Bone v. Lai et al

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 02/16/2021. (cwm) Copy mailed to pro se plaintiff by CMRR. (Additional attachment(s) added on 2/16/2021: # 1 Certified Mail Return Receipt) (tlg).

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Case 3:19-cv-00214-GMG Document 63 Filed 02/16/21 Page 1 of 3 PageID #: 397 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MARTINSBURG LAVELL BONE, Plaintiff, v. CIVIL ACTION NO.: 3:19-CV-214 (GROH) DR. LINGO LAI, DR. BEN STEPHENS, WVU MEDICINE EYE INSTITUTE, and W.V. UNIVERSITY HOSPITALS, Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION Now before the Court is the Report and Recommendation (AR&R@) of United States Magistrate Judge Robert W. Trumble. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Trumble for submission of a proposed R&R. Magistrate Judge Trumble issued his R&R [ECF No. 59] on December 17, 2020. In his R&R, Magistrate Judge Trumble finds that the Plaintiff has failed to state a claim upon which relief can be granted against Defendants Ben Stephens, WVU Medicine Eye Institute and W.V. University Hospital, and recommends that the Plaintiff’s Complaint [ECF No. 13] be dismissed with prejudice. Furthermore, he finds that the Plaintiff failed to exhaust administrative remedies and recommends that the Plaintiff’s complaint [ECF No. 13] be dismissed without prejudice as to Defendant Lingo Lai. Case 3:19-cv-00214-GMG Document 63 Filed 02/16/21 Page 2 of 3 PageID #: 398 Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review of the magistrate judge=s findings where 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 to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review and of a plaintiff’s 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). Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). The R&R was mailed to the Plaintiff by certified mail on December 17, 2020. ECF No. 59. The Plaintiff accepted service on January 12, 2021. ECF No. 61. To date, no objections have been filed. Accordingly, the Court will review the R&R for clear error. Upon careful review of the R&R, it is the opinion of this Court that Magistrate Judge Trumble=s Report and Recommendation [ECF No. 59] should be, and is hereby, ORDERED ADOPTED for the reasons more fully stated therein. Therefore, the Plaintiff’s Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE as to Defendants Stephens, WVU Medicine Eye Institute and WV University Hospital, and DISMISSED WITHOUT PREJUDICE as to Defendant Lai. The Defendants’ Motions to Dismiss [ECF Nos. 23, 24, 25, 26 & 34] are GRANTED. This matter is ORDERED STRICKEN from the Court’s active docket. The Clerk of Court is DIRECTED to mail a copy of this Order to the Plaintiff by certified mail, return 2 Case 3:19-cv-00214-GMG Document 63 Filed 02/16/21 Page 3 of 3 PageID #: 399 receipt requested, at his last known address as reflected on the docket sheet. DATED: February 16, 2021 3

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