Padilla v. Morgan et al

Filing 30

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS in full the Magistrate Judge's Report and Recommendation (Dkt. No. 26 ) as an order of this Court. Accordingly, Defendants' Motion for Summary Judgment (Dkt. No. 19 ) is GRANTED, and this action is DISMISSED.AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 10/13/2015. (dsto, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

Julio Santos Padilla,

)
)
Plaintiff,
)
)
vs.
)
)
Leroy Morgan; Kenny Atkinson, Former
)
Warden; Mrs. L R Thomas, Actual Warden, )
)
Defendants.
)

No.4: I4-cv-04045-RMG

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This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge, (Dkt. No. 26), recommending that the Court grant Defendants' motion to
dismiss or, in the alternative, motion for summary judgment, (Dkt. No. 19). Plaintiff has not
filed any objections to the R & R. For the reasons stated below, the Court ADOPTS the R & R,
and GRANTS Defendants' motion.
I. Backeround

Plaintiff alleges that Defendant Morgan violated his Eighth Amendment rights by
ransacking his cell, destroying certain personal property and exhibiting an "outburst of language"
during a routine search of Plaintiffs cell. He alleges that Defendant Atkinson knew of these
actions and failed to do anything about them. Plaintiff makes no specific allegations against
Defendant Thomas. (See Dkt. Nos. 1, 1-1).
Plaintiff submitted an informal resolution form on October 3,2015, and then a formal
grievance with Warden Atkinson on October 16, 2013. (Dkt. No. 1-2). Defendant Atkinson
replied on October 31, 20 15, stating that Plaintiffs allegations was being reviewed for
"appropriate disposition in accordance with policy; however, you will not be provided

infonnation regarding the disposition." (Dkt. No. 1-2 at 3). Plaintiffs first appeal to the regional
office was rejected as illegible and the second was rejected for being in an improper fonn. (Dkt.
No. 19-2). The regional office notified Plaintiff that he could resubmit his appeal within 10 days.
Rather than resubmitting the appeal to the regional office, he filed the next level of appeal with
the BOP Central Office. (Id.). The Central Office rejected the appeal as being filed with the
wrong office. (Id.). No further appeals were filed. (Id.).
II. Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final detennination remains with the
Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.c. § 636(b)(1). This Court is charged with making a de novo detennination of those
portions of the R & R to which specific objection is made.
Here, however, because no objection has been made, this Court "must 'only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation. '"

Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting Fed. R.
Civ. P 72 advisory committee note). Moreover, in the absence of specific objections to the R &
R, the Court need not give any explanation for adopting the Magistrate Judge's analysis and
recommendation. See Camby v. Davis, 718 F.2d 198,200 (4th Cir. 1983).
II. Discussion
A. Bivens Claim again Defendant Morgan
The Court agrees with the Magistrate Judge that by failing to re-file the appeal to the
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regional office, Plaintiff failed to exhaust his administrative remedies as to his Bivens claim
against Defendant Morgan. The Court also agrees that even if Plaintiff did exhaust his
administrative remedies, the factual allegations do not rise to an Eighth Amendment claim.
To prevail on an Eighth Amendment Claim, a prisoner must prove (l) that "the
deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective
component)" and (2) that "the prison official acted with a sufficiently culpable state of mind
(subjective component)." E.g., Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). With
regard to a conditions of confinement claim, an inmate must "prove extreme deprivations of
basic human needs or serious or significant pain or injury." Smith v. Ozmint, 578 F.3d 246,255
(4th Cir. 2009) (quotations omitted); see also Hudson v. McMillian, 503 U.S. 1,9 (1992)
("Because routine discomfort is part of the penalty that criminal offenders pay for their offenses
against society ... only those deprivations denying the minimal civilized measure of life's
necessities are sufficiently grave to form the basis of an Eighth Amendment violation." ).
"[V]erbal harassment" and "destruction of property" do not meet this standard. Nigro v. Wilson,
122 F.3d 1073 (9th Cir. 1997).
Therefore, the Court grants Defendants' motion for summary judgment as to Plaintiffs
Bivens claim against Defendant Morgan

B. Defendant Atkinson
Plaintiff alleges that Defendant Atkinson violated his constitutional rights by failing to
address his complaints about Defendant Morgan. The Court agrees with the Magistrate Judge
that Plaintiff never filed an administrative grievance about Defendant Atkinson and, thus, has
failed to exhaust his administrative remedies. The Court also agrees that Plaintiff has failed to
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state a claim. There is no constitutional right to a grievance proceeding, Adams v. Rice, 40 F.3d
72, 7 5 (4th Cir. 1994), and Defendant Atkinson did respond to Plaintiff's grievance. Therefore,
summary judgment is granted as to Plaintiffs claims against Defendant Atkinson.

C. Defendant Thomas
Plaintiffs simply make no factual allegations whatsoever against Defendant Thomas.
Therefore, summary judgment is granted as to the claims against him.

D. FTCA Claim
The FTCA waives sovereign immunity and allows suits for money damages for "injury or
loss of property." 28 U.S.C. § 2675. However, the FTCA does not apply to "[a]ny claim arising
in respect of ... the detention of any goods, merchandise, or other property by an officer of
customs or excise or any other law enforcement officer ..." 28 U.S.C. § 2680(c). This
exclusion applies to all law enforcement officers, including BOP officers. Ali v. Fed. Bureau of

Prisons, 552 U.S. 214, 228 (2008). It extends to any claim "arising out of' a detention of
property, including "a claim resulting from negligent handling or storage of detained property."

Kosak v. United States, 465 U.S. 848, 854 (1984). "[E]ven intentional torts committed by law
enforcement officers are exempt from FTCA suits when such torts were committed during
circumstances that would warrant a detention-of-goods exception." Davila v. United States, 713
F.3d 248, 256 (5th Cir. 2013). Thus, if a BOP employee's actions are "related to [his] duties in
inspecting and inventorying prisoner property," there is no waiver of sovereign immunity even if
the employee's possession of the property is "tortious" and "wrongful." Krug v. United States,
442 F. App'x 950, 951 (5th Cir. 2011) (citing Chapa v.
(5th Cir.2003)).

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us. Dep'f ofJustice, 339 F.3d 388,391

Here, the alleged intentional destruction of property occurred during a routine search of
Plaintiffs cell. (Dkt. No. 19-5 at 2). Certain property was confiscated as against prison policy,
and Plaintiff was provided with a confiscation form. (Jd.). Thus, the alleged tort occurred during
an inspection of Plaintiffs property and Plaintiffs property was "detained" within the meaning
of Section 2680(c).1
Therefore, the Court ADOPTS in full the Magistrate Judge's Report and
Recommendation (Dkt. No. 26) as an order of this Court. Accordingly, Defendants' Motion for
Summary Judgment (Dkt. No. 19) is GRANTED, and this action is DISMISSED.

AND IT IS SO ORDERED.

United States District Judge
OctobeJ3 ,2015
Charleston, South Carolina

I The Court notes that BOP inmates have an administrative remedy for lost property. See
Ali, 552U.S. at 228 n.?

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