Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Wilson

United States District Court, S.D. West Virginia

March 29, 2019

CARMEN JOHNSON, Plaintiff,
v.
DAVID WILSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber, Senior United States District Judge

         By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings and recommendations regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted to the court his Findings and Recommendation (“PF&R”) on April 11, 2018 (ECF No. 7), in which he recommended that the district court dismiss plaintiff's complaint as to plaintiff's claims against defendants Wilson, Grimes, Rickard, Arviza, Wickline, Ray, Ambler, Harvey, Trainum, Kelley, Dickerson, McCabe, Spradling, Bailey, the United States of America, Congressman Jenkins, Caraway, and Connors, and refer this matter back to the magistrate judge for further proceedings on plaintiff's claims against defendants Christine Anthony and Dana Renick.

         In accordance with the provisions of 28 U.S.C. § 636(b), the parties were allotted fourteen days, plus three mailing days, in which to file any objections to Magistrate Judge Aboulhosn's Findings and Recommendation. The failure of any party to file such objections constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

         The defendant submitted multiple objections to Magistrate Judge Aboulhosn's Findings and Recommendation. See ECF No. 23.

         I. Background

         A. Instant Complaint

         On March 9, 2018, the plaintiff filed her complaint for alleged violations of her constitutional and civil rights pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971). ECF No.3.

         B. PF&R and Plaintiff's Objections

         In his PF&R, filed on April 11, 2018, the magistrate judge proposed that the district court dismiss plaintiff's complaint as to plaintiff's claims against defendant's Wilson, Grimes, Rickard, Arviza, Wickline, Ray, Ambler, Harvey, Trainum, Kelley, Dickerson, McCabe, Spradling, Bailey, the United States of America, Congressman Jenkins, Caraway, and Connors, and refer the matter back to the magistrate judge for further proceedings on plaintiff's claims against defendant's Christine Anthony and Dana Renick. ECF No. 7. The plaintiff makes objections to this proposal of dismissing these plaintiffs, claiming that they violated her constitutional rights regarding her administrative remedy process, her conditions of confinement, her alleged exposure to verbal abuse and harassment and continuous harsh lighting, her liberty interests as they relate to attending the literacy program, and her belief that supervisor liability should be imposed. See ECF No. 23.[1]

         II. Discussion

         A. Improper Defendant:

         Magistrate Judge Aboulhosn found that Bivens claims are not actionable against the United States, and thus, the United States must be dismissed from this action. (ECF NO. 7) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994); Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991); Reingold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999). The plaintiff objected to the magistrate judge's finding by stating that,

[p]laintiff is seeking relief for violations by: a. Constitutional rights, Civil rights, Irreparable Doctrine for Harm, Americans with Disability Act, Religious Land Use and Institutional Person's Act, Religious Freedom Restoration Act, Civil Rights of Institutionalized Person's Act, Federal Tort, State Torts, BIVENS, Section 504 Rehabilitation Act, American Federal Disability Statutes. Plaintiff is asking for a Judicial review and appointed counsel to assist with complexities and different violations in this case.

(ECF No. 23, p. 2).

         The court finds that the magistrate judge correctly concluded that well-settled law establishes that, based upon sovereign immunity, the United States of America cannot be a defendant, unless sovereign immunity is waived.

         B. Administrative Remedy Process:

         The magistrate judge construed the plaintiff's complaint as alleging that defendant's Rickard, Arviza, Wickline, Ambler, Caraway, and Connors violated the plaintiff's constitutional rights by rendering the BOP's Administrative Remedy process futile. (ECF NO. 7). The magistrate judge recommended that this court dismiss the plaintiff's claim as futile. Id. The magistrate judge, citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir.), cert denied, 514 U.S. 1022, 115 S.Ct. 1371, 131 L.Ed.2d 227 (1994), and Booker v. South Carolina Dept. of Corrections, 855 F.3d 533 (4th Cir. 2017), reasoned that the plaintiff's claim was futile because federal inmates have no constitutional right to participate in the BOP's administrative grievance proceedings. (ECF No. 7). The magistrate judge explained that although an inmate does not have a constitutional entitlement to or a due process interest in accessing a grievance procedure, an inmate does have a First Amendment right to be free from retaliation when they do file a grievance. Booker, 855 F.3d at 542; Martin v. Duffy, 858 F.3d 239 (4th Cir. June 1, 2017). The magistrate judge explains, however, that the plaintiff does not allege the defendants retaliated against plaintiff for filing administrative remedies; and therefore, the plaintiff's claims for constitutional violations are not actionable. Id.

         In her objections, the plaintiff argues that her complaints relating to her incarceration were “pushed under the rug” and turned a “blind eye” to. (ECF No. 23, p. 2). The plaintiff states in her objections that “[b]ased on the Constitution a person has a right to report an [sic] government entity to another free from abuse and retaliation.” Id. She argues that she “was deprived of basic human needs an [sic] exposed to series [sic] harm and these Defendants listed knew Plaintiff was being harmed and did not respond reasonably or report the abuse.” Id.

         While the plaintiff states that a person has a right to report a government entity and be free from retaliation, she does not allege she has been retaliated against, nor does she explain any facts or circumstances where the court could find she was retaliated against. See ECF No. 23. Therefore, the court adopts the magistrate judge's proposed finding that the plaintiff's claim as to the alleged insufficiency of the administrative remedy process is futile. See ECF No. 7.

         C. Conditions ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.