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Garcia v. McLean
United States District Court, N.D. West Virginia, Martinsburg
April 13, 2018
JHONNY MARCELINO NUNEZ GARCIA, Plaintiff,
DIANE McLEAN, MD, Metropolitan Correctional Center, NY, NY; MICHAEL BORECKY, MD, Metropolitan Detention Center, Brooklyn, NY; BRIAN BUSCHMAN, DR, USP Allenwood; BRIAN GERSON, MS/NP-C, USP Allenwood; JODY BENNETT-MEEHAN, PA-C, USP Allenwood; B. WOOD, PA-C, USP Allenwood; ELIZABETE SANTOS, Clinical Director, USP Allenwood; AMY ARMEL, PA-C, USP Hazelton; LEIGH BIRD, PA-C, USP Hazelton; ROBERT BEAUDOUIN, MD Clinical Director, Metropolitan Correctional Center, NY, NY; A. ABOULFATCH, A MLP, Metropolitan Correctional Center, NY, NY; Y. JOAQUIN, MLP, Metropolitan Correctional Center, NY, NY; VICTOR GONZALEZ, MD, Metropolitan Correctional Center, Brooklyn, NY; JENNIFER HOLTZAPPLE, PA, USP Allenwood; TERRY O'BRIEN, Complex Warden, USP Hazelton; THOMAS O. DUVALL, PHD, LMHC, NCC Psychologist, USP Hazelton; B. FRIEND, RN Health Service Administrator, USP Hazelton; N. RAZAVI, MD, USP Hazelton; CHRISTOPHER MEYER, MPAS, PA-C, USP Hazelton; JOHN PYLES, FNP-BC, USP Hazelton; and CHARLES CRAIG, PA ALP, USP Allenwood, Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
above-styled matter came before the Court for consideration
of the Report and Recommendation of United States Magistrate
Judge Michael John Aloi. ECF No. 79.
to Rule 2 of the Local Rules of Prisoner Litigation
Procedure, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and recommendation
(“R&R”). On February 22, 2018, Magistrate
Judge Aloi filed an R&R in which he recommended that this
Court dismiss the Plaintiff's complaint with and without
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, 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).
Moreover, “[w]hen a party does make objections, but
these objections are so general or conclusory that they fail
to direct the district court to any specific error by the
magistrate judge, de novo review is unnecessary.”
Green v. Rubenstein, 644 F.Supp.2d 723, 730 (S.D.
W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982)). Failure to file timely objections also
constitutes a waiver of de novo review and the
Plaintiff's right to appeal this Court's Order. 28
U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
objections to Magistrate Judge Aloi's R&R were due
within fourteen days after the Plaintiff was served, pursuant
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure. The Plaintiff was served
with the R&R on March 2, 2018. Accordingly, objections
were due no later than March 22, 2018, after accounting for
delivery time. No. objections have been filed to date. Thus,
the Court will undertake a de novo review of
Magistrate Judge Aloi's findings.
careful review of the record, it is the opinion of this Court
that Magistrate Judge Aloi's Report and Recommendation
should be, and is, hereby ADOPTED for the
reasons more fully stated therein.
the Plaintiffs complaint [ECF No. 1] is DISMISSED WITH
PREJUDICE as to Claims: 5 (Buschman), 6 (Buschman), 7
(Bennett-Meehan), 11 (Bennett-Meehan), 12 (Buschman), 18
(Gerson), 22 (Craig), 26 (Meyer) and 29 (Buschman). The
Plaintiffs complaint [ECF No. 1] is DISMISSED WITHOUT
PREJUDICE as to Claims: 1 (all defendants), 2 (McLean), 3
(Borecky), 4 (Wood), 8 (Santos), 9 (no named defendant), 10
(Armel), 13 (Wood), 14 (no named defendant), 15 (Beaudouin),
16 (Aboulfatch), 17 (Joaquin), 19 (Gonzalez), 20
(Holtzapple), 21 (O'Brien), 23 (Friend), 24 (Duvall), 25
(Razavi), 27 (Pyles) and 28 (Bird). The Defendants'
Motions to Dismiss [ECF Nos. 52, 56] are GRANTED.
Clerk is DIRECTED to transmit copies of this
Order to all counsel of record and to mail a copy to the
pro se Plaintiff by certified mail, return receipt
requested, to his last known address as shown on the docket
sheet. The Clerk is further DIRECTED to
TERMINATE the Plaintiff's Motion to Stay