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NINO v. BUREAU OF PRISONS

United States District Court, N.D. West Virginia
Dec 24, 2008
CIVIL ACTION NO. 1:07CV56 (N.D.W. Va. Dec. 24, 2008)

Opinion

CIVIL ACTION NO. 1:07CV56.

December 24, 2008


ORDER ADOPTING REPORT AND RECOMMENDATION


On April 23, 2007, the pro se plaintiff, Jose Oscar Nino ("Nino"), filed this civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). On August 5, 2008, the defendants filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. On August 7, 2008, Magistrate Judge John S. Kaull entered aRoseboro notice informing the pro se plaintiff of his right to respond to the motion and also that failure to respond might result in the entry of summary judgment against him. Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979); Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).

Nino asserts that he incurred a navel infection after a hernia operation at the Federal Medical Center in Alexander, Louisiana in June of 2004, that an operation is required to correct the problem, that the Bureau of Prisons has informed him that the operation will take place and that the operation has not taken place. Nino seeks the required surgery or transfer to a medical facility.

The defendants contend that Nino's Complaint should be dismissed because (1) it is moot because he received the surgery on August 25, 2007, following the filing of this action; (2) he has failed to exhaust his administrative remedies; and (3) there was improper service of process because he failed to serve a copy of the summons and complaint upon the United States Attorney for the Northern District of West Virginia and the United States Attorney General.

On December 1, 2008, in accordance with Local Rule of Prisoner Litigation 83.01, et seq, and 28 U.S.C. §§ 1915(e) and 1915A, Magistrate Judge Kaull filed a report and recommendation recommending that the defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (dkt. no. 35) be granted to the extent that the defendants seek dismissal of the case as moot, and denied in all other respects. The Report and Recommendation informed Nino that failure to object to the recommendations in the report would result in the waiver of his appellate rights on this issue. On December 16, 2008, in lieu of an objection, the Court received a letter from Nino that stated "I'll let the Court do what it want to do because I have no help, to help me in this matter. So I'll lev [sic] it to Court to Ruld [sic]."

Nino's failure to object to the Report and Recommendation waives his appellate rights in this matter and relieves the Court of any obligation to conduct a de novo review of the issue presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).

Therefore, the Court ADOPTS Magistrate Judge Kaull's Report and Recommendation in its entirety (dkt. no. 43), GRANTS-IN-PART and DENIES-IN-PART the defendant's motion to dismiss (dkt. no. 35), finds that the relief requested is MOOT, and ORDERS that this matter is DISMISSED WITHOUT PREJUDICE and stricken from the Court's docket.

The Court directs the Clerk to transmit copies of this Order to counsel of record and to the pro se plaintiff, certified mail, return receipt requested.


Summaries of

NINO v. BUREAU OF PRISONS

United States District Court, N.D. West Virginia
Dec 24, 2008
CIVIL ACTION NO. 1:07CV56 (N.D.W. Va. Dec. 24, 2008)
Case details for

NINO v. BUREAU OF PRISONS

Case Details

Full title:JOSE OSCAR NINO, Plaintiff, v. BUREAU OF PRISONS, WARDEN MARTINEZ, MR…

Court:United States District Court, N.D. West Virginia

Date published: Dec 24, 2008

Citations

CIVIL ACTION NO. 1:07CV56 (N.D.W. Va. Dec. 24, 2008)