United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge James E. Seibert [Doc. 9]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Seibert for submission of a proposed report
and a recommendation ("R&R"). Magistrate Judge
Seibert filed his R&R on May 24, 2017, wherein he
recommends this Court dismiss the plaintiffs Complaint with
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
In addition, failure to file timely objections constitutes a
waiver of de novo review and the right to appeal
this Court's Order. 28 U.S.C. § 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.
1989); United States v. Schronce, 727 F.2d 91, 94
(4th Cir. 1984). Here, objections to Magistrate Judge
Seibert's R&R were due within fourteen (14) days of
receipt, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). Plaintiff timely filed his Objections
[Doc. 11] on June 9, 2017. Accordingly, this Court will
review the portions of the R&R to which the plaintiff
objects under a de novo standard of review. The
remainder of the R&R will be reviewed for clear error.
Complaint alleges that staff at USP Hazelton shipped some of
his personal belongings to the wrong address and they were
lost [Doc. 5]. Plaintiff seeks reimbursement for his lost
property pursuant to the Federal Tort Claims Act.
FTCA "permits the United States to be held liable in
tort in the same respect as a private person would be liable
under the law of the place where the act occurred."
Medina v. United States, 259 F.3d 220, 223 (4th Cir.
2001). As noted in the R&R, the FTCA includes specific
exceptions in 28 U.S.C. § 2680 for which the United
States may not be sued. That provision expressly preserves
sovereign immunity for "[a]ny claim arising in respect
of.. . the detention of goods, merchandise, or other property
by any officer or customs or excise or any other law
enforcement officer." 28 U.S.C. § 2680(a). In
All v. Fed. Bureau of Prisons, 2008 WL 169359 (Jan.
22, 2008), the United States Supreme Court held that torts
committed by all federal law enforcement officers,
specifically those employed by the Federal BOP are entitled
to sovereign immunity.
strikingly similar case, Judge Frederick P. Stamp, Jr.
dismissed an FTCA claim against the United States where the
plaintiff, a prisoner at USP Hazelton, alleged that he too
lost personal property because a correctional officer failed
to secure the same in his cell after escorting him to the
CO's office. Barrett v. United States, 2014 WL
4084187 (Aug. 19, 2014 N.D. W.Va)(Stamp, J.),
aff'd 585 Fed.Appx. 49 (4th Cir. 2014). Citing
Ali, Judge Stamp found that the Court lacked
jurisdiction to hear the plaintiffs claim because the loss of
personal property detained by a BOP officer is an exempted
plaintiffs Objections [Doc. 11] are simply a brief rehashing
of the above and do not specifically object to any factual or
legal findings or conclusions in the R&R. He simply
asserts again that prison staff mailed his belongings to the
wrong address, he would like counsel appointed, and that he
requests reimbursement for his lost property.
is clear, however, that this Court lacks jurisdiction and
plaintiff is not entitled to any relief. Accordingly, the
plaintiffs Objections [Doc. 11] are OVERRULED.
careful review of the above, it is the opinion of this Court
that the Report and Recommendation [Doc. 9] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated
in the magistrate judge's report. The plaintiffs
Objections [Doc. 11] are OVERRULED. Accordingly, this Court
ORDERS that the Complaint [Doc. 1] be DISMISSED WITH
PREJUDICE. The Motion for Leave to Proceed in forma
pauperis [Doc. 6] is DENIED AS MOOT. 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.
Clerk is directed to transmit copies of this Order to any
counsel of record and to mail a ...