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15-079 - Sellers v. United States of America


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15-079 - Sellers v. United States of America
December 19, 2016
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REPORT AND RECOMMENDATION re 28 MOTION to Dismiss, MOTION for Summary Judgment filed by United States of America, 1 Complaint filed by Frederick Sellers: The Magistrate Judge RECOMMENDS that the USA's Motion be GRANTED and that Plaintiff's Complaint be DISMISSED WITH PREJUDICE under the independent contractor exception as it related to his claim for unnecessary surgery and be DISMISSED WITHOUT PREJUDICE for failure to exhaust an administrative tort claim and comply with the MPLA as it relates to his follow-up care and infection following surgery. Written objections may be filed within 14 days after being served. Signed by Magistrate Judge Robert W. Trumble on 12/19/16. (copy Plaintiff)(cnd) (Additional attachment(s) added on 12/19/2016: # (1) Certified Mail Return Receipt) (cnd). Modified on 12/19/2016 to correct file date. (cmd) (Attachment 1 replaced on 12/23/2016 to correct docket number) (cnd).
February 16, 2017
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the plaintiffs Complaint 1 is hereby DISMISSED WITH PREJUDICE as it relates to his claim for unnecessary surgery pursuant to the independent contractor exception and DISMISSED WITHOUT PREJUDICE as it relates to his claim for improper follow-up carORDER ADOPTING REPORT AND RECOMMENDATION: The 36 Report and Recommendation is ordered adopted. The plaintiffs Objections Docs. 38, 39, 40 are OVERRULED. The Governments Motion to Dismiss or for Summary Judgment 28 is hereby GRANTED, ande and infection following surgery for failure to exhaust an administrative tort claim and comply with theMPLA. This Court further DIRECTS the Clerk to enter judgment in favor of the defendant and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 2/16/17. (Attachments: # (1) Certified Mail Return Receipt)(jss)