Plummer v. Debbo et al

Filing 20

ORDER ADOPTING 11 Report and Recommendations; Plaintiffs complaint is summarily dismissed without prejudice and without issuance and service ofprocess. Signed by Honorable Margaret B Seymour on 5/23/2011. (mbro, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Joseph Leon Plummer, # 69035-080,

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) C/A No. 6:10-1224-MBS
Plaintiff,
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vs.
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OPINION AND ORDER
Warden Debbo, FCI Beckley, and/or
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individual capacity; Debbie Stevens,
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Supervisory Attorney, and/or individual
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capacity,
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Defendants.
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____________________________________)
Plaintiff Joseph Leon Plummer is an inmate in custody of the Federal Bureau of Prisons
(BOP). At the time of the underlying complaint, Plaintiff was incarcerated at FCI-Williamsburg in
Salters, South Carolina. He currently is housed at the Federal Correctional Complex in Adelanto,
California. On May 13, 2010, Plaintiff filed a complaint pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), asserting that his dentures were lost
in transit between FCI-Gilmer in Glenville, West Virginia, and FCI-Williamsburg. Plaintiff asserts
that he attempted to utilize available administrative remedies in order to be compensated for the loss
of his property. Plaintiff seeks actual and punitive damages.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Judge William M. Catoe for pretrial handling. The Magistrate Judge
reviewed the complaint pursuant to the provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison
Litigation Reform Act of 1996. On May 26, 2010, the Magistrate Judge filed a Report and
Recommendation in which he noted that, to the extent Plaintiff contends he was denied due process

in violation of his constitutional rights, Plaintiff’s complaint should be dismissed because he has
adequate post-deprivation remedies available in the BOP Administrative Remedies Program or
through the small claims settlement permitted through 31 U.S.C. § 3723(a)(1). See Kendall v.
Balcerzak, 2011 WL 1108257 (4th Cir. 2011) (holding that procedural due process violation cannot
have occurred when governmental actor provides adequate procedural remedies). The Magistrate
Judge further noted that, to the extent that the complaint could be construed as alleging a claim under
the Federal Tort Claims Act (FTCA), Plaintiff fails to state a claim because the United States has not
waived sovereign immunity, except in circumstances not applicable here, as to claims based upon
the loss of property by law enforcement officers. See 28 U.S.C. § 2680(c); Ali v. Fed. Bur. of
Prisons, 552 U.S. 214, 227-28 (2008). Accordingly, the Magistrate Judge recommended that the
complaint be dismissed without prejudice and without issuance and service of process. Plaintiff filed
objections to the Report and Recommendation on June 11, 2010.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo
determination of any portions of the Report and Recommendation 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 may recommit the matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
In his objections, Plaintiff contends that (1) contrary to the Magistrate Judge’s findings, he
has pursued his BOP administrative remedies without success, and (2) the Magistrate Judge should
have allowed Plaintiff the opportunity to correct deficiencies in his complaint. Plaintiff contends
that dismissal of the complaint is tantamount to allowing the BOP to “do anything they want to

Federal Prisoners Property with any reprecussions or reprisals of any form.” Objections 2 (ECF No.
14). The court disagrees.
As Plaintiff acknowledges, he has pursued post-deprivation remedies available in the BOP
Administrative Remedies Program. A review of the attachments to Plaintiff’s objections indicates
that he has sought replacement dentures. Plaintiff was placed on the waiting list for dentures on or
about October 9, 2009, and will be fitted with replacement dentures in accordance with BOP policy.
Accordingly, Plaintiff’s request will be satisfied in due course. The court cannot say that Plaintiff
lacks an adequate post-deprivation remedy.1 Plaintiff’s objections are without merit.
CONCLUSION
The court adopts the Report and Recommendation and incorporates it herein by reference.
Plaintiff’s complaint is summarily dismissed without prejudice and without issuance and service of
process.
IT IS SO ORDERED.

/s/ Margaret B. Seymour
United States District Judge
Columbia, South Carolina
May 23, 2011.

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

1

Plaintiff also states that he was offered a settlement of $1,500 by the Warden of FCIGilmer. However, he rejected the settlement when he was informed that the monies would be
applied toward a fine imposed by the district court with respect to Plaintiff’s underlying criminal
offense.