “continuation of false imprisonment [and] false records that contribute to misdiagnosis on future medical visits and harm to the defendant's body.” Id. Plaintiffs allege that Vaglienti violated Knotts's “free speech,” by using his phone calls to Ruby Hospital requesting medical records, as the basis for a criminal complaint for telephone harassment. Id.
B. Plaintiff's Amended Complaint [ECF No. 26]
Plaintiffs' Amended Complaint [ECF No. 26] contains additional allegations against Defendants in regard to the seizure incident and the subsequent hospitalization at Fairmont General Hospital. The Amended Complaint includes a new cause of action, Count Three, Americans with Disability Act (“ADA”) Violations. [ECF No. 26, at 9]. In Paragraph 26, Plaintiffs allege that “Vagliente's treatment of Knotts was discriminatory.” Id. at 10. Specifically, “[Vaglienti] did not choose to address [Knotts's] inquiry for records pertaining to forensic evaluation. Instead she called the police and filed a criminal complaint, so that they could issue an arrest warrant.” Id.
In sum, Plaintiffs seem to contend that Vaglienti, and by implication Ruby Hospital, subjected Knotts to medical treatment which Knotts did not wish to receive. Further, Plaintiff's ADA violation claim against Vaglienti seems to be based on the complaint she made to Morgantown Police Department resulting in “prevent[ion] [of] Knotts from seeing any medical assistance from a neurologist.” Id., at 11.
Plaintiffs' Amended Complaint clarifies that, “Knotts . . . wanted a neurologist to consult because he needed a medical expert for litigation.” [ECF No. 26, at 4].
C. Defendants' Motion to Dismiss [ECF No. 42]
In their motion to dismiss [ECF No. 42] and memorandum in support [ECF No. 43], thereof, Defendants raise three arguments in support of dismissal. First, Defendants argue that the principle of res judicata bars Plaintiffs' claims because (a) the United States District Court for the Southern District of West Virginia issued a final judgment on certain claims; (b) the parties in the two actions are the same; and (c) the cases both involve the same claims. [ECF No. 43, at 4-8]. Second, notwithstanding Plaintiffs' claims being barred by res judicata, Defendants argue, Plaintiffs' claims also are time barred by the applicable statute of limitations. Id., at 8-9. Third, Defendants argue that the Amended Complaint fails to state a claim upon which relief may be granted and therefore should be dismissed. Id., at 9-12.
III. LEGAL STANDARD
Pro se plaintiffs' claims are to be afforded liberal construction by courts. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A pro se complaint is subject to dismissal, however, if a court cannot reasonably read the pleadings to state a valid claim on which a plaintiff could prevail. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999); see also Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (“Even in the case of Pro se litigants, [courts] cannot be expected to construct full blown claims from sentence fragments). A court may not construct claimants' legal arguments for them, nor should it “conjure up questions never squarely presented.” Beaudett, 775 F.2d at 1278.
Generally, parties are required to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Correspondingly, a defendant may challenge a complaint which fails to set forth a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In order to survive a motion to dismiss, a complaint must be supported by, “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). As the Supreme Court emphasized, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And as the Fourth Circuit has noted, Rule 12(b)(6) requires a claimant to “articulate facts, when accepted as true, that ‘show' that [the claimant] has stated a claim entitling [them] to relief.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Moreover, courts may rely upon Rule 12(b)(6) to dismiss a complaint on res judicata grounds. Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000).
IV. ANALYSIS
A. The undersigned recommends dismissal because res judicata bars the claims.
Defendants correctly assert that all three of Plaintiffs' purported causes of action in the Amended Complaint are barred by res judicata. Knotts brought a civil action in the Southern District of West Virginia, alleging the same claims. Defendants here essentially were party to that same matter, and filed a successful motion to dismiss for failure to state a claim for which relief could be granted, under Fed.R.Civ.P. 12(b)(6). [ECF Nos. 43-5, 43-6].
