Sturdevant et al v. Holder et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS DKT 23 AND DISMISSING COMPLAINT WITH PREJUDICE. Signed by District Judge Irene M. Keeley on 7/15/2011. (Copy counsel of record via CM/ECF, pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/15/2011: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
NORBERT STURDEVANT,
Plaintiff,
v.

CIVIL NO. 1:09CV142
(Judge Keeley)

ERIC HOLDER,
United States Attorney
General, and
HARLEY LAPPIN,
Director of Federal
Bureau of Prisons,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATIONS (DKT. 23)
AND DISMISSING COMPLAINT WITH PREJUDICE
On June 4, 2010, United States Magistrate Judge James E.
Seibert issued a Report and Recommendation (“R&R”), in which he
concluded that the complaint filed by the plaintiff, Norbert
Sturdevant (“Sturdevant”), should be summarily dismissed under the
Prison Litigation Reform Act, 28 U.S.C. § 1915, for both failure to
exhaust administrative remedies and failure to state any possible
claim. Sturdevant filed objections on June 11, 2010, and, for the
reasons that follow, the Court ADOPTS the R&R and DISMISSES this
case WITH PREJUDICE.
I. FACTUAL BACKGROUND
According to Sturdevant’s Amended Complaint (dkt. 22), he
received an administrative sanction for theft and lying while in

STURDEVANT V. HOLDER, ET AL.

1:09CV115

ORDER ADOPTING REPORT AND RECOMMENDATION
the custody of the Bureau of Prisons (“BOP”). He contends that the
BOP’s

internal

discipline

process

was

flawed,

and

that

the

defendants named in this case, the Attorney General of the United
States and the Director of the BOP, failed to correct these errors
in violation of his Due Process and Equal Protection rights.
II. REPORT AND RECOMMENDATION
Magistrate Judge Seibert first concluded that this case, which
asserts

constitutional

violations

against

federal

officials,

constitutes an action under Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971). He then concluded that the complaint, on its face,
established

that

Sturdevant

had

failed

to

exhaust

the

administrative remedies available to him within the BOP. Finally,
he concluded that, even had he exhausted these remedies, Sturdevant
could not maintain a Bivens action against these administrative
defendants for actions taken by BOP institutional staff.
III. PLAINTIFF’S OBJECTIONS
Sturdevant’s objections can be summarized as follows:
1.

His claims arise under 42 U.S.C. § 2000a-3 and exhaustion
of administrative remedies is not required;

2.

The Magistrate Judge has a pro-Government bias, and the
R&R is “corrupt and unreliable;” and

2

STURDEVANT V. HOLDER, ET AL.

1:09CV115

ORDER ADOPTING REPORT AND RECOMMENDATION
3.

The Magistrate Judge incorrectly construed the action as
arising under 42 U.S.C. § 1983.
IV. ANALYSIS

The Court reviews de novo those portions of the R&R to which
the

plaintiff

specifically

objects,

but

may

adopt

without

discussion any conclusion to which no objection is made. Roach v.
Gates,

No.

10-1569,

2011

WL

915958,

*1

(4th

Cir.

Mar.

17,

2011)(unpublished)(citing Orpiano v. Johnson, 687 F.2d 44, 47-48
(4th Cir. 1982)).
With regard Sturdevant’s contention that his claims arise
under 42 U.S.C. § 2000a-3, that Code provision, relating to suits
enjoining discrimination in public accommodations, is clearly
inapplicable to his claims. The Amended Complaint alleges a denial
of

due

process

within

the

BOP,

not

in

a

place

of

public

accommodation, and seeks monetary damages from the Attorney General
and Director of the BOP. Clearly, Sturdevant could only recover, if
at all, under a Bivens action as the Magistrate Judge correctly
recognized.
Further, the R&R is devoid of any indication of bias on the
part of the Magistrate Judge, and Sturdevant provides absolutely no
support for this scandalous allegation. Finally, the Magistrate

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STURDEVANT V. HOLDER, ET AL.

1:09CV115

ORDER ADOPTING REPORT AND RECOMMENDATION
Judge clearly did not construe the action as arising under 42
U.S.C. 1983, but rather, as already noted, under Bivens.
Although Sturdevant did not specifically object to the actual
conclusions in the R&R, the Court notes that the Magistrate Judge
correctly held that exhaustion of remedies is required in a Bivens
action. See Porter v. Nussle, 534 U.S. 516, 524 (2002). In this
case, Sturdevant cannot maintain a Bivens action against defendants
who had no personal involvement in the acts of which he complains.
Truloch v. Freeh, 275 F.2d 319, 402 (4th Cir. 2001). Thus, summary
dismissal of this case is warranted under 28 U.S.C. § 1915 because
the complaint is meritless on its face.
CONCLUSION
For the reasons discussed, the Court ADOPTS the R&R (dkt. 23)
in its entirety, and DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk to
enter a separate judgment order and to transmit copies of it and
this order to the pro se petitioner via certified mail, return
receipt requested.
DATED: July 15, 2011
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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