Opinion
CASE NO.: 1:11-CV-60 (WLS).
June 16, 2011
ORDER
Before the Court is a Report and Recommendation from United States Magistrate Judge Thomas Q. Langstaff, filed May 9, 2011. (Doc. 7). It is recommended that two Defendants named in the pro se prisoner Plaintiff's Complaint (Doc. 1) — Dr. Edward Aikens and Medical Staff Provider — be dismissed pursuant to the required initial review performed under 28 U.S.C. § 1915A. (Doc. 7 at 2, 4-5). Judge Langstaff recommends that Defendant Aikens be dismissed without prejudice, and Defendant Medical Staff Provider be dismissed with prejudice. (Id. at 5). Plaintiff filed a timely Objection pursuant to both Judge Langstaff's Report and Recommendation and 28 U.S.C. § 636(b)(1). (Doc. 12). Said Objection only addresses Judge Langstaff's recommended dismissal without prejudice of Defendant Aikens. (Id. at 1-2).
For the following reasons, the objections set forth in Plaintiff's Objection (Doc. 12) are SUSTAINED. The Court ADOPTS-in-part and DOES-NOT-ADOPT-in-part United States Magistrate Judge Langstaff's May 9, 2011 Report and Recommendation ("R R"). (Doc. 7 at 4-5).
That portion of the R R recommending dismissal with prejudice of Defendant Medical Staff Provider (Doc. 7 at 5), which is not opposed in Plaintiff's Objection (see generally Doc. 12 at 1-2), is ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein. Accordingly, it is ORDERED that Defendant Medical Staff Provider is DISMISSED WITH PREJUDICE.
However, for reasons stated below, the Court DOES NOT ADOPT that portion of the R R recommending dismissal without prejudice of Defendant Dr. Edward Aikens. (Doc. 7 at 4-5). Due to the assertions in Plaintiff's Objection that he erroneously failed to include in his Complaint facts regarding Defendant Aikens (Doc. 12 at 1-2), and in light of the fact that no Answer has yet been filed in this case (see generally Docket), Plaintiff is ORDERED to file an AMENDED COMPLAINT adding his claims against Defendant Dr. Edward Aikens and any other parties — except Defendant Medical Staff Provider — that may have been erroneously omitted from the original Complaint due to Plaintiff's oversight. Plaintiff is ORDERED to file said Amended Complaint within twenty-four (24) days of the date of entry of this Order, which provides Plaintiff twenty-one (21) days for filing plus three (3) additional days for mailing. Once filed, the Amended Complaint will be subject to Judge Langstaff's review under 28 U.S.C. § 1915A and any Report and Recommendation that may arise therefrom.
I. Defendant Medical Staff Provider
II. Defendant Dr. Edward Aikens
(See generally WAIVED ACCEPTED, ADOPTED ORDERED DISMISSED WITH PREJUDICE. SUSTAINED, DOES NOT ADOPT
Because Federal Rule of Civil Procedure 15 permits a party to amend his pleading requiring a responsive pleading "once as a matter of course" within twenty-one (21) days of the response, Fed.R.Civ.P. 15(a)(1), because no response has yet been filed to Plaintiff's Complaint (see generally Docket), and because Plaintiff has not yet amended his Complaint (see generally id.), the Court finds that Plaintiff is free to amend his Complaint in this instance. Accordingly, Plaintiff is ORDERED to file an AMENDED COMPLAINT adding his claims against Defendant Dr. Edward Aikens and any other parties — except Defendant Medical Staff Provider — that may have been erroneously omitted from the original Complaint due to Plaintiff's oversight. Plaintiff is ORDERED to file said Amended Complaint within twenty-four (24) days of the date of entry of this Order, which provides Plaintiff twenty-one (21) days for filing plus three (3) additional days for mailing. Once filed, the Amended Complaint will be subject to Judge Langstaff's review under 28 U.S.C. § 1915A and any Report and Recommendation that may arise therefrom.
SO ORDERED.