Scott v. UNITED STATES OF AMERICA

Filing 106

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102 ], GRANTING DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT. NO. 77 ], OVERRULING PLAINTIFF'S OBJECTIONS [DKT. NO. 103 ], AND DISMISSING PLAINTIFF'S COMPLAINT [DKT. NO. 1 ]. Signed by District Judge Thomas S. Kleeh on 3/30/2020. (Copy to PS plaintiff via CM, RRR.)(wrr) (Additional attachment(s) added on 3/30/2020: # 1 Certified Mail Return Receipt) (wrr).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JEROME SCOTT,
Plaintiff,
v.

Civil Action No. 1:18-cv-61
(Kleeh)

UNITED STATES OF AMERICA,
Defendant.

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102],
GRANTING DEFENDANT’S MOTION TO DISMISS, OR IN THE ALTERNATIVE,
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 77], OVERRULING
PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]
Pending before the Court is a Report and Recommendation
(“R&R”)

by

United

States

Magistrate

Judge

Michael

J.

Aloi

(“Magistrate Judge”) [Dkt. No. 102], and Plaintiff’s objection
thereto [Dkt. No. 103].

The R&R recommends that the Court grant

the Motion to Dismiss, or in the alternative, Motion for Summary
Judgment [Dkt. No. 77].

It also recommends that the Court dismiss

the Plaintiff’s Complaint [Dkt. No. 1] with prejudice.

For the

reasons discussed below, the Court ADOPTS the Magistrate Judge’s
R&R.
I.
On

March

23,

2018,

BACKGROUND
pro

se

Plaintiff,

Jerome

Scott

(“Plaintiff”), a former inmate incarcerated at FCI Hazleton in
Bruceton Mills, West Virginia, filed a Complaint pursuant to the

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

Federal Tort Claims Act (“FTCA”) [Dkt. No. 1].

The Complaint

challenges the Bureau of Prison’s (“BOP”) search of Plaintiff’s
person after he was found to be in possession of a prison-made
weapon Id.

Pursuant to 28 U.S.C. § 636 and the local rules, the

Court referred this matter to the Magistrate Judge for initial
screening and a report and recommendation.

A full procedural

history is set forth in the R&R [Dkt. No. 102].
On April 3, 2019, Defendant filed a Motion to Dismiss for
Failure to State a Claim, or in the alternative, Motion for Summary
Judgment [Dkt. No. 77].

On April 8, 2019, Plaintiff filed a

“Motion for Default of Judgment” [Dkt. No. 79].

That same day,

the Magistrate Judge issued an Order denying Plaintiff’s Motion
for Entry of Default or Default Judgment [Dkt. No. 84].

On April

8, 2019, a Roseboro Notice was issued to pro se Plaintiff, advising
him of his right to respond to Defendant’s Motion [Dkt. No. 86].
On April 22, 2019, Plaintiff filed a Response in Opposition to
Defendant’s Motion [Dkt. No. 89].
On January 22, 2020, the Magistrate Judge’s R&R [Dkt. No.
102] recommended that the Defendant’s Motion to Dismiss or Motion
for Summary Judgment [Dkt. No. 77] be granted. The R&R recommends
that Plaintiff’s FTCA claim be dismissed with prejudice pursuant

2

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief can be granted [Dkt. No. 77, at 24].
II.

DISCUSSION

When reviewing a R&R, the Court must review de novo only the
portions to which a specific objection has been timely made.
U.S.C. § 636(b)(1)(C).

28

Otherwise, “the Court may adopt, without

explanation, any of the magistrate judge’s recommendations to
which the [parties do] not object.”

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)).

Courts will uphold

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).
The Fourth Circuit has held that an objecting party must do
so “with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection.”

United

States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert denied,
127 S.Ct. 3032 (2007).

The court explained that “[t]o conclude

otherwise would defeat the purpose of requiring objections.

We

would be permitting a party to appeal any issue that was before
the

magistrate

judge,

regardless

of

the

nature

and

objections made to the magistrate judge’s report.” Id.
3

scope

of

This would

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

result in wasted judicial resources and “the district court’s
effectiveness

based

on

help

from

magistrate

judges

would

be

undermined.” Id.
“General objections that merely reiterate arguments presented
to the magistrate judge lack the specificity required under Rule
72, and have the same effect as a failure to object, or as a waiver
of such objection.”

Moon v. BMX Technologies, Inc., 742 F. Supp.

2d 827, 829 (W.D. Va. 2010), aff’d, 498 F. App’x 268 (4th Cir.
2012).

A plaintiff who reiterates his previously raised arguments

will not be given “the second bite at the apple []he seeks.”

Veney

v. Astrue, 539 F.Supp.2d 841, 846 (W.D. Va. 2008).
On February 7, 2020, in response to the Magistrate Judge’s
R&R, Plaintiff filed a variety of generalized “objections” [Dkt.
No. 103], which incorporate recitations of fact and law outlined
in his Complaint [Dkt. No. 1] and Reply to the Defendant’s Motion
to Dismiss, or in the alternative, Motion for Summary Judgment
[Dkt. No. 89].

