Bender v. United States of America

Filing 18

MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE, AND DISMISSING PLAINTITT'S COMPLAINT WITH PREJUDICE: It is ORDERED that the Court SUSTAINS Bender's objections to th e portion relating to his motion to proceed in forma pauperis; REJECTS IN PART the R&R insofar as it pertains to Bender's motion to proceed in forma pauperis; GRANTS Bender's 8 motion to proceed in forma pauperis; OVERRULES Bender's objections to the R&R insofar as they relate to his purported FTCA claim; ADOPTS the R&R insofar as it relates to that claim; and DISMISSES WITH PREJUDICE Bender's 1 Complaint and ORDERS that it be STRICKEN from the Court's active docket. The Court DIRECTS the Clerk to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 6/9/17. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TERRY J. BENDER,
Plaintiff,
v.

CIVIL ACTION NO. 1:15CV96
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
Pending before the Court is the Report and Recommendation by
United States Magistrate Judge James E. Seibert, which recommends
dismissal of the complaint filed by the pro se plaintiff Terry J.
Bender (“Bender”). For the reasons that follow, the Court ADOPTS in
PART and REJECTS in PART the Report and Recommendation (dkt. no.
12), GRANTS Bender’s motion to proceed in forma pauperis (dkt. no.
8), and DISMISSES the complaint WITH PREJUDICE (dkt. no. 1).
I. BACKGROUND
Bender, an inmate at FCI Morgantown in Morgantown, West
Virginia, filed a complaint on June 1, 2015, that purported to
assert a claim under the Federal Tort Claim Act (“FTCA”).

Bender

alleged that he suffered personal injuries due to the “deliberate
indifference” of a Physician’s Assistant (“PA”) who treated him at
FCI Morgantown (dkt. no. 1 at 6). Specifically, he alleged that the

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
PA forced him to wait 15 weeks before having oral surgery to remove
an infected salivary stone, and that the delay violated his Eighth
Amendment right to be free from cruel and unusual punishment. Id.
As a result, Bender claimed to have suffered a “tremendous amount
of pain” and weight loss.

He sought damages in the amount of

$250,000. Id. at 9.
The Court referred the matter to Magistrate Judge Seibert for
initial screening and a Report and Recommendation (“R&R”) in
accordance with LR PL P 2. On June 1, 2015, the Clerk mailed Bender
a notice of deficient pleading as a result of his failure to pay
the appropriate filing fee (dkt. no. 3). Bender then moved for
leave to proceed in forma pauperis (“IFP”) (dkt. no. 8).
In his R&R, Magistrate Judge Seibert recommended that the
Court deny the motion to proceed IFP because of Bender’s status as
a vexatious litigant under what is commonly known as the “Three
Strikes Rule” (dkt. no. 12 at 2).1 For that reason, he recommended
1

As noted in the R&R, this is not the first court to chronicle
Bender’s vexatious litigation history. See Dkt. No. 12 at 2. In
addition, Bender is listed on the National Pro Se Three-Strikes
Database as an abusive filer. Moreover, this Court has chronicled
Bender’s filings as well. See Bender v. Carter, 5:12CV165, 2013 WL
1831988 (N.D.W. Va. April 30, 2013) (Stamp, J) (adopting in its
entirety an R&R listing history of Bender’s litigation as of
December 2012).
2

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
that the case be dismissed without prejudice for failure to pay the
requisite filing fee2 (dkt. no. 12 at 3). Additionally, Magistrate
Judge Seibert noted that, in any event, Bender’s underlying claim
of “deliberate indifference” should be dismissed because “[a] claim
of deliberate indifference to a plaintiff’s serious medical needs
in violation of his Eighth Amendment rights is not actionable
against the United States in a Federal Tort Claims Act . . .
action” (dkt. no. 12 at 3). On July 30, 2015, Bender filed timely
objections to the R&R (dkt. no. 14).
II. STANDARD OF REVIEW
This Court is required to review de novo only those portions
of the magistrate judge’s findings to which specific objections are
made. Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W.Va.

2007)

(citing

Camby

v.

Davis,

718

F.2d

198,

199

(4th Cir. 1983)). “[T]he Court may adopt, without explanation, any

2

See 28 U.S.C. § 1915(g); Dupree v. Palmer, 284 F.3d 1234,
1236 (11th Cir. 2002) (“The proper procedure is for the district
court to dismiss the complaint without prejudice when it denies the
prisoner leave to proceed in forma pauperis pursuant to the three
strikes provision . . . . The prisoner cannot simply pay the filing
fee . . . . He must pay [it] at the time he initiates the suit.”).
3

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
of the magistrate judge’s recommendations to which the prisoner
does not object.” Id. at 604 (citing Camby, 718 F.2d at 199).
III. DISCUSSION
Bender objects to the conclusions in the R&R that 1) the Court
should deny his motion to proceed IFP and therefore dismiss his
complaint without prejudice, and 2) his claim was subject to
dismissal as improvidently filed as an FTCA action. For the reasons
that follow, the Court ADOPTS IN PART and REJECTS in PART the R&R,
GRANTS Bender’s motion to proceed IFP, and DISMISSES WITH PREJUDICE
his complaint for failure to state claim.
A.

