United States District Court, N.D. West Virginia
TERRY J. BENDER, Plaintiff,
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.
M. KEELEY UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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
For that reason, he recommended that the case be dismissed
without prejudice for failure to pay the requisite filing
(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).
STANDARD OF REVIEW
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).
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.
Motion to Proceed IFP
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
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 ...