Opinion
CIVIL ACTION NO. 2:16-CV-109
08-21-2018
WILLIAM RAY McDERMITT, Plaintiff, v. JIM RUBENSTEIN, et al., Defendants.
(BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc. 65]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation ("R&R"). Magistrate Judge Seibert filed his R&R on July 30, 2018, wherein he recommends the following:
(1) the Motion to Dismiss filed by Sherry Davis, Patrick Mirandy and Jim Rubenstein [Doc. 30] be GRANTED, and the Plaintiff's complaint as it relates to them be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted; (2) the Motion to Dismiss filed by James Bean and Wexford Health Sources [Doc. 41] be GRANTED, and the Plaintiff's complaint as it relates to them regarding deliberate indifference to medical care be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies; (3) the Motion to Dismiss filed by Tammy Daugherty [Doc. 56] be GRANTED, and the Plaintiff's complaint as it relates to her be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted; (4) the Plaintiff's Complaint as it relates to work safety be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted; (5) the Plaintiff's complaint as it relates to medical malpractice/negligence be DISMISSED WITHOUT PREJUDICE for failure to satisfy the requirements of the West Virginia Medical Professional Liability Act; and (6) the Plaintiff's complaint as it relates to deliberate indifference to his medical needs by Bean and Wexford be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.[Doc. 65 at 27-28].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn , 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour , 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce , 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). The docket reflects that service was accepted on August 3, 2018 [Doc. 66]. To date, no objections have been filed. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and Recommendation [Doc. 65] should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report. Accordingly, this Court ORDERS the following:
? The Motion to Dismiss filed by Sherry Davis, Patrick Mirandy and Jim Rubenstein [Doc. 30] is GRANTED, and the Plaintiff's complaint as it relates to them is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted;
? The Motion to Dismiss filed by James Bean and Wexford Health Sources [Doc. 41] is GRANTED, and the Plaintiff's complaint as it relates to them regarding deliberate indifference to medical care is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies;
? The Motion to Dismiss filed by Tammy Daugherty [Doc. 56] is GRANTED, and the Plaintiff's complaint as it relates to her is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted;
? The Plaintiff's Complaint as it relates to work safety is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted;
? The Plaintiff's complaint as it relates to medical malpractice/negligence is DISMISSED WITHOUT PREJUDICE for failure to satisfy the requirements of the West Virginia Medical Professional Liability Act; and
? The Plaintiff's complaint as it relates to deliberate indifference to his medical needs by Bean and Wexford is DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
This Court further ORDERS that this matter be STRICKEN from the active docket of this Court and DIRECTS the Clerk to enter judgment in favor of defendants.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein and to mail a copy to the pro se plaintiff.
DATED: August 21, 2018.
/s/_________
JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE