United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING
RESPONDENT'S MOTION TO DISMISS OR FOR SUMMARY
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se plaintiff filed this civil action on March
20, 2017, asserting claims against defendants under
Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). The complaint arises out of
events during the plaintiff's incarceration at FCI
Gilmer, where the defendants are employed. ECF No. 1 at 1-3.
The plaintiff alleges that he received traumatic injuries to
the head as a result of being attacked by other inmates at
FCI Gilmer on March 10, 2014. Plaintiff now brings a claim of
deliberate indifference to serious medical needs based on the
defendants' alleged failure to provide adequate medical
care following that incident. ECF No. 1 at 7-9. The plaintiff
alleges that, as a result of the defendants' failure, he
has suffered a host of psychiatric problems, permanent facial
deformity, and pain and suffering. ECF No. 1 at 7-9. The
plaintiff requests relief in the form of $6, 000, 000.00 in
compensatory damages and $12, 000, 000.00 in punitive damages
against each defendant. ECF No. 1 at 7-9.
response, the defendants filed a motion to dismiss or,
alternatively, for summary judgment. ECF No. 27. The
defendants argue that the complaint should be dismissed for
three reasons. First, they argue the complaint is untimely.
ECF No. 28 at 8. The defendants note that state law supplies
the statute of limitations in a Bivens action, and
that here, the statute of limitations under West Virginia law
is two years. ECF No. 28 at 9. Because the plaintiff's
complaint relates to medical care he received at FCI Gilmer,
the defendants argue that the latest the statute of
limitations could begin is the last day the plaintiff was
incarcerated at FCI Gilmer: June 10, 2014. ECF No. 28 at 9.
Thus, the defendants contend that the plaintiff had until
June 10, 2016 to file his complaint. ECF No. 28 at 9.
the defendants argue the plaintiff has not exhausted
administrative remedies. ECF No. 28 at 13. The defendants
argue that although the plaintiff filed three grievances with
the Federal Bureau of Prisons (“BOP”), he never
filed an institutional grievance at FCI Gilmer despite
receiving specific instructions about the process. ECF No. 28
at 14-15. Further, the defendants contend that the plaintiff
has not shown that he was prevented from pursuing
administrative remedies. ECF No. 28 at 15-16.
the defendants argue that the plaintiff failed to plead a
cognizable legal claim. ECF No. 28 at 16. The defendants note
that “[d]eliberate indifference is more than
negligence”; it requires that a prison official
“specifically knows about and purposely disregards an
excessive risk to inmate health or safety.” ECF No. 28
at 17 (citing Farmer v. Brennan, 511 U.S. 825, 835
(1994)). Defendants contend, at most, that plaintiff's
complaint demonstrates that he disagreed with the decisions
made by the medical staff at FCI Gilmer. ECF No. 28 at 19.
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 Michael John Aloi. The magistrate judge
entered a report and recommendation. ECF No. 33. In that
recommendation, the magistrate judge found that although the
complaint was filed after the statute of limitations had
passed, the statute of limitations is tolled while a prisoner
is exhausting administrative remedies. ECF No. 33 at 24
(citing Lopez v. S.C.D.C., No. 3:06251-PMD-JRM, 2007
WL 2021875 *2 (D.S.C. 2007)). However, the magistrate judge
found that the plaintiff did not complete the grievance
process with the BOP, and thus is not entitled to tolling of
the statute of limitations. ECF No. 33 at 24. The magistrate
judge found that the plaintiff filed his claim two years,
eight months, and ten days after leaving FCI Gilmer. ECF No.
33 at 24. Further, the magistrate judge found that even if
the plaintiff's claims were not time barred, they are not
supported by the record. ECF No. 33 at 24. Accordingly, the
magistrate judge recommended that the defendants' motion
to dismiss, or, alternatively, for summary judgment be
granted and the plaintiff's complaint be denied and
dismissed with prejudice. ECF No. 33 at 25.
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 that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
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.
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 complaint
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 plaintiff is not entitled to tolling of
the statute of limitations because he did not complete the
BOP's grievance process. ECF No. 33 at 24. Thus, the
statute of limitations began on June 10, 2014, and the
plaintiff's complaint, filed on March 20, 2017, is
untimely. ECF No. 33 at 24. Therefore, the magistrate judge
correctly determined that the complaint must be dismissed
with prejudice. ECF No. 33 at 25.
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