Givens v. Williams et al

Filing 109

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 99 ] AND DISMISSING AMENDED COMPLAINT WITH PREJUDICE [DKT. NO. 61 ]: The Court ADOPTS the Report and Recommendations (Dkt. No. 99 ); GRANTS Dr. Anderson's Motion to Dismiss or, in the Alterna tive for Summary Judgment (Dkt. No. 73 ); and DISMISSES the amended complaint WITH PREJUDICE (Dkt. No. 61 ). Signed by Senior Judge Irene M. Keeley on 9/11/2018. (Copy to PS Plaintiff via CM, RRR.)(wrr) (Additional attachment(s) added on 9/11/2018: # 1 Certified Mail Return Receipt) (wrr).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELVIN GIVENS,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV111
(Judge Keeley)

EDDIE ANDERSON,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 99] AND
DISMISSING AMENDED COMPLAINT WITH PREJUDICE [DKT. NO. 61]
On July 2, 2015, the pro se plaintiff, federal inmate Melvin
Givens (“Givens”), filed this case pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). In his
original complaint, Givens named as defendants Warden Charles
Williams, Ellen Mace-Leibson, James Nolte, and Joshua Hall (Dkt.
No. 1). Givens alleged that the defendants exhibited deliberate
indifference to his medical needs by exposing him to tuberculosis
and prolonging treatment for his eye condition. Id. at 7-9. On
March 29, 2017, the Court dismissed the majority of his claims, but
granted Givens leave to file an amended complaint against Joshua
Hall (“Hall”) and an additional defendant, Eddie Anderson, D.O.
(“Dr. Anderson”) (Dkt. No. 59).
On May 18, 2017, Givens filed his amended complaint, naming
only Dr. Anderson as a defendant (Dkt. No. 61). Givens alleges that
Dr. Anderson was deliberately indifferent to his serious medical
needs by delaying the surgery Givens needed to reattach his retina.

GIVENS V. ANDERSON

1:15CV111

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 99] AND DISMISSING AMENDED COMPLAINT [DKT. NO. 61]
Id.

Pending

is

Dr.

Anderson’s

Motion

to

Dismiss

or,

in

the

Alternative for Summary Judgment (Dkt. No. 73).1
On July 9, 2018, the Honorable James E. Seibert, United States
Magistrate

Judge,

filed

a

Report

and

Recommendation

(“R&R”)

recommending that the Court grant Dr. Anderson’s motion (Dkt. No.
99). After a thorough review of the medical records, the magistrate
judge concluded that the amended complaint is barred by the twoyear statute of limitations because, although Givens underwent
surgery

on

February

27,

2012,

he

did

not

file

his

original

complaint until July 2, 2015. Id. at 25-28. Moreover, even if the
allegations were timely, the magistrate judge reasoned that, at
most,

they

amount

to

medical

negligence,

not

deliberate

indifference in violation of the Eighth Amendment. Id. at 28-33.
The R&R also informed Givens of his right to file “written
objections identifying those portions of the recommendation to
which objections are made, and the basis for such objections.” It
further warned that failure to do so would result in waiver of the
right to appeal. Id. at 33. Although Givens received the R&R on

1

Because Givens did not name him in the amended complaint,
Hall moved for dismissal, requesting that he be removed as a
defendant (Dkt. No. 63). The Court granted Hall’s motion on January
4, 2018 (Dkt. No. 86).
2

GIVENS V. ANDERSON

1:15CV111

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 99] AND DISMISSING AMENDED COMPLAINT [DKT. NO. 61]
July 16, 2018 (Dkt. No. 103), he has not filed any objections to
the magistrate judge’s recommendation.
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D.W.Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Having received no objections to the R&R, the Court has no
duty to conduct a de novo review of Magistrate Judge Seibert’s
findings. Furthermore, following a review of the R&R and the record
for clear error, the Court:
1)

ADOPTS the R&R (Dkt. No. 99);

2)

GRANTS Dr. Anderson’s Motion to Dismiss or, in the
Alternative for Summary Judgment (Dkt. No. 73); and

3)

DISMISSES the amended complaint WITH PREJUDICE (Dkt. No.
61).

3

GIVENS V. ANDERSON

1:15CV111

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 99] AND DISMISSING AMENDED COMPLAINT [DKT. NO. 61]
It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment
order, transmit copies of both orders to counsel of record and the
pro se plaintiff, by certified mail and return receipt requested,
and remove this case from the Court’s active docket.
DATED: September 11, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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