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Parrish v. United States

United States District Court, N.D. West Virginia

January 16, 2019

DONTE PARRISH, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 77], OVERRULING PLAINTIFF'S OBJECTIONS [DKT. NO. 81], AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS [DKT. NO. 65]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         Pending before the Court is the Report and Recommendation of United States Magistrate Judge Michael J. Aloi recommending partial dismissal of the amended complaint filed by the pro se plaintiff, Donte Parrish (“Parrish”). Also pending are Parrish's objections to the magistrate judge's recommendations. For the reasons that follow, the Court OVERRULES Parrish's objections (Dkt. No. 81), ADOPTS the Report and Recommendation (Dkt. No. 77), and GRANTS in PART and DENIES in PART the defendant's motion to dismiss (Dkt. No. 65).

         I.

         On May 3, 2017, Parrish, a federal inmate, initiated this action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”) (Dkt. No. 1).[1] Pursuant to 28 U.S.C. § 636 and its local rules, the Court referred the complaint to Magistrate Judge Aloi for initial screening and a report and recommendation (“R&R”).

         On December 18, 2017, Parrish filed an amended complaint alleging claims of false imprisonment, abuse of process, intentional infliction of emotional distress, negligence, and malicious prosecution related to the Bureau of Prisons (“BOP”)'s investigation of a 2009 incident at USP Hazelton and his placement in various Special Management Units (“SMUs”) during the pendency of that investigation (Dkt. No. 39). Parrish further alleges that he filed two Administrative Tort Claim forms regarding these claims, both of which were subsequently denied by the BOP. Id. at 4. Parrish contends that, as a result of the defendant's conduct, he suffered three years of illegal confinement. Id. at 9. For relief, he seeks $5, 000, 000.00 in damages. Id.

         By Order entered on May 1, 2018, Magistrate Judge Aloi directed the defendant to file an answer on the limited issue of the timeliness of Parrish's claims (Dkt. No. 57). Shortly thereafter, on May 17, 2018, Parrish filed a “Notice of Timeliness” (Dkt. No. 62). The defendant responded to these developments by moving to dismiss the amended complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) (Dkt. No. 65).[2] Parrish then filed a response in opposition to the motion to dismiss (Dkt. No. 74).

         II.

         On September 24, 2018, Magistrate Judge Aloi entered an R&R recommending that the Court grant in part and deny in part the defendant's motion to dismiss (Dkt. No. 21). The R&R first recommended that the Court deny the motion to dismiss Parrish's claims as stated in Administrative Tort Claim TRT-MXR-06283 based on the defendant's failure to specifically advise Parrish of the six-month deadline within which he was required to file suit in order to preserve his claims. Id. at 8-9 (explaining that the failure to include this information in a claim denial letter prevents the limitations period from running).

         Then, after reviewing the administrative record in the case, the R&R recommended that the Court grant the defendant's motion to dismiss Parrish's claims as stated in Administrative Tort Claim TRT-MXR-2016-06710 (“Administrative Claim ‘710” or “the ‘710 Claims”). Specifically, the R&R concluded that the ‘710 Claims are time-barred based on Parrish's failure to file this action within six (6) months of the defendant's final denial of the claims, after receiving adequate notice of the filing deadline. Id. at 9-10. It further concluded that neither the “prison mailbox rule” nor the doctrine of equitable tolling apply to save those claims. Id. at 11-15.

         The R&R also 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 15-16. The Court received Parrish's timely objections to the R&R on October 29, 2018 (Dkt. No. 81).[3] To date, the defendant has not filed any objections to the R&R. Accordingly, this case is now ripe for decision.

         III.

         In reviewing a magistrate judge's R&R, the Court may adopt without explanation any recommendations to which no objections are filed.[4] Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983); see also Nettles v. Wainwright, 656 F.2d 986, 986-87 (5th Cir. 1981). Thus, as to the portions of the R&R to which Parrish has not specifically objected, finding no clear error, the Court ADOPTS those portions of the R&R.

         The Court reviews de novo, however, any portions of the R&R to which a specific objection is made. 28 U.S.C. § 636(b)(1). Moreover, the pleadings and objections of a pro se plaintiff are entitled to liberal construction. See DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 340 (S.D.N.Y. 2009) (noting that pro se objections should be “accorded leniency” and “construed to raise the strongest arguments that they suggest” (internal quotation omitted)).

         Here, Parrish objects to the R&R's recommendation that Court dismiss the ‘710 Claims as time-barred based on his failure to commence this action within six (6) months of the BOP's final denial of those claims. Accordingly, the Court will take up each of Parrish's specific objections to that recommendation in turn below.

         A. Statute ...


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