Smith v. Hazelton HSA - Director - FCI et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 21 , GRANTING DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT DKT. NO. 13 , AND DISMISSING THE CASE: The Court ADOPTS the R&R Dkt. No. 21 ; GRANTS the defendants motion t o dismiss, or in the alternative, motion for summary judgment Dkt. No. 3 ; DISMISSES Smiths claim regarding his eyes and teeth WITHOUT PREJUDICE for failing to exhaust administrative remedies Dkt. No. 1 ; and DISMISSES Smiths claim regarding his fe et WITH PREJUDICE for failure to state a claim upon which relief can be granted Dkt. No. 1 . The Court directs the Clerk to enter a separate judgment order. Signed by Senior Judge Irene M. Keeley on 2/13/18. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES TYRONE SMITH,
Plaintiff,
v.

Civil Action No. 1:16cv226
(Judge Keeley)

JANE OR JOHN DOE, HSA FCI Hazelton
Director; JAMES NOLTE, HSA-FCI Hazelton,
Supervisor of Health Services; DOE KOCH,
Ass’t Commander-HAS Assist. Supervisor of
Health Services; FCI Hazelton Dental
COL JOHN DOE, Supervisor of Dental,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 13], AND DISMISSING THE CASE
On November 28, 2016, the pro se plaintiff, James Tyrone Smith
(“Smith”), filed a Bivens1 action against multiple employees at FCI
Hazelton (Dkt. No. 1), alleging that the defendants violated his
Eighth Amendment rights by acting with deliberate indifference to
his serious medical needs. Id. Pursuant to 28 U.S.C. § 636 and the
local rules, the Court referred the action to United States
Magistrate Judge Robert W. Trumble for initial review. On April 27,
2017,

the

defendants

filed

a

motion

to

dismiss,

or

in

the

alternative, motion for summary judgment (Dkt. No. 13).
Magistrate Judge Trumble’s Report and Recommendation (“R&R”),
entered on November 8, 2017, recommended that the Court grant the
defendants’ motion to dismiss, or in the alternative, motion for

1

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

SMITH V. HAZELTON HSA, ET AL.

1:16CV226

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 13], AND DISMISSING THE CASE
summary judgment as to all defendants, and dismiss the plaintiff’s
complaint (Dkt. No. 21). Noting first that Smith’s complaint makes
no

allegation

against

defendants

Friss

or

Friend,

the

R&R

recommended that these defendants be dismissed for failure to state
a claim.2 Id. at 7-8. It further recommended that defendants
DuBois, Nolte, and Koch be dismissed because each is commissioned
as a Public Health Services Officer and is therefore immune from
personal liability in a Bivens action. Id. at 8-9. Next, the R&R
concluded that Smith had failed to exhaust his administrative
remedies with respect to his claims regarding eye and dental care.
Id. at 9-12. Finally, to the extent Smith sought to bring a claim
regarding care of his feet, the R&R concluded that he had failed to
state a claim for deliberate indifference. Id. at 14-15.
The R&R also informed the parties of their right to file
“written

objections,

identifying

those

portions

of

the

recommendation to which objections are made, and the basis for such
objections.” Id. at 16. It further warned them that failure to do
so may result in waiver of the right to appeal. Id. No party has
filed any objections to the R&R.
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

2

Notably, Smith made no mention of Friss or Friend in his complaint
except to name them as defendants (Dkt. No. 21 at 7).
2

SMITH V. HAZELTON HSA, ET AL.

1:16CV226

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 13], AND DISMISSING THE CASE
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 R&R (Dkt. No. 21);

2.

GRANTS the defendants’ motion to dismiss, or in the
alternative, motion for summary judgment (Dkt. No. 13);

3.

DISMISSES Smith’s claim regarding his eyes and teeth
WITHOUT PREJUDICE for failing to exhaust administrative
remedies (Dkt. No. 1); and

4.

DISMISSES Smith’s claim regarding his feet WITH PREJUDICE
for failure to state a claim upon which relief can be
granted (Dkt. No. 1).

It is so ORDERED.
3

SMITH V. HAZELTON HSA, ET AL.

1:16CV226

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21],
GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 13], AND DISMISSING THE CASE
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, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: February 13, 2018.

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

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