McCastle v. United States of America et al

Filing 53

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 48 Report and Recommendations. It is, therefore, ORDERED that Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. #19) is GRANTED and Defendant's Motion to Dismiss pursuant to Texas Civil Practice and Remedies Code § 74.351(b) (Dkt. #41) is DENIED as moot, and this case should be DISMISSED as to Medical Center of McKinney. Signed by Judge Amos L. Mazzant, III on 12/30/2016. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS DIVISION
SHERMAN DIVISION

CORNELIUS JOSEPH MCCASTLE,

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Plaintiff,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants.

CIVIL ACTION NO. 4:15CV420
JUDGE MAZZANT/JUDGE JOHNSON

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On November 15, 2016, the report of the Magistrate Judge (Dkt. #48) was entered
containing proposed findings of fact and recommendations that Defendant Medical Center of
McKinney’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. #19)
should be GRANTED and Defendant’s Motion to Dismiss pursuant to Texas Civil Practice and
Remedies Code § 74.351(b) (Dkt. #41) should be DENIED as moot, and this case should be
DISMISSED as to this Defendant.
The record in this case indicates Defendant received a copy of the Magistrate Judge’s report
and recommendation on November 29, 2016 (see Dkt. #49). Defendant timely filed Objections on
November 30, 2016 (Dkt. #51). Pro se Plaintiff makes similar arguments as made in his Amended
Complaint (Dkt. #5), and fails to show he has stated a claim upon which relief can be granted.
Additionally, Plaintiff asserts he has disclosed expert testimony, which is required in a healthcare
liability claim. See Dkt. #51 at 1; see also TEX. CIV. PRAC. & REM. CODE § 74.351(a). Although

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this was not addressed in the report and recommendation, not only was Plaintiff’s designation of
an expert untimely, Plaintiff has not actually designated an expert; he has simply indicated that he
submits an MRI, which does not comply with the requirements of the Texas Civil Practice and
Remedies Code (see Dkt. #45). Finally, Plaintiff states violations under new statutes. 1 Plaintiff has
not stated a claim upon which relief could be granted under these statutes, he simply lists them.
Also, the Court notes these are federal criminal statutes that are inapplicable in this civil case.
Therefore, the Court hereby adopts the findings and conclusions of the Magistrate Judge
(Dkt. #48) as the findings and conclusions of this Court. It is, therefore, ORDERED that
Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. #19) is

. GRANTED and Defendant’s Motion to Dismiss pursuant to Texas Civil Practice and Remedies
Code § 74.351(b) (Dkt. #41) is DENIED as moot, and this case should be DISMISSED as to
Medical Center of McKinney.
IT IS SO ORDERED.

SIGNED this 30th day of December, 2016.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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See Dkt. #51 at 2-4. Plaintiff cites to the following new statutes: 18 U.S.C. § 1801 (Video voyeurism); § 246
(Deprivation of relief benefits); § 1515 (Definitions for certain provisions; general provisions); 1518 (Obstruction of
criminal investigations of health care offenses).

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