United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, SUSTAINING
PLAINTIFF'S OBJECTION, AND TRANSFERRING CIVIL
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Terrell McQueen
(“McQueen”), a federal inmate incarcerated at
F.C.I. Hazelton in Bruceton Mills, West Virginia, filed the
above-styled civil action pursuant to the Federal Tort Claims
Act (“FTCA”). ECF No. 1. The action was referred
to United States Magistrate Judge James P. Mazzone for
initial review and report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B).
review of the plaintiff's civil action, the magistrate
judge entered an order requiring the payment of the $400.00
filing fee or completion of the forms to proceed in forma
pauperis. ECF No. 8. Thereafter, the plaintiff filed a motion
for leave to proceed in forma pauperis (ECF No. 10). The
magistrate judge entered a report and recommendation that
plaintiff's motion be denied (ECF No. 13). Plaintiff then
paid the $400.00 filing fee. ECF No. 15.
review, this Court entered an order vacating the report and
recommendation of the magistrate judge regarding the
plaintiff's in forma pauperis motion (ECF No. 13),
denying the plaintiff's in forma pauperis motion (ECF No.
10) as moot, and expressly finding that the plaintiff has
paid the $400.00 filing fee. ECF No. 16.
the magistrate judge filed a report and recommendation
recommending that plaintiff's FTCA action be transferred
to the United States District Court for the Northern District
of New York as it provides the proper venue for
plaintiff's claim alleging medical negligence. ECF No.
17. The magistrate judge informed the plaintiff that if he
objected to any portion of the report and recommendation, he
was required to file written objections within 14 days after
being served with copies of the report.
filed a timely motion requesting an extension of time to file
objections to the report and recommendation issued by the
magistrate judge. ECF No. 20. This Court entered an order
granting the plaintiff's motion (ECF No. 21) and the
plaintiff filed an objection to the report and
recommendation. ECF No. 22.
complaint, plaintiff sets forth allegations related to a
series of medical visits that took place at Ray Brook Health
Services, including an examination by Nurse Practitioner K.
Sorrell (“Sorrell”) related to plaintiff's
alleged blurred vision and ongoing progression of vision
loss. ECF No. 1. Ultimately, plaintiff alleges that he would
not have suffered long term vision damage if he had been sent
for an emergency consult by Sorrell and maintains that
Sorrell's negligence led to the delay in surgery.
Id. For relief, plaintiff seeks $10, 000, 000.00 for
the irreparable damage done to his eyes by Sorrell's
States Magistrate Judge James P. Mazzone entered a report and
recommendation. ECF No. 17. The magistrate judge noted that
the Federal Tort Claims Act provides the federal district
courts with jurisdiction to hear civil claims against the
United States for injuries “caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
” if a private person would be liable for the conduct
based on the law of the place where the act or omission
occurred. 28 U.S.C. § 1346(b)(1). In addition, the
magistrate judge noted that a claim against the United States
pursuant to this Act “may be prosecuted only in the
judicial district where the plaintiff resides or wherein the
act or omission complained of occurred.” 28 U.S.C.
§ 1402(b); Upchurch v. Piper Aircraft
Corp., 736 F.2d 439 (8th Cir. 1984) (construing statute
as venue statute). Id. at 17. Specifically, the
magistrate judge found that the plaintiff has not indicated
where he resided before his incarceration and most circuit
courts have held that a prisoner's place of incarceration
is not his residence. Id.; see Lindsey v. United
States, 2006 WL 2060651, 2 (N.D. W.Va. Jan. 21, 2006)
(noting circuit split on whether a prisoner's place of
incarceration is his place of residence). The magistrate
judge concluded that the most appropriate venue in this case
is the United States District Court for the Northern District
of New York in that the events underlying the plaintiff's
claim took place in Ray Brook, which is within the judicial
district of Northern New York, and noted that liability under
the FTCA is based on the law of the state where the event
giving rise to liability occurred. Id.; see
28 U.S.C. § 1346(b). Therefore, the magistrate judge
found that the United States District Court for the Northern
District of New York provides the proper venue for the
plaintiff's pursuit of his FTCA claim alleging medical
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
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 an objection is timely
made. Because the plaintiff filed an objection to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the plaintiff objected. As to those findings to which
objections were not filed, all findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § ...