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Dowling v. Central Office

United States District Court, S.D. West Virginia, Beckley Division

July 19, 2018

VERNON B. DOWLING, Plaintiff,
v.
CENTRAL OFFICE, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE.

         The Plaintiff filed a pro-se Complaint (Document 2), asserting various constitutional and tort claims against the Bureau of Prisons and its employees. By Standing Order (Document 3), entered on January 16, 2018, this matter was referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for proposed findings of fact and recommendation for disposition. Magistrate Judge Aboulhosn entered his Proposed Findings and Recommendation (PF&R) (Document 10) on January 19, 2018.

         Therein, Magistrate Judge Aboulhosn recommends that the Court dismiss the Plaintiff's claims against the following named Defendants: (1) Central Office; (2) FBOP (Federal Bureau of Prisons) Director; (3) Mid Atlantic Office Regional Director; (4) Warden D. L. Young; (5) A. Warden Serrato; (6) A. Warden Birch; (7) DAP-C Jason Weaver; (8) T. Milam; (9) C. Meadows; (10) J. Grimes; (11) L. Flanagan; (12) J. Davis; (13) (DTS) Robert Smith; (14) DTS Eric Woolwine; (15) William Carnell; (16) Frances F. Lilly, Health Information Technologist; and (17) FBOP FCI Beckley. He further recommends that the following counts be dismissed: (1) Claim of a denial of the right to participate in BOP's administrative remedy process; (2) Claim of verbal abuse and harassment in violation of the Eighth Amendment; (3) Claim of exposure to secondhand smoke in violation of the Eighth Amendment; (4) Claim of expulsion from RDAP (residential drug abuse program) in violation of the Due Process Clause; (5) Claim of denial of educational programs in violation of the Due Process Clause; and (6) Claim of improper disclosure of ‘confidential records.' The Magistrate Judge found that further proceedings were appropriate with regard to the Plaintiff's claims of retaliation, right to access the courts, and right to send/receive mail, and those matters remain referred to the Magistrate Judge. The Plaintiff filed timely objections (Document 37) to portions of the PF&R.

         The Court has also reviewed the Magistrate Judge's second Proposed Findings and Recommendation (Document 33), recommending denial of the Plaintiff's letter-form motion for a temporary restraining order or preliminary injunction (Document 32). The Plaintiff did not file objections to that PF&R, and so it will be adopted without objection.

         STANDARD OF REVIEW

         This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing portions of the PF&R de novo, the Court will consider the fact that the Petitioner is acting pro se, and his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

         PF&R FINDINGS

         The Plaintiff presented his complaint in narrative form in multiple documents. The Magistrate Judge did a commendable job of organizing the complaint into distinct causes of action, and the Court adopts the introductory portion of the PF&R for that purpose. In short, the Plaintiff alleges the following:

(1) That the Central Office, FBOP Director, Mid-Atlantic Regional Director, Warden Young, Warden Serrato, and Warden Birch have rendered the BOP's Administrative Remedy process unavailable or futile;
(2) That Defendants Toler, Taylor, James, Rayban, Toney, and Sweeney have retaliated against him for filing administrative remedies;
(3) That Francis F. Lilly breached confidentiality by submitting irrelevant medical records in a civil action pending in South Carolina. He alleges that the publication of those medical records constitutes libel, slander, and invasion of privacy;
(4) That DTS Robert Smith exposed him as an informant to fellow inmates;
(5) That Defendant Rayban “sexually assaulted” him by asking if he was gay and making suggestive comments;
(6) That Defendants Toler, Taylor, James, and Rayban denied him adequate educational opportunities because the teacher is often absent, and he is tutored by an ...

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