Elliott v. United States of America

Filing 58

ORDER adopting the 51 Report and Recommendation and granting the Defendants' 38 Motion to Dismiss. Signed by Honorable Donald C. Coggins, Jr. on 2/13/2019. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Herman Elliott, a/k/a Herman Elliott, Jr., )
)
Plaintiff,
)
)
v.
)
)
United States of America,
)
)
Defendant.
)
________________________________ )

Case No. 0:17-cv-03407-DCC

ORDER

This matter is before the Court on Plaintiff’s Complaint and Supplement. ECF Nos.
1, 21. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.),
this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation (“Report”).
On July 30, 2018, Defendant filed a Motion to Dismiss. ECF No. 38. Plaintiff filed
a Response in Opposition. ECF No. 46. On September 10, 2018, the Magistrate Judge
issued a Report recommending that the Motion to Dismiss be granted. ECF No. 51. The
Magistrate Judge advised Plaintiff of the procedures and requirements for filing objections
to the Report and the serious consequences if he failed to do so. Plaintiff filed objections
to the Report.
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the

Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of timely filed objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” (citation omitted)).
The Magistrate Judge provides a thorough recitation of the facts and the relevant
legal standards, which the Court incorporates by reference. Plaintiff brings this action
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, 1346(b), and
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). The Magistrate Judge recommends granting Defendant’s Motion with respect to
both claims. The Court will address Plaintiff’s objections in turn.

FTCA
The Magistrate Judge recommends dismissal of Plaintiff’s FTCA claim because
federal prisoners cannot recover under the FTCA for work-related injuries. She states
that the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126, provides the
exclusive remedy for Plaintiff’s injury and any claim for negligence resulting from the
injury. ECF No. 51. Plaintiff does not object to the Magistrate Judge's conclusion, but
instead states that he attempted to raise a claim under the IACA in a supplemental filing
to the Court in August 2018. After a thorough review of the record, the Court believes
2

that Plaintiff is referring to his Response in Opposition to the Motion to Dismiss. As
Plaintiff’s Complaint is devoid of any reference to the IACA, it appears this is a new claim
raised in response to the Motion to Dismiss.1 Such claims are generally not permitted.
See White v. Biomed. Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992). Accordingly,
this Court lacks jurisdiction to adjudicate Plaintiff’s FTCA claim. Walker v. Reese, 364 F.
App'x 872, 876 (5th Cir. 2010) (“Because the IAC system is Walker's exclusive remedy
against the Government, the court lacks jurisdiction to adjudicate his FTCA claim.”).

Bivens
The Magistrate Judge recommends dismissal of Plaintiff’s Bivens claims because
he fails to specifically name any individual staff members amenable to suit. ECF No. 51
(citing Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (“Any remedy under
Bivens is against federal officials individually, not the federal government.”)). In hjis
objections to the Report and Response in Opposition to the Motion to Dismiss, Plaintiff
contends that he intended to name additional individuals in his Complaint. The Court
notes that Plaintiff failed to file a motion to amend his complaint.

Accordingly, no

individual defendant has been named or served in this case2; any claim pursuant to
Bivens should be dismissed.

1

It appears that Plaintiff was informed that the IACA was his exclusive remedy at
least on August 7, 2017. ECF No. 1-1 at 2. Nevertheless, he chose to file this action
under the FTCA.
2

The Court notes that Plaintiff was given four opportunities to provide additional
information and service documents. ECF Nos. 5, 10, 18, 27.
3

CONCLUSION
Therefore, based on the foregoing, the Court adopts the recommendation of the
Magistrate Judge. Defendant’s Motion to Dismiss [38] is GRANTED.

IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
February 13, 2019
Spartanburg, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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