Glasser v. Bowling et al

Filing 19

MEMORANDUM OPINION AND ORDER adopting the 15 Proposed Findings and Recommendations by Magistrate Judge; granting the 11 Motion to Dismiss filed by M. Davita, Jay Smithers; granting the 13 Motion to Dismiss filed by Casey Adkins, Karen Bowl ing, Melissa McCumbers; dismissing WITHOUT PREJUDICE the 2 Complaint; and DISMISSES Defendants Karen Bowling and Jay Smithers; granting Plaintiff's 18 Motion to Amend, deeming the proposed [18-1] First Amended Complaint served as of the dat e of entry of this order; directing defendants M. Davita, Melissa McCumbers, and Casey Adkins to respond to the First Amended Complaint within 14 days of the date of entry of this order. Signed by Judge Thomas E. Johnston on 9/14/2017. (cc: counsel of record; any unrepresented party) (mks)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

DEREK ROBERT GLASSER, for himself
and as next friend of C.D.G., a minor,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-01411

KAREN BOWLING, Secretary of
Health and Human Resources, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants M. Davita and Jay Smithers’ Motion to Dismiss
(ECF No. 11), Defendants Casey Adkins, Karen Bowling, Melissa McCumbers’s Motion to
Dismiss (ECF No. 13), and Plaintiff Derek Robert Glasser’s (“Plaintiff”) Motion to Amend (ECF
No. 18). By Standing Order entered May 7, 2014, and filed in this case on February 4, 2015, this
action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and a recommendation (PF&R). Magistrate Judge Tinsley filed his PF&R
(ECF No. 15) on May 23, 2017, recommending that this Court grant the Motions to Dismiss (ECF
Nos. 11 and 13) and dismiss this action without prejudice.
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). Failure to file
timely objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this

Court’s Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need
not conduct a de novo review when a party “makes general and conclusory objections that do not
direct the Court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R in this case were
originally due on June 9, 2017, but by Order entered June 15, 2017, the Court extended the
deadline to July 17, 2017. To date, no objections have been filed.
While Magistrate Judge Tinsley’s PF&R recommends dismissal, it also recommends that
such dismissal be without prejudice and that Plaintiff be afforded the opportunity to amend the
Complaint. Apparently in response to this recommendation, Plaintiff filed a Motion to Amend
(ECF No. 18) on July 17, 2017 with a proposed First Amended Complaint (ECF No. 18-1)
attached. The First Amended Complaint purports to raise claims against Defendants Davita,
McCumbers, and Adkins in their individual capacities. None of these three Defendants named
have filed a response to the Motion to Amend.
Leave to amend a pleading should be freely given “when justice so requires.” Fed. R. Civ.
P. 15(a). “‘[L]eave to amend a pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the
amendment would be futile.’” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)
(quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). “The disposition of
a motion to amend is within the sound discretion of the district court.” Davis v. Virginia
Commonwealth Univ., 180 F.3d 626, 628 (4th Cir. 1999) (citing Foman v. Davis, 371 U.S. 178
(1962)). A review of the Motion to Amend (ECF No. 18) and the proposed First Amended
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Complaint (ECF No. 18-1) reveals at least one claim of debatable validity; the Court cannot
therefore find futility. Moreover, no one has asserted futility or any other argument against
amendment. The Court thus finds that it is appropriate to grant Plaintiff leave to amend.
Accordingly, the Court ADOPTS the PF&R (ECF No. 15), GRANTS the Motions to
Dismiss (ECF Nos. 11 and 13), DISMISSES WITHOUT PREJUDICE the Complaint (ECF No.
2), and DISMISSES Defendants Karen Bowling and Jay Smithers. The Court also GRANTS
Plaintiff’s Motion to Amend (ECF No. 18), DEEMS the proposed First Amended Complaint (ECF
No. 18-1) served as of the date of entry of this order, and ORDERS Defendants M. Davita, Melissa
McCumbers, and Casey Adkins to respond to the First Amended Complaint within 14 days of the
date of entry of this order.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 14, 2017