United States District Court, N.D. West Virginia, Clarksburg
DAVID M. SCATES, Plaintiff,
K. CRADDOCK; J. DURANKO, SIS Tech. FCI Morgantown; WARDEN TERRY O'BRIEN, Hazelton SPC; ANN MARY CARTER, FCI Morgantown; M. VELTRI, CMC Morgantown; UNIT MANAGER DAVID SWEENY, Hazelton SPC; SIS TECH JIM ERVIN; UNITED STATES OF AMERICA; CHARLES SAMUEL, Director BOP; THOMAS KANE, Interim Director BOP; BRANDON FLOWER, Assistant United States Attorney; IAN CONNERS, National Administrator Administrative Remedy; and HARRELL WATTS, National Administrator Administrative Remedy, Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO VOID
REPORT AND RECOMMENDATION [ECF NO. 138], ADOPTING REPORT AND
RECOMMENDATION [ECF NO. 137], AND GRANTING MOTION TO DISMISS
[ECF NO. 126]
S. KLEEH UNITED STATES DISTRICT JUDGE.
before the Court is a Report and Recommendation
(“R&R”) by United States Magistrate Judge
Robert W. Trumble, recommending dismissal of this action with
prejudice. The R&R provided that the parties had fourteen
(14) days to object to it. ECF No. 137 at 30-31. If further
specified that “[f]ailure to file written objections .
. . 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 31. To date,
no objections have been filed. For the reasons discussed
below, the Court adopts the R&R.
February 17, 2017, this action was transferred to the
Northern District of West Virginia. ECF No. 76. Currently
before the Court are an Amended Bivens Complaint and an
Amended Federal Tort Claims Act (“FTCA”)
Complaint, both filed on June 5, 2017. See ECF Nos.
94, 95. On May 24, 2018, following a preliminary review of
the Complaints, Judge Trumble concluded that summary
dismissal was not appropriate and entered an Order to Answer
or Otherwise Plead. ECF No. 98.
September 27, 2018, Defendants filed a Motion to Dismiss or,
in the alternative, Motion for Summary Judgment. ECF No. 126.
Judge Trumble entered an Order and Roseboro Notice on
September 28, 2018 (the “Original Roseboro”). ECF
No. 127. On October 23, 2018, Plaintiff filed a Response,
styled as a Reply, to Defendants' motion. ECF No. 132.
Despite Plaintiff's filing a Response, the Original
Roseboro was returned as unclaimed. See ECF No. 134.
On March 28, 2019, Judge Trumble entered another Order and
Roseboro Notice for the same motion (the “Second
Roseboro”). ECF No. 136. The docket does not reflect
any information about Plaintiff's receipt - or lack
thereof - of the Second Roseboro. Judge Trumble entered the
R&R recommending dismissal on July 26, 2019. ECF No. 137.
On August 12, 2019, Plaintiff moved to void the R&R for
failure to provide a Roseboro notice. ECF No. 138.
Plaintiff's Motion to Void Magistrate's Report and
Recommendation for Failure to Provide Roseboro
August 12, 2019, Plaintiff filed a Motion to Void
Magistrate's Report and Recommendation for Failure to
Provide Roseboro. Plaintiff states that he never received the
R&R as is required. He says that his 14-day window to
object begins after “service” and that service
has not been effectuated. Plaintiff cites receiving a notice
of a package being delivered to his home (contents unknown to
him) and receiving a “sorry we missed you”
notice. The notice also stated that the mail would be
returned to sender on Saturday, August 17, 2019. Plaintiff
writes that he is unavailable for pick up service and that
the Post Office is required to deliver his mail to him. He
also says that he never received a Roseboro Notice that was
issued on or about September 28, 2018. Plaintiff asserts that
if the Roseboro Notice was required, the R&R is void.
certified mail receipt for the R&R (ECF No. 137-1)
indicates that the R&R was mailed to David Scates at 1901
Rogers Street, Richmond, VA 23223. The United States Postal
Service (“USPS”) tracking website indicates that
there was a notice of delivery left at Plaintiff's home
on August 2, 2019, at 4:13 p.m. On August 16, 2019, the
package was marked “Unclaimed/Being Returned to
certified mail receipt for the Original Roseboro (ECF No.
127-1) indicates, again, that the document was sent to 1901
Rogers Street, Richmond, VA 23223. The USPS tracking
website indicates that a notice was left at
Plaintiff's unit on October 2, 2018, at 2:53 p.m. On
November 9, 2018, the package was marked
“Unclaimed/Being Returned to Sender.” Thus, it
seems the same issue exists for both filings.
certified mail receipt for the Second Roseboro (ECF No.
136-1) indicates, again, that the document was sent to 1901
Rogers Street, Richmond, VA 23223. The USPS tracking
website's last updates for this package are
“Out for Delivery” on April 1, 2019, at 11:36
a.m., and “Awaiting Delivery Scan” on April 2,
2019, at 1:36 a.m. Nothing on the docket reflects an update
as to this package.
records indicate that Plaintiff still lives at the address
reflected on the docket and reflected in the certified mail
receipts: 1901 Rogers Street, Richmond, VA
23223. Further, Plaintiff has previously filed
documents with the Court from that address, including his
motion to void the R&R. See ECF Nos. 129-1,
132-1, 138-1. Importantly, he has accepted service of Court
documents via certified mail at that address in the past, so
he is familiar with the certified mail process. See
ECF No. 133. Plaintiff knows that documents from the Court
reach him via certified mail. According to the USPS website,
notices for both the Original Roseboro and the R&R were
left at Plaintiff's home. The notices provided that he
was to pick up his mail, or it would be returned to sender.
Plaintiff's failure to pick up his mail does not excuse
his failure to respond to the R&R. The Court, therefore,
DENIES Plaintiff's Motion to Void the
Magistrate's Report and Recommendation [ECF No. 138].
Report and Recommendation
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). Otherwise, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the [parties do] not object.”
Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions
of a recommendation to which no objection ...