For dismissal to be proper under the doctrine of res judicata, a moving party must show: (1) the judgment in the prior action was a final judgment on the merits; (2) the parties in both actions are the same or in privity; and (3) the claims in both actions arise from the “transaction or series of transactions.” Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (citation omitted).
Regarding the first element, finality of prior judgment, Defendants rightly note that the Southern District's order did not specify whether dismissal was with prejudice or without prejudice. [ECF No. 43-6]. Such a dismissal is with prejudice unless a court explicitly states that it is without prejudice. See Carter v. Norfolk Cmty. Hosp. Ass'n Inc., 761 F.2d 970, 974 (4th Cir. 1985). Thus, the Southern District's judgment was final. Relatedly, the judgment of course was on the merits, as it addressed the materiality of Knotts's claims, and detailed how the claims were lacking in substance and merit.
As to the second element, one party may be found to be in privity with another party when they are “so identified in interest with a party to former litigation that [they] represent[] precisely the same legal right in respect to the subject matter involved.” Martin v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005) (quoting Jones v. SEC, 115 F.3d 1173, 1180 (4th Cir. 1997)). Although Vaglienti was not specifically named as a defendant in Knotts's Amended Complaint in the Southern District, Knotts made allegations therein about “WVU Meds [sic] senior litigating council [sic] member . . . working . . . against me” and complaining about correspondence from “WVU Meds.” [ECF No. 43-3, at 9]. The only commonsense conclusion is that this refers to Vaglienti. Defendants also helpfully note, for context, that Vaglienti previously had sent a cease and desist letter to Knotts, complaining of his numerous, belligerent, and abusive complaints and telephone calls. [ECF No. 43-1]. In that correspondence, Vaglienti included her title, senior litigation counsel.
In any case, in the instant matter, Plaintiffs name as Defendant “Board of Directors of JW Ruby Memorial Hospital and Christine S. Vaglienti, Esquire.” This is clearly a bid to re-litigate the same claims with respect to the same parties with whom Plaintiff had a grievance in the Southern District. And obviously, as litigation counsel, Vaglienti has a close relationship, amounting to privity, with Ruby Hospital. Thus, the only commonsense conclusion is that party-defendants in both actions are in privity, satisfying this second element of the res judicata inquiry.
As to the third and final element of the res judicata inquiry, when deciding whether prior claims and current claims arise from the same transaction or series of transactions, courts consider “their relatedness in time, space, origin or motivation, and whether, taken together, they form a convenient unit for trial purposes.” Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (internal citation omitted).
As previously noted, at or around the same time Plaintiffs filed the instant action, Knotts, individually, filed his Amended Complaint in the Southern District. [ECF No. 43-4]. In the Amended Complaint, in the Southern District, Knotts alleged the same fraud, constitutional violations, and ADA violations against a number of Defendants including, “WVU Litigating Council [sic] Members Jane and John Doe 1 to 10.” Id. As noted above, the Southern District dismissed those claims with prejudice. As also noted above, there is privity between party-defendants between the two cases. The only logical conclusion, then, is that not only are the claims lodged in the two cases from the same transaction, they are basically the exact same claims. Thus, the claims' relatedness in “time, space, [and] origin” are sufficient for Defendants to satisfy the third element of the res judicata inquiry.
Thus, the undersigned RECOMMENDS, in light of the duplicative nature and intertwined factual bases for causes of action in both matters, that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and that Plaintiffs' Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice as to these Defendants under the doctrine of res judicata.
B. The undersigned recommends Plaintiffs' claims for Fraud and ADA Violations be dismissed because they are time barred by the applicable two-year statute of limitations.
Notwithstanding Plaintiffs' claims being barred by the doctrine of res judicata, at least two of Plaintiffs' causes of action (Fraud and ADA Violations) are time-barred under the applicable statutes of limitations.
Plaintiff's claim of “Constitutional Violations” sounds in 42 U.S.C. § 1983. Defendants do not argue about application of a statute of limitations as to this claim, and the undersigned does not address it here.
