Cline v. Allen et al

Filing 23

MEMORANDUM OPINION AND ORDER: Adopting the 21 Proposed Findings and Recommendation of the Magistrate Judge; granting in part and denying in part Defendants' 16 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, as more fully described herein; removing this matter from the Court's docket. Signed by Judge Irene C. Berger on 7/16/2018. (cc: Magistrate Judge Aboulhosn; attys; any unrepresented party) (btm)

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

PHILLIP E. CLINE,
Plaintiff,
v.

CIVIL ACTION NO. 5:17-cv-02391

DR. ALLEN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

On April 19, 2017, the Plaintiff, proceeding pro se, filed a Complaint (Document 1) in this
matter. On August 30, 2017, the Defendants’ Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment (Document 16) was filed.
By Standing Order (Document 3) entered on April 19, 2017, this action was referred to the
Honorable Omar J. Aboulhosn, 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
June 22, 2018, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 21) wherein it is recommended that this Court grant in part and deny in part the
Defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Document
16), and remove this matter from the Court’s docket. Objections to the Magistrate Judge=s
Proposed Findings and Recommendation were due by July 9, 2018.

1

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 a party’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 that the Defendants’ Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment (Document 16) be GRANTED in part and DENIED in part.
Specifically, the Court ORDERS that the Defendants’ Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment (Document 16):
be DENIED as to Defendants’ argument that collateral estoppel precludes Plaintiff’s claim
that Defendants acted with deliberate indifference by continuously failing to provide
appropriate pain medication and failing to transfer Plaintiff to a medical facility based upon
Dr. Feldenzer’s recommendations[; and]… be GRANTED as to the following arguments:
(1) Collateral estoppel precludes Plaintiff’s claim that Defendants acted with deliberate
indifference by continuously failing to provide adequate pain medication through March
2, 2012 and in failing to transfer Plaintiff to a higher level medical facility based upon Dr.
Greenberg’s recommendation; (2) Plaintiff cannot establish a claim of deliberate
indifference to his medical condition; and (3) Plaintiff’s claim against Defendant Thomas
is inappropriately based upon supervisory liability.
(Proposed Findings and Recommendation, Page 43). Additionally, the Court ORDERS that this
matter be REMOVED from the Court’s docket.

2

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, counsel of record, and any unrepresented party.
ENTER:

3

July 16, 2018