United States District Court, N.D. West Virginia
OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE, GRANTING DEFENDANTS'
MOTION TO DISMISS OR ALTERNATIVELY, MOTION FOR SUMMARY
JUDGMENT AND DISMISSING PLAINTIFF'S CASE WITH
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Charles Jerome Jordan, who is
housed at FCI Hazelton, filed this civil action asserting
claims under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). In his complaint,
plaintiff alleges claims against the defendants for abuse of
authority, harassment, interfering with the filing of his
administrative grievances by “making them
disappear” and conspiring to harass him in retaliation
for filing grievances, by constantly moving his cell and
removing his relatives from his visiting list. ECF No. 1. The
plaintiff contends that he exhausted his administrative
remedies, and as relief, plaintiff requests that the court
fine these Federal Bureau of Prisons (“BOP”)
officials and award him $450, 000.00 in monetary damages. ECF
1 at 9.
filed an answer (ECF No. 64) and plaintiff responded to
defendants' answer (ECF No. 65). Defendants then filed a
motion to dismiss or alternatively, motion for summary
judgment, along with a memorandum in support, attaching
numerous affidavits. ECF Nos. 67 and 68. Plaintiff filed a
response in opposition to the defendants' motion (ECF No.
civil action was referred to the United States Magistrate
Judge for initial review and report and recommendation
pursuant to Local Rule of Prisoner Litigation Procedure 2. By
order entered on September 15, 2017, this case was reassigned
from Magistrate Judge James E. Seibert to Magistrate Judge
Michael John Aloi.
States Magistrate Judge Michael John Aloi entered a report
and recommendation. ECF No. 75. The magistrate judge found
that the Federal Bureau of Prisons (“BOP”) is not
a proper defendant, and the complaint must be dismissed as to
the BOP. ECF No. 75 at 9. The magistrate judge also found
that “[d]espite Plaintiff's arguments that he
exhausted all of the administrative remedies that were
available to him, it is apparent from a thorough review of
the record that Plaintiff nonetheless implicitly admits that
he did not fully exhaust his grievances before filing suit,
because he admits that at least some of his grievances
regarding staff interference with his filing his BP-8s were
rejected, not denied.” Id. at 19-20. The
magistrate states that plaintiff's bare allegation that
defendant refused to provide him with grievance forms, or
that his completed grievance forms “disappeared,
” lacks credibility, as plaintiff makes no claim that
defendant or any other prison official ever threatened him
with violence to discourage him from filing grievances.
Id. at 23. The magistrate judge found that plaintiff
has had the opportunity to address the issue, and that his
failure to exhaust cannot be excused, and this matter must be
dismissed for failure to exhaust administrative remedies.
Id. The magistrate states that although normally,
such a dismissal would be without prejudice, because so much
time has elapsed, plaintiff cannot now exhaust under the
BOP's administrative remedy procedure, and therefore, his
claims should be dismissed with prejudice. Id. The
magistrate judge recommended that the defendants' motion
to dismiss or alternatively, motion for summary judgment (ECF
No. 67) be granted and that plaintiff's complaint (ECF
No. 1) be denied and dismissed with prejudice. ECF No. 75 at
magistrate judge informed the plaintiff that
“[w]ithin fourteen (14) days after
being served with a copy of this Report and Recommendation,
any party may file with the Clerk of Court written objections
identifying those portions of the recommendation to which
objection is made and the basis for such objections. A copy
of any objections shall also be submitted to the United
States District Judge. Failure to timely file
objections to this recommendation will result in waiver of
the right to appeal from a judgment of this Court based upon
such recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert.
denied, 467 U.S. 1208 (1984).” ECF No. 75 at 24
(emphasis in original).
plaintiff did not file objections to the magistrate
judge's report and recommendation.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because the plaintiff did not file any objections to the
report and recommendation, the magistrate judge's
findings and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
report and recommendation, the magistrate judge first
correctly found that the Federal Bureau of Prisons
(“BOP”) is not a proper defendant, and the
complaint must be dismissed as to the BOP. The magistrate
judge also properly concluded that plaintiff did not fully
exhaust his grievances before filing suit, and his failure to
exhaust cannot be excused. Furthermore, the magistrate judge
correctly determined that plaintiff cannot now exhaust under
the BOP's administrative remedy procedure, and therefore,