Berryman v. United States of America

Filing 66

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59], GRANTING DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE. The Court ADOPTS the R&R Dkt. No. 59 ; OVERRULES Berrymans objections Dkt. No. 65 ; GRANTS the United Statess motion to dismiss or, in the alternative, for summary judgment Dkt. No. 41 ; DENIES AS MOOT Berrymans motion for examination by an outside doctor Dkt. No. 49 ; DENIES AS MOOT Berrymans motion seeking dismi ssal of the motion for summary judgment of the United States Dkt. No. 54 ; DISMISSES the first and second claims in Berrymans complaint WITH PREJUDICE for failure to state a claim under the Federal Tort Claims Act upon which relief can be granted Dk t. No. 1 ; and DISMISSES Berrymans medical malpractice claim WITHOUT PREJUDICE for failing to comply with West Virginias presuit requirements for suing health care providers. It is so ORDERED. The Clerk is DIRECTED to enter a separate judgment order and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 8/14/2017. (copy counsel of record, Copy pro se plaintiff via certified mail)(jmm) (Additional attachment(s) added on 8/14/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL BERRYMAN,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV63
(Judge Keeley)

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
On April 14, 2016, the pro se plaintiff, Michael Berryman
(“Berryman”), filed a complaint against the defendant, the United
States of America (“United States”), pursuant to the Federal Tort
Claims

Act

(“FTCA”)

(Dkt.

No.

1).

Although

he

is

currently

incarcerated at Federal Correctional Institution, Butner, Berryman
was

housed

at

United

States

Penitentiary,

Hazelton

(“USP

Hazelton”), in 2014 during the events at issue. Id. at 2.
According to his complaint, although Berryman had repeatedly
importuned correctional officers at USP Hazelton to relocate him
because his cellmate had threatened to kill him, they refused to do
so. Id. at 11-14. Eventually, on May 8, 2014, as Berryman was
sleeping, his cellmate allegedly stomped on him, rendering him
unconscious, breaking his ribs, and causing herniated disks in his
lower back. After correctional officers revived Berryman, they
allegedly placed him in an observation cell with “paper clothing
and sheets” for 11 days, and medical personnel failed to provide

BERRYMAN V. USA

1:16CV63

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
proper treatment for his injuries during the rest of his time at
USP Hazelton. Id. at 15.
According
violated

his

to

Berryman,

right

to

Bureau

procedural

of

Prisons

due

process

(“BOP”)

staff

regarding

an

institutional violation, deprived him of his “basic human needs” in
violation

of

the

Eighth

Amendment,

and

committed

medical

malpractice by failing to document his injuries and refusing to
treat him. Id. at 10, 16. Berryman seeks $1 million in compensatory
damages for his serious injuries, pain, and suffering. Id. at 18.
Pursuant to 28 U.S.C. § 636 and the local rules, the Court referred
Berryman’s complaint to the Honorable James E. Seibert, United
States Magistrate Judge, for initial review.
Following

referral,

Magistrate

Judge

Seibert

granted

Berryman’s motion to proceed in forma pauperis (Dkt. No. 19) and
later, deeming summary dismissal inappropriate, directed that
service be made on the United States (Dkt. No. 30). After receiving
an extension of time to answer, the United States moved to dismiss
Berryman’s complaint or, in the alternative, for summary judgment
(Dkt. No. 41), arguing that Berryman’s FTCA claim should be
dismissed because he had not filed a certificate of merit with his
medical malpractice claim, and BOP staff were not negligent when
they responded to the incident and treated him (Dkt. No. 42). After
2

BERRYMAN V. USA

1:16CV63

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
receiving an extension of time to respond to the United States’s
motion, Berryman argued that he could not adequately oppose the
motion without conducting at least limited discovery (Dkt. No. 54).
In a Report and Recommendation (“R&R”) entered on July 5,
2017, Magistrate Judge Seibert recommended that the Court grant the
motion of the United States and dismiss Berryman’s complaint for
failure to state a claim upon which relief can be granted (Dkt. No.
59). Magistrate Judge Seibert concluded that, because Berryman’s
first and second claims focus on the intentional deprivation of his
Fifth and Eighth Amendment rights, they fail to state a cause of
action for negligence against the United States or its employees.
Id. at 13. Such constitutional violations are not cognizable under
the FTCA, but rather must be pursued in a civil rights action. Id.
at

