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Cathey v. Natal

United States District Court, S.D. Mississippi, Northern Division

March 8, 2019

CARLOS LAJUAN CATHEY, #16609-075 PLAINTIFF
v.
NORMA NATAL, et al. DEFENDANTS

          ORDER ADOPTING MAGISTRATE JUDGE'S [83] REPORT AND RECOMMENDATION; GRANTING DEFENDANT UNITED STATES OF AMERICA'S [70] MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION; AND DISMISSING PLAINTIFF'S REMAINING CLAIMS WITHOUT PREJUDICE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation [83] of United States Magistrate Judge John C. Gargiulo, entered in this case on January 31, 2019, and the Motion to Dismiss for Lack of Subject Matter Jurisdiction [70] filed by Defendant United States of America on April 19, 2018. Based upon the Magistrate Judge's review of the pleadings and relevant legal authority, he recommended that the Motion to Dismiss [70] be granted and that Plaintiff's remaining claims against Defendant United States of America be dismissed without prejudice for lack of subject-matter jurisdiction. R. & R. [83] at 5.

         For the reasons that follow, the Court finds that the Report and Recommendation [83] should adopted in its entirety as the finding of this Court, that the Motion to Dismiss [70] should be granted, and that Plaintiff's remaining claims against Defendant United States of America should be dismissed without prejudice for lack of subject-matter jurisdiction.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Carlos Lajuan Cathey (“Plaintiff”) claims that in October 2014, while he was incarcerated at the Federal Correctional Institution in Yazoo City, Mississippi, another inmate struck him with a lock while he was watching television. Am. Compl. [10] at 1-2. A month later, Plaintiff was released from the “SHU, ” but he continued to complain to medical personnel about headaches and “floaters in [his] eye and blurriness in [his] vision.” Id. at 2. Plaintiff contends that medical staff did not send him to a specialist until March 2016, when the specialist informed him that he had a tumor and blindness from a delay in treatment. Id. Plaintiff alleges that the medical staff was deliberately indifferent to his head injury and that this delay in treatment caused him permanent blindness. Id.

         B. Procedural History

         Plaintiff filed a pro se Complaint [1] pursuant to 42 U.S.C. § 1983 in this Court on October 31, 2016, seeking monetary damages from Defendants Norma Natal, Bureau of Prisons, the United States of America, Unknown Pendleton, Sharon Baymon, E. Burkhalter, and Retired Counselor B. Smith. Compl. [1] at 1-6. Plaintiff is proceeding in forma pauperis.

         On March 23, 2017, Plaintiff filed an Amended Complaint [10], naming as Defendants the United States of America, Norma Natal, Unknown Pennington, Unknown Fernanders, Sharon Baymon, E. Burkhalter, Counselor B. Smith, and the Bureau of Prisons (“BOP”). In addition to claims under 42 U.S.C. § 1983, the Amended Complaint [10] advanced claims pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-2680. Am. Compl. [10] at 1-14.

         On May 4, 2017, the Court dismissed BOP as a Defendant and dismissed all of Plaintiff's claims under 42 U.S.C. § 1983. See Order [13] at 3. On January 8, 2018, the Court dismissed Plaintiff's Bivens claims against the individual Defendants Norma Natal, Unknown Pennington, Unknown Fernanders, Sharon Baymon, E. Burkhalter, and Counselor B. Smith. See Order [57] at 5-6. Only Plaintiff's FTCA claims against the United States of America remain.

         On April 19, 2018, the Government filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction [70] based upon Plaintiff's failure to exhaust administrative remedies. The Government presented evidence that administrative remedies were available to Plaintiff, yet he failed to exhaust them prior to filing the present case. Plaintiff filed a Response [74] in opposition to the Motion, and the Government filed a Rebuttal [75].

         The Magistrate Judge entered his Report and Recommendation [83] on January 31, 2019, recommending that the Government's Motion to Dismiss [70] be granted and that Plaintiff's remaining claims be dismissed without prejudice for lack of subject-matter jurisdiction. R. & R. [83] at 5. The Report and Recommendation [83] was mailed to Plaintiff on January 31, 2019. Any objection to the Magistrate Judge's Report and Recommendation [83] was due within fourteen (14) days of service, or by February 14, 2019. See L.U. Civ. R. 72(a)(3). To date, Plaintiff has not filed any objection to the Report and Recommendation [83], and the time for doing so has passed.

         II. DISCUSSION

         Where no party has objected to a magistrate judge's report and recommendation, a court need not conduct a de novo review of it. 28 U.S.C. § 636(b)(1) (“a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made”). In such cases, a court applies the “clearly erroneous, abuse of ...


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