United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
59], GRANTING DEFENDANT'S MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 41], AND
DISMISSING THIS CASE
M. KEELEY UNITED STATES DISTRICT JUDGE
April 14, 2016, the pro se plaintiff, Michael
Berryman (“Berryman”), filed a complaint against
the defendant, the United States of America (“United
States”), pursuant to the Federal Tort Claims Act
(“FTCA”) (Dkt. No. 1). Although he is currently
incarcerated at Federal Correctional Institution, Butner,
Berryman was housed at United States Penitentiary, Hazelton
(“USP Hazelton”), in 2014 during the events at
issue. Id. at 2.
to his complaint, although Berryman had repeatedly importuned
correctional officers at USP Hazelton to relocate him because
his cellmate had threatened to kill him, they refused to do
so. Id. at 11-14. Eventually, on May 8, 2014, as
Berryman was sleeping, his cellmate allegedly stomped on him,
rendering him unconscious, breaking his ribs, and causing
herniated disks in his lower back. After correctional
officers revived Berryman, they allegedly placed him in an
observation cell with “paper clothing and sheets”
for 11 days, and medical personnel failed to provide proper
treatment for his injuries during the rest of his time at USP
Hazelton. Id. at 15.
to Berryman, Bureau of Prisons (“BOP”) staff
violated his right to procedural due process regarding an
institutional violation, deprived him of his “basic
human needs” in violation of the Eighth Amendment, and
committed medical malpractice by failing to document his
injuries and refusing to treat him. Id. at 10, 16.
Berryman seeks $1 million in compensatory damages for his
serious injuries, pain, and suffering. Id. at 18.
Pursuant to 28 U.S.C. § 636 and the local rules, the
Court referred Berryman's complaint to the Honorable
James E. Seibert, United States Magistrate Judge, for initial
referral, Magistrate Judge Seibert granted Berryman's
motion to proceed in forma pauperis (Dkt. No. 19)
and later, deeming summary dismissal inappropriate, directed
that service be made on the United States (Dkt. No. 30).
After receiving an extension of time to answer, the United
States moved to dismiss Berryman's complaint or, in the
alternative, for summary judgment (Dkt. No. 41), arguing that
Berryman's FTCA claim should be dismissed because he had
not filed a certificate of merit with his medical malpractice
claim, and BOP staff were not negligent when they responded
to the incident and treated him (Dkt. No. 42). After
receiving an extension of time to respond to the United
States's motion, Berryman argued that he could not
adequately oppose the motion without conducting at least
limited discovery (Dkt. No. 54).
Report and Recommendation (“R&R”) entered on
July 5, 2017, Magistrate Judge Seibert recommended that the
Court grant the motion of the United States and dismiss
Berryman's complaint for failure to state a claim upon
which relief can be granted (Dkt. No. 59). Magistrate Judge
Seibert concluded that, because Berryman's first and
second claims focus on the intentional deprivation of his
Fifth and Eighth Amendment rights, they fail to state a cause
of action for negligence against the United States or its
employees. Id. at 13. Such constitutional violations
are not cognizable under the FTCA, but rather must be pursued
in a civil rights action. Id. at
13-14. Regarding his medical malpractice claim,
the R&R concluded that Berryman had failed to comply with
West Virginia's pre-suit statutory requirements for suing
health care providers. Id. at 15.
R&R also informed Berryman of his right to file
“written objections identifying those portions of the
recommendation to which objections are made, and the basis
for such objections.” Id. at 20. It further
warned him that the failure to do so may result in waiver of
his right to appeal. Id. The Court subsequently
granted Berryman an extension of time until August 7, 2017,
to file any objections (Dkt. No. 63). Now pending are
Magistrate Judge Seibert's R&R, as well as
Berryman's “Motion of Opposition” to its
recommendations (Dkt. No. 65).
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection is timely made. 28 U.S.C. § 636(b)(1)(C). On
the other hand, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete 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)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the
purpose of an initial screening by the magistrate judge.
McPherson v. Astrue, 605 F.Supp.2d 744, 749 (S.D.
W.Va. 2009) (citing Howard's Yellow Cabs, Inc. v.
United States, 987 F.Supp. 469, 474 (W.D. N.C. 1997)).
Failure to raise specific errors waives the claimant's
right to a de novo review because “general and
conclusory” objections do not warrant such review.
Id. (citing Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); Howard's Yellow Cabs,
987 F.Supp. at 474); see also Green v. Rubenstein,
644 F.Supp.2d 723 (S.D. W.Va. 2009). Indeed, 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).
Berryman's “Motion of Opposition” fails to
identify a specific error in Magistrate Judge Seibert's
recommendations, and in fact contains only passing reference
to the R&R. At most, Berryman reiterates the extent of
his physical injuries and the alleged failure of BOP staff to
provide appropriate treatment (Dkt. No. 65 at 1-2).
addition, Berryman argues that granting summary judgment
under Fed.R.Civ.P. 56 is inappropriate without first giving
him the opportunity to conduct discovery and have access to a
doctor outside the BOP. Id. at 1, 3. This argument
simply fails to account for the R&R's recommendation
of dismissal under Fed.R.Civ.P. 12(b)(6) rather than summary
judgment under Fed.R.Civ.P. 56. The point is that despite
having been given the opportunity to do so Berryman did not
object to the R&R's central finding that his
complaint fails to state a claim for relief under the FTCA.
failure to object to the R&R's recommended
disposition places the Court under no obligation to conduct a
de novo review. Dellacirprete, 479
F.Supp.2d at 603-04. Therefore, upon review of the R&R
and the record for clear error, the Court adopts the
recommendation of the Magistrate Judge for the reasons
discussed in the R&R (Dkt. No. 59).
conclusion, the Court:
1. ADOPTS the R&R (Dkt. No. ...