Nunez Garcia v. Mclean et al

Filing 82

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 4/13/2018. Copy to pro se plaintiff by cm,rrr.(cmd)

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

JHONNY MARCELINO NUNEZ GARCIA,
Plaintiff,

v.

CIVIL ACTION NO.: 3:16-CV-161
(GROH)

DIANE McLEAN, MD, Metropolitan Correctional
Center, NY, NY; MICHAEL BORECKY, MD,
Metropolitan Detention Center, Brooklyn, NY;
BRIAN BUSCHMAN, DR, USP Allenwood;
BRIAN GERSON, MS/NP-C, USP Allenwood;
JODY BENNETT-MEEHAN, PA-C, USP Allenwood;
B. WOOD, PA-C, USP Allenwood; ELIZABETE SANTOS,
Clinical Director, USP Allenwood; AMY ARMEL, PA-C,
USP Hazelton; LEIGH BIRD, PA-C, USP Hazelton;
ROBERT BEAUDOUIN, MD Clinical Director, Metropolitan
Correctional Center, NY, NY; A. ABOULFATCH, A MLP,
Metropolitan Correctional Center, NY, NY; Y. JOAQUIN,
MLP, Metropolitan Correctional Center, NY, NY; VICTOR
GONZALEZ, MD, Metropolitan Correctional Center,
Brooklyn, NY; JENNIFER HOLTZAPPLE, PA, USP
Allenwood; TERRY O’BRIEN, Complex Warden, USP
Hazelton; THOMAS O. DUVALL, PHD, LMHC, NCC
Psychologist, USP Hazelton; B. FRIEND, RN Health
Service Administrator, USP Hazelton; N. RAZAVI, MD,
USP Hazelton; CHRISTOPHER MEYER, MPAS, PA-C,
USP Hazelton; JOHN PYLES, FNP-BC, USP Hazelton; and
CHARLES CRAIG, PA ALP, USP Allenwood,
Defendants.

MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before the Court for consideration of the Report and
Recommendation of United States Magistrate Judge Michael John Aloi. ECF No. 79.

Pursuant to Rule 2 of the Local Rules of Prisoner Litigation Procedure, this action was
referred to Magistrate Judge Aloi for submission of a proposed report and
recommendation (“R&R”). On February 22, 2018, Magistrate Judge Aloi filed an R&R in
which he recommended that this Court dismiss the Plaintiff’s complaint with and without
prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
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). Moreover, “[w]hen a party does make objections, but these objections are
so general or conclusory that they fail to direct the district court to any specific error by
the magistrate judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp.
2d 723, 730 (S.D. W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982)). Failure to file timely objections also constitutes a waiver of de novo review and
the Plaintiff’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1)(C); 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 Aloi’s R&R were due within fourteen days
after the Plaintiff was served, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure. The Plaintiff was served with the R&R on March 2,
2018. Accordingly, objections were due no later than March 22, 2018, after accounting
for delivery time. No objections have been filed to date. Thus, the Court will undertake

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a de novo review of Magistrate Judge Aloi’s findings.
Upon careful review of the record, it is the opinion of this Court that Magistrate
Judge Aloi’s Report and Recommendation should be, and is, hereby ADOPTED for the
reasons more fully stated therein.
Accordingly, the Plaintiff’s complaint [ECF No. 1] is DISMISSED WITH
PREJUDICE as to Claims: 5 (Buschman), 6 (Buschman), 7 (Bennett-Meehan), 11
(Bennett-Meehan), 12 (Buschman), 18 (Gerson), 22 (Craig), 26 (Meyer) and 29
(Buschman).

The Plaintiff’s complaint [ECF No. 1] is DISMISSED WITHOUT

PREJUDICE as to Claims: 1 (all defendants), 2 (McLean), 3 (Borecky), 4 (Wood), 8
(Santos), 9 (no named defendant), 10 (Armel), 13 (Wood), 14 (no named defendant),
15 (Beaudouin), 16 (Aboulfatch), 17 (Joaquin), 19 (Gonzalez), 20 (Holtzapple), 21
(O’Brien), 23 (Friend), 24 (Duvall), 25 (Razavi), 27 (Pyles) and 28 (Bird).

The

Defendants’ Motions to Dismiss [ECF Nos. 52, 56] are GRANTED.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
and to mail a copy to the pro se Plaintiff by certified mail, return receipt requested, to his
last known address as shown on the docket sheet. The Clerk is further DIRECTED to
TERMINATE the Plaintiff’s Motion to Stay [ECF No. 81] as MOOT and STRIKE this case
from the Court’s active docket.
It is so ORDERED.
DATED: April 13, 2018

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