The opinion of the court was delivered by: Magistrate Judge Patrick A. White
ORDER ADOPTING REPORT OF MAGISTRATE JUDGE AND DISMISSING DEFENDANTS DR. MARTINDALE AND ARMOR CORRECTIONAL HEALTH SERVICE
THIS CAUSE is before the Court on the Report of United States Magistrate Judge Patrick A. White [DE 13] ("Report") regarding Plaintiff Paulius Telamy's Pro Se Complaint Under the Civil Rights Act, 42 U.S.C. § 1983 [DE 1] ("Complaint"). After Judge White submitted his Report, Plaintiff filed a Motion for Extension of Time [DE 19] to file objections to the Report, and the Court granted him an extension through January 31, 2012 [DE 20]. However, on January 10, 2012, Plaintiff filed a Motion to Withdraw his Previously Filed Motion for Extension of Time [DE 23]. The Court already ruled on the Motion for Extension of Time, and there is no need to withdraw the document, however Plaintiff's filing also states, "Telamy does NOT object to HONORABLE MAGISTRATES report and recommendation (dkt 13), and Prays this court adopts same." The Court therefore construes the Motion to Withdraw as a Notice of Non-Objection to the Report. Nonetheless, pursuant to 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of the record herein, including the Report, the Complaint, and Plaintiff's Notice of Non-Objection [DE 23], and is otherwise advised in the premises.
On September 19, 2011, Plaintiff filed this action against Defendants Armor Correctional Health Service, Nurses Veronica Edwards and Ora Watson, and Dr. Mark Martindale, D.D.S. The same day, Plaintiff moved to proceed in forma pauperis. Upon granting Plaintiff permission to proceed in forma pauperis, Judge White conducted an initial screening of the Complaint pursuant to 28 U.S.C. § 1915. In his Report, Judge White summarizes Plaintiff's claims against these Defendants as follows:
On March 2, 2010, the plaintiff submitted a sick call request because of pain in his upper jaw area. He was seen by Dr. Martindale who determined that he required oral surgery to remove the tooth. He was prescribed medication for seven days by Dr. Martindale prior to the surgery, which took place on March 18, 2010. He claims that following the surgery, both Nurse Edwards and Nurse Watson refused him medication prescribed by Dr. Martindale for pain and to prevent infection. He remained in pain and on March 31, 2010, his fiance called an attorney who called the medical and dental department.
He was seen by Dr. Martindale, and it was determined his gum area where the tooth was extracted was infected. A second surgery was performed as a result of the lack of treatment and failure to provide prescribed medication, resulting in pain and nerve damage to the left side of his face. He states that Martindale failed to respond to his medical needs causing him to suffer pain.
He claims that these defendants work for Armor Health Care, who contract with the County to provide medical and dental treatment. He seeks monetary damages.
Report at 4. Judge White's Report addresses the allegations in light of the applicable law and concludes that Plaintiff has stated sufficient facts for his case to proceed against Nurses Edwards and Watson, but fails to state a viable claim against Dr. Martindale and Armor Correctional Health Service. Judge White therefore recommends that the Court dismiss Dr. Martindale without prejudice, dismiss Armor Correctional Health Service with prejudice, and permit Plaintiff to proceed with his claims against Nurses Edwards and Watson. The Court agrees with Judge White's analysis and conclusions. Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Report of Magistrate Judge [DE 13] is ADOPTED;
2. Defendant Armor Correctional Health Service is DISMISSED with prejudice from the above-captioned action;
3. Defendant Dr. Mark Martindale, D.D.S. is DISMISSED without prejudice from the above-captioned action;
4. Plaintiff may file an Amended Complaint only to provide facts which would support an Eighth Amendment violation against Defendant Dr. Martindale by no later than January 31, 2012;
5. Should Plaintiff fail to file an Amended Complaint by January 31, 2012, this case will proceed solely against Defendants Nurse Veronica Edwards and Nurse Ora Watson.
Counsel of record via ...