United States District Court, N.D. West Virginia, Elkins
OMARI H. PATTON, Plaintiff,
CRYSTAL KIMBLE, Defendant.
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 Michael John Aloi [Doc. 65]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Aloi for submission of a proposed report and
a recommendation (“R&R”). Magistrate Judge
Aloi filed his R&R on July 11, 2017, wherein he
recommends this Court dismiss the plaintiff's
Bivens Complaint with prejudice.
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
Aloi'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. 67] on July 27, 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 the defendant, a housing officer at
USP Hazelton, searched his cell and confiscated a binder
containing some of his legal documents. He alleges the next
day, he verbally complained to Lieutenant Wiliams regarding
the alleged search and confiscation. Plaintiff alleges that
upon hearing of this complaint, defendant again searched the
plaintiff's cell and confiscated his sentencing
transcripts and part of his trial transcripts.
alleges violations of his First, Fourth, Sixth and Fourteenth
Amendment rights, and that by taking his sentencing and trial
transcripts, his ability to access the courts has been
argues that she documented both searches and the records
reflect that no legal materials were ever confiscated.
Further, plaintiff filed an administrative complaint, which
triggered an internal investigation. This investigation
revealed that the searches only removed some nude photographs
from plaintiff's cell. In support of her motion to
dismiss, the defendant asserts that the plaintiff has failed
to establish that the defendant violated any constitutional
rights; therefore, she is immune from Bivens
noted in the R&R, even if the defendant did remove the
alleged legal documents, the Complaint nevertheless fails to
state a claim upon which relief can be granted. The R&R
thoroughly outlines the law governing the plaintiff's
alleged various constitutional violations. This Court finds
no need to rehash the same here. This Court simply notes that
it has conducted a de novo review of that law, and
has come to the same conclusion that the R&R states in
forming its opinion that no constitutional rights were
Objections, the plaintiff first states that “[t]he
Magistrate Judge decision conflicts with the facts of the
case, and applies an incorrect legal standards in his
decision making process.” [Doc. 67 at 2]. This is
simply inaccurate, and the Objection is OVERRULED.
the plaintiff incorrectly argues that the Magistrate Judge
should have concluded that he states a claim. In support of
this assertion, the plaintiff again argues that the Complaint
alleges that the defendant confiscated his legal documents in
retaliation for making a verbal complaint. As the R&R
noted, however, even if this claim were true, it nevertheless
fails. The Fourth Circuit Court of Appeals has made it clear
that a federal inmate's verbal complaints are not
constitutionally protected and cannot support a retaliation
claim. See Daye v. Rubenstein, 417 Fed.Appx. 317,
319 (4th Cir. 2011).
response, the plaintiff cites Crocker v. Wright, 143
Fed.Appx. 523 (4th Cir. 2005), which plaintiff contends makes
it clear that confiscating an inmate's letters to
Congress was considered legal material and violated the First
Amendment. That case involved legal mail, which is not at
issue in this case. The Court noted that there are special
regulations governing the BOP which provide that prisoner
correspondence with Congress is considered “special
mail” that is subject to specific protections,
including the requirement that it be reviewed only in the
presence of the inmate. 28 C.F.R. §§ 540.2, .12
(2005). This is not relevant to this case. The law is clear
that the plaintiff is not entitled to any relief.
Accordingly, the plaintiff's Objections [Doc. 67] are
careful review of the above, it is the opinion of this Court
that the Report and Recommendation [Doc. 65] should be, and
is, hereby ORDERED ADOPTED for the reasons more fully stated
in the magistrate judge's report. The plaintiff's
Objections [Doc. 67] are OVERRULED. Defendant's Motion to
Dismiss, or in the Alternative, for Summary Judgment [Doc.
48] is GRANTED as to the Motion to Dismiss and MOOT as to the
Motion for Summary Judgment. Accordingly, this Court ORDERS
that the Complaint [Doc. 1] be DISMISSED WITH PREJUDICE for
failure to state a claim upon which relief can be granted.
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