Motion to Proceed IFP
Bender objects to the R&R’s recommendation that the Court deny

his motion to proceed IFP based on his status as a vexatious
litigant. He first contends that, because the cases cited in the
R&R as his “three strikes” do not reflect that he proceeded IFP,
the Court should reject the R&R (dkt. no. 14 at 1). This argument
is without merit.
As the R&R correctly notes, the Prisoner Reform Litigation Act
(“PRLA”)

restricts

plaintiffs

from

following conditions:

4

proceeding

IFP

under

the

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
While the Fourth Circuit has yet to rule specifically on
whether IFP status is relevant to strikes, at least five other
circuit courts of appeals have addressed the issue, and all have
concluded that strikes under § 1915(g) may be accrued “regardless
of whether the prisoner has paid the filing fee or is proceeding
[IFP].” Belanus v. Clark, 796 F.3d 1021, 1030 (9th Cir. 2015);
accord Byrd v. Shannon, 715 F.3d 117, 124 (3d Cir. 2013); Burghart
v. Corr. Corp of Am., 350 Fed. Appx. 278, 79 (10 Cir. 2009); Hyland
v. Clinton, 3 Fed.Appx. 478, 480 (6th Cir. 2001); Duvall v. Miller,
122 F.3d 489, 90 (7th Cir. 1997).

Consequently, it is irrelevant

whether Bender proceeded IFP during any of his prior litigation.
Next, Bender challenges the R&R’s reliance on Bender v. United
States (Bender I), No. 1:04CV2159, (N.D. Ohio Nov. 30, 2004), and
Bender v. United States (Bender II), No. 1:06cv1504 (N.D. Ohio Oct.

5

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
4, 2006), to constitute two of his three strikes. He claims that
because those were suits for monetary relief from individuals who
were immune from suit they do not count as strikes (dkt. no. 14 at
2).
Bender’s

argument

is

legally

unsupportable.

Courts

have

routinely held that, where no named defendant is amenable to suit,
the plaintiff fails to state a claim upon which relief may be
granted. See, e.g., Reberger v. Baker, 657 Fed. Appx. 681, 684
(9th Cir. 2016) (finding that dismissal for qualified immunity
counted as a strike within meaning of § 1915(g)); Mills v. Fischer,
645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the
ground of absolute judicial immunity is ‘frivolous’ for purposes of
[§ 1915 (g)]”); Ballenger v. Norton, 2007 WL 1462186 (D.S.C. May
16, 2007) (dismissal based on prosecutorial immunity qualifies as
a strike); Staley v. Norton, 2007 WL 821181, at *4, (D.S.C. March
2, 2007) (dismissal based on judicial immunity counts as a strike).
Furthermore, dismissal for seeking “monetary damages from
individuals [who] were immune from suit” was not the sole basis for
the Northern District of Ohio’s dismissal of Bender’s cases. In
Bender I, the court also based its dismissal on Bender’s failure to

6

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
state a claim because “[t]he allegations set forth in the complaint
implicitly

challenge[d]

the

validity

of

[his]

conviction

and

resulting incarceration.” Bender I, slip op. at 2. The court noted
that his sole federal remedy in that circumstance was a writ of
habeas corpus. Id. In Bender II, the court dismissed the suit
because litigation of the matter was barred by res judicata, and
because Bender was unable to allege that his conviction was
declared invalid on federal habeas review. In other words, Bender
had failed to state a valid claim. Bender II, slip op. at 7.
Because Bender I and Bender II were civil actions dismissed for
failure to state a claim during the time Bender was incarcerated,
they count as strikes.
Next, Bender argues that the Fourth Circuit has stated that
the strikes should be in the same court and that sanctions are to
be applied by the same court (dkt. no. 14 at 2). For this, he
relies on Woodard v. STP Corp, 170 F.3d 1043 (11th Cir. 1999), an
Eleventh Circuit case that is not binding on this Court. Moreover,
Bender’s reliance on Woodard for the legal proposition advanced is
misplaced. In Woodard, the Eleventh Circuit held that Rule 11
sanctions under the Federal Rules of Civil Procedure are properly

7

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
applied only in those cases before the sanctioning court, not cases
in other courts. Id. at 1045. Unlike Rule 11 sanctions, however,
§ 1915(g) strikes accrue whenever a prisoner files a suit that is
frivolous, malicious, or fails to state a claim upon which relief
may be granted.
Finally, Bender argues that not only are cases seeking a writ
of mandamus irrelevant to the three strike rule, his mandamus
cases3 were consolidated; thus, even if countable as strikes, they
should count only as one strike (dkt. no. 14 at 2). Every court
that has decided the issue of whether petitions seeking mandamus
relief are subject to the PLRA has held that, when the underlying
suit is civil in nature, it can qualify as a strike under the PLRA.
See In re Kissi, 652 F.3d 39, 41 (D.C. Cir. 2012) (finding that
§ 1915(g) applies to mandamus petitions filed in connection with
underlying civil cases); In re Crittenden, 143 F.3d 919 (5th Cir.
1998) (finding that “a writ of mandamus ‘is not an independent
civil action, but may be considered a type of appeal,’” where the
underlying action would determine the applicability of the PLRA);
In re Tyler, 110 F.3d 528, 528-29 (8th Cir. 1997) (holding that
3

