United States District Court, N.D. West Virginia
ORDER ADOPTING AMENDED REPORT AND RECOMMENDATION
[DKT. NO. 31], GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANTS' MOTION TO DISMISS [DKT. NO. 12], AND DENYING
AS MOOT PLAINTIFF'S MOTION TO TAKE JUDICIAL NOTICE [DKT.
M. KEELEY, UNITED STATES DISTRICT JUDGE.
November 7, 2016, the pro se plaintiff, Linwood
Lamont Jones (“Jones”), filed a
Bivens action against multiple employees at FCI
Gilmore (Dkt. No. 1), alleging that the defendants failed to
provide appropriate medical treatment for his spinal
stenosis. Id. Pursuant to 28 U.S.C. § 636 and
the local rules, the Court referred the action to United
States Magistrate Judge Michael J. Aloi for initial review.
On August 3, 2017, the defendants moved to dismiss Jones'
complaint for lack of proper service under Federal Rule of
Civil Procedure 12(b)(5) (Dkt. No. 12).
January 4, 2018, Magistrate Judge James E. Seibert entered an
Amended Report and Recommendation (“R&R”),
recommending that the Court grant in part and deny in part
the defendants' motion to dismiss (Dkt. No. 31). Judge
Seibert concluded that, despite earlier procedural miscues,
Jones had properly served defendants Dr. E. Anderson
(“Anderson”), PA C. Gherke
(“Gherke”), and Mr. M. Weaver
(“Weaver”) in advance of the extended deadline
for service established by the Court. Id. at 3-5.
Judge Seibert further concluded, however, that Jones had
failed to accomplish proper service on defendants Mr. J.
Fikes (“Fikes”), Dr. T. Savage
(“Savage”), and Warden R. A. Perdue
(“Perdue”) by the Court's deadline.
Id. at 4.
R&R also informed the parties of their right to file
“written objections, identifying those portions of the
recommendation to which objection is made and the basis for
such objections.” Id. at 5. It further warned
them that failure to do so may result in waiver of the right
to appeal. Id. at 5-6. No party has filed any
objections to the R&R.
reviewing a magistrate judge's R&R, the Court must
review de novo only those portions of the R&R to
which an objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp. 2d. 600,
603-04 (N.D. W.Va. 2007)(citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 2005)). Courts will uphold those
portions of the recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
no party has objected, the Court is under no obligation to
conduct a de novo review. Dellacirprete,
479 F.Supp. at 603-04. Upon Review of the R&R and the
record for clear error, the Court:
1. ADOPTS the Amended R&R (Dkt. No. 31);
2. GRANTS in PART the defendants' Motion
to Dismiss as to defendants Fikes, Savage, and Perdue (Dkt.
No. 12) and DISMISSES Jones' complaint
WITHOUT PREJUDICE as to these defendants
(Dkt. No. 1);
3. DENIES in PART the defendants' Motion
to Dismiss as to defendants Anderson, Gherke, and Weaver
(Dkt. No. 12);
4. DENIES as MOOT Jones' Motion for the
Court to Take Judicial Notice (Dkt. No. 26);
5. DIRECTS the Clerk to TERMINATE as
MOOT the original R&R (Dkt. No. 30); and
6. DIRECTS the Clerk to issue a summons for
the United States Attorney for the Northern District of West
Virginia and the Attorney General of the United States, and
to serve a copy of the summons and complaint upon those
parties by certified mail, return receipt requested.
Court DIRECTS the Clerk to transmit copies
of this Order to counsel of record and the pro se