Lancaster v. Todd et al

Filing 85

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that the Court ADOPTS the Magistrate's 79 Report and Recommendation, GRANTS Defendants' 32 Motion to Dismiss, Motion for Summary Judgment, DENIES AS MOOT Plaintiff's 36 M otion for Discovery, 38 Motion for Permanent Injunction, 40 Motion for Permanent Injunction, and 68 Motion to Postpone Summary Judgment. The Clerk is DIRECTED to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 9/27/17. (copy Plaintiff) (cnd) (Additional attachment(s) added on 9/27/2017: # 1 Certified Mail Return Receipt) (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER LANCASTER,
Plaintiff,
v.

Civil Action No. 1:16cv200
(Judge Keeley)

J. TODD, Officer; OFFICER ARTRIP;
C. O. B. KUNKLE; OFFICER FERRELL;
M. DOYLE, Lieutenant; NURSE MYERS;
NURSE FOWLER; NURSE HILEMAN;
LT. HARRISON; TERRY O’BRIEN, Warden;
ODOM, Assoc. Warden; THOMPSON,
Executive Ass’t.; NURSE DAWSON;
CAP’T. GILLY; D. JONES, Counselor;
SHERK, Officer; C. TROOPMAN, Officer;
C. BENNET, Officer; B. MICHAELS [sic],
Officer; MERKERGO [sic]; BRADLY,
Officer; ALLISON, Officer; ANDREWS,
Officer; BOYARD, Officer; and “all
unknown not listed in Complaint,”
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
On

October

21,

2016,

the

pro

se

plaintiff,

Christopher

Lancaster (“Lancaster”), filed a Bivens1 action against multiple
correctional officers and employees at U.S.P. Hazelton (dkt. no.
1). The Court referred this action to United States Magistrate
Judge James E. Seibert for initial screening and a Report and
Recommendation (“R&R”) in accordance with LR PL P 2. On February
22, 2017, the defendants filed a motion to dismiss, or in the
alternative, motion for summary judgment (dkt. no. 32).

1

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388, 390 (1971).

LANCASTER V. TODD, ET AL.

1:16CV200

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
On March 9, 2017, Lancaster moved for an extension of time in
which to respond to defendants’ dispositive motion (dkt. no. 34).
By Order entered on May 16, 2017, the Court granted Lancaster’s
motion for an extension of time (dkt. no. 59). On June 5, 2017,
Lancaster filed a second motion for an extension of time, seeking
a 60-day extension (dkt. no. 62). By Order entered on June 13,
2017, the Court granted Lancaster’s motion in part, and he was
given until July 31, 2017, to file his response (dkt. no. 63).
On July 13, 2017, Lancaster filed a response in opposition to
defendants’ dispositive motion, along with a motion to postpone
summary judgment (dkts. no. 69 & 68). Also pending are Lancaster’s
pro se motion for discovery (dkt. no. 36), motion for an injunction
to write to witnesses in other prisons (dkt. no. 38), and motion
for an injunction to be seen by an outside specialist (dkt. no.
40), all of which were filed on March 13, 2017.
On August 21, 2017, Magistrate Judge Seibert entered an R&R,
recommending that the Court grant the defendants’ motion to dismiss,
or in the alternative, motion for summary judgment as to all
defendants, and dismiss the plaintiff’s complaint with prejudice
(dkt. no. 79 at 45-46). After thoroughly discussing the applicable
legal standards, as well as the relevant case law and the pertinent
facts of the case, Magistrate Judge Seibert determined that no
genuine

issue

of

material

fact

precluded

summary

judgment

on

Lancaster’s claims of excessive force and deliberate indifference

2

LANCASTER V. TODD, ET AL.

1:16CV200

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
to medical needs, and concluded that the claims should be dismissed
as frivolous. Id. at 32, 42. Magistrate Judge Seibert further
determined that Lancaster’s claim of retaliation failed to implicate
any clearly established constitutional right. Id. at 43-44. Finding
that Lancaster had failed to state a claim for retaliation, the R&R
recommended that the claim be dismissed. The R&R further recommended
that the Court deny Lancaster’s pending motions (dkt nos. 36, 38,
40, & 68) as moot. Id. at 46.
The R&R specifically warned Lancaster that his failure to
object to the R&R within fourteen (14) days of being served with a
copy would result in the waiver of any appellate rights he might
otherwise have on this issue. Id. Lancaster had until September 11,
2017, to file any objections. Rather than do so, however, on
September 8, 2017, he filed a motion to enlarge time, requesting an
additional sixty (60) days to file his objections to the R&R. After
reviewing the matter and finding no good cause, the Court denied
Lancaster’s motion to enlarge time (dkt. no. 82).
On September 22, 2017, Lancaster filed an objection to the
denial of his motion to enlarge time (dkt. no. 83), averring that,
at various times over the last several months, he has been denied
access to paper, pencils, envelopes, and stamps. This statement,
however, is belied by the fact that since May of 2017, Lancaster has
handwritten,

in

pencil

or

pen,

and

mailed,

using

stamps

and

envelopes provided by the BOP, at least fifteen (15) separate

3

LANCASTER V. TODD, ET AL.

