Arthur v. Fox et al

Filing 71

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Joel's 68 Report and Recommendation is adopted; Defendants Gheen and Wexford Medical Sources, Inc.'s 50 Motion to Dismiss is granted; Defendant Fox's 21 Moti on to Dismiss is granted; Plaintiff's 1 Complaint is dismissed with prejudice as it pertains to Defendants Fox, Gheen and Wexford Medical Sources, Inc. for failure to state a claim, and dismisses without prejudice Plaintiff's 1 Complain t as it pertains to Defendant Modie for lack of service. This matter is stricken from the active docket. Judgment shall be entered for the Defendants. Signed by Chief Judge John Preston Bailey on 2/26/13. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd) Modified relationship on 2/26/2013 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

JEFFREY ARTHUR,
Plaintiff,
v.

CIVIL ACTION NO. 2:11-CV-80
(BAILEY)

WILLIAM FOX, Warden,
VICKIE GHEEN, Medical Administrator,
PAUL MODIE, Medical Director, and
WEXFORD MEDICAL SOURCES, INC.,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation of United States Magistrate Judge David J. Joel. By Local
Rule, this action was referred to Magistrate Judge Joel for submission of a proposed report
and a recommendation (“R&R”). Magistrate Judge Joel filed his R&R on January 31, 2013
[Doc. 68]. In that filing, the magistrate judge recommended that this Court grant the
Motions to Dismiss [Docs. 21 and 50], dismiss with prejudice the plaintiff’s complaint
[Doc. 1] to the extent that it pertains to defendants William Fox, Vickie Gheen, and Wexford
Health Sources, Inc., for failure to state a claim upon which relief can be granted, and
dismiss without prejudice the plaintiff’s complaint [Doc. 1] to the extent that it pertains to
defendant Paul Modie for lack of service [Doc. 68 at 12-13].
Pursuant to 28 U.S.C. § 636 (b)(1)(C), this Court is required to make a de novo

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review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b).
The docket sheet reflects that service was accepted on February 4, 2013 [Doc. 69]. To
date, no objections have been filed.
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation [Doc. 68] should be, and is,
hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s
report. As such, this Court GRANTS Defendant William Fox’s Motion to Dismiss Plaintiff’s
Complaint [Doc. 21], GRANTS the Motion to Dismiss of Defendants Vicki Gheen and
Wexford Health Sources, Inc., [Doc. 50], DISMISSES with prejudice the plaintiff’s
Complaint [Doc. 1] as it pertains to defendants William Fox, Vickie Gheen, and
Wexford Medical Sources, Inc., for failure to state a claim upon which relief can be
granted, and DISMISSES without prejudice the plaintiff’s Complaint [Doc. 1] as it
pertains to defendant Paul Modie for lack of service. As such, this matter is hereby
ORDERED STRICKEN from the active docket of this Court. The Clerk is directed to enter

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a separate judgment in favor of the defendants.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se plaintiff.
DATED: February 26, 2013.

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