Opinion
Case No: 01-CV-73052
May 30, 2003
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is before the Court on Magistrate Judge Steven D. Pepe's Report and Recommendation dated April 30, 2003. Plaintiff has not submitted any objections to this Report and Recommendation.
II. Statement of Facts
Plaintiff was a ward of the State of Michigan and was housed at Defendant facility, Maxey Boys Training School. He filed a Complaint against the above named Defendants alleging that his medical needs for treatment of his asthmatic condition were neglected and ignored. As a result, Plaintiff asserts that he was improperly treated; and his condition worsened, requiring more extensive treatment (prescription for a nebulizer and an inhaler).
III. Procedural Background
Plaintiff has failed to prosecute this matter from the inception of the Complaint filing. Shortly after the Complaint was filed a motion fo dismiss or for summary judgment was filed on behalf of all Defendants except Dr. Motley. Plaintiff failed to respond to or otherwise appear for a hearing on the motion; and it was granted. Relative to Defendant Maxey Boys Training School, the Court held:
No response was filed to the motion, therefore, there is no evidence rebutting Defendants' claim that the Defendant Maxey Training Center is not an independent legal entity separate from the State of Michigan. There has been no showing that the State of Michigan in this matter has consented to suit. Defendants' Motion to Dismiss Defendant Maxey Training Center is granted.
( Memorandum Opinion and Order, dated, 9/30/02, pg. 4). Relative to Defendant B-Hall Staff, the Court held:
A plaintiff must show that each named defendant was personally involved in the activity that forms the basis of the complaint [citation omitted]. Plaintiff identified the Defendants in his pro forma Complaint under "Defendant's Information" as "Maxey Boys Training School/ Dr. Motley/ B-Hall Staff." Plaintiff did not specifically identify any individual under the "B-Hall Staff" designation. Plaintiff has failed to state a claim against the B-Hall Staff. Defendants' Motion to Dismiss the B-Hall Staff is granted.
( Memorandum Opinion and Order, dated, 9/30/02, pp. 4-5).
Subsequently, a motion to dismiss was filed on Dr. Motley's behalf; and Plaintiff was served by Defendant Motley, and by the Court. ( Report and Recommendation, dated 4/30/03, pg. 4). Despite an order being issued by the Court directing Plaintiff to respond to the Motion by March 17, 2003, Plaintiff has failed to respond. Dr. Motley's Motion to Dismiss is the subject of the Report and Recommendation that this Opinion addresses.
IV. Standard of Review
This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636 (b)(1)(C). This Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." Id. V. Applicable Law Analysis
A. Deliberate Indifference
Magistrate Judge Pepe properly determined that in order for Defendant Motley to prevail on her Motion to Dismiss, she must show that she acted with no deliberate indifference in her care and medical treatment of Plaintiff. Farmer v. Brennan, 511 U.S. 825, 832-35 (1994). The Magistrate Judge further applied the facts of this case to the deliberate indifference standard, which is a disregard for an inmates' health and safety, and properly found that Plaintiff had not stated a claim that Dr. Motley was deliberately indifferent to Plaintiffs medical needs, nor in her care and treatment of Plaintiffs condition.
B. Failure to Prosecute
Since Plaintiff has failed to respond to the dispositive Motion filed on Defendant Motley's behalf; and the Court assured itself that Plaintiff was served by serving a copy upon Plaintiff along with an Order directing Plaintiff to respond to the Motion by March 17, 2003, the Court agrees with the Magistrate Judge's determination:
Plaintiff's failure to respond to the motion and comply with this court's orders, as well as the fact that Plaintiff has not contacted this court in one and a half years, serve as an independent basis for dismissal of Plaintiff's claims against Defendant Motley.
( Report and Recommendation, dated 9/30/03, pg. 8)
C. Failure to Appeal Report and Recommendation
In order to have preserved its right to appeal the Magistrate Judge's recommendation, Defendant was obligated to file objections to the Report and Recommendation within ten days of service of a copy as provided for in 28 U.S.C. § 636 (b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Plaintiff was given notice of this response time restriction when he was served a copy of the Report and Recommendation. Therefore, Plaintiff's failure to file any objections to the April 30, 2003 Report and Recommendation has resulted in his waiver of any further appeal rights.
VI. Conclusion
Since Plaintiff has failed to file any objections to the Report and Recommendation in this matter, the Court finds that Plaintiff has waived his right to appeal the decision of the Magistrate Judge. For this reason and for the substantive reasons set forth above, the Court ADOPTS and ACCEPTS Magistrate Judge Pepe's Report and Recommendation.
IT IS HEREBY ORDERED that Magistrate Judge Pepe's Report and Recommendation [Docket No: 27-1] is ADOPTED and ACCEPTED.
IT IS FURTHER ORDERED that Defendant Dr. Rebecca Motley's Motion to Dismiss Under FRCP 12(b)(6), 42 U.S.C. § 1997e, FRCP 41(b) [Docket No: 25-1] is GRANTED and Plaintiff's remaining claim in this matter is DISMISSED.