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Bender v. United States

United States District Court, N.D. West Virginia

June 9, 2017

TERRY J. BENDER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF'S COMPLAINT WITH PREJUDICE [DKT. NO. 1]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Report and Recommendation by United States Magistrate Judge James E. Seibert, which recommends dismissal of the complaint filed by the pro se plaintiff Terry J. Bender (“Bender”). For the reasons that follow, the Court ADOPTS in PART and REJECTS in PART the Report and Recommendation (dkt. no. 12), GRANTS Bender's motion to proceed in forma pauperis (dkt. no. 8), and DISMISSES the complaint WITH PREJUDICE (dkt. no. 1).

         I. BACKGROUND

         Bender, an inmate at FCI Morgantown in Morgantown, West Virginia, filed a complaint on June 1, 2015, that purported to assert a claim under the Federal Tort Claim Act (“FTCA”). Bender alleged that he suffered personal injuries due to the “deliberate indifference” of a Physician's Assistant (“PA”) who treated him at FCI Morgantown (dkt. no. 1 at 6). Specifically, he alleged that the PA forced him to wait 15 weeks before having oral surgery to remove an infected salivary stone, and that the delay violated his Eighth Amendment right to be free from cruel and unusual punishment. Id. As a result, Bender claimed to have suffered a “tremendous amount of pain” and weight loss. He sought damages in the amount of $250, 000. Id. at 9.

         The Court referred the matter to Magistrate Judge Seibert for initial screening and a Report and Recommendation (“R&R”) in accordance with LR PL P 2. On June 1, 2015, the Clerk mailed Bender a notice of deficient pleading as a result of his failure to pay the appropriate filing fee (dkt. no. 3). Bender then moved for leave to proceed in forma pauperis (“IFP”) (dkt. no. 8).

         In his R&R, Magistrate Judge Seibert recommended that the Court deny the motion to proceed IFP because of Bender's status as a vexatious litigant under what is commonly known as the “Three Strikes Rule” (dkt. no. 12 at 2).[1] For that reason, he recommended that the case be dismissed without prejudice for failure to pay the requisite filing fee[2] (dkt. no. 12 at 3). Additionally, Magistrate Judge Seibert noted that, in any event, Bender's underlying claim of “deliberate indifference” should be dismissed because “[a] claim of deliberate indifference to a plaintiff's serious medical needs in violation of his Eighth Amendment rights is not actionable against the United States in a Federal Tort Claims Act . . . action” (dkt. no. 12 at 3). On July 30, 2015, Bender filed timely objections to the R&R (dkt. no. 14).

         II. STANDARD OF REVIEW

         This Court is required to review de novo only those portions of the magistrate judge's findings to which specific objections are made. Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D.W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). “[T]he Court may adopt, without explanation, any of the magistrate judge's recommendations to which the prisoner does not object.” Id. at 604 (citing Camby, 718 F.2d at 199).

         III. DISCUSSION

         Bender objects to the conclusions in the R&R that 1) the Court should deny his motion to proceed IFP and therefore dismiss his complaint without prejudice, and 2) his claim was subject to dismissal as improvidently filed as an FTCA action. For the reasons that follow, the Court ADOPTS IN PART and REJECTS in PART the R&R, GRANTS Bender's motion to proceed IFP, and DISMISSES WITH PREJUDICE his complaint for failure to state claim.

         A. Motion to Proceed IFP

         Bender objects to the R&R's recommendation that the Court deny his motion to proceed IFP based on his status as a vexatious litigant. He first contends that, because the cases cited in the R&R as his “three strikes” do not reflect that he proceeded IFP, the Court should reject the R&R (dkt. no. 14 at 1). This argument is without merit.

         As the R&R correctly notes, the Prisoner Reform Litigation Act (“PRLA”) restricts plaintiffs from proceeding IFP under the following conditions:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon ...

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