The writs at issue are In re Terry Bender, No. 04-3150 (6th
Cir. 2004) and In re Terry Bender, No. 04-3239 (6th Cir. 2004).
8

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
writ of mandamus related to civil action was itself a civil action
for purposes of the PLRA).
Writs of mandamus brought in relation to habeas petitions are
not considered civil in nature, however, and “the in forma pauperis
filing fee provisions of the PLRA do not apply in habeas corpus
actions.” Smith v. Angelone, 111 F.3d 1126, 1131 (4th Cir. 1997);
see also In re Crittenden, 143 F.3d at 920 (noting that PLRA does
not apply to habeas proceedings “because habeas proceedings, though
technically civil, are in reality hybrid cases whose nature is not
adequately captured by the phrase ‘civil action’” (quoting United
States v. Cole, 101 F.3d 1076 (5th Cir. 1996)); Martiv v. United
States, 96 F.3d 853, 855-56 (7th Cir. 1996) (“[Application of the
PLRA to habeas corpus] would be contrary to a long tradition of
ready access of prisoners to federal habeas corpus, as distinct
from their access to tort remedies . . . .”).
Because Bender’s writs of mandamus arose out of challenges to
his criminal conviction, they are not civil in nature and thus are
not susceptible to the PLRA’s three strike rule. Therefore, because
Bender does not have three (3) civil cases that qualify as strikes,
the Court SUSTAINS his objection, REJECTS in PART the R&R insofar

9

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
as it pertains to the motion to proceed IFP, and GRANTS Bender’s
motion to proceed IFP.

B.

Bender’s FTCA Claim
Bender asserts that his claim arises under the FTCA, which

states in relevant part:
[T]he district courts . . . shall have exclusive
jurisdiction of civil action on claims against the United
States, for money damages . . . for injury or loss of
property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his
office or employment, under circumstances where the
United States, if a private person, would be liable to
the claimant in accordance with the law of the place
where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). He argues that, because an
inmate can sue under the FTCA to recover damages from the United
States

for

personal

injuries

by

reason

of

negligence,

his

constitutional claims are actionable (dkt. no. 14 at 3).
This argument misses the mark. Unlike a state negligence tort,
a violation of a federal law, including a constitutional violation,
by its very nature is not cognizable under the FTCA. See Ready
Transp., Inc. v. Military Traffic Management Command, 86 Fed. Appx.
561, 565 (4th Cir. 2004) (holding that federal constitutional
10

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
claims are not cognizable under FTCA); Williams v. United States,
242 F.3d 169, 175 (4th Cir. 2001) (“[B]ecause the ‘law of the
place’ encompasses state law, but not federal law, a federal
constitutional tort cannot provide the source of law under the
FTCA.”); Damon v. United States, No. 1:15-02216, 2017 WL 912113, at
*2 (S.D.W.Va. March 7, 2017) (same).
Here, because Bender’s claim relies on a theory of deliberate
indifference under the Eighth Amendment, it is not cognizable under
the FTCA. Consequently, the Court ADOPTS the R&R insofar as it
concludes that Bender’s FTCA claim must fail, OVERRULES Bender’s
objections relating to that portion of the R&R, and DISMISSES his
complaint WITH PREJUDICE for failure to state a claim.
IV. CONCLUSION
For the reasons discussed, the Court:
•

SUSTAINS Bender’s objections to the portion relating to his
motion to proceed in forma pauperis;

•

REJECTS in PART the R&R insofar as it pertains to Bender’s
motion to proceed in forma pauperis;

•

GRANTS Bender’s motion to proceed in forma pauperis (dkt. no.
8);
11

BENDER V. UNITED STATES

1:15CV96

MEMORANDUM OPINION AND ORDER ADOPTING
IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF
THE MAGISTRATE JUDGE [DKT. NO. 12], AND DISMISSING PLAINTIFF’S
COMPLAINT WITH PREJUDICE [DKT. NO. 1]
•

OVERRULES Bender’s objections to the R&R insofar as they
relate to his purported FTCA claim;

•

ADOPTS the R&R insofar as it relates to that claim; and

•

DISMISSES WITH PREJUDICE Bender’s complaint and ORDERS that it
be stricken from the Court’s active docket.

Finally, the Court notes that this dismissal qualifies as a strike
against Bender under the PLRA.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Memorandum Opinion and Order to counsel of record and to the
pro se plaintiff, certified mail, return receipt requested.
DATED: June 9, 2017
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

12