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).

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.

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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
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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

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