Jones v Fikes, et al

Filing 34

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION DKT. NO. 31 , GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS MOTION TO DISMISS DKT. NO. 12 , AND DENYING AS MOOT PLAINTIFFS MOTION TO TAKE JUDICIAL NOTICE DKT. NO. 26 . The Court grants in part the defendants' 12 Motion to Dismiss as to defendants Fikes, Savage and Perdue and DISMISSES Jones' 1 Complaint, without prejudice, as to these Defendants. The Clerk is directed to issue a summons for the United States Att orney for the Northern District of West Virginia and the Attorney General of the United States, and to serve a copy of the summons and complaint upon those parties by certified mail, return receipt requested. Signed by Senior Judge Irene M. Keeley on 3/2/18. (Copy to PS Plaintiff via cert. mail)(mh) (Additional attachment(s) added on 3/2/2018: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LINWOOD LAMONT JONES,
Plaintiff,
v.

Civil Action No. 1:16cv212
(Judge Keeley)

MR. J. FIKES, individually and
official capacity; MR. M. WEAVER,
individually and official capacity;
DR. E. ANDERSON, individually and
official capacity; PA C. GHERKE,
individually and official capacity aka
Gherky; DR. T. SAVAGE, individually
and official capacity; WARDEN R. A.
PERDUE, individually and official
capacity,
Defendants.

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS [DKT. NO. 12], AND DENYING AS MOOT PLAINTIFF’S
MOTION TO TAKE JUDICIAL NOTICE [DKT. NO. 26]
On November 7, 2016, the pro se plaintiff, Linwood Lamont
Jones (“Jones”), filed a Bivens1 action against multiple employees
at FCI Gilmore (Dkt. No. 1), alleging that the defendants failed to
provide appropriate medical treatment for his spinal stenosis. Id.
Pursuant to 28 U.S.C. § 636 and the local rules, the Court referred
the action to United States Magistrate Judge Michael J. Aloi for
initial review. On August 3, 2017, the defendants moved to dismiss
Jones’ complaint for lack of proper service under Federal Rule of
Civil Procedure 12(b)(5) (Dkt. No. 12).

1

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 390 (1971).

JONES V. FIKES ET AL.

1:16CV212

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS [DKT. NO. 12], AND DENYING AS MOOT PLAINTIFF’S
MOTION TO TAKE JUDICIAL NOTICE [DKT. NO. 26]
On January 4, 2018, Magistrate Judge James E. Seibert entered
an Amended Report and Recommendation (“R&R”),2 recommending that
the Court grant in part and deny in part the defendants’ motion to
dismiss (Dkt. No. 31). Judge Seibert concluded that, despite
earlier procedural miscues, Jones had properly served defendants
Dr. E. Anderson (“Anderson”), PA C. Gherke (“Gherke”), and Mr. M.
Weaver (“Weaver”) in advance of the extended deadline for service
established

by

the

Court.

Id.

at

3-5.

Judge

Seibert

further

concluded, however, that Jones had failed to accomplish proper
service on

defendants

Mr. J.

Fikes

(“Fikes”),

Dr.

T.

Savage

(“Savage”), and Warden R. A. Perdue (“Perdue”) by the Court’s
deadline. Id. at 4.
The R&R also informed the parties of their right to file
“written

objections,

identifying

those

portions

of

the

recommendation to which objection is made and the basis for such
objections.” Id. at 5. It further warned them that failure to do so
may result in waiver of the right to appeal. Id. at 5-6. No party
has filed any objections to the R&R.

2

On September 15, 2017, the referral in this case was reassigned
to Magistrate Judge James E. Seibert. On December 27, 2017, Judge
Seibert entered a Report and Recommendation recommending that the
Court grant in part and deny in part the defendants’ motion to
dismiss (Dkt. No. 30). On January 4, 2018, Judge Seibert entered an
Amended Report and Recommendation, correcting an inadvertent
transposing of two defendants’ names on page five of the original
R&R (Dkt. No. 31 at 1 n.1).
2

JONES V. FIKES ET AL.

1:16CV212

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS [DKT. NO. 12], AND DENYING AS MOOT PLAINTIFF’S
MOTION TO TAKE JUDICIAL NOTICE [DKT. NO. 26]
When reviewing a magistrate judge’s R&R, the Court must review
de novo only those portions of the R&R to which an objection has
been 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.
2005)). Courts will uphold those portions of the 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).
Because

no

party

has

objected,

the

Court

is

under

no

obligation to conduct a de novo review. Dellacirprete, 479 F. Supp.
at 603-04. Upon Review of the R&R and the record for clear error,
the Court:
1.

ADOPTS the Amended R&R (Dkt. No. 31);

2.

GRANTS in PART the defendants’ Motion to Dismiss as to
defendants Fikes, Savage, and Perdue (Dkt. No. 12) and
DISMISSES Jones’ complaint WITHOUT PREJUDICE as to these
defendants (Dkt. No. 1);

3.

DENIES in PART the defendants’ Motion to Dismiss as to
defendants Anderson, Gherke, and Weaver (Dkt. No. 12);

3

JONES V. FIKES ET AL.

1:16CV212

ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION [DKT. NO. 31],
GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS’ MOTION TO
DISMISS [DKT. NO. 12], AND DENYING AS MOOT PLAINTIFF’S
MOTION TO TAKE JUDICIAL NOTICE [DKT. NO. 26]
4.
DENIES as MOOT Jones’ Motion for the Court to Take
Judicial Notice (Dkt. No. 26);
5.

DIRECTS the Clerk to TERMINATE as MOOT the original R&R
(Dkt. No. 30); and

6.

DIRECTS the Clerk to issue a summons for the United
States

Attorney

for

the

Northern

District

of

West

Virginia and the Attorney General of the United States,
and to serve a copy of the summons and complaint upon
those

parties

by

certified

mail,

return

receipt

requested.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail and
return receipt requested.
DATED: March 2, 2018.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

4