“Under West Virginia law, claims for fraud and misrepresentation are governed by a two-year statute of limitation.” Yoe v. Branch Banking & Tr. Co., No. 3:13-CV-173, 2014 WL 713283, at *7 (N.D. W.Va. Feb. 25, 2014), aff'd 585 Fed.Appx. 178 (4th Cir. 2014) (citing W.Va. Code § 55-2-12)); see also McCausland v. Mason Cty. Bd. of Educ., 649 F.2d 278, 279 (4th Cir. 1981).
Similarly, Title II claims under the ADA are subject to a two-year statute of limitations, as federal courts “borrow the state statute of limitations that applies to the most analogous state-law claim,” which would be violations brought under the West Virginia Human Rights Act (“WVHRA”). A Soc'y Without A Name v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011); see also Brown v. Belt, No. 2:15-CV-11549, 2019 WL 1302627, at *5 (S.D. W.Va. Mar. 21, 2019) (explaining that ADA claims brought in West Virginia are subject to a two-year statute of limitations because claims asserted under the WVHRA are subject to a two-year limit).
Here, Plaintiffs' claim for fraud arises from telephone calls and correspondences by Knotts requesting medical records. Knotts's phone calls to Ruby Hospital began in September 2018, continued until Knotts was issued a cease and desist letter dated March 7, 2019 [ECF No. 43-1], and persisted until Knotts was arrested and charged criminally for telephone harassment on April 8, 2019. [ECF No. 43-2]. Thus, in application most favorable to the Plaintiffs, the statute of limitations began to run on April 8, 2019, when the events giving rise to this cause of action ended by way of criminal arrest. Because Plaintiffs filed their initial Complaint on April 19, 2021, beyond the two-year statute of limitations for fraud, their claim is time-barred.
Similarly, in regard to Plaintiffs' claim for ADA violations, Plaintiffs assert Vaglienti's decision to file a criminal complaint against Knotts to deter his phone calls requesting medical records was discriminatory. Even when accepting the factual allegations as true, Plaintiffs' claims for ADA violations are also time-barred as the statute of limitations for this cause of action, at a minimum, began to run on April 8, 2019, when Knotts was arrested and criminally charged for telephone harassment. [ECF No. 43-2]. Thus, because Plaintiffs' original Complaint was not filed until April 19, 2021, their claim for ADA Violations is time-barred and should be dismissed.
Consequently, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and the claims for Fraud and ADA Violations be DISMISSED with prejudice as to these Defendants.
C. The undersigned recommends that Defendants' Motion to Dismiss be granted as Plaintiffs' Amended Complaint fails to state a claim for which relief may be granted.
In short, Plaintiffs' claims fail to comply with the minimum pleading requirement, as set forth by in the Federal Rules of Civil Procedure, because Plaintiffs fail to plead claims which entitle them to relief from the Defendants, even when the claims are construed liberally.
In pertinent part, the Federal Rules of Civil Procedure require a pleader to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While a Pro se plaintiff is generally afforded greater latitude in meeting the pleading requirements, courts are “not required to recognize ‘obscure or extravagant claims defying the most concerted efforts to unravel them.'” Weller v. Dept. of Social Svs., 901 F.2d 387, 391 (4thCir. 1990) (quoting Beaudett, 755 F.2d at 1277).
As outlined below, when construing Plaintiffs' Amended Complaint in a light most favorable to them, and accepting the factual allegations as true, Plaintiffs nonetheless still fail to state any claim entitling them to relief under the color of law in regard any legal claim propounded.
1. Count One (Fraud)
Although Plaintiffs' Amended Complaint does not identify Defendants specifically in Count One (Fraud), in examining the claim most favorable to Plaintiffs, the purported cause of action appears to arise from communications, noted above, between Knotts and Ruby Hospital.
