United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING
PLAINTIFF'S OBJECTIONS AND DISMISSING CASE WITHOUT
FREDERICK P. STAMP, JR., UNITED STATES DISTRICT JUDGE
pro se plaintiff, Todd Glenn Dean, an inmate
housed at FCI Hazelton, filed this civil action asserting a
claim under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). ECF No. 1. In his
complaint, the plaintiff alleges he was denied “equal
protection by municipal entity or any other person acting
under color of Federal Law.” Id. at 3.
Specifically, the plaintiff alleges that he was discriminated
against because he is black. Id. at 7-8. The
plaintiff claims that while working as a clerk in the
chaplain's library, Chaplain Maria treated the white
inmate clerk better than she treated him. Id. The
plaintiff further alleges that Chaplain Maria fired him and
the white inmate clerk over a disagreement, but then hired
the white clerk back just one week later. Id. The
plaintiff admitted that he did not exhaust his administrative
remedies, stating that “the prisoners litigation reform
act does not require an inmate to plead and demonstrate
complete exhaustion of administrative alternatives to a law
suit before filing suit.” Id. at 4. The
plaintiff seeks “damages for emotional distress because
plaintiff suffers sleeplessness, anxiety, stress, marital
problems, humiliation, and loss of pay for being fired for no
reason.” Id. at 9. For relief, the plaintiff
seeks $1, 000, 000.00 in damages. Id.
same day, the plaintiff filed a motion for leave to proceed
in forma pauperis (ECF No. 2) and he later filed a
motion to appoint counsel (ECF No. 7).
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge James P. Mazzone. The magistrate judge
recommended that “Plaintiff's complaint be
dismissed without prejudice for failure to exhaust.”
ECF No. 8 at 4. The magistrate judge further recommended that
the plaintiff's motion for leave to proceed in forma
pauperis (ECF No. 2) and his motion to appoint counsel
(ECF No. 7) be denied as moot. Id.
plaintiff then filed a motion titled as “Motion for
Objection and Subjection.” ECF No. 10. In that motion,
the plaintiff states that he should have been granted in
forma pauperis status. Id. at 1. The plaintiff
asserts that he is entitled to a liberal construction of his
pleading, and he then lists the injuries that have resulted
due to the actions alleged in his complaint. Id. at
1-2. This motion also contained a request for further relief,
in which the plaintiff requested “an injunction
compelling defendants to provide or adopt a new policy or
custom on misconduct and behavior and discrimination and
retraining along with $100, 000 in compensatory money
damages.” Id. at 2. Additionally, the
plaintiff contends that his claim was misunderstood in the
report and recommendation and that “the complaint
should have been read to raise Bivens claims and
Federal Tort Claims Act (FTCA) claims.” Id.
The plaintiff further asserts that “[b]ecause the court
may [have] mistakenly dismissed [sic] plaintiff['s] claim
base[d] on the (FTCA) administrative exhaustion and
repleading a cognizable (FTCA) claim [he] should hereby be
granted (90) days from the date of this order to file a[n]
amended complaint alleging a cognizable Bivens
Fourteenth Amendment of deliberate indifference claim and
that he be allowed to exhaust [sic] the rest of his
administrative remedies under 28 § 2675(A) and [to]
notify the Court that he has begun the second part of the
administrative remedy.” Id. at 3.
plaintiff then filed what is docketed as an amended
complaint. ECF No. 11. In that document, the plaintiff asks
the Court “to stop any kind of retaliation that [he]
may be facing. [He is] in great fear of being transfer[red]
from [ ] Hazelton[, ] [j]ust because of [the] administrative
remedy appeal and the law-suit that [he] filed.”
Id. at 1-2. He indicates that he has a
“medical hold” that prevents him from being
transferred. Id. at 2. The plaintiff also asks this
Court to ensure he remains at FCI Hazelton in order to stay
close to his family in Pittsburgh. Id. at 1.
plaintiff has also filed two motions for an extension of time
to file a response to the magistrate judge's report and
recommendation. ECF Nos. 9 and 12. This Court then granted as
framed the plaintiff's second motion for an extension of
time to file objections to the magistrate judge's report
and recommendation and denied as moot plaintiff's first
motion for an extension of time to file objections to the
magistrate judge's report and recommendation. ECF No. 13.
Specifically, this Court ordered the plaintiff to file any
objections on or before August 14, 2019. Id. at 2.
plaintiff then filed what is titled as a “Motion for
Objection.” ECF No. 17. In that motion, the plaintiff
reiterates many of the same assertions made in his
“Motion for Objection and Subjection” (ECF No.
10). In this motion he requests that this Court “allow
this case to move forward, because the staff [ ] at F.C.I.
Hazelton will not provide [him] with [ ] (memo) as it's
been stated in [his] rejection notices from (central office)
that would clearly be admitting the wrong, it also state that
[he] should re-submit it back to the level of the original
rejection, which would be back to the regional appeal on the
(B-P-10) See Exhibit # A-2 of the rejection form, and now
the same reason's of rejection from (central office), as
well this is just a run-round or a delayed and denial tacked
because staff will not give or provide [him] with such
(memo). . .” Id. at 2.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge (ECF No. 8) should be
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 objections 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. § 636(b)(1)(A).
reviewing the record, the report and recommendation, and the
plaintiff's objections, this Court finds ...