Short v. Hines et al

Filing 49

OPINION AND ORDER granting 31 Motion to Dismiss. Signed by District Judge Patrick J Duggan. (MOre)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION WILLIAM SHORT, Plaintiff, v. SHERIFF DAN HINES, SGT. WALKER, LT. CARMONEY, JOHN DOE OFFICERS, COORDINATED CARE PLLC, OFFICER WICKHAM, OFFICER BRITTIN, OFFICER WELTER, OFFICER KELLENBERGER, RHONDA SCHULTZ, NANCY YIRKU, JACKIE COX, MICHAEL BURGESS, and CARRIE DASH, Defendants. ____________________________/ OPINION AND ORDER ADOPTING MAGISTRATE JUDGE MAJZOUB'S JUNE 24, 2010, REPORT AND RECOMMENDATION AND DISMISSING DISMISSING DEFENDANT DASH At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan, on August 17, 2010. PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE Case No. 09-12323 Honorable Patrick J. Duggan Plaintiff William Short ("Plaintiff"), a Michigan state prisoner, filed this pro se action pursuant to 42 U.S.C. 1983 against Defendants on June 16, 2009. Plaintiff later filed an amended complaint naming a number of defendants, including Defendant Dashner,1 that had previously been identified only as John Does. On October 15, 2009, Defendant Dashner is mistakenly named as Carrie "Dash" in the amended complaint. 1 this Court entered an order referring all pretrial matters to Magistrate Judge Mona K. Majzoub. On February 3, 2010, Defendant Dashner filed a motion to dismiss and/or for summary judgment. On June 24, 2010, Magistrate Judge Majzoub issued a Report and Recommendation (R&R) recommending that this Court grant Defendant Dashner's motion and dismiss her from the lawsuit. (R&R at 1.) Magistrate Judge Majzoub specifically recommends that Plaintiff's deliberate indifference and intentional infliction of emotional distress claims against Defendant Dashner be dismissed with prejudice. (Id. at 7.) Meanwhile, Magistrate Judge Majzoub recommends that Plaintiff's medical malpractice claim against Defendant Dashner be dismissed without prejudice based on Plaintiff's failure to file an affidavit of merit with his complaint. (Id.) At the conclusion of her R&R, Magistrate Judge Majzoub advises the parties that they have fourteen days from service of the R&R to file any objections thereto. (Id.) Magistrate Judge Majzoub further advises the parties that "[f]ailure to file specific objections constitutes a waiver of any further right of appeal." (Id. (citing Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).) No party has filed objections to the R&R. This Court has carefully reviewed the R&R and concurs with Magistrate Judge Majzoub's conclusions. Accordingly, IT IS ORDERED that Defendant Dashner's motion is GRANTED such that the deliberate indifference and intentional infliction of emotional distress claims are 2 dismissed with prejudice while the medical malpractice claim is dismissed without prejudice. IT IS FURTHER ORDERED that Defendant Dashner is DISMISSED from this action. s/PATRICK J. DUGGAN UNITED STATES DISTRICT JUDGE Copies to: William Short, #195405 Florence Crane Correctional Facility 38 Fourth Street Coldwater, MI 49036 Jason D. Kolkema, Esq. Patrick A. Aseltyne, Esq. Clyde M. Metzger, Esq. Judith A. Sherman, Esq. Saulius D. Polteraitis, Esq. Loretta B. Subhi, Esq. 3

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