Brewer v. Doe et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations Signed by District Judge William H. Barbour, Jr on 11/14/17 (MGB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
REGINALD BREWER

PLAINTIFF

VS.

CIVIL ACTION NO. 3:17-cv-536-WHB-JCG

J[OH]N DOE AND BAPTIST HOSPITAL

DEFENDANTS

OPINION AND ORDER
This

cause

is

before

the

Court

on

the

Report

and

Recommendation (“R and R”) of United States Magistrate Judge John
C. Gargiulo.

After considering the R and R1 and the other

pleadings in this case, the Court finds it should be adopted in its
entirety.

I.

Discussion

Reginal Brewer (“Brewer”) filed a lawsuit2 in this Court
alleging that after his father had several teeth “improperly”
pulled by a dentist named Dr. Kara, he developed pneumonia. Brewer
further alleged that after developing pneumonia, his father was
hospitalized at Baptist Hospital in Jackson, Mississippi, and later
died because of the negligent care he received at that facility.
The lawsuit came before United States Magistrate Judge John C.
1

Plaintiff was required to file an objection to the R and
R on or before November 6, 2017. No objection was filed.
2

As Brewer is proceeding pro se, the allegations in his
pleadings have been liberally construed. See United States v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

Gargiulo who entered the R and R that is presently before the
Court. In his R and R, Judge Gargiulo recommends that the lawsuit
be dismissed, without prejudice, because the Court lacks subject
matter jurisdiction over the case or, in the alternative, because
Brewer has failed to state a claim upon which the Court can grant
relief.

First, Judge Gargiulo found that the Court could not

exercise jurisdiction over Brewer’s state law negligence claims
against Dr. Kara or Baptist Hospital because he failed to comply
with the mandatory notice requirement of Mississippi Code Annotated
Section 15-1-36(15).

See R and R [Docket No. 11], at 3-5. Second,

Judge Gargiulo found that the Court could not exercise jurisdiction
over any claim alleged by Brewer that did not arise from his
father’s alleged wrongful death, including his claims under the
Health Insurance Portability and Accountability Act (“HIPPA”),
because Brewer would not have standing to litigate those claims.
Id. at 5-6. Finally, Judge Gargiulo found that (1) any HIPPA claim
alleged by Brewer was subject to dismissal because that Act does
not create a private right of action, and (2) any negligencerelated claim alleged by Brewer against Dr. Kara and Baptist
Hospital was subject to dismissal because his Complaint had been
filed after the statute of limitations on those claims had expired.
Id. at 6-7.

Based on these findings, Judge Gargiulo recommended

that Brewer’s Complaint be dismissed, without prejudice, on the
grounds that the Court lacks jurisdiction to hear his claims.
at 7-8.

Id.

In the alternative, Judge Gargiulo recommended that
2

Brewer’s Complaint be dismissed because he had failed to state a
claim upon which relief could be granted by the Court.

Id.

After reviewing the R and R, to which no objection was filed,
as well as the pleadings in this case, the Court agrees that this
case should be dismissed, without prejudice, for the reasons given
by Judge Gargiulo.

Accordingly, the Court will adopt Judge

Gargiulo’s R and R recommending the dismissal without prejudice of
this case.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the October 3, 2017, Report and
Recommendation of United States Magistrate Judge John C. Gargiulo
[Docket No. 11], is hereby adopted as the ruling of this Court.
A Order of Dismissal, dismissing this case without prejudice,
shall be entered this day.
SO ORDERED this the 14th day of November, 2017.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

3