United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
99], OVERRULING PLAINTIFF'S OBJECTIONS [DKT. NOS. 105,
107], AND DENYING AS FUTILE SECOND MOTION FOR LEAVE TO AMEND
[DKT. NO. 90]
M. KEELEY UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation of United
States Magistrate Judge Michael J. Aloi recommending denial
of the motion for leave to file a second 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. Nos. 105; 107),
ADOPTS the Report and Recommendation (Dkt.
No. 99), and DENIES Parrish's motion for
leave to amend (Dkt. No. 90).
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).
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
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 alleged that he
filed two Administrative Tort Claim forms regarding these
claims, both of which were subsequently denied by the
Id. at 4. Following the Magistrate Judge's
initial review, the defendant moved to dismiss Parrish's
amended complaint for failure to state a claim (Dkt. No. 65).
Memorandum Opinion and Order entered on January 16, 2019, the
Court granted in part and denied in part the defendant's
motion to dismiss (Dkt. No. 85). First, the Court denied the
motion to dismiss Parrish's claims as stated in
Administrative Tort Claim TRT-MXR-06283
(“Administrative Claim ‘283” or “the
‘283 Claims”) 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. Then, after reviewing the
administrative record in the case, the Court granted 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 Court 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 5-8. Following the entry of its Memorandum
Opinion and Order, the Court recommitted the case to the
magistrate judge for further proceedings on Parrish's
remaining abuse of process claim, i.e. the
‘283 Claim. Id. at 15.
pending is Parrish's second “Motion for Leave to
Amend” (Dkt. No. 99). Parrish seeks to amend his
complaint for a second time in order to “add more
claims to the administrative tort (TRT-MXR-06283).”
Parrish concedes that the claims he seeks to add to Claim
‘283 were originally raised in Claim ‘710. He
argues, however, that because the ‘283 Claim
“stem[s] from” the ‘710 Claims, his motion
for leave to amend is actually a request “for
consolidation of those separate claims.” Id.
at 1. According to Parrish, the so-called
“consolidation” of his claims is appropriate
under the continuing tort doctrine, “where there is no
single incident that can fairly or realistically be
identified as the cause of significant harm.”
Id. at 1-2.
18, 2019, Magistrate Judge Aloi entered an R&R
recommending that the Court deny Parrish's motion for
leave to file a second amended complaint (Dkt. No. 99). The
R&R concluded that Parrish's proposed amendment would
be futile because the claims he seeks to raise are clearly
time-barred. Id. at 3-4. It further concluded that
the continuing violation doctrine does not apply to save
those claims. Id. at 4-5. 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 5. The Court received Parrish's timely
objections to the R&R on July 10 and 12, 2019 (Dkt. Nos.
105; 107). To date, the defendant has not filed any
reviewing a magistrate judge's R&R, the Court may
adopt without explanation any recommendations to which no
objections are filed. 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.
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 specifically objects to the R&R's
recommendation that Court deny as futile his motion for leave
to file a second amended complaint.
“may amend its pleading once as a matter of
course” before the opposing party files a responsive
pleading. Fed.R.Civ.P. 15(a)(1). After that time, a party may
only amend its pleading with the consent of the opposing
party or with leave of the court, and “[t]he court
should freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). However, the court “may deny a
motion to amend when the amendment would be prejudicial to
the opposing party, the moving party has acted in bad faith,
or the amendment would be futile.” Equal Rights
Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th
Cir. 2010). “A proposed amendment is futile when it is
clearly insufficient or frivolous on its face. A proposed
amendment is also futile if ...