13-14.1

Regarding

his

medical

malpractice

claim,

the

R&R

concluded that Berryman had failed to comply with West Virginia’s
pre-suit statutory requirements for suing health care providers.
Id. at 15.
The R&R also informed Berryman of his right to file “written
objections identifying those portions of the recommendation to
which objections are made, and the basis for such objections.” Id.

1

Indeed, Berryman filed a separate Bivens action based on the
same underlying facts asserted in this case (Civil No. 1:16cv47).
3

BERRYMAN V. USA

1:16CV63

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
at 20. It further warned him that the failure to do so may result
in waiver of his right to appeal. Id. The Court subsequently
granted Berryman an extension of time until August 7, 2017, to file
any objections (Dkt. No. 63). Now pending are Magistrate Judge
Seibert’s R&R, as well as Berryman’s “Motion of Opposition” to its
recommendations (Dkt. No. 65).
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete 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)). Courts will uphold those
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F.
Supp. 2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs,
Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).
Failure to raise specific errors waives the claimant’s right to a
4

BERRYMAN V. USA

1:16CV63

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
de novo review because “general and conclusory” objections do not
warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see
also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009).
Indeed, 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).
Here, Berryman’s “Motion of Opposition” fails to identify a
specific error in Magistrate Judge Seibert’s recommendations, and
in fact contains only passing reference to the R&R. At most,
Berryman reiterates the extent of his physical injuries and the
alleged failure of BOP staff to provide appropriate treatment (Dkt.
No. 65 at 1-2).
In addition, Berryman argues that granting summary judgment
under Fed. R. Civ. P. 56 is inappropriate without first giving him
the opportunity to conduct discovery and have access to a doctor
outside the BOP. Id. at 1, 3. This argument simply fails to account
for the R&R’s recommendation of dismissal under Fed. R. Civ. P.
12(b)(6) rather than summary judgment under Fed. R. Civ. P. 56. The
point is that despite having been given the opportunity to do so

5

BERRYMAN V. USA

1:16CV63

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
Berryman did not object to the R&R’s central finding that his
complaint fails to state a claim for relief under the FTCA.
Berryman’s

failure

to

object

to

the

R&R’s

recommended

disposition places the Court under no obligation to conduct a de
novo review. Dellacirprete, 479 F. Supp. 2d at 603-04. Therefore,
upon review of the R&R and the record for clear error, the Court
adopts the recommendation of the Magistrate Judge for the reasons
discussed in the R&R (Dkt. No. 59).
In conclusion, the Court:
1.

ADOPTS the R&R (Dkt. No. 59);

2.

OVERRULES Berryman’s objections (Dkt. No. 65);

3.

GRANTS the United States’s motion to dismiss or, in the
alternative, for summary judgment (Dkt. No. 41);

4.

DENIES AS MOOT Berryman’s motion for examination by an
outside doctor (Dkt. No. 49);

5.

DENIES AS MOOT Berryman’s motion seeking dismissal of the
motion for summary judgment of the United States (Dkt.
No. 54);

6.

DISMISSES the first and second claims in Berryman’s
complaint WITH PREJUDICE for failure to state a claim

6

BERRYMAN V. USA

1:16CV63

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 59],
GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT [DKT. NO. 41], AND DISMISSING THIS CASE
under the Federal Tort Claims Act upon which relief can
be granted (Dkt. No. 1); and
7.

DISMISSES Berryman’s medical malpractice claim WITHOUT
PREJUDICE for failing to comply with West Virginia’s presuit requirements for suing health care providers.

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and to the pro se plaintiff, certified mail
and return receipt requested. The Clerk is further DIRECTED to
enter a separate judgment order and to remove this case from the
Court’s active docket.
DATED: August 14, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

7