VanHorn v. Walton et al

Filing 61

ORDER accepting Report and Recommendation 46 re: 39 . Federal Bureau of Prisons dismissed and plaintiff's request to substitute the U.S. as a defendant is denied without prejudice pending the exhaustion of his administrative remedies. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EDWARD VAN HORN,
Plaintiff,
Case No. 12-CV-11880
HON. GEORGE CARAM STEEH

vs.
JAMES S. WALTON, C. GOMEZ,
FEDERAL BUREAU OF PRISONS,
BARDSLY,
Defendants.
______________________________/

ORDER ACCEPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION [DOC. 46]
This matter came before the court on plaintiff Edward Van Horn’s motion to strike
defendants’ ex parte motion, in which plaintiff made the statement that he did not intend
to add the Federal Bureau of Prisons as a defendant in his case. Before the court now
is only the magistrate judge’s report and recommendation concerning the dismissal of
the Federal Bureau of Prisons as a named defendant in plaintiff’s lawsuit. The
magistrate judge took plaintiff at his word in document # 39, paragraph 6, wherein he
stated “I had notified the Court that an error was made by the Court, by adding the
Federal Bureau of Prisons in my Action.”
Plaintiff filed objections to the report and recommendation, explaining that he
meant to substitute the United States for the Federal Bureau of Prisons in a tort action
brought under the Federal Tort Claims Act. As defendants point out in their response
brief, plaintiff failed to meet the administrative exhaustion requirements of the Federal

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Tort Claims Act prior to bringing his suit. Blakely v. United States, 276 F.3d 853, 864
(6th Cir. 2002). Plaintiff filed his complaint on April 26, 2012, but did not file an
administrative claim for damages under the Federal Tort Claims Act with the Bureau of
Prisons until September 17, 2012. Now, therefore,
IT IS HEREBY ORDERED that the magistrate judge's report and
recommendation is ACCEPTED and the Federal Bureau of Prisons is hereby dismissed.
IT IS FURTHER ORDERED that plaintiff’s request to substitute the United States
as a defendant is DENIED WITHOUT PREJUDICE pending the exhaustion of his
administrative remedies.
Dated: December 5, 2012
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 5, 2012, by electronic and/or ordinary mail and on
Edward Van Horn, #49115-019, L.S.C.I., Allenwood,
P. O. Box 1000, White Deer, PA 17887.
s/Barbara Radke
Deputy Clerk

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