Opinion
5:20-cv-171-TKW/MJF
06-01-2021
DUSTEN A. MAHON Plaintiff, v. TIM BROWN, et al., Defendants.
ORDER
T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE.
This case is before the Court based on the magistrate judge's Reports and Recommendations (Docs. 56, 57, 58) and Plaintiff's objections (Docs. 60, 61). The Court reviewed the issues raised in the objections de novo as required by 28 U.S.C. §636(b)(1) and Fed.R.Civ.P. 72(b)(3), and based on that review, the Court agrees with the magistrate judge's recommended dispositions of Defendants' motions to dismiss.
The Court also agrees with the magistrate judge's sua sponte determination that the claims against Defendant Raley should be dismissed for lack of service because it has been nearly a year since the complaint was filed and Plaintiff has yet to serve Defendant Raley. The Report and Recommendation provided Plaintiff the required notice that the claims against Defendant Raley were due to be dismissed for lack of service, see Fed. R. Civ. P. 4(m), and Plaintiff did not object to that portion of the Report and Recommendation or otherwise show good cause for his failure to serve Defendant Raley.
Accordingly, it is ORDERED that:
1. The magistrate judge's Reports and Recommendations are adopted and incorporated by reference in this order.
2. Defendant Howell's motion to dismiss (Doc. 45) is a. GRANTED with respect to any actions by Howell between January 1 and July 30, 2017, to the extent Howell failed to follow “outside medical recommendations, ” and to the extent that Howell was one of the unnamed nurses responsible for various acts and omissions alleged in the complaint; and b. DENIED to the extent that Plaintiff alleges that Howell acted with deliberate indifference to his serious medical needs at various times between July 31 and October 26, 2017.
3. Defendant Walsingham's motion to dismiss (Doc. 38) is GRANTED, and the claims against her in Count III of the complaint are DISMISSED with prejudice.
4. Defendant Brown's motion to dismiss (Doc. 25) is GRANTED, and the claims against him in Count IV of the complaint are DISMISSED with prejudice.
5. The claims against Defendant Raley in Count I of the complaint are DISMISSED without prejudice pursuant to Fed.R.Civ.P. 4(m).
6. This case is recommitted to the magistrate judge for further proceedings on the remaining claims.
DONE AND ORDERED.