Jones v. F.C.I. Beckley Med. Staff Employees et al

Filing 47

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 43 Proposed Findings and Recommendation of the Magistrate Judge and ORDERS as follows: (1) the 30 First Amended Motion of the United States to Dismiss Defendants Conley White, Janeen Rose and F rances Lilly and Substitute the United States is GRANTED; (2) the 16 Motion of the United States to Dismiss Defendants Conley White, Janeen Rose and Frances Lilly and Substitute the United States is DENIED AS MOOT; the 18 Motion of the United Sta tes to Dismiss Medical Negligence Claims for Failure to State a Claim is GRANTED; (4) the Defendants' 28 First Amended Motion to Dismiss, or in the Alternative, Motion for Summary Judgment is GRANTED; (5) the Defendants' 23 Motion to Di smiss, or in the Alternative, Motion for Summary Judgment is DENIED AS MOOT; and (6) this matter is REFERRED back to the Magistrate Judge for further proceedings regarding the Plaintiff's FTCA claim. Signed by Judge Irene C. Berger on 2/11/2013. (cc: attys; any unrepresented party) (slr)

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

MR. STEVE JONES,
Plaintiff,
v.

CIVIL ACTION NO. 5:11-cv-00530

F.C.I. BECKLEY MED. STAFF
EMPLOYEES, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the United States’ Motion to Dismiss Defendants Conley White,
Janeen Rose and Frances Lilly and Substitute the United States (Document 16); the United
States’ Motion to Dismiss Medical Negligence Claims for Failure to State a Claim (Document
18); the Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment
(Document 23); the Defendants’ First Amended Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment (Document 28); and the United States’ First Amended Motion to Dismiss
Defendants Conley White, Janeen Rose and Frances Lilly and Substitute the United States
(Document 30).
By Standing Order (Document 4) entered on August 8, 2011, this action was referred to
the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this
Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. '
636.

On January 11, 2013, the Magistrate Judge submitted a Proposed Findings and

Recommendation (Document 43) wherein it is recommend that this Court grant the United
1

States’ First Amended Motion to Dismiss Defendants Conley White, Janeen Rose and Frances
Lilly and Substitute the United States (Document 30); deny as moot the United States’ Motion to
Dismiss Defendants Conley White, Janeen Rose and Frances Lilly and Substitute the United
States (Document 16); grant the United States’ Motion to Dismiss Medical Negligence Claims
for Failure to State a Claim (Document 18); grant the Defendants’ First Amended Motion to
Dismiss, or in the Alternative, Motion for Summary Judgment (Document 28); deny as moot the
Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Document
23); and refer this matter back to the Magistrate Judge for further proceedings regarding the
Plaintiff’s FTCA claim.

Objections to the Magistrate Judge=s Proposed Findings and

Recommendation were due by February 7, 2013.
Neither party has timely filed objections to the Magistrate Judge=s Proposed Findings
and Recommendation. 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).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS as follows: 1) the United States’ First Amended Motion to
Dismiss Defendants Conley White, Janeen Rose and Frances Lilly and Substitute the United
States (Document 30) is GRANTED; 2) the United States’ Motion to Dismiss Defendants
Conley White, Janeen Rose and Frances Lilly and Substitute the United States (Document 16) is

2

DENIED AS MOOT; 3) the United States’ Motion to Dismiss Medical Negligence Claims for
Failure to State a Claim (Document 18) is GRANTED; 4) the Defendants’ First Amended
Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Document 28) is
GRANTED; 5) the Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment (Document 23) is DENIED AS MOOT; and 6) this matter is REFERED back to the
Magistrate Judge for further proceedings regarding the Plaintiff’s FTCA claim.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
VanDervort, counsel of record, and any unrepresented party.
ENTER:

3

February 11, 2013