Driver v. Sator et al

Filing 83

ORDER: The R&R recommending that the plaintiff's motion to amend be denied (ECF No. 70 ) is REJECTED, and the plaintiff's motion to amend his complaint 59 is GRANTED. However, insofar as the amended complaint might be construed to stat e claims against Hospital Administrator Tim McConnell or to state a medical-malpractice claim against Dr. Alexander, such claims are DISMISSED WITH PREJUDICE. The court further finds that, although the plaintiff is subject to the three-strikes rule contained in 28 U.S.C. § 1915 (g), the plaintiff alleges imminent danger of serious physical injury and is therefore entitled to continue to proceed in forma pauperis. The recommendation (ECF No. 73 ) that the plaintiff's pauper status be revoked is therefore REJECTED. Defendants' Dr. Alexander and Corizon's motion to dismiss the complaint on the grounds that the plaintiff is not entitled to proceed in forma pauperis and their alternative motion for revocation of paupe r status (ECF No. 45 ) is therefore DENIED except insofar as the defendants seek dismissal of any potential medical-malpractice claims. Such medical-malpractice claims are DISMISSED WITH PREJUDICE. Likewise, the court REJECTS the recommendation that defendant First Medical Management's motion to dismiss (ECF No. 47 ) be granted, and DENIES FMM's motion to dismiss, except insofar as it seeks dismissal of any state-law claims for medical malpractice. Such medical-malpractice cla ims are DISMISSED. If FMM believes it is entitled to judgment in its favor on statute-of-limitation grounds, it must file a properly supported motion for summary judgment under Fed. R. Civ. P. 56. This matter remains REFERRED to Magistrate Judge Knowles. Signed by District Judge Aleta A. Trauger on 10/31/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) Modified text on 10/31/2013 (hb).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JERRY LYNN DRIVER,
Plaintiff,
v.
DR. PAUL ALEXANDER et al.,
Defendants.

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Case No. 3:13-cv-364
Judge Trauger

ORDER
Before the court are the plaintiff’s objections (ECF No. 77) to two separate reports issued by the
Magistrate Judge (ECF Nos. 70 and 73). In the first Report and Recommendation (“R&R”) (ECF No. 70),
the Magistrate Judge recommends denying the plaintiff’s Motion for Leave to File a Supplemental
Complaint (ECF No. 59). In the second R&R (ECF No. 73), the Magistrate Judge recommends that the
motion to dismiss filed by defendants Dr. Paul Alexander (“Alexander”) and Corizon Medical Services
(“Corizon”) (ECF No. 45) be denied, but also recommends that the order granting the plaintiff in forma
pauperis status be vacated and that the plaintiff be given 30 days from entry of the order vacating pauper
status to submit the full filing fee in this action or face dismissal thereof. The Magistrate Judge further
recommends that the motion to dismiss filed by defendant First Medical Management (“FMM”) (ECF No.
47) be granted.
The court has considered de novo the portions of the R&R to which objections are lodged. For
the reasons set forth in the accompanying Memorandum Opinion, the court finds that the motion to
amend the complaint is not futile. The R&R recommending that the plaintiff’s motion to amend be denied
(ECF No. 70) is therefore REJECTED, and the plaintiff’s motion to amend his complaint is GRANTED.
However, insofar as the amended complaint might be construed to state claims against Hospital
Administrator Tim McConnell or to state a medical-malpractice claim against Dr. Alexander, such claims
are DISMISSED WITH PREJUDICE.
The court further finds that, although the plaintiff is subject to the three-strikes rule contained in
28 U.S.C. § 1915(g), the plaintiff alleges imminent danger of serious physical injury and is therefore

entitled to continue to proceed in forma pauperis. The recommendation (ECF No. 73) that the plaintiff’s
pauper status be revoked is therefore REJECTED. Defendants’ Dr. Alexander and Corizon’s motion to
dismiss the complaint on the grounds that the plaintiff is not entitled to proceed in forma pauperis and
their alternative motion for revocation of pauper status (ECF No. 45) is therefore DENIED except insofar
as the defendants seek dismissal of any potential medical-malpractice claims. Such medical-malpractice
claims are DISMISSED WITH PREJUDICE.
Likewise, the court REJECTS the recommendation that defendant First Medical Management’s
motion to dismiss (ECF No. 47) be granted, and DENIES FMM’s motion to dismiss, except insofar as it
seeks dismissal of any state-law claims for medical malpractice. Such medical-malpractice claims are
DISMISSED. If FMM believes it is entitled to judgment in its favor on statute-of-limitation grounds, it must
file a properly supported motion for summary judgment under Fed. R. Civ. P. 56.
This matter remains REFERRED to Magistrate Judge Knowles.
It is so ORDERED.

Aleta A. Trauger
United States District Judge

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