Because the objections lack specificity to the

R&R, the Court reviews the R&R for clear error.

Diamond, 416 F.3d

at 315.
Moreover, to the extent that any specific objections are
deemed to have been raised, the Court likewise considers those
objections, but ultimately finds that they fail to overcome the
4

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

Magistrate Judge’s R&R.

After an analysis of the circumstances

presented and the applicable law, the Magistrate Judge found that
Plaintiff’s claim is not barred by the 28 U.S.C. § 2401(b)’s
statute

of

limitations,

and

this

Court

has

subject

jurisdiction over the claims raised [Dkt. No. 102, at 14].

matter
While

Plaintiff must exhaust all administrative remedies, here, the
Magistrate Judge found that “[t]he failure of an agency to make
final disposition of a claim within six months after it is filed
shall, at the option of the claimant at any time thereafter, be
deemed a final denial of the claim for purposes of this section.”
28 U.S.C. § 2675(a) (emphasis added).

Accordingly, Plaintiff has

the right at “any time of his own to deem such a failure to be a
final agency denial.”

Boyd v. United States, 482 F. Supp. 1126,

1129 (W.D. Pa. 1980) (citing Mack v. United States Postal Service,
414 F. Supp. 504 (E.D. Mich. 1976)).
Here, Plaintiff’s FTCA claims can readily be characterized as
claims

for

(1)

deliberate

indifference

and

(2)

intentional

infliction of emotional distress (“IIED”), in addition to his
medical negligence claim.

In the R&R, however, the Magistrate

Judge found that Plaintiff’s deliberate indifference claim should
be analyzed as a negligence claim [Dkt. No. 102, at 15] because
deliberate indifference claims are not cognizable under the FTCA.
5

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

See Royster v. United States, 2008 U.S. Dist. LEXIS 106634 *13
(W.D.

Pa.

conclusion.

December

1,

2008).

The

Court

agrees

with

this

For the subsequent reasons, the Court ADOPTS the

Magistrate Judge’s R&R.
A. Plaintiff’s Negligence Claim
Even as a negligence claim, however, the R&R finds that the
Plaintiff cannot satisfy the elements to prove negligence under
the FTCA.

In West Virginia, plaintiffs must establish three

elements in a negligence suit: (1) a duty that the defendant owes
to the plaintiff, (2) a negligent breach of that duty, and (3)
injuries received as a proximate result from that breach.

Webb v.

Brown & Williamson Tobacco Co., 2 S.E.2d 898, 899 (W. Va. 1939).
The plaintiff must prove these elements by a preponderance of the
evidence. Id. at 899. Pursuant to the FTCA, the BOP owes prisoners
a duty of care that specifically requires the BOP to provide for
the

safekeeping,

prisoners.

care,

subsistence,

and

protection

of

all

See 18 U.S.C. § 4042; Muniz, 374 U.S. 150 (1963).

Under West Virginia law, the duty of care that the BOP owes to
inmates is one of “reasonable care.”

See McNeal v. United States,

979 F. Supp. 431 (N.D. W.Va. 1997).
As a negligence claim, the Magistrate Judge finds that the
Plaintiff provides “only a portion of the events, does not explain
6

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

how and why he came to be ‘dry celled’ in the first place, and
never mentions that he attempted to assault BOP staff, leading to
the use of force” [Dkt. No. 102, at 17].

The Magistrate Judge

also notes that the Plaintiff’s claims of physical injuries or
permanent injuries “lack any support in the record” [Id.].

To the

contrary, records indicate that medical staff provided him with
medical treatment on or around the time this alleged assault
occurred [Id. at 17-18].

The Magistrate Judge notes that despite

the Plaintiff’s claim in his Complaint that he was so afraid “for
his

life”

that

he

did

not

report

the

assault,

the

record

contradictorily shows that he did report the incident less than
two months later, on July 22, 2017, while at USP Hazelton [Id.].
At bottom, the Magistrate Judge finds that the Plaintiff has
failed to produce any evidence of a breach of duty on the part of
the

Respondent,

or

any

evidence

of

damages,

beyond

his

own

assertions, which are contradicted by the record [Dkt. No. 102, at
20].

Accordingly,

the

Magistrate

Judge

recommends

Plaintiff’s negligence claim cannot survive summary judgment.

that
The

Court has reviewed the R&R’s finding on negligence in its entirety,
and finds it thorough, well-reasoned, and without error.

7

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

B. Plaintiff’s IIED Claim
The Magistrate Judge notes that the FTCA’s waiver of sovereign
immunity is subject to several requirements and limitations [Dkt.
No. 102, at 21].

28 U.S.C. § 1346(b)(2) provides that

No person convicted of a felony who is
incarcerated while awaiting sentencing or
while serving a sentence may bring a civil
action against the United States or an agency,
officer, or employee of the Government, for
mental or emotional injuries suffered while in
custody without a prior showing of physical
injury.
Further, § 803(d) of the Prison Litigation Reform Act, codified at
42 U.S.C. § 1997(e)(2), also predicates a prisoner’s claim for
mental or emotional injuries suffered while in custody on a showing
of an accompanying physical injury.

