United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
PLAINTIFF'S COMPLAINT WITHOUT 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 recommending
dismissal of the complaint filed by the pro se
plaintiff Leroy Townsend (“Townsend”). For the
reasons that follow, the Court ADOPTS the
Report and Recommendation, OVERRULES
Townsend's objections, and DISMISSES the
complaint WITHOUT PREJUDICE.
who is an inmate at FCI Hazleton in Bruceton Mills, West
Virginia, filed a
Bivens complaint on March 14, 2016. The Court
referred this matter to Magistrate Judge Seibert for initial
screening and a Report and Recommendation
(“R&R”) in accordance with LR PL P 2. In his
complaint, Townsend alleged that his right to privacy was
violated by Bureau of Prisons (“BOP”) staff at
FCI Hazleton, specifically, his personal identifying
information had been disclosed to another inmate during the
course of a class called “Managing Credit” (dkt.
no. 1-2). As a result of this, Townsend's credit
had been “tampered with”; as a consequence, he
seeks damages of “$75, 000.00 per defendant to pay for
credit monitoring and credit repair . . . [and] an additional
$75, 000.00 per defendant for emotional distress and
violations of the Constitution.” Id. at 9. The
defendants moved to dismiss the claim, and Townsend filed a
response in opposition.
R&R, Magistrate Judge Seibert recommended that the Court
grant the defendants' motion to dismiss. He also
recommended that, because so much time has elapsed that
Townsend cannot now seek those administrative remedies under
the BOP's procedure, the complaint should be dismissed
with prejudice. Id. Further, Magistrate Judge
Seibert recommended that the Court deny as moot
Townsend's motion for default judgment. Townsend filed
timely objections to the R&R.
STANDARD OF REVIEW
Court is obligated to conduct a de novo review of
those portions of the magistrate judge's report to which
objections have been filed. 28 U.S.C. § 636(b)(1).
However, it need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a specific
objection, the Court will only review the magistrate
judge's conclusions for clear error. Diamond v.
Colonial Life & Anccident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005). A failure to file specific objections
waives appellate review of both factual and legal questions.
See United States v. Schronce, 727 F.2d 91, 94 &
n.4 (4th Cir. 1984); see also Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
R&R concludes that Townsend failed to exhaust his
administrative remedies because he failed to appeal to all
available levels of the BOP's four-step administrative
process. According to Magistrate Judge Seibert,
his review of the record not only supports the
defendants' contentions that Townsend filed two separate
administrative complaints regarding staff misconduct with
respect to his identity theft claims, but also reflects that
Townsend failed to exhaust fully either of them. Magistrate
Judge Seibert further concluded that Townsend's failure
to exhaust all administrative remedies cannot be excused.
objection, Townsend fails to identify specific objections to
the findings of the R&R. Rather, he generally states that
the “additional relief sought can only be provided
through the Court [and] the additional (BP) steps would be
futile” (dkt. no. 58). Townsend, however, does not
specifically refute Magistrate Judge Seibert's
conclusions that he has not exhausted the administrative
remedy process within the BOP, nor does he provide a legal or
factual basis for contesting the R&R's conclusion
that exhaustion is mandatory. Instead, it appears he simply
does not like the outcome in his case, as he provides no
basis, legal or factual, for why exhaustion would be futile.
In essence, all Townsend has done is baldly to reassert the
argument he previously presented to the magistrate judge.
See Dkt. No. 56 at 12-13. Consequently, the Court
will not review Townsend's futility argument de
any argument that the relief Townsend seeks can only be
provided through the courts is without merit inasmuch as he
has failed to exhaust his available administrative remedies.
Under the Prison Litigation Reform Act (“PLRA”),
a prisoner bringing an action with respect to prison
conditions under 42 U.S.C. § 1983, or any other federal
law, must first exhaust all administrative remedies. 42
U.S.C. § 1997(e)(a). Exhaustion as provided in §
1997(e)(a) is mandatory. Booth v. Churner, 532 U.S.
731, 741 (2001). A Bivens action, like an action
under 42 U.S.C. § 1983, is similarly subject to
exhaustion. Porter v. Nussle, 534 U.S. 516, 524
(2002). Exhaustion “applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, ” and is required even when the
relief sought is not available. Booth, at
741. Therefore, the exhaustion requirement
under the PLRA is applicable to Townsend's complaint
alleging violations of his right to privacy. Consequently,
because Townsend has failed to exhaust all administrative
remedies, the Court overrules his objections.
reasons discussed, the Court:
• ADOPTS the R&R in its entirety (dkt. no. ...