United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT.,
M. KEELEY UNITED STATES DISTRICT JUDGE
October 21, 2016, the pro se plaintiff, Christopher
Lancaster (“Lancaster”), filed a
Bivens action against multiple correctional
officers and employees at U.S.P. Hazelton (dkt. no. 1). The
Court referred this action to United States Magistrate Judge
James E. Seibert for initial screening and a Report and
Recommendation (“R&R”) in accordance with LR
PL P 2. On February 22, 2017, the defendants filed a motion
to dismiss, or in the alternative, motion for summary
judgment (dkt. no. 32).
March 9, 2017, Lancaster moved for an extension of time in
which to respond to defendants' dispositive motion (dkt.
no. 34). By Order entered on May 16, 2017, the Court granted
Lancaster's motion for an extension of time (dkt. no.
59). On June 5, 2017, Lancaster filed a second motion for an
extension of time, seeking a 60-day extension (dkt. no. 62).
By Order entered on June 13, 2017, the Court granted
Lancaster's motion in part, and he was given until July
31, 2017, to file his response (dkt. no. 63).
13, 2017, Lancaster filed a response in opposition to
defendants' dispositive motion, along with a motion to
postpone summary judgment (dkts. no. 69 & 68). Also
pending are Lancaster's pro se motion for
discovery (dkt. no. 36), motion for an injunction to write to
witnesses in other prisons (dkt. no. 38), and motion for an
injunction to be seen by an outside specialist (dkt. no. 40),
all of which were filed on March 13, 2017.
August 21, 2017, Magistrate Judge Seibert entered an R&R,
recommending that the Court grant the defendants' motion
to dismiss, or in the alternative, motion for summary
judgment as to all defendants, and dismiss the
plaintiff's complaint with prejudice (dkt. no. 79 at
45-46). After thoroughly discussing the applicable legal
standards, as well as the relevant case law and the pertinent
facts of the case, Magistrate Judge Seibert determined that
no genuine issue of material fact precluded summary judgment
on Lancaster's claims of excessive force and deliberate
indifference to medical needs, and concluded that the claims
should be dismissed as frivolous. Id. at 32, 42.
Magistrate Judge Seibert further determined that
Lancaster's claim of retaliation failed to implicate any
clearly established constitutional right. Id. at
43-44. Finding that Lancaster had failed to state a claim for
retaliation, the R&R recommended that the claim be
dismissed. The R&R further recommended that the Court
deny Lancaster's pending motions (dkt nos. 36, 38, 40,
& 68) as moot. Id. at 46.
R&R specifically warned Lancaster that his failure to
object to the R&R within fourteen (14) days of being
served with a copy would result in the waiver of any
appellate rights he might otherwise have on this issue.
Id. Lancaster had until September 11, 2017, to file
any objections. Rather than do so, however, on September 8,
2017, he filed a motion to enlarge time, requesting an
additional sixty (60) days to file his objections to the
R&R. After reviewing the matter and finding no good
cause, the Court denied Lancaster's motion to enlarge
time (dkt. no. 82).
September 22, 2017, Lancaster filed an objection to the
denial of his motion to enlarge time (dkt. no. 83), averring
that, at various times over the last several months, he has
been denied access to paper, pencils, envelopes, and stamps.
This statement, however, is belied by the fact that since May
of 2017, Lancaster has handwritten, in pencil or pen, and
mailed, using stamps and envelopes provided by the BOP, at
least fifteen (15) separate filings in this case (dkt. nos.
43, 58, 60, 62, 68, 69, 71, 72, 73, 74, 75, 76, 77, 81, &
83), including his objection to the Court's denial of his
most recent request to extend deadlines in this matter. In
none of his requests for additional time to object to the
R&R has he even attempted to address the substantive
issues in this case, all of which he has previously addressed
at length in earlier filings. The Court therefore finds that
Lancaster's latest attempt to extend the deadlines
further is pure manipulation of the process. To date, the
parties have not filed any objections.
reviewing the R&R, the Court must review de novo
only the portions to which an objection has been timely made.
See 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
neither party has objected, and the Court, therefore, is
under no obligation to conduct a de novo review
(Dellacirprete, 479 F.Supp.2d at 603-04), it has
conducted such a review and concludes that the magistrate
judge has properly recited the facts and applied the law.
his excessive force claim, Lancaster has failed to establish
the requisite “unnecessary and wanton infliction of
pain” that violates the Eighth Amendment's
prohibition against cruel and unusual punishment. Whitley
v. Albers, 475 U.S. 312, 321-22 (1986). Lancaster has
neither demonstrated that defendants' conduct was
“objectively harmful enough to establish a
constitutional violation, ” nor that defendants
inflicted “unnecessary and wanton pain and
suffering” upon him. Hudson v. McMillian, 503
U.S. 1, 6, 8 (1992)(internal citations omitted). Rather, the
record demonstrates that defendants' use of force was
made “in a good faith effort to maintain or restore
discipline, ” and not “for the very purpose of
causing harm.” Whitley, 475 U.S. at 320-21.
as to his claim for denial of medical care, Lancaster has
failed to establish that defendants acted with deliberate
indifference to his serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 105 (1976). A thorough review of
the record makes clear that, contrary to his claim that his
medical needs were “ignored, ” Lancaster was not
denied necessary medical care, and instead, was provided with
prompt medical attention. Finding that Lancaster has failed
to state claims upon which relief can be granted, and that
there are no genuine issues of material fact, the Court
concludes that his excessive force and deliberate
indifference claims should be dismissed.
as to his claim of retaliation, Lancaster has failed to
sufficiently allege that defendants retaliated against him in
response to his exercise of a constitutionally protected
right. Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994). Because inmates have no constitutional right to
participate in a prison's grievance process
(Id.), Lancaster's claim that staff retaliated
against him for pursuing his complaints through the BOP's
administrative process are not appropriate claims in a
Bivens action. Additionally, because mere verbal
harassment does not give rise to a constitutional violation,
Wagner v. Wheeler, 13. F.3d 86, 92-93 (4th Cir.
1993), Lancaster's allegations that BOP employees cursed
at him and used racial slurs do not state a viable claim for
retaliation. Finding that Lancaster has failed to establish a
violation of any of his clearly established constitutional
rights, the Court concludes that his retaliation claim should
after a careful review of the record and for the reasons more
fully stated in the R&R, the Court
ADOPTS the R&R in its entirety (dkt. no.
79), GRANTS the defendants' motion to
dismiss or for summary judgment (dkt. no. 32), and
DISMISSES the plaintiff's complaint
WITH PREJUDICE (dkt. no. 1). It also
DENIES as moot the plaintiff's motion
for discovery (dkt no. 36), motion for an injunction to write
to witnesses in other prisons (dkt. no. 38), ...