United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING IN PART AMENDED REPORT AND
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Amended Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. ECF No. 21. Pursuant to this Court's
Local Rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed R&R. Magistrate
Judge Trumble issued his Amended R&R on February 6, 2019.
In his R&R, Magistrate Judge Trumble recommends that the
Plaintiff's Complaint [ECF No. 1] and Amended Complaint
[ECF No. 15] be denied and dismissed with prejudice.
review of the record, the Court finds that the facts as
explained in the R&R accurately and succinctly describe
the circumstances underlying the Plaintiff's claims. The
Court incorporates those facts herein. However, outlined
below are the most relevant facts of this case.
January 9, 2018, the Plaintiff filed a civil rights complaint
pursuant to 42 U.S.C. § 1983. ECF No. 1. In his
complaint, the Plaintiff asserted two claims alleging his
eighth amendment rights were violated when he was subjected
to an “unnecessary hernia operation.” ECF No. 1
at 8. On January 25, 2018, Magistrate Judge Trumble issued
his R&R recommending the Plaintiff's complaint be
dismissed without prejudice based on the Plaintiff's
failure to allege any facts to support his claims. ECF No. 9.
On February 8, 2018, the Plaintiff filed a motion to amend
his complaint. ECF No. 12. On February 28, 2018, the Court
entered an Order declining to adopt the R&R and granting
the Plaintiff's motion to amend his complaint. ECF No.
13. On March 12, 2018, the Plaintiff filed his amended
complaint. ECF No. 15. In the Plaintiff's amended
complaint, he alleges he was subjected to an unnecessary
hernia operation. He further alleges that another inmate was
supposed to receive the surgery, but he was taken to receive
the surgery by mistake.
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's
findings where 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 to which no objection is made. Thomas v. Arn,
474 U.S. 140, 150 (1985). Failure to file timely objections
constitutes a waiver of de novo review and of a
Plaintiff's right to appeal this Court's Order.
28.U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
“[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)). “When only a general objection is
made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the
report-recommendation to only a clear error review.”
Williams v. New York State Div. of Parole, No.
9:10-CV-1533 (GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July
12, 2012). Courts have also held that when a party's
objection lacks adequate specificity, the party waives that
objection. See Mario v. P & C Food Markets,
Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that
even though a party filed objections to the magistrate
judge's R&R, they were not specific enough to
preserve the claim for review). Bare statements “devoid
of any reference to specific findings or recommendations . .
. and unsupported by legal authority, [are] not
sufficient.” Mario 313 F.3d at 766. Finally,
the Fourth Circuit has long held, “[a]bsent objection,
we do not believe that any explanation need be given for
adopting [an R&R].” Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983) (finding that without an
objection, no explanation whatsoever is required of the
district court when adopting an R&R).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Service was accepted by the
pro se Plaintiff on February 11, 2019. ECF No. 22.
The Plaintiff filed his objections on February 27, 2019. ECF
No. 23. Accordingly, this Court will review the
Plaintiff's objections to the R&R de novo.
The Court will review the remainder of the R&R for clear
Judge Trumble recommends dismissing the complaint because the
Plaintiff has failed to state a claim upon which relief can
be granted. Specifically, Magistrate Judge Trumble found that
the Plaintiff failed to demonstrate or even allege that
either Defendant was a state actor at the time the Plaintiff
claims to have had his civil rights violated. Magistrate
Judge Trumble further found the Plaintiff has failed to make
any factual allegations against Defendant St. Jospeh's
Hospital. Moreover, based on Plaintiff's allegations, he
agreed to have the procedure after conferring with Defendant
Salvator Lansana, M.D. Therefore, “[a]t best, Plaintiff
alleges that he was convinced and persuaded to have a surgery
performed upon him.” ECF No. 21.
Plaintiff's objections, he relies on Conner v.
Donnelly, 42 F.3d 220 (4th Cir. 1994) to argue that
conduct by the Defendants constitutes state action. The
Plaintiff argues that “Salvator Lansana who's
employed by the other Defendant St. Joseph Hospital are both
private entities positioned to serve the public.” ECF
No. 23 at 3. The Plaintiff further asserts that “[b]oth
Defendants as private actors serve as a tool to and essential
need to the local community and the surrounding areas.”
Plaintiff has failed to state a claim against St.
Joseph's Hospital. In a § 1983 suit, a private
corporation is not vicariously liable for the acts of its
employees unless the plaintiff can show that the corporation
had a policy or custom that the employee acted pursuant to
and that caused deprivation of his rights. McIlwain v.
Prince William Hosp., 774 F.Supp. 986, 990 (E.D. Va.
1991). The Plaintiff has brought this suit against St.
Joseph's Hospital because that is where Salvator Lansana,
M.D. is allegedly employed and where the surgery took place.
The Plaintiff has not set forth any factual allegations that
St. Joseph's Hospital caused a deprivation of his rights
or that Salvator Lansana, M.D. acted pursuant to a policy or
custom of the hospital. Accordingly, the Plaintiff does not
have a § 1983 claim against St. Joseph's Hospital.
Plaintiff has also failed to state a claim against Salvator
Lansana, M.D. In Conner, ...