United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE DISMISSING
PLAINTIFF'S COMPLAINT AND DENYING PLAINTIFF'S MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS MOOT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, a federal inmate who is housed
at USP Hazelton, initiated this case by filing a complaint
pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 2671, et seq. In his complaint, the
plaintiff alleges that the Warden at USP Hazelton keeps
putting inmates “back on the yard, ” after
repeatedly getting caught with knives and drugs. ECF No. 1 at
6. The plaintiff alleges that since January 2017, at least
six inmates have been either stabbed or hit with locks. ECF
No. 1 at 6. The plaintiff further alleges that the Attorney
General is aware of the problem and that the staff at USP
Hazelton is racist and allows problem inmates out of the
special housing unit within seven days. ECF No. 1 at 6.
the plaintiff alleges that he has had outside medical
appointments cancelled as a result of these issues. ECF No. 1
at 9. For relief, the plaintiff requests an order sending him
to a medical institution either in North Carolina,
Springfield, or Atlanta until he is “healed.” ECF
No. 1 at 9. The plaintiff requests relief in the form of
$300, 000.00 in damages for the pain and suffering he has
endured. ECF No. 1 at 9. The plaintiff also filed a motion
for leave to proceed in forma pauperis. ECF No. 2.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge
entered a report and recommendation recommending that this
Court dismiss the plaintiff's claim and deny the
plaintiff's motion for leave to proceed in forma
pauperis as moot. ECF No. 13. The magistrate judge
advised the parties that, pursuant to 28 U.S.C. §
636(b)(1)(C), any party may file written objections to his
proposed findings and recommendations within 14 days after
being served a copy of the report and recommendation. Neither
party filed any objections to the report and recommendation.
reasons set forth below, the report and recommendation of the
magistrate judge (ECF No. 13) is affirmed and adopted.
Therefore, the complaint (ECF No. 1) is dismissed and the
plaintiff's motion for leave to proceed in forma
pauperis (ECF No. 2) is denied as moot.
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.
§ 636(b)(1)(A). As the Supreme Court of the United
States stated in United States v. United States Gypsum
Co., “a finding is ‘clearly erroneous'
when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” 333
U.S. 364, 395 (1948).
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. In
this civil action, the magistrate judge correctly held the
pro se complaint to less stringent standards than
those complaints drafted by attorneys. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). This Court agrees with
the magistrate judge's finding that the plaintiff has not
exhausted his administrative remedies. ECF No. 13 at 3-4.
bring a claim under the Federal Tort Claims Act
(“FTCA”), a plaintiff must fully exhaust the
administrative process. 28 U.S.C. § 2675(a). In order to
exhaust the administrative process, the plaintiff must submit
a written notification of the incident, accompanied by a
claim for money damages, to the federal agency whose
activities gave rise to the claim. 28 C.F.R. §§
14.2(a)-(b). After the plaintiff receives notification of
final denial, he may file suit within six months under the
FTCA. 28 C.F.R. § 14.9. In this case, the magistrate
judge correctly found that because the plaintiff had not
exhausted his administrative remedies, the case should be
the magistrate judge found that, even if the plaintiff had
exhausted administrative remedies, the plaintiff's
complaint would still be subject to dismissal because the
plaintiff does not allege physical injury. ECF No. 13 at 4.
The magistrate judge specifically noted that, under the FTCA,
the waiver of sovereign immunity is subject to several
requirements, and concluded that those requirements have not
been met. ECF No. 13 at 4. Further, the magistrate judge
added that to recover for mental or emotional injury, a
prisoner under the FTCA must show a physical injury. ECF No.
13 at 4-5. Accordingly, the magistrate judge found that the
plaintiff has only alleged types of mental and emotional
injuries and thus “has no chance for success.”
ECF No. 13 at 5.
Court finds no clear error in the findings of the magistrate
judge and thus upholds his recommendation. Accordingly, the
report and ...