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Kaufman v. Federal Prison Camp, Medical

United States District Court, S.D. West Virginia, Bluefield

February 27, 2018

KATHALEENA L. KAUFMAN, Plaintiff,
v.
FEDERAL PRISON CAMP, MEDICAL, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber, Senior United States District Judge

         By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). On December 15, 2017, Magistrate Judge Aboulhosn submitted to the court his Findings and Recommendation (“PF&R”) in which he recommended that court grant the United States' motion to dismiss defendant Natalie Wright, D.O. and substitute the United States; grant the United States' motion to dismiss; grant defendant Wright's motion to dismiss, or in the alternative, motion for summary judgment; deny plaintiff's motion for return of filing fee; and remove this matter from the court's docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Aboulhosn's Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

         Plaintiff timely filed objections to the PF&R. The court has conducted a de novo review of those objections.

         I. Factual and Procedural Background

         On March 16, 2017, Kathaleena L. Kaufman, an inmate at Alderson Federal Prison Camp, filed her Complaint in this matter alleging claims under the Federal Tort Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 395-97 (1971). The instant lawsuit names Federal Prison Camp, Medical and Dr. Natalie Wright as defendants. Kaufman alleges that, during her confinement at FPC Alderson, she was subjected to cruel and unusual punishment in that defendants acted with deliberate indifference concerning her medical care and overall well-being. Specifically, she contends that defendants have denied her medically necessary ankle braces and shoes; that Dr. Wright prescribed a medication which has caused her to have permanent vision problems; that she has been denied a van pass even though she has trouble walking; and that defendants have falsified her medical records in an attempt to conceal her inadequate medical treatment.

         As to Kaufman's FTCA claims, Magistrate Judge Aboulhosn recommended that the court grant the United States' motion to dismiss Natalie Wright as a defendant and substitute the United States as defendant. He then went on to recommend dismissal of the FTCA claim in its entirety because: 1) her claim for loss of property was not cognizable under the FTCA; 2) the FTCA does not authorize relief beyond monetary damages; and 3) any medical negligence claims were subject to dismissal for failure to satisfy the requirements of the West Virginia Medical Professional Liability Act (“MPLA”). With respect to plaintiff's Bivens claims, Magistrate Judge Abhoulhosn recommended dismissal of all claims for failure to exhaust except for the claim that Dr. Wright was deliberately indifferent in providing treatment for plaintiff's alleged leg length disparity. As to that claim, the magistrate judge recommended that it be dismissed because there was no evidence to support a claim for deliberate indifference arising out of the medical treatment she received for that ailment. Finally, Magistrate Judge Aboulhosn recommended that the court deny plaintiff's motion for return of her filing fee.

         II. Discussion

         Kaufman's objections fail to address the deficiencies noted in the PF&R. Therefore, to the extent that her objections are nonspecific and conclusory, they are OVERRULED. With respect to her specific objections, the court can discern only two and addresses them below.

         A. Return of Filing Fee

         According to plaintiff, “I requested the filing fee of 350.00 be returned, because Stephen Horn has become the leading attorney who represents the Federal Prison Camp, myself believed that I should have been notified of this, for I was unaware of this[.] I had been lead to believe that after the 350.00 filing fee was paid, I would be assigned an attorney other than Stephen Horn.” ECF No. 38 at p.1. Assistant United States Attorney Stephen M. Horn appeared as counsel of record for defendants United States of America and Federal Prison Camp, Medical. There is nothing in the record to suggest that plaintiff was misled into believing that AUSA Horn was acting on her behalf or that she would be assigned an attorney by paying her filing fee. Based on the foregoing, she has not shown entitlement to the return of her filing fee and her objection thereto is OVERRULED.

         B. Dismissal of Dr. Natalie Wright

         Plaintiff's primary objection is to the dismissal of defendant Wright. She maintains: “I do not wish to replace or substitute United States for Natalie Wright[.] I was here under [h]er care for over 18 months before any type of medical shoes were issued, . . . The United States is not the one who denied me Van Pass, shoes, Braces, etc. [sic].” See id. at p. 2.

         1. Westfall ...


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