United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se plaintiff, Herman Majors, initiated this
case by filing a complaint in the United States District
Court for the Middle District of Tennessee, pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671, et seq. The case was transferred to
this Court because the amended complaint deals only with a
medical claim arising out of events at USP-Hazelton, which is
located in Bruceton Mills, West Virginia. Once the transfer
to this Court was completed, the civil action was referred to
United States Magistrate Judge James E. Seibert for initial
review and report and recommendation pursuant to Local Rule
of Prisoner Litigation 2. This Court then issued a notice of
deficient pleading (ECF No. 19) and the plaintiff responded
by filing his amended complaint on the court-approved form
(ECF No. 21).
amended complaint, the plaintiff alleges that medical
personnel for the Federal Bureau of Prisons
(“BOP”) have denied him adequate medical
treatment. The plaintiff alleges that these actions by the
medical personnel have violated his Eighth Amendment rights
and the Americans with Disabilities Act (“ADA”).
For relief, the plaintiff seeks $100, 000, 000.00 in
magistrate judge then entered a report and recommendation
recommending that this Court dismiss the plaintiff's
claim without prejudice. 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. The plaintiff filed timely
objections. For the reasons set forth below, this Court
affirms and adopts the magistrate judge's report and
recommendation in its entirety.
to 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 objections have been filed in this case, this Court
will undertake a de novo review.
report and recommendations, the magistrate judge found that,
under the Prison Litigation Reform Act of 1995
(“PLRA”), the plaintiff may not proceed without
prepayment of the $400.00 filing fee. ECF No. 25 at 3-4.
Under the PLRA, a prisoner may not proceed in forma
pauperis if they have brought three or more actions
which were each “dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.” 28 U.S.C. §
1915(g). Here, the plaintiff concedes that he has previously
brought four cases that were dismissed as frivolous. ECF No.
25 at 4. Although the magistrate judge found that the
plaintiff's allegations “might support a finding of
imminent physical injury, ” a FTCA claim can only bring
relief in the form of monetary damages. ECF No. 25 at 4
(citing Peck v. Blessing, No. 05-0960 SC, 2006 WL
213736 (N.D. Cal. Jan. 27, 2006). Thus, the magistrate judge
is correct that allowing the case to proceed would not remove
the plaintiff from imminent danger.
Court agrees with the magistrate judge that the plaintiff may
not bring this FTCA claim without complete prepayment of the
$400.00 filing fee. Accordingly, on de novo review,
this Court upholds the recommendation of the magistrate
reasons set forth above, this Court, after a de novo
review, the magistrate judge's report and recommendation
(ECF No. 25) is AFFIRMED and ADOPTED in its entirety. The
plaintiff's amended complaint (ECF No. 21) is thus
DISMISSED WITHOUT PREJUDICE and the plaintiff's
objections (ECF No. 30) are OVERRULED. Furthermore, the
plaintiff's motion for leave to proceed in forma
pauperis (ECF No. 22) is DENIED. It is ORDERED that this
civil action be DISMISSED WITHOUT PREJUDICE and STRICKEN from
the active docket of this Court.
the plaintiff choose to appeal the judgment of this Court to
the United States Court of Appeals for the Fourth Circuit on
the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this ...