Fulwylie v. Waters et al

Filing 39

ORDER adopting 37 Report and Recommendations. ORDER granting in part 31 Motion to Dismiss or in the alternative Motion for Summary Judgment to the extent that it seeks the dismissal of this case for failure to exhaust and in all other respects t he motion shall be denied as moot. ORDERED that plaintiff's 1 Complaint is dismissed with prejudice and this action is stricken from the docket. ORDERED that the Clerk shall enter judgment for the defendants. Signed by Senior Judge Robert E. Maxwell on 9/22/09. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA DELOS P. FULWYLIE, Plaintiff, v. DR. MICHAEL WATERS, PHYSICIAN ASSISTANT BLANCO, MEDICAL ASSITANT MATTUSKI, Defendants. ORDER It will be recalled that on July 24, 2009, Magistrate Judge John S. Kaull filed his Report and Recommendation, wherein the Plaintiff was directed, in accordance with 28 U.S.C. § 636(b)(1), to file with the Clerk of Court any written objections within ten (10) days after being served with a copy of the Report and Recommendation. No objections to the Magistrate Judge's Report and Recommendation have been filed. Accordingly, the Court will proceed with consideration of the Report and Recommendation reviewing for clear error.1 Upon examination of the report from the Magistrate Judge, it appears to the Court that the issues raised by the Plaintiff's Complaint, brought pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), wherein Plaintiff alleges that members the federal correctional institution's medical staff acted with deliberate indifference toward his serious medical needs, were thoroughly
T he failure of a party to object to a Report and Recommendation waives the party's right to appeal from a judgment of this Court based thereon and, additionally, relieves the C ourt of any obligation to conduct a de novo review of the issues presented. See Wells v. S hrin ers Hospital, 109 F.3d 198, 199-200 (4th Cir. 1997); Thomas v. Arn, 474 U.S. 140, 148153 (1985).
1

Civil Action No. 2:08cv76

considered by Magistrate Judge Kaull in his Report and Recommendation. Moreover, the Court, upon a review for clear error, is of the opinion that the Report and Recommendation accurately reflects the law applicable to the facts and circumstances before the Court in this action. Therefore, it is ORDERED that Magistrate Judge Kaull's Report and Recommendation be, and the same hereby is, accepted in whole and that this civil action be disposed of in accordance with the recommendation of the Magistrate Judge. Accordingly, it is ORDERED that Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (docket #31) shall be, and the same hereby is, GRANTED in part and to the extent that it seeks the dismissal of this case for failure to exhaust. In all other respects, the motion shall be, and the same hereby is, denied as moot. It is further ORDERED that the Plaintiff's Complaint shall be, and the same hereby is, DISMISSED with prejudice. It is further ORDERED that the above-styled action shall be STRICKEN from the docket of this Court. It is further ORDERED that the Clerk shall enter judgment for the Defendants. It is further ORDERED that, if Plaintiff should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within thirty (30) days from the date of the entry of the Judgment Order, pursuant to Rule 4 of the Federal Rules of Appellate Procedure. The $5.00 filing fee for the notice of appeal and the $450.00 docketing fee should also be submitted with the notice of appeal. In the alternative, at the time the notice of appeal is submitted, Plaintiff may, in accordance

with the provisions of Rule 24(a) of the Federal Rules of Appellate Procedure, seek leave to proceed in forma pauperis from the United States Court of Appeals for the Fourth Circuit. ENTER: September 22 , 2009

/s/ Robert E. Maxwell United States District Judge