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Ferguson v. Wilson

United States District Court, S.D. West Virginia, Bluefield

September 27, 2019

KENITHA L. FERGUSON, Plaintiff,
v.
DAVIS WILSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted to the court his Findings and Recommendation on April 26, 2019, in which he recommended that the court grant defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, ECF No. 95, dismiss plaintiff’s Amended Complaint, ECF No. 12, and remove this case from the court’s active docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), plaintiff was allotted fourteen days and three mailing days in which to file any objections to Magistrate Judge Aboulhosn’s Findings and Recommendation (“PF&R”). The failure of any party to file such objections within the time allowed constitutes a waiver of such party’s right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

         Neither party filed any objections to the Magistrate Judge’s Findings and Recommendation within the requisite time period. However, on May 3, 2019, plaintiff filed a Motion to Add Evidence. ECF No. 103. The court will provide a brief background on the case, and then will address plaintiff’s pending Motion, and will treat plaintiff’s claims within the Motion as objections to the PF&R, where appropriate.[1]

         I. Background

         On March 16, 2018, plaintiff, an inmate incarcerated at FPC Alderson and acting pro se, filed a Bivens action against prison officials, alleging that defendants were improperly denying her Residential Reentry Center [“RRC”] placement and refusing to provide her with adequate medical care in violation of the Eighth Amendment. ECF No. 7. Plaintiff later amended her Complaint, also alleging that defendants retaliated against plaintiff for filing administrative remedies in violation of the First Amendment, and that defendants acted with deliberate indifference to plaintiff’s depression, callouses on her feet, and the chronic pain in her neck, shoulders, hands, wrist, and back. ECF No. 12. On February 5, 2019, Defendants’ filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, in which they argued that: (1) “Plaintiff failed to exhaust administrative remedies on some of her allegations”; (2) “Plaintiff fails to state a viable First Amendment claim”; (3) “Plaintiff cannot establish an Eighth Amendment violation for deliberate indifference”; (4) “There is not sufficient personal involvement necessary to support Eighth Amendment Bivens liability against supervisory and non-medical Defendants”; (5) “Plaintiff has no right to a furlough”; and (6) “Defendants are entitled to qualified immunity.” ECF No. 95, 96. Plaintiff filed a response to defendants’ motion on February 25, 2019. ECF No. 98.

         On April 26, 2019, Magistrate Judge Aboulhosn submitted his PF&R, in which he found that (1) plaintiff failed to exhaust her administrative remedies except as to her shoulder and neck condition; (2) plaintiff’s First Amendment retaliation claim is not cognizable as a Bivens claim; (3) defendants were not deliberately indifferent towards plaintiff; (4) plaintiff’s claims against non-medical defendants failed because Bivens does not allow vicarious liability claims; and (5) plaintiff’s constitutional rights were not violated by defendant’s denial of her request for a furlough. ECF No. 102, at 19-25, 25-34, 34-43, 43-46, 46-49. Plaintiff then filed a Motion to Add Evidence on May 3, 2019, which contained twenty points within a “Memorandum of Points and Authorities.” ECF No. 103.

         II. Standard of Review of Pro Se Objections

         Pursuant to Fed.R.Civ.P. 72(b), the Court must “make a de novo determination upon the record . . . of any portion of the magistrate judge's disposition to which specific written objection has been made.” 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. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). Furthermore, de novo review is not required and unnecessary “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, 47–48 (4th Cir. 1982); see also United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.”); McPherson v. Astrue, 605 F.Supp.2d 744, 749 (S.D.W.Va. 2009) (“[F]ailure to file a specific objection constitutes a waiver of the right to de novo review.”).

         “A document filed pro se is ‘to be liberally construed.’ ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Specifically as to objections to a PF&R, courts are “under an obligation to read a pro se litigant's objections broadly rather than narrowly.” Beck v. Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2 (W.D. N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).

         III. Analysis of Motion to Add Evidence

         Even read broadly, plaintiff’s Motion to Add Evidence does not introduce any new evidence in the case that could be construed as making an objection to the PF&R by challenging the factual findings of the magistrate. In her Motion, plaintiff lists twenty “memorand[a] of points and authorities, ” many of which refer to medical examination reports that were included as exhibits to previous filings. Instead of offering new evidence as to what occurred in these medical examinations, plaintiff merely repeated certain statements made during those examinations that were already in evidence. To wit, points 1, 2, 5, 6, 7, 8, 9, 10, 15, 18, and 19 specifically cite to previously filed material as support for the statements made in plaintiff’s Motion. See ECF No. 103.

         After reviewing the cited material in each memoranda point, the court determines there is no new evidence contained within the above listed points. The court further concludes that the magistrate judge properly considered in his PF&R the material that plaintiff cites to, as shown by the lengthy procedural history and summary of the evidence sections in the PF&R, which include the facts that plaintiff restates in her Motion. See ECF No. 102, at 1-16. These points therefore contain no factual challenges to the PF&R’s findings, and as such do not constitute valid objections that require de novo review. See Orpiano, 687 F.2d at 47 (explaining that when “no factual issues are challenged, de novo review . . . may be dispensed with”) (citing Braxton v. Estelle, 641 F.2d 392 (5th Cir. 1981)).

         While points 3, 4, 12, 13, 14, 16, 17, and 20 do not specifically refer to evidence contained in previously filed documents, points 3, 4, 13, 16, and 20 likewise contain no new evidence that was not considered by the magistrate judge in the PF&R.[2]See ECF No. 103. Therefore, points 3, 4, 13, 16, and 20 also contain no factual challenges to the ...


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