United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
25], GRANTING PLAINTIFF'S MOTION TO VOLUNTARILY DISMISS
CLAIMS [DKT. NO. 23], AND DISMISSING THE CASE
M. KEELEY, UNITED STATES DISTRICT JUDGE
March 13, 2018, the pro se plaintiff, Michael
Fiorito (“Fiorito”), initiated a
Bivens action in the United States District Court
for the Central District of California (Dkt. No. 1), alleging
an “ongoing denial of medical care span[ning] almost 3
years in 3 different states at 3 different BOP
facilities.” Id. at 12. Pursuant to 28 U.S.C.
§ 1406(a), and because Fiorito's claims against the
above-named defendants arise out of his incarceration at FCI
Gilmer, a federal institution located in the Northern
District of West Virginia, those claims were severed and
transferred to this Court on September 27, 2018 (Dkt Nos. 27;
to 28 U.S.C. § 636 and this Court's local rules, the
Court referred the matter to United States Magistrate Judge
Michael J. Aloi for initial review. Thereafter, Fiorito filed
a self-styled “Motion for Clarification” (Dkt.
No. 23), requesting information as to “why he is being
forced to pursue the severed defendants in West
Virginia.” Id. at 2. In his motion, Fiorito
states that “he explained to [the California] Court
that if the West Virginia defendants were severed from his
case . . . [he] would not pursue those defendants in West
Virginia.” Id. at 1. He further states that he
is “confused as to why he is being forced to initiate a
new Bivens action in West Virginia.”
Id. at 2.
Judge Aloi's report and recommendation
(“R&R”), entered on October 29, 2018 (Dkt.
No. 25), recommended that the Court construe Fiorito's
Motion for Clarification as a motion to voluntarily dismiss
the severed claims. Id. at 5. Accordingly, the
R&R recommended that the Court dismiss the
Bivens and FTCA claims asserted against the
above-named defendants. Id. It further recommended
that the Court relieve Fiorito of any obligation for the
filing fee associated with this action. Id. at 6.
R&R informed the parties of their right to file written
objections, identifying those portions of the recommendation
to which objections are made, and the basis for such
objections. Id. at 6. It further warned that failure
to do so could result in waiver of the right to appeal.
Id. at 6-7. To date, no party has filed any
objections to the R&R. Instead, on November 16, 2018,
Fiorito filed a letter advising the Clerk of Court that he is
“not proceeding with either a Bivens or an
FTCA suit against any defendants in West Virginia, ”
and requesting that the Clerk's Office
“explain” to the Prison Trustee Officer that
“fees . . . related to this case should be
refunded” to him (Dkt. No. 27).
reviewing a magistrate judge's R&R, the Court must
review de novo only those portions of the R&R to
which an objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp. 2d. 600,
603-04 (N.D. W.Va. 2007)(citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 2005)). Courts will uphold those
portions of the recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
no party has objected, the Court is under no obligation to
conduct a de novo review. Dellacirprete,
479 F.Supp. at 603-04. Upon review of the R&R and the
record for clear error, the Court ADOPTS the
R&R (Dkt. No. 25), GRANTS Fiorito's
Motion for Clarification insofar as he has moved to
voluntarily dismiss his claims (Dkt. No. 23), and
DISMISSES the Bivens and FTCA
claims asserted against the above-named defendants (Dkt. No.
1). Further, it VACATES its earlier Order
Requiring Payment of Previously-Assessed Initial Partial
Filing Fee (Dkt. No. 21), thereby relieving Fiorito of any
obligation for the filing fee associated with this civil
Court DIRECTS the Clerk of Court to transmit
a copy of this Order to the pro se plaintiff,
certified mail and return receipt requested. It further
DIRECTS the Clerk to strike this case from
the Court's active docket.
Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388, 390