Summary
denying motion to dismiss with respect to inmate's failure to protect claim because inmate alleged facts suggesting that officer, on three occasions, ignored inmate's request for a different housing assignment prior to inmate being assaulted by another inmate
Summary of this case from Chapman v. BaconOpinion
CIVIL ACTION NO.: 3:14-CV-34
07-20-2015
WARREN T. WADE, Plaintiff, v. J. WINSLOW, Correctional Officer, and M. COREY, Correctional Officer, Defendants.
(GROH)
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter, brought under 42 U.S.C. § 1983, is before the Court for consideration of the Report and Recommendation ("R&R") of United States Magistrate Judge Robert W. Trumble [ECF 35]. The R&R concerns the Defendants' Motion to Dismiss [ECF 20] this case pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ECF 35. Viewing the complaint as raising an Eighth Amendment claim against each defendant, the R&R recommends dismissing the claim against M. Corey with prejudice but allowing the Plaintiff to pursue his claim against J. Winslow.
Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Trumble for submission of an R&R. --------
This Court must review de novo those portions of the magistrate judge's findings to which objection is made. 28 U.S.C. § 636(b)(1)(c). The Court is not required, however, 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). 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). No party has filed objections to the R&R. Thus, this Court will review the R&R for clear error.
Upon careful review of the R&R, it is the opinion of this Court that the Report and Recommendation should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge's report.
Accordingly, the Court GRANTS the Motion to Dismiss IN PART. The Court GRANTS the Motion to Dismiss the claim against Defendant M. Corey and DENIES the Motion to Dismiss the claim against Defendant J. Winslow.
The Court ORDERS that the claim asserted by the Plaintiff against Defendant M. Corey is hereby DISMISSED WITH PREJUDICE.
The Court FURTHER ORDERS that the Clerk terminate M. Corey as a defendant.
The Clerk is directed to transmit copies of this Order to all counsel of record and pro se parties.
DATED: July 20, 2015
/s/_________
GINA M. GROH
CHIEF UNITED STATES DISTRICT JUDGE