United States District Court, S.D. Mississippi, Northern Division
OPINION AND ORDER
WILLIAM H. BARBOUR, JR. UNITED STATES DISTRICT JUDGE
cause is before the Court on the Report and Recommendation
(“R and R”) of United States Magistrate Judge
John C. Gargiulo. After considering the R and R and the other
pleadings in this case, the Court finds it should be adopted
with respect to the FTCA claim and the severance/transfer of
the claims against the out-of-state defendants. The
recommendation that additional time be granted to serve
certain defendants has been rendered moot by their subsequent
waivers of service.
March of 2016, Marcus Weaver (“Weaver”) filed a
lawsuit in the United States District Court for the Southern
District of Illinois alleging, among other things, that the
medical treatment he received while incarcerated at the
Federal Correctional Institution in Yazoo City, Mississippi
(“FCI Yazoo”); and the Federal Correctional
Institution in Perkin, Illinois (“FCI Perkin”)
was both negligent and had violated his constitutional
rights. In his Complaint, Weaver alleged negligence claims
under the Federal Tort Claims Act (“FTCA”)
against FCI Yazoo, FCI Perkin, and several individual health
care providers at those facilities. Weaver also alleged
Eighth Amendment Bivens claims against the
individual health care providers.
the case was pending in Illinois, the FTCA claims against the
individual healthcare providers and FCI Perkin were
dismissed. Upon the re-pleading of his Bivens
claims, Weaver was permitted to proceed on those claims as
well as his FTCA claim arising from the medical care he
received at FCI Yazoo. On Motion of the Government, the case
was transferred to this Court.
the transfer of venue, the Government filed a Motion to
Dismiss, or in the alternative, for Summary Judgment raising
the following arguments: (1) the Court could not exercise
personal jurisdiction over the individual FCI Perkin health
care providers; (2) Weaver was not entitled to relief on his
FTCA claims; and (3) Weaver was not entitled to relief on his
Bivens claims against the individual FCI Yazoo
health care providers because (a) they were not properly
served, and (b) they were immune from suit. Weaver responded
by filing his own Motion for Summary Judgment and a Motion
seeking to have his claims against the individual FCI Perkin
health care providers transferred back to Illinois.
Motions came before United States Magistrate Judge John C.
Gargiulo who entered the R and R that is presently before the
Court. In his R and R, Judge Gargiulo recommended that the
Government be granted summary judgment on the FTCA claim
arising from the health care Weaver received at FCI Yazoo
because Weaver did not submit expert testimony as required to
support that claim. See R and R [Docket No. 77],
7-10. Next, Judge Gargiulo recommended that the
Bivens claims against the individual FCI Perkin
health care providers be severed, on the grounds of improper
joinder, and transferred to the United States District Court
for the Central District of Illinois where both venue and
personal jurisdiction could be properly exercised.
Id. at 10-14. Finally, Judge Gargiulo recommended
that Weaver be granted additional time in which to properly
serve the individual FCI Yazoo health care providers.
Id. at 14-15.
reviewing the R and R, to which no objections have been
filed, as well as the other pleadings in this case, the Court
agrees that summary judgment should be granted in favor of
the Government with respect to the FCI Yazoo-related FTCA
claim, and that the claims against the individual FCI Perkin
health care providers should be severed and transferred to
the United States District Court for the Central District of
Illinois for the reasons given by Judge Gargiulo.
Accordingly, the Court will adopt Judge Gargiulo's R and
R as to these issues. Judge Gargiulo's recommendation
that Weaver be granted additional time to serve the
individual FCI Yazoo health care providers is now moot as the
Docket shows that each of them has waived service of process
in this case. See Waivers [Docket Nos. 84-88].
THEREFORE ORDERED that the August 9, 2018, Report and
Recommendation of United States Magistrate Judge John C.
Gargiulo [Docket No. 77], is hereby adopted as the ruling of
this Court with respect to the granting of summary judgment
on the FTCA claim arising from the health care provided to
Marcus Weaver while he was incarcerated at FCI Yazoo. This
claim is hereby dismissed.
FURTHER ORDERED that the Report and Recommendation is adopted
as the ruling of this Court with respect to the severing and
transferring of the claims alleged against the individual FCI
Perkin healthcare providers. The Clerk of Court is hereby
directed to sever Plaintiff's claims against Dr. Jeffery
Lee Ho, Scott Moats, and Todd Wall, and transfer those claims
to the United States District Court for the Central District
FURTHER ORDERED that the Motion of the Government for Summary
Judgment [Docket No. 57] is hereby granted in part, and
denied in part as ordered above.
FURTHER ORDERED that Plaintiff's Motion for Summary
Judgment [Docket No. 67] is hereby denied.
FURTHER ORDERED that Plaintiff's Motion to Change Venue
[Docket No. 71] is hereby granted to the extent his claims
against Dr. Jeffery Lee Ho, Scott Moats, and Todd Wall, have
been ordered severed and transferred to ...