Frederick et al v. West Virginia Department of Health and Human Services et al

Filing 135

MEMORANDUM OPINION AND ORDER The Court ADOPTS the 132 Proposed Findings and Recommendation, DENIES AS MOOT the DHHR Defendants' 13 first motion to dismiss, GRANTS all other motions to dismiss, (ECF Nos. 34 , 37 , 68 , 71 , 73 , 75 , [7 7], 79 , 81 , 83 , 86 ), and DISMISSES this action; the 134 motion to stay and substitute is DENIED; the Clerk is directed to remove this action from the docket of the Court. Signed by Judge Thomas E. Johnston on 3/13/2019. (cc: counsel of record; any unrepresented party) (kp)

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

MICHAEL W. FREDERICK, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:18-cv-01077

WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are the Defendants’ individual motions to dismiss. (ECF Nos.
34, 37, 68, 71, 73, 75, 77, 79, 81, 83, 86.) By Standing Order filed in this case on June 25, 2018,
this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and a recommendation for disposition (“PF&R”). (ECF No. 9.) Magistrate
Judge Tinsley entered his PF&R on February 15, 2019, recommending that the Court deny as moot
Defendants Kathy Bradley, Lisa M. Driscoll, Anita B. Duncan, Rebecca Hall, Shelly J.
Nicewarner, and West Virginia Department of Health and Human Services’ (“DHHR
Defendants”) first motion to dismiss, as they filed an amended motion, and grant all other motions
to dismiss and dismiss the case. (ECF No. 132.)
“The district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 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. 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 due on March 4, 2019. To date, no objections
have been filed.1 Accordingly, the Court ADOPTS the PF&R2, (ECF No. 132), DENIES AS
MOOT the DHHR Defendants’ first motion to dismiss, (ECF No. 13), GRANTS all other motions
to dismiss, (ECF Nos. 34, 37, 68, 71, 73, 75, 77, 79, 81, 83, 86), and DISMISSES this action.
The Court further DIRECTS the Clerk to remove this action from the docket of the Court.
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:

1

March 13, 2019

In response to the PF&R, Diane Frederick filed a motion to stay the case and substitute a representative for Michael
Frederick due to his alleged incompetence. (ECF No. 133.) This Court ordered her to provide documentation of
Michael Frederick’s alleged incompetence under seal and ex parte no later than March 12, 2019. (See ECF No. 134.)
To date, Diane Frederick has failed to provide any such evidence. Accordingly, the Court DENIES her motion to
stay and for substitution. (ECF No. 133.)
2
While the Court agrees with the conclusion reached in the PF&R regarding dismissal of Plaintiffs’ negligent
infliction of emotional distress claim, the Court does not agree with the PF&R’s legal reasoning. (See ECF No. 132
at 31–32.) Thus, the Court adopts the PF&R as to that claim only insofar as it recommends that the claim should be
dismissed.