1:16CV200

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
filings in this case (dkt. nos. 43, 58, 60, 62, 68, 69, 71, 72, 73,
74, 75, 76, 77, 81, & 83), including his objection to the Court’s
denial of his most recent request to extend deadlines in this
matter. In none of his requests for additional time to object to the
R&R has he even attempted to address the substantive issues in this
case, all of which he has previously addressed at length in earlier
filings. The Court therefore finds that Lancaster’s latest attempt
to extend the deadlines further is pure manipulation of the process.
To date, the parties have not filed any objections.2
When reviewing the R&R, the Court must review de novo only the
portions to which an objection has been timely made. See 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).
Although neither party has objected, and the Court, therefore,
is under no obligation to conduct a de novo review (Dellacirprete,

2

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells
v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
4

LANCASTER V. TODD, ET AL.

1:16CV200

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
479 F. Supp. 2d at 603–04), it has conducted such a review and
concludes that the magistrate judge has properly recited the facts
and applied the law.
As to his excessive force claim, Lancaster has failed to
establish the requisite “unnecessary and wanton infliction of pain”
that violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. Whitley v. Albers, 475 U.S. 312, 321–22 (1986).
Lancaster has neither demonstrated that defendants’ conduct was
“objectively

harmful

enough

to

establish

a

constitutional

violation,” nor that defendants inflicted “unnecessary and wanton
pain and suffering” upon him. Hudson v. McMillian, 503 U.S. 1, 6,
8

(1992)(internal

citations

omitted).

Rather,

the

record

demonstrates that defendants’ use of force was made “in a good faith
effort to maintain or restore discipline,” and not “for the very
purpose of causing harm.” Whitley, 475 U.S. at 320-21.
Similarly,
Lancaster

has

as

to

failed

his
to

claim

for

establish

denial

that

of

medical

defendants

acted

care,
with

deliberate indifference to his serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 105 (1976). A thorough review of the record
makes clear that, contrary to his claim that his medical needs were
“ignored,” Lancaster was not denied necessary medical care, and
instead, was provided with prompt medical attention. Finding that
Lancaster has failed to state claims upon which relief can be
granted, and that there are no genuine issues of material fact, the

5

LANCASTER V. TODD, ET AL.

1:16CV200

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
Court concludes that his excessive force and deliberate indifference
claims should be dismissed.
Finally, as to his claim of retaliation, Lancaster has failed
to sufficiently allege that defendants retaliated against him in
response to his exercise of a constitutionally protected right.
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Because inmates have
no constitutional right to participate in a prison’s grievance
process (Id.), Lancaster’s claim that staff retaliated against him
for pursuing his complaints through the BOP’s administrative process
are not appropriate claims in a Bivens action. Additionally, because
mere verbal harassment does not give rise to a constitutional
violation, Wagner v. Wheeler, 13. F. 3d 86, 92–93 (4th Cir. 1993),
Lancaster’s allegations that BOP employees cursed at him and used
racial slurs do not state a viable claim for retaliation. Finding
that Lancaster has failed to establish a violation of any of his
clearly established constitutional rights, the Court concludes that
his retaliation claim should be dismissed.
Accordingly, after a careful review of the record and for the
reasons more fully stated in the R&R, the Court ADOPTS the R&R in
its entirety (dkt. no. 79), GRANTS the defendants’ motion to dismiss
or for summary judgment (dkt. no. 32), and DISMISSES the plaintiff’s
complaint WITH PREJUDICE (dkt. no. 1). It also DENIES as moot the
plaintiff’s motion for discovery (dkt no. 36), motion for an
injunction to write to witnesses in other prisons (dkt. no. 38),

6

LANCASTER V. TODD, ET AL.

1:16CV200

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 79]
motion for an injunction to be seen by an outside specialist (dkt.
no. 40), and motion to postpone summary judgment (dkt. no. 68).
It is so ORDERED.
The Court directs the Clerk of Court to enter a separate
judgment order and to transmit copies of both orders to counsel of
record and to the pro se plaintiff, certified mail, return receipt
requested.
Dated: September 27, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

7