To successfully recover under the theory of fraud, a plaintiff must prove three elements: “(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that the plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it.” Michael v. Consolidation Coal Co., No. 1:14-CV-212, 2017 WL 1197828, at *13 (N.D. W.Va. Mar. 31, 2017), aff'd, 773 Fed.Appx. 767 (4th Cir. 2019) (quoting Trafalgar House Const., Inc. v. ZMM, Inc., 567 S.E.2d 294, 300 (W.Va. 2002)). Furthermore, the Federal Rules of Civil Procedure implement a heightened pleading standard when alleging fraud by requiring a plaintiff to plead their cause of action with “particularity.” Fed.R.Civ.P. 9(b).
Here, to the extent Count One implicates Defendants, it fails to state a claim upon which relief may be granted. Specifically, because Plaintiffs have mentioned neither Ruby Hospital nor Vaglienti under this cause of action, they cannot meet the “particularity” requirement of Rule 9. Nonetheless, while Plaintiffs allege that the “act” of filing criminal complaints against Knotts for his numerous phone calls to Ruby Hospital constitutes healthcare fraud, they have not alleged any facts which show they rely upon this act to their detriment, nor that they were damaged by the act in a legally cognizable way which would entitle them to relief.
Thus, for the foregoing reasons, Plaintiffs' Amended Complaint fails to allege facts which entitle them to relief on their claim of fraud. Thus, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and that Plaintiffs' Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice as to these Defendants for failure to state a claim upon which relief may be granted.
2. Count Two (Constitutional Violations)
Plaintiffs' cause of action in Count Two (Constitutional Violations) is based on 42 U.S.C. § 1983, which allows a party who has suffered a civil rights violation by government actors to seek relief. To recover under a § 1983 claim, “[a] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. More specifically, to maintain a First Amendment retaliation claim under § 1983, a claimant must allege (1) they “engaged in protected First Amendment activity, (2) the defendant took some action that adversely affected [their] First Amendment rights, and (3) there was a causal relationship between [the] protected activity and the defendant's conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (internal citations omitted).
Here, from a review of the record, it appears uncontested that Ruby Hospital and Vaglienti are private parties. Thus, they are not “government-official[s],” and thus by definition cannot be held liable under § 1983. More to the point, Plaintiffs make no allegation that any conduct by Defendants was a state action. Thus, Plaintiffs fail to state a claim for constitutional violations for which relief may be granted, even when accepting the factual allegations as true. The Constitutional Violations claim fails for lack of compliance with Fed.R.Civ.P. 8.
Thus, the undersigned RECOMMENDS that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and that Plaintiffs' Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice as to these Defendants for failure to state a claim upon which relief may be granted.
3. Count Three (ADA Violations)
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA further provide that a claimant is so “qualified” if they are “an individual with a disability who, with or without reasonable modification to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131. To state a claim for which relief may be granted under Title II of the ADA, a plaintiff must show: (1) they have a disability, (2) they are otherwise qualified to receive the benefits of a public body's services/programs/activities, and (3) they were excluded from participation in or denied the benefits of such service, program, or activity, based only on their disability. Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999).
In the present action, Plaintiffs have failed to assert they have a recognized disability to entitle them to relief under the ADA. Thus, Plaintiffs are unable to show they were “excluded from participation in or denied the benefits of [a public service] . . . on the basis of their disability.” Id. And although that is essentially the end of the inquiry - Plaintiffs' failure to meet the first prong of the test - Plaintiffs have done nothing to show that they are qualified to receive such benefits, or that they were thwarted on the basis of a disability. Thus, the ADA claim fails per Fed.R.Civ.P. 8.
Accordingly, the undersigned RECCOMENDS that the Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and Plaintiff's Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED as to these Defendants for failure to state a claim upon which relief may be granted.
V. RECCOMENDATIONS AND CONCLUSIONS
For the reasons stated herein, the undersigned RECCOMENDS that Defendants' Motion to Dismiss [ECF No. 42] be GRANTED and Plaintiff's Complaint and Amended Complaint [ECF Nos. 1, 26] be DISMISSED with prejudice with respect to these Defendants.
Any party shall have fourteen (14) days (filing of objections) and then three days (mailing/service) from the date of the filing of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all counsel of record by electronic means, and to the Pro se Plaintiffs by certified mail, return receipt requested.