United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING
THE COMPLAINT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
I.
Background
The
pro se[1] plaintiff filed this civil action
asserting three claims under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971). ECF No.
1. This complaint arises out of the plaintiff's removal
from a halfway house program and placement in West
Virginia's Central Regional Jail. ECF No. 1 at 8. The
plaintiff alleges (1) violation of due process, (2) violation
of his eighth amendment rights, and (3) discrimination. ECF
No. 1 at 7-8. Although the plaintiff has not exhausted
administrative remedies, he contends that it is because he
“was not given the opportunity to do anything before
[he] was transferred.” ECF No.1 at 6. The plaintiff
requests relief in the form of lost wages and funds for time
spent in the regional jail. ECF No. 1 at 9.[2]
Pursuant
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. ECF No. 17. In that
recommendation, the magistrate judge found that the complaint
contains no allegations against the first defendant, Pierre
LaConte. ECF No. 17 at 4-5. Further, the magistrate judge
found that the second defendant, Emily Gillespie, is not a
federal employee and thus cannot be found liable in a
Bivens action. ECF No. 17 at 5. Accordingly, the
magistrate judge recommended that the complaint be dismissed
with prejudice against Emily Gillespie and dismissed without
prejudice against Pierre LaConte. ECF No. 17 at 5.
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.
For the
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
its entirety.
II.
Applicable Law
Under
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).
III.
Discussion
After
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. The
magistrate judge correctly held the pro se petition
to less stringent standards than those complaints drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Upon review, the magistrate judge correctly
determined that the complaint contains no allegations about
the first defendant, Pierre Laconte, and the second
defendant, Emily Gillespie, is not a federal employee. ECF
No. 17 at 4-5. Therefore, these individuals cannot be found
liable in a Bivens action. ECF No. 17 at 4-5. The
magistrate judge correctly concluded that the complaint must
be dismissed with prejudice as to Emily Gillespie and without
prejudice as to Pierre Laconte. ECF No. 17 at 5.
This
Court has reviewed the record and the report and
recommendation and finds that the findings of the magistrate
judge are not clearly erroneous. Accordingly, the report and
recommendation is affirmed and adopted in its entirety.
IV.
Conclusion
Because
the parties have not objected to the report and
recommendation of the magistrate judge, and because this
Court finds that the magistrate judge's recommendation is
not clearly erroneous, the report and recommendation of the
magistrate judge (ECF No. 17) is hereby AFFIRMED and ADOPTED
in its entirety. Accordingly, the plaintiff's claim
against Emily Gillespie is DISMISSED WITH PREJUDICE and the
plaintiff's claim against Pierre Laconte is DISMISSED
WITHOUT PREJUDICE.
It is
further ORDERED that this case be DISMISSED and STRICKEN from
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