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 is currently incarcerated at FCI
Gilmer, where he is serving a sentence imposed by the United
States District Court for the Northern District of West
Virginia. ECF No. 1 at 1-2. The plaintiff filed a claim under
the Federal Tort Claims Act (“FTCA”), in which he
alleges a violation of the Eighth Amendment of the United
States Constitution. Plaintiff contends that he was sprayed
with oleoresin capsicum (“pepper spray”) when
guards acted to gain control of an altercation between
inmates at 8:00 a.m. and was “left untreated by staff
until 10:11 a.m., causing a chemical reaction and damage to
his skin.” ECF No. 1 at 6. Plaintiff's complaint
also states that he was “subject to unreasonable
restraint” and had a “toxic substance sprayed on
him, as a result of the staff of FCI Gilmer's procedures
and processes during an incident.” ECF No. 1 at 7. The
plaintiff brings this suit against the government, as
represented by the Federal Bureau of Prisons
(“BOP”), along with three individual employees at
FCI Gilmer. Id. at 6. Plaintiff seeks “all
relief available under the law, including $8, 000 for damages
as well as any other appropriate relief.” ECF No. 1-1
government filed a motion to dismiss and a memorandum in
support of its motion to dismiss. ECF Nos. 21 and 22. The
government requests that the plaintiff's complaint be
dismissed because plaintiff has “fundamentally failed
to present a cognizable legal claim.” ECF No. 21 at 1.
The government contends that plaintiff inserted himself into
a fight between two other inmates at 8:40 a.m., when he
“ran between the staff members and hit one of the
fighting inmates.” ECF No. 22 at 1. The government
states that FCI Gilmer staff used pepper spray to gain
control of the plaintiff, who was photographed after the
incident, at approximately 8:40 a.m. Id. The
government reports that the plaintiff was decontaminated
“without delay” and that the plaintiff denied any
injury when he was evaluated after the decontamination at
10:00 a.m. FCI Gilmer medical staff allege that they observed
no injuries at the time of evaluation. Id. at 2.
government asserts that this Court should dismiss the
plaintiff's complaint for various reasons. ECF No. 22.
First, the government asserts that this Court should dismiss
the complaint as unsubstantiated and unsupported.
Id. at 3-4. In support of this argument, the
government alleges that during the evaluation, the plaintiff
said that he had no injuries, directly contradicting his
claim that he suffered an injury. Id. Additionally,
according to the government, a photograph of the plaintiff
“after the alleged assault and use of pepper spray
demonstrates no discernible injuries.” Id.
Second, the government indicates that the FTCA is a narrowly
tailored exception to the fundamental rule that the
government cannot be sued. Third, the government asserts that
a lawsuit against the United States is forever barred unless
the underlying claim is timely and properly presented to the
appropriate federal agency. Specifically, the government
states that an FTCA lawsuit is only cognizable against the
United States, while a constitutional civil rights action is
cognizable against the alleged individual wrongdoer.
Id. at 6. Fifth, the government maintains that
because constitutional tort claims are not cognizable in an
FTCA claim and since the plaintiff argues that FCI Gilmer
staff violated his Eighth Amendment right to be free from
cruel and unusual punishment, the plaintiff's claim
cannot be brought through this action. Id. at 8.
Sixth, even though it was not included in the plaintiff's
original claim, the government notes that the plaintiff has
failed to satisfy the requirements of medical negligence as
stipulated by West Virginia Code § 55-7B-6 (2019).
Id. at 9.
filed a motion for an extension of time to respond to the
government's motion to dismiss. ECF No. 28. Plaintiff
attributed the need for an extension to an institutional
lock-down and a work schedule that did not allow him enough
time in the prison law library to complete his response.
Id. United States Magistrate Judge James P. Mazzone
granted the extension. ECF No. 29.
then filed a motion titled “Traverse to the
Defendant's Memorandum in Support of the U.S.A.'s
Motion to Dismiss.” ECF No. 33. Plaintiff states that
the timing of events described by the government is
inaccurate, maintaining that he was pepper sprayed at 8:00
a.m. and not decontaminated until 10:00 a.m. The plaintiff
claims that “two hours does not represent immediately
or ‘without delay' in anyone's sense of time,
” stating that “because the plaintiff was
involved in an incident, the collusion of the medical staff
and those in custody decided to punish him by letting him
suffer as the pepper spray burned him.” Id. at
Judge Mazzone then entered a report and recommendation in
which he recommended the case be dismissed with prejudice for
failure to state a claim for relief. ECF No. 40 at 11.
plaintiff did not file any objections to the magistrate
judge's 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.
report and recommendation, the magistrate judge cites
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), which
states that “only a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Id. at 4. Specifically, the magistrate judge looks
to United States v. Muniz, 374 U.S. 150 (1963),
which finds that an inmate “can sue under the [FTCA]
[sic] to recover damages from the United States Government
for personal injuries sustained during confinement in a
federal prison, by reason of the negligence of a government
employee.” Id. at 7. The magistrate judge