Townsend v. Riveria et al

Filing 60

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE: It is ORDERED that Magistrate Judge Seibert's 56 Report and Recommendation is ADOPTED; Plaintiff's 58 Obje ctions are OVERRULED; Defendants' 44 Motion to Dismiss is GRANTED; Plaintiff's 36 Motion for Default Judgment is DENIED AS MOOT; and this case is DISMISSED WITHOUT PREJUDICE and 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 6/29/17. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LEROY TOWNSEND,
Plaintiff,
v.

Civil Action No. 1:16cv38
(Judge Keeley)

JOSE RIVERA, Unit Manager, and
LT. JOHN SQUIRES, SIS Officer,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Pending before the Court is the Report and Recommendation by
United

States

Magistrate

Judge

James

E.

Seibert

recommending

dismissal of the complaint filed by the pro se plaintiff Leroy
Townsend (“Townsend”). For the reasons that follow, the Court
ADOPTS

the

Report

and

Recommendation,

OVERRULES

Townsend’s

objections, and DISMISSES the complaint WITHOUT PREJUDICE.
I. BACKGROUND
Townsend, who is an inmate at FCI Hazleton in Bruceton Mills,
West Virginia, filed a Bivens1 complaint on March 14, 2016.2 The
Court referred this matter to Magistrate Judge Seibert for initial

1

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
2

Townsend inadvertently filed his complaint on a courtapproved form complaint for a state civil rights action pursuant to
42 U.S.C. § 1983. Nonetheless, because he is raising claims against
federal actors, his claims are Bivens claims and the Court
construes them as such.

TOWNSEND V RIVERA, ET AL.

1:16CV38

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
screening and a Report and Recommendation (“R&R”) in accordance
with LR PL P 2. In his complaint, Townsend alleged that his right
to privacy was violated by Bureau of Prisons (“BOP”) staff at FCI
Hazleton, specifically, his personal identifying information had
been disclosed to another inmate during the course of a class
called “Managing Credit” (dkt. no. 1-2).3 As a result of this,
Townsend’s credit had been “tampered with”; as a consequence, he
seeks damages of “$75,000.00 per defendant to pay for credit
monitoring and credit repair . . . [and] an additional $75,000.00
per

defendant

for

emotional

distress

and

violations

of

the

Constitution.” Id. at 9. The defendants moved to dismiss the claim,
and Townsend filed a response in opposition.
In his R&R, Magistrate Judge Seibert recommended that the
Court grant the defendants’ motion to dismiss. He also recommended
that, because so much time has elapsed that Townsend cannot now
seek those administrative remedies under the BOP’s procedure, the
complaint

should

be

dismissed

with

prejudice.4

Id.

Further,

3

Townsend has not specified a date on which this alleged
incident occurred. He has, however, provided a copy of the
Certificate of Completion for the “Managing Credit” class which is
dated November 12, 2015 (Dkt. No. 1-7).
4

The R&R noted that Townsend did not appeal his first
grievance, Remedy #851017-F1, past the BP-9 level, which he would
2

TOWNSEND V RIVERA, ET AL.

1:16CV38

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
Magistrate Judge Seibert recommended that the Court deny as moot
Townsend’s motion for default judgment. Townsend filed timely
objections to the R&R.
II. STANDARD OF REVIEW
This Court is obligated to conduct a de novo review of those
portions of the magistrate judge’s report to which objections have
been filed. 28 U.S.C. § 636(b)(1). However, it need not conduct a
de novo review when a party makes only “general and conclusory
objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
specific objection, the Court will only review the magistrate
judge’s conclusions for clear error. Diamond v. Colonial Life &
Anccident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). A failure to
file specific objections waives appellate review of both factual
and legal questions. See United States v. Schronce, 727 F.2d 91, 94
& n.4 (4th Cir. 1984); see also Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991).

have had to do within 20 days of the denial. His second grievance,
Remedy #861938-R1, was marked “sensitive” and sent directly to the
Mid-Atlantic Regional Office. The Regional Office rejected that
grievance as “sensitive,” which required Townsend to pursue the
grievance through the Warden at his facility, which he did not do.
3

TOWNSEND V RIVERA, ET AL.

