Fortuna v. Federal Bureau of Prison et al

Filing 85

ORDER ADOPTING REPORT AND RECOMMENDATION. Petitioners objections Doc. 78 are OVERRULED. The Report and Recommendation Doc. 76 is, hereby ORDERED ADOPTED. Defendants Motion to Dismiss or in the Alternative, for Summary Judgment Doc. 68 is GR ANTED. Court ORDERS that the second amended complaint Doc. 49 be DENIED and DISMISSED WITH PREJUDICE. Plaintiffs letters Docs. 80 , 81 & 83 are construed as Motions, they are DENIED AS MOOT. This Court further directs the Clerk to STRIKE this matter from the active docket of this Court. Signed by District Judge John Preston Bailey on 10/7/2021. (Copy counsel of record via cm/ecf, copy pro se plaintiff via certified mail)(jmm) (Additional attachment(s) added on 10/7/2021: # 1 Certified Mail Return Receipt) (jmm).

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

CASE NO: I :19-CV-3
Judge Bailey

MRS. HOFFMAN, Medical Administrator,
MRS. KROGAN, Assistant Medical
Administrator, MR. DEWAYNE HENDRIX,
Warden, MRS. CORBIN, Physical Assistant,
N. SHAFFER, C.O. formerly known as Mrs.
Shafer,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Michael John Aloi [Doc. 76]. Pursuant
to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi for submission
of a proposed report and recommendation (“R&R”). Magistrate Judge Aloi filed his R&R on
January 5, 2021 wherein he recommends the plaintiff’s second amended Bivens complaint
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[Doc. 49] be denied with prejudice. Forthe reasons that follow, this Court will adopt the R&R.
STANDARDS OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1 )(c), this Court is required to make a de novo review
of those portions of the magistrate judge’s findings to which objection is made. However, the
Court is not required to review, under a de novo or any other standard, the factual or legal

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conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v.Am 474 U.S. 140, 150 (1985). Nor is
this Court required to conduct a de novo review when the 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 addition, failure to file timely objections constitutes a waiver of de novo review and
the rightto appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d
1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Pro se filings must be liberally construed and held to a less stringent standard than those
drafted by licensed attorneys, however, courts are not required to create objections where
none exist. Hainesv. Kerner, 404 U.S. 519,520(1972); Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Aloi’s R&R were due within fourteen (14) days
of receipt, pursuant to 28 U.S.C.

§ 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil

Procedure. Here, plaintiff timely filed his Objections to the R&R [Doc. 78] on January 21,
2021. Accordingly, this Court will review the portions of the R&Rto which objection was filed
under a de novo standard of review. The remainder of the R&R will be reviewed for clear
error.

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BACKGROUND
This Court has reviewed the thorough and detailed factual background underlying this
case as summarized by Magistrate Judge Aloi in his R&R. See [Doc. 76 at 1—7]. Having
compared the same to the entirety of the record before this Court and finding no error in
summarization, this Court adopts and incorporates the entirety of both the “Background” and
“Relevant Facts” sections of the R&R herein for purposes of conducting the following analysis
on review.
A.

The Pending Bivens Complaint

In his Second Amended Complaint, plaintiff impliedly raises an Eighth Amendment
claim of deliberate indifference to serious medical needs, arising out of a June 9, 2017,
shoulder injury sustained when plaintiff was using an elliptical machine while incarcerated at
FCI Morgantown. [Doc. 49 at 7—8]. Plaintiff contends that the Bureau of Prisons (“BOP”)first
delayed treating him; and eventually, although he finally did receive some physical
therapy, the therapy was eventuallyterminated; and the BOP has never provided him with
the surgery that would repair his injury. [Id. at 8].
Plaintiff also contends that defendant Shaffer lied about him in order to get him
disciplined by removing him from the compound. [Id.]. He alleges that defendant Hoffman
retaliated against him by leaving him in pain and threatening him in the Special Housing Unit
(“SHU”) aftera friend of plaintiff’s called the BOP’s Central Office to advise that plaintiff was
not receiving proper care. [Id.]. Plaintiff further contends that defendant Krogon helped get
him removed from the compound. [Id. at 9]. Plaintiff also implies that he was wrongfully
removed from the BOP’s Residential Drug Abuse Program (“RDAP”). [Id.].
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Plaintiff contends he has exhausted his claims. [Id. at 4—6].
As relief, plaintiff seeks $25,000.000.00 in compensatory damages and
$20,000,000.00 in punitive damages, as well as $500.00 a day for the rest of his life, for
having been rendered “crippled” forever, for his pain, suffering, physical deformity, mental
distress; past and future lost wages, future pain and suffering, future medical expenses and
medical supplies; lost quality of life; time spent traveling to and from doctors’ visits, and the
loss of the year he would have had taken off his sentence had he been able to complete the
BOP’s RDAP. [Id. at 9]. Further, plaintiff requests injunctive relief in the form of surgery to
repair his arm and shoulder. [Id.].
B.

