United States District Court, N.D. West Virginia
JASON D. BROWNING, Plaintiff,
KAREN PSZCZOLKOWSKI, Warden, MIKE HILL, Chief of Security, DEPUTY WARDEN WILLIAM YURCINA, Deputy Warden, JOANIE HILL, A.W.O., DAVID ELLIOT, Job Coordinator, KELLY STRICKLAND, Kitchen Supervisor, BRANDY MILLER, A.W.P., DALE GRIFFITH, Unit Manager, RYAN ADAMS, Unit Manager, MIKE TAYLOR, Chaplin, KIM WILSON, Commissary Supervisor, C.J. RYDER, Religious Services, JIM RUBENSTEIN, Commissioner, COMMISSIONER BETSY JIVIDEN, Commissioner and JENNIFER L. HAYS, Hearing Official Officer, Defendants.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
pro se plaintiff, a federal inmate who is housed
at the Northern Correctional Facility in Moundsville, West
Virginia filed a complaint pursuant to 42 U.S.C. § 1983.
ECF No. 1. In his complaint, plaintiff alleges that the
defendants breached a settlement agreement that stemmed from
disputes based on his religious beliefs. Id. at
11-14, 16. The plaintiff also alleges a claim based on
medical treatment, claiming that there was medical
malpractice and that the defendants were deliberately
indifferent to his medical needs. Id. at 15.
Moreover, the plaintiff states that the defendants failed to
protect him from being assaulted by other inmates.
Id. at 17. The plaintiff asserts that FCI Morgantown
would be “better equipped for [his] care, treatment,
and [his] religious needs.” Id. at 18. The
plaintiff requests that this Court transfer him to FCI
Morgantown to “resolve all matters.” Id.
In what is labeled as “Appendix #7, ” the
plaintiff seeks the following: (1) to have the West Virginia
Division of Corrections (“WVDOC”) provide a
kosher diet; (2) to have the WVDOC change their policy so
that he can observe Jewish holidays; (3) to be permitted to
wear his religious materials; (4) to have his own time for
“orthodox Jews only[, ]” without non-Jews in the
chapel on all Jewish holidays, and “not have to pay for
anyone but [himself;]” (5) to allow for rabbis to come
to the prison year-round; (6) to allow the “Aleph
institute to send in matza [and] grape juice every sabbat . .
. [and] other religious items for Jewish holidays[;]”
(7) to have the WVDOC allow him to have a microwave to stay
kosher; (8) to allow him to order monthly food packages from
any Jewish vendor; (9) to allow him to order a king size
cooler to keep his food; (10) to allow him to order four
bowls, two cups, and two water bottles; (11) to allow him to
have a candelabra and two battery operated shabbat candles in
his cell; (12) to allow him to take religious classes and
courses using the prison computer; (13) to have the WVDOC
rehire him in the kitchen “without being harassed to
cook [his] food[;]” (14) to have the WVDOC pay for the
cost of this action and “all relief this is the actual
loss of what the agreement would had made if the contract had
been performed.” ECF No. 1-7 at 3.
plaintiff has also filed a motion titled as “Requesting
A Preliminary Injunction of Land Special
Injunction/Transfer.” ECF No. 9. In that motion, the
plaintiff requests that this Court transfer him to FCI
Morgantown since that facility “would be better
equipped for [his] care[, ] treatment [and] religion . . .
[T]his facility already allows everything in request to have
in [his] complaint with good cause[.]” Id. at
1. The plaintiff also states that he is filing a claim for
“sexual harassment, assault, and breach of trust[,
]” and that the personnel at the facility
“cover for each other[.]” Id. at 2-3.
States Magistrate Judge James P. Mazzone entered a report and
recommendation. ECF No. 17. The magistrate judge recommended
that the plaintiff's motion for an injunction (ECF No. 9)
be denied and dismissed without prejudice. Id. at 5.
magistrate judge stated that “[t]he plaintiff shall
have fourteen (14) days from the date of service of this
Report and Recommendation within which to file with the Clerk
of this Court, specific written objections, identifying the
portions of the Report and Recommendation to which objection
is made, and the basis of such objection . . . Failure to
file written objections as set forth above shall constitute a
waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of
Appeals.” Id. at 5-6 (emphasis omitted).
docket reflects a return receipt was filed and service was
accepted on July 22, 2019. ECF No. 18.
objections to the report and recommendation were filed.
reasons discussed below, the report and recommendation of the
magistrate judge is AFFIRMED and ADOPTED in its entirety.
to 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.
As to those portions of a recommendation to which no
objection is made, a magistrate judge's findings and
recommendation will be upheld unless they are clearly
reviewing the record before this Court, no clearly erroneous
findings exist concerning the magistrate judge's report
making his recommendations, the magistrate judge first
correctly found that the decision as to the plaintiff's
place and type of incarceration is within the purview of the
WVDOC, and that this Court has no authority or jurisdiction
to direct the WVDOC to transfer or keep the plaintiff in any
facility. Id. at 4. Moreover, the magistrate judge
properly noted that even if the Bureau of Prisons
(“BOP”) and the State of West Virginia come to an
agreement as to the plaintiff's place of incarceration,
the BOP would have discretion as to the plaintiff's
placement based on a custody classification. Id.
Further, the magistrate judge correctly stated that there is
no indication that the plaintiff made a request to be
transferred to FCI Morgantown or any other federal prison
facility. Id. at 5. Lastly, the magistrate judge
properly found that the record does not support a preliminary
injunction since the information does not establish that the
plaintiff is ...