Kent v. Drew et al

Filing 24

ORDER ADOPTING 18 Final Report and Recommendation; DISMISSING plaintiff's complaint WITHOUT PREJUDICE; DENYING AS MOOT 22 Application for Leave to Proceed in forma pauperis; DENYING AS MOOT 23 Motion to Obtain Photostatic Copies. Signed by Judge William S. Duffey, Jr on 5/18/2015. (adg)

I.

BACKGROUND
On March 31, 2014, Plaintiff filed his Complaint, asserting claims under the

Federal Tort Claims Act (“FTCA”) against the United States and several officials
and medical personnel at the United States Penitentiary in Atlanta, Georgia. On
May 23, 2014, the Magistrate Judge granted [7] Plaintiff request to proceed in
forma pauperis (“IFP”).
On June 26, 2014, the Magistrate Judge screened Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915A, and recommended [8] that (1) Plaintiff’s FTCA
medical malpractice claims against Dr. Winston, Dr. Martin, and Dr. Gonzalez be
allowed to proceed; and (2) Plaintiff’s Complaint against Drew and Hollinger be
dismissed for failure to state a claim upon which relief may be granted. On
July 18, 2014, the Court adopted [12] the Magistrate Judge’s recommendations.
On July 22, 2014, the Magistrate Judge ordered [13] Plaintiff to complete
the USM 285 forms and summonses for the United States Attorney General and
the United States Attorney for the Northern District of Georgia. On
August 14, 2014, the Magistrate Judge ordered [15] Plaintiff to complete the USM
285 forms and summonses on or before August 28, 2014, and warned Plaintiff that
the failure to do so would result in a recommendation that this action be dismissed.

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Plaintiff did not comply with the Magistrate Judge’s August 14, 2014,
Order. On September 12, 2014, the Magistrate Judge recommended that the Court
dismiss Plaintiff’s Complaint for failure to comply with the August 14, 2014,
Order. (R&R at 2). Plaintiff did not file any objections to the R&R.
On April 7, 2015, Plaintiff filed his second Application for Leave to Proceed
in forma pauperis1 and Motion to Obtain Photostatic Copies.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). A district judge “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). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
1

It is unclear why Plaintiff filed a second IFP application when the Magistrate
Judge has already authorized Plaintiff to proceed IFP.
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B.

Analysis

As Plaintiff has not objected to the Magistrate Judge’s R&R, the Court
reviews the Magistrate Judge’s findings and recommendations for plain error. See
Slay 714 F.2d at 1095. The Magistrate Judge found that Plaintiff failed to comply
with the August 14, 2014, Order, and properly recommended that the Court
dismiss Plaintiff’s Complaint. See LR 41.3(A)(2), NDGa. The Court finds no
plain error in Magistrate Judge’s findings and recommendation. See Slay, 714
F.2d at 1095.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s

Final Report and Recommendation [18] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint [1] is
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s Application for Leave to
Proceed in forma pauperis [22] and Motion to Obtain Photostatic Copies [23] are
DENIED AS MOOT.

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SO ORDERED this 18th day of May, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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