McNally v. Inch et al

Filing 80

ORDER adopting Report and Recommendations re 60 ; granting in part and denying in part 41 Motion to Dismiss or in the Alternative for Summary Judgment. Signed by District Judge Carlton W. Reeves on 09/18/2019.(EP)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES ANTHONY MCNALLY
V.

PLAINTIFF
CAUSE NO. 3:17-CV-00847-CWR-JCG

DIRECTOR B.O.P. MARK INCH;
REGIONAL DIRECTOR J.A. KELLER, B.O.P.;
WARDEN C. NASH, YAZOO MED. F.C.C., B.O.P.;
DR. UNKNOWN NATAL PHYSICIAN, YAZOO F.C.C., B.O.P.;
DR. UNKNOWN CHAMBERS PHYSICIAN, YAZOO F.C.C., B.O.P.;
DR. WILLIAM PORTER CONTRACT SURGEON FOR B.O.P.

DEFENDANTS

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on Defendant Dr. William Porter’s Objection to the May
6, 2019, Report and Recommendation of United States Magistrate Judge John C. Gargiulo,
regarding the Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment. The
Report and Recommendation recommends that the Defendant’s Motion be granted in part and
denied in part, namely that pro se Plaintiff James Anthony McNally’s Eighth Amendment Bivens
claim against the Defendant be dismissed with prejudice but be construed as a state law medical
negligence/malpractice claim over which there is supplemental jurisdiction under 28 U.S.C. §
1367(a).
Having considered said Report and Recommendation, the Defendant’s objections thereto,
applicable statutory and case law, and being otherwise fully advised in the premises, the Court
concludes that the Defendant’s Objection fails to persuade and hereby adopts, as its own opinion,
the Report and Recommendation of the Magistrate Judge. Defendant advances new arguments in
his Objection that were not raised in his original Motion. Accordingly, the new arguments are

more properly considered in the separate motion to dismiss and for summary judgment the
Defendant has since filed advancing these and other arguments.
SO ORDERED, this the 18th day of September, 2019.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

2