1:16CV38

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
III. DISCUSSION
The

R&R

administrative

concludes
remedies

that

Townsend

because

he

failed

failed

to

to

exhaust

appeal

to

his
all

available levels of the BOP’s four-step administrative process5.
According to Magistrate Judge Seibert, his review of the record not
only supports the defendants’ contentions that Townsend filed two
separate administrative complaints regarding staff misconduct with
respect to his identity theft claims, but also reflects that
Townsend failed to exhaust fully either of them.

Magistrate Judge

Seibert further concluded that Townsend’s failure to exhaust all
administrative remedies cannot be excused.
In

his

objection,

Townsend

fails

to

identify

specific

objections to the findings of the R&R. Rather, he generally states
that the “additional relief sought can only be provided through the
Court [and] the additional (BP) steps would be futile” (dkt. no.

5

The BOP provides a four-step administrative process beginning
with an attempt at informal resolution with prison staff (BP-8). If
the prisoner achieves no satisfaction informally, he must file a
written complaint to the warden (BP-9) within 20 calendar days of
the date of the occurrence on which the complaint is based. If an
inmate is not satisfied with the warden’s response, he may appeal
to the regional director of the BOP (BP-10) within 20 days.
Finally, if the prisoner has received no satisfaction, he may
appeal to the Office of General Counsel (BP-11) within 30 days. See
28 C.F.R. § 542.10, et seq.
4

TOWNSEND V RIVERA, ET AL.

1:16CV38

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
58). Townsend, however, does not specifically refute Magistrate
Judge

Seibert’s

conclusions

that

he

has

not

exhausted

the

administrative remedy process within the BOP, nor does he provide
a legal or factual basis for contesting the R&R’s conclusion that
exhaustion is mandatory. Instead, it appears he simply does not
like the outcome in his case, as he provides no basis, legal or
factual, for why exhaustion would be futile. In essence, all
Townsend has done is baldly to reassert the argument he previously
presented to the magistrate judge. See Dkt. No. 56 at 12-13.
Consequently,

the

Court

will

not

review

Townsend’s

futility

argument de novo.
Furthermore, any argument that the relief Townsend seeks can
only be provided through the courts is without merit inasmuch as he
has failed to exhaust his available administrative remedies. Under
the Prison Litigation Reform Act (“PLRA”), a prisoner bringing an
action with respect to prison conditions under 42 U.S.C. § 1983, or
any other federal law, must first exhaust all administrative
remedies. 42 U.S.C. § 1997(e)(a). Exhaustion as provided in §
1997(e)(a) is mandatory. Booth v. Churner, 532 U.S. 731, 741
(2001). A Bivens action, like an action under 42 U.S.C. § 1983, is
similarly subject to exhaustion. Porter v. Nussle, 534 U.S. 516,

5

TOWNSEND V RIVERA, ET AL.

1:16CV38

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
524 (2002). Exhaustion “applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes,” and is required even when the relief sought is not
available. Booth, at 741. Therefore, the exhaustion requirement
under the PLRA is applicable to Townsend’s complaint alleging
violations of his right to privacy. Consequently, because Townsend
has failed to exhaust all administrative remedies, the Court
overrules his objections.
IV. CONCLUSION
For the reasons discussed, the Court:
•

ADOPTS the R&R in its entirety (dkt. no. 56);

•

OVERRULES Townsend’s objections (dkt. no. 58);

•

GRANTS the defendants’ motion to dismiss (dkt. no. 44);

•

DENIES AS MOOT Townsend’s motion for default judgment (dkt.
no. 36); and

•

ORDERS that this case be DISMISSED WITHOUT PREJUDICE6 and

6

Although the R&R recommends dismissal with prejudice based on
Townsend’s failure to appeal the BOP decisions within the time
allowed, Townsend is a pro se filer, and the Court must construe
his claims liberally. See U.S. v. Wilson, 699 F.3d 789, 797 (4th
Cir. 2012) (citing Boag v. MacDougall, 454 U.S. 364 (1982) (per
curiam)). Accordingly, the Court dismisses this case without
prejudice to Townsend’s pursuit of any remaining administrative
remedies that may be available through the BOP.
6

TOWNSEND V RIVERA, ET AL.

1:16CV38

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT
AND RECOMMENDATION [DKT. NO. 56] AND DISMISSING
PLAINTIFF’S COMPLAINT WITHOUT PREJUDICE [DKT. NO. 1]
STRICKEN from the Court’s active docket.
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 29, 2017

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

7