Defendants’ Motion to Dismiss or in the Alternative, Motion for Summary
Judgment

Defendants filed a Motion to Dismiss or in the Alternative, Motion for Summary
Judgment [Doc. 69], arguing that the second amended complaint should be dismissed or
summary judgment granted intheirfavorforthe following reasons: (1) plaintiff failed to exhaust
his administrative remedies prior to filing suit; (2) defendant Corbin is entitled to absolute
immunity; (3) plaintiifs claims against defendants Hendrix and Hoffman should be dismissed
due to lack of necessary requisite personal involvement with the conduct at issue in this suit;
(4) plaintiff’s Bivensclaims of deliberate indifference to serious medical needs fail because
plaintiff cannot demonstrate such deliberate indifference; (5) plaintiff’s claims regarding
placement in the SHU and transferto anotherfacility are not cognizable under Bivens; (6) the
individual BOP defendants are entitled to qualified immunity because theydid not commit any

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constitutional violations; and (7) the BOP has broad discretion to transfer, choose, and assign
inmate housing. See [Doc. 69].
C.

Plaintiff’s Response in Opposition

In his Response in Opposition [Doc. 75], plaintiff reiterates his arguments and contends
he is actually innocent of the charges against him. Plaintiff attachesthe same set of exhibits
to his Response previously attached to his second amended complaint.
DISCUSSION
Here, Magistrate Judge Aloi concluded in his R&R that Defendant’s Motion to Dismiss
or in the Alternative, Motion for Summary Judgment should be granted and plaintiff’s second
amended Bivens complaint be denied with prejudice. See [Doc. 76 at 1]. In supportthereof,
Magistrate Judge Aloi made several findings based on an extensive review of the record
before him. First, he concluded that plaintiff failed to administratively exhaust his claims of
deliberate indifference to serious medical needs; wrongful placement in the SHU; wrongful
transfer to another facility; and wrongful removal from RDAP. [Id. at 27]. Because of the
passage of time, Magistrate Judge Aloi also determined that plaintiff could not complete the
exhaustion process underthe BOP’s administrative remedy procedure, therebywarranting
dismissal of the claims with prejudice. [Id.].
Next, Magistrate Judge Aloi concluded that plaintiff’s claim alleging a falsely charged
disciplinary infraction should also be dismissed. [Id. at 27—28]. In support, the magistrate
judge found that, even assuming the charge against plaintiff was false, the act of filing a false
disciplinary charge does not itself violate a prisoner’s constitutional rights. [Id.].

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Plaintiff filed eight (8) pages of objections to Magistrate Judge Aloi’s R&R. See [Doc.
78]. The objections raise no cognizable disagreementwith the R&R otherthan a generalized
narrative stating that the purported actions of the defendants alleged in the complaint
somehow violate the Eighth Amendment. [Id.].
“When a party does make objections, but these objections are so general orconclusory
that they fail to direct the district court to any specific error by the magistrate judge, de novo
review is unnecessary.” Green v. Rubenstein, 644 F.Supp.3d 723,730 (S.D. W.Va. 2009)
(citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). “When only a general
objection is made to a portion of a magistrate judge’s report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review.” Williams v.
New York State Div. of Parole, 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012).
A party waives any objection to an R&R that lacks adequate specificity. See Mario
v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that a party’s
objections to the magistrate judge’s R&R were not specific enough to preserve the claim for
review). Bare statements “devoid of any reference to specific findings or recommendation
and unsupported by legal authority, [are] not sufficient.” Mario, 313 F.3d at 766. Pursuant
to the Federal Rules of Civil Procedure and this Court’s Local Rules, “referring the court to
previously filed papers or arguments does not constitute an adequate objection.” Id.; see also
Fed. R. Civ. P. 72(b); LR PL P 12.
Upon review of plaintiff’s objections, this Court finds that, even when construing them
with a deferential view benefitting pro se litigants, the averments contained therein are so

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general that they fail to identify with specificity any portion of the R&R containing legal or
factual error. Accordingly, plaintiff’s objections are overruled, and this Court will review the
entirety of the R&R for clear error.
CONCLUSION
Having found no clear error in the magistrate judge’s well-reasoned and extensive
review of the pleadings, petitioner’s objections [Doc. 78] are OVERRULED, and it is the
opinion of this Courtthatthe Report and Recommendation [Doc. 76] should be, and is, hereby
ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report.
Defendant’s Motion to Dismiss or in the Alternative, for Summary Judgment [Doc. 68] is
GRANTED. Accordingly, this Court ORDERS that the second amended complaint [Doc. 49]
be DENIED and DISMISSED WITH PREJUDICE.
To the extent plaintiff’s letters [Docs. 80,81 & 83] are construed as Motions, they are
DENIED AS MOOT.
This Courtfurtherdirects the Clerk to STRIKE this matterfrom the active docket of this
Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record herein
and to maila copyto the plaintiff.
DATED: October 7, 2021

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