BROWN v. FCI BOP FCI (2019)

Roderick Brown, a former federal inmate, appeals the district court's order adopting the magistrate judge's recommendation and denying relief on Brown's complaint asserting medical malpractice claims and alleging, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), violations of his constitutional and civil rights. He also challenges the court's denial of his motion for default judgment as moot.

After careful review of the record, we conclude that the district court properly denied relief on Brown's Bivens claims. We also find no reversible error in the court's decision to deny Brown's motion for default judgment as moot. Accordingly, we affirm those portions of the court's order. While the court correctly dismissed Brown's medical malpractice claims for failure to comply with West Virginia's Medical Professional Liability Act, W. Va. Code § 55-7B-6 (2018 & Supp. 2019), the court should have dismissed that portion of the complaint without prejudice. See, e.g., Cline v. Kresa-Reahl, 229 W.Va. 203, 728 S.E.2d 87, 98 (2012). Accordingly, we affirm that portion of the court's order as modified to reflect that the dismissal is without prejudice.

We deny Brown's motion for a temporary administrative stay. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED IN PART, AFFIRMED AS MODIFIED IN PART

PER CURIAM:

Affirmed in part and affirmed as modified in part by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.