United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGEB UNITED STATES DISTRICT JUDGE.
Court has reviewed the Plaintiff's Affidavit
(Document 1), hereinafter referred to as the Complaint, the
Magistrate Judge's Proposed Findings and
Recommendation (PF&R) (Document 60), and the
Plaintiff's Objections to the Proposed Findings and
Recommendation (Document 64). By Standing Order
(Document 2) entered on June 4, 2018, this action was
referred to the Honorable Omar J. Aboulhosn, United States
Magistrate Judge, for submission to this Court of proposed
findings of fact and recommendation for disposition, pursuant
to 28 U.S.C. § 636(b)(1)(B).
4, 2018, the Magistrate Judge submitted his PF&R, wherein
he recommended that this Court grant the Defendants'
motion to dismiss, or in the alternative, motion for summary
judgment, deny the Plaintiff's motion for temporary
restraining order and injunctive relief, deny the
Plaintiff's letter-form motion for summary judgment, and
remove this matter from the Court's docket. The Plaintiff
timely objected to the PF&R. Following careful
consideration, the Court finds that the Magistrate
Judge's PF&R should be adopted, and the
Plaintiff's objections should be overruled.
BACKGROUND AND PROCEDURAL HISTORY
Judge Aboulhosn's PF&R sets forth in great detail the
procedural and factual history surrounding the
Plaintiff's claims. The Court now incorporates by
reference those facts and procedural history. In order to
provide context for the ruling herein, the Court provides the
4, 2018, the Plaintiff filed a Complaint (Document 1)
indicating the desire to initiate an action pursuant to
Bivens v. Six Unknown Federal Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), based upon alleged
violations of his constitutional and civil rights. On July 5,
2018, the Plaintiff filed an Amended Complaint
(Document 9), naming the following Defendants: T. Milam, Unit
Counselor; David Young, Warden; Mr. Hill; E. Stennet, Unit
Manager; William Craddock; Amy Goode; Mr. Thompson; and
Medical Staff. On July 25, 2019, the Plaintiff filed an
Affidavit (Document 14), serving as an Amended
Complaint, incorporating all claims and allegations.
Plaintiff alleged that the Defendants violated his Eighth
Amendment rights by failing to provide adequate medical care.
Specifically, the Plaintiff requested an MRI to determine the
cause of his back pain, but the Defendants failed to provide
that service. Additionally, the Plaintiff alleged that the
Defendants refused to provide him with a bottom bunk or
lower-level cell, though climbing stairs and climbing into
the top bunk caused him extreme back pain.
Plaintiff also alleged that the Defendants violated his Sixth
Amendment right to confer with counsel regarding his pending
Section 2255 proceedings. Finally, the Plaintiff alleged that
the Defendants have retaliated against him for filing
administrative remedies in violation of the First Amendment
by (1) attempting to have other inmates harass or attack
Plaintiff, and (2) improperly denying Plaintiff visitation
with his fiancée. Plaintiff seeks monetary relief.
September 27, 2018, the Defendants filed a Motion to
Dismiss, or, in the Alternative, Motion for Summary
Judgment (Document 35), and Memorandum of Law in
Support of Defendants' Motion to Dismiss, or, in the
Alternative, Motion for Summary Judgment (Document 37).
On October 5, 2018, the Plaintiff filed a Motion for
Temporary Restraining Order and Injunctive Relief
(Document 39). The Plaintiff filed Plaintiff's
Response to the Defendants' Motion to Dismiss or Summary
Judgment (Document 44), on October 26, 2018. On May 24,
2019, the Plaintiff filed a Letter-Form Motion for
Summary Judgment (Document 58). The Magistrate Judge
entered his PF&R on June 19, 2019, and following an
extension of time, the Plaintiff filed his Objections to
the Proposed Findings and Recommendations (Document 64)
on July 23, 2019.
Objections to PF&R
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). However, the Court is not required to
review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those
portions of the findings or recommendation to which no
objections are addressed. Thomas v. Arn, 474 U.S.
140, 150 (1985). In addition, this Court need not conduct a
de novo review “when a party makes general and
conclusory objections that do not direct the Court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). When reviewing portions of the
PF&R de novo, the Court will consider the fact that
Petitioner is acting pro se, and his pleadings will
be accorded liberal construction. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d
1291, 1295 (4th Cir. 1978).
well-established standard for consideration of a motion for
summary judgment is that summary judgment should be granted
if the record, including the pleadings and other filings,
discovery material, depositions, and affidavits, “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a)-(c); see also Hunt v. Cromartie,
526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir.
2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson, 477 U.S.
at 248; News & Observer Publ'g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010). A ...