See 42 U.S.C. § 1997e(e) ("No

Federal civil action may be brought by a prisoner confined in a
jail,

prison,

or

other

correctional

facility,

for

mental

or

emotional injuries suffered while in custody without a prior
showing of physical injury.").
Simply put, under West Virginia law, the Plaintiff cannot
produce any evidence that his IIED claim can survive summary
judgment.

Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W.

Va. 1998).

The burden on the plaintiff to prevail on an IIED claim

is extremely high.
(4th Cir. 2017).

See Pegg v. Herrnberger, 845 F.3d 112, 122
With only mere assertions and no evidence to
8

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

back them up, the Magistrate Judge finds that summary judgment
should be granted with respect to this claim [Dkt. No. 102, at
22].

Finding no clear error in the Magistrate Judge’s well-

reasoned analysis, the undersigned agrees that summary judgment is
appropriate for Plaintiff’s IIED claim.
C. Plaintiff’s Medical Negligence Claim
Finally, the Magistrate Judge considers Plaintiff’s medical
negligence claim [Dkt. No. 102, at 23] under West Virginia Code
Section

55-7B-3.

See

also

Banfi

v.

American

Hosp.

Rehabilitation, 529 S.E.2d 600, 605-606 (W. Va. 2000).
because

compliance

with

West

Virginia

Code

Section

for

However,
55-7B-6

(obtaining a screening certificate of merit) is mandatory prior to
filing a suit in federal court, Stanley v. United States, 321
F.Supp. 2d 805, 806-807 (N.D. W.Va. 2004), the Magistrate Judge
finds that the Plaintiff’s medical negligence claim 1 cannot survive
summary

judgment

[Dkt.

No.

102,

at

23].

Accordingly,

the

Magistrate Judge finds that the Plaintiff’s medical negligence
claim should be dismissed [Id.].

Finding no clear error in this

recommendation, the Court agrees with the R&R’s finding.

1

The Magistrate Judge also finds that this is not a case of alleged
malpractice so obvious that it entitles Plaintiff to the common
knowledge exception of W. Va. Code § 55-7B6(c). The Court agrees
with this finding.
9

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

However, the Court likewise finds that Plaintiff’s medical
negligence claim should be dismissed without prejudice.

Because

the Plaintiff failed to comply with West Virginia’s statutory
requirements, dismissal of the negligence claim without prejudice
is warranted.
(W.

Va.

See Davis v. Mount View Health Care, 640 S.E.2d 91

2006)

(dismissal

without

prejudice

warranted

where

Plaintiff failed to comply with MPLA pre-filing requirements).
Accordingly, the Court dismisses without prejudice Plaintiff’s
medical negligence claim.
III. CONCLUSION
While the Plaintiff made only general objections to the R&R,
the Court is not obligated to provide a review of the conclusions
of the magistrate judge.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

Accordingly, the Court is under no obligation to conduct a de novo
review.

Therefore, upon careful review and analysis of all the

issues relevant to this case, 2 the Court hereby:

Although not raised in the R&R, the Court would advise the
parties of the following.
Throughout the Plaintiff’s pleadings
and responses, he raises alleged constitutional violations that
occurred during this incident akin to the “8, 4 and 14 amendment.”
[Dkt. No. 7-1, at 1]. However, the FTCA does not permit a plaintiff
to bring forth “constitutional claims.” FDIC v. Meyer, 510 U.S.
471 (1994) (constitutional torts are not cognizable under the
FTCA); see also 28 U.S.C. § 2676.
As the Fourth Circuit
recognizes, the utilization of the FTCA rather than a Bivens action
is a calculated risk:
2

10

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

1) ADOPTS the R&R [Dkt. No. 102];
2) GRANTS

the

Defendant’s

Motion

to

Dismiss,

or

in

the

alternative, Motion for Summary Judgment [Dkt. No. 77];
3) DISMISSES WITH PREJUDICE all of Plaintiff’s claims [Dkt. No.
1] related

to negligence and IIED;

4) DISMISSES WITHOUT PREJUDICE Plaintiff’s remaining medical
negligence claim [Dkt. No. 1];
5) OVERRULES the response and objection filed by pro se Plaintiff
[Dkt. No. 103]; and
6) ORDERS this matter stricken from the Court’s docket.
It is so ORDERED.

In pursuing an intentional tort claim against
a
federal
law
enforcement
officer,
a
prospective
plaintiff
may
pursue
two
alternative avenues of relief. She may either
pursue a constitutional claim against the
officer directly under the Constitution, as
recognized in Bivens, or she may file a tort
claim under the FTCA. Should a plaintiff
pursue the latter course, she runs the risk
that her constitutional claim will be subject
to the FTCA's “judgment bar” provision . . .
Unus v. Kane, 565 F.3d 103, 122 (4th Cir. 2009).
11

SCOTT V. UNITED STATES

CIV. ACT. NO. 1:18CV61

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102], GRANTING DEFENDANT’S
MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING
PLAINTIFF’S COMPLAINT [DKT. NO. 1]

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 both orders to counsel of record and to the pro se Petitioner,
certified mail, return receipt requested.
DATED: March 30, 2020
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

12