Cook v. United States of America

Filing 46

ORDER RULING ON REPORT AND RECOMMENDATION adopting 39 Report and Recommendation, granting 32 Motion for Summary Judgment. Signed by Honorable Richard M Gergel on 11/1/2012. (jpet, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Darryl L. Cook,
Plaintiff,

v.
United States of America,
Defendant.

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Case No. 0: 11-2669-RMG

ORDER

This matter is before the Court upon the recommendation of the Magistrate Paige J.
Gossett that Defendant's motion for summary judgment (Dkt. No. 32) be granted.

For the

reasons set forth below, the Court adopts the Magistrate's Report and Recommendation ("R &
R") as the order of the Court.

Background
Plaintiff, currently a detainee at FCI-Estill, brings this action pursuant to the Federal Tort
Claims Act, 28 U.S.C. §§ 2671-91 ("FTCA"). In accordance with 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2)(d) DSC, this matter was referred to the United States Magistrate Judge
for all pretrial proceedings. Plaintiff claims that Defendant violated the FTCA by negligently
transferring him from a Bureau of Prisons ("BOP") facility in Atlanta, Georgia, to FCI-Estill in
South Carolina. On April 16, 2012, Defendant filed a motion for summary judgment (Dkt. No.
32). Subsequently, the Magistrate issued an R & R recommending this Court grant Defendant's
motion. (Dkt. No. 39). Plaintiff then timely filed an objection to the R & R. (Dkt. No. 45).

LawlAnalysis
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with

this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo detennination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.c. § 636(b)(1). This
Court may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." /d. In the absence of specific objections to the Report and Recommendation, this
Court is not required to give any explanation for adopting the recommendation. Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983).
The Court agrees with and wholly adopts the Magistrate's Report and Recommendation
granting Defendant's motion. The Magistrate detennined that the BOP's decision to transfer
Plaintiff from Atlanta to Estill FCI falls within the discretionary function exception to the FTCA
and that Defendant is therefore immune from suit on these claims.

This holding is amply

supported by case law from this and other jurisdictions. E.g., Bethae v. United States, 465 F.
Supp. 2d 575, 583 (D.S.C. 2006).
Plaintiff apparently objects by arguing that the case Berkovitz v. United States, 486 U.S.
531 (1988), Federal Rule of Appellate Procedure 23( a), and BOP Program Statement 5180.05
mandate the use of certain procedures and render the discretionary function exception
inapplicable. These arguments are unavailing. First, Berkovitz does not, as Plaintiff argues,
"prohibit the transfer of custody of a prisoner" with a pending habeas petition. (Dkt. No. 45 at
2). Rather, that case involved a FTCA claim alleging negligent licensing of a polio vaccine by
the National Institute of Health. Berkovitz, 486 U.S. 531. Second, Federal Rule of Appellate
Procedure 23(a) does not apply to Plaintiff's case because that rule applies only to habeas
proceedings pending appellate review. See Mitchell v. McCaughtry, 291 F. Supp. 2d 823, 835

(B.D. Wis. 2003). Plaintiff currently has a habeas proceeding pending only in district court.

Cook v. United States, 2:10-cv-8029-RDP-RRA (N.D. Ala.).

Finally, Plaintiffs objections

regarding Program Statement 51805.05 are misplaced because it does not require any written
notice prior to transfer as Plaintiff argues. (Dkt. No. 32-2).
Conclusion

Based on the reasoning set forth above, the Court adopts the Report and
Recommendation of the Magistrate.

(Dkt. No. 39).

Accordingly, the Court GRANTS

Defendant's motion for summary judgment (Dkt. No. 32).

Richard Mark Ger
United States District Court Judge
November
2012
Charleston, South Carolina