Smith v. United States of America

Filing 111

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 109 , GRANTING MOTION TO DISMISS OR SUMMARY JUDGMENT DKT. NO. 94 , DENYING AS MOOT MOTION FOR RECONSIDERATION DKT. NO. 67 , AND DISMISSING COMPLAINT DKT. NO. 1 WITH PREJUDICE. The Court furthe r DIRECTS the Clerk to enter judgment in favor of Defendant and to STRIKE this matter from the Courts active docket. Signed by District Judge Thomas S. Kleeh on 3/31/2021. (copy pro se Plaintiff via certified mail)(jmm) (Additional attachment(s) added on 3/31/2021: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELINDA SMITH,
Plaintiff,
v.

Civ. Action No.1:19-CV-133
(Kleeh)

UNITED STATES OF AMERICA,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 109],
GRANTING MOTION TO DISMISS OR SUMMARY JUDGMENT [DKT. NO. 94],
DENYING AS MOOT MOTION FOR RECONSIDERATION [DKT. NO. 67], AND
DISMISSING COMPLAINT [DKT. NO. 1] WITH PREJUDICE
On April 15, 2019, pro se Plaintiff, Melinda Smith (“Smith”
or “Plaintiff”), who was then incarcerated at FPC Alderson, 1 filed
a “Request for Extension of Time to File Claim Under the Federal
Tort Claims Act (“FTCA”)” in the United States District Court for
the Southern District of West Virginia, naming the Federal Bureau
of

Prisons

(“BOP”)

as

“respondent”

[Dkt.

No.

1].

Plaintiff

requested a six month extension of time in which to file her FTCA
complaint [Id.].

The request referenced BOP Administrative Tort

Claim No. TRT-MXR-2018-05702 [Id.] in the style of the case and
was construed as a letter form complaint seeking relief under the
FTCA [Dkt. No. 3].
On May 24, 2019, Plaintiff filed her Amended Complaint on a

1

Plaintiff was released from prison on or about August 5, 2020.

Smith v. United States of America

1:29-cv-133

Southern District of West Virginia form “Complaint for a Civil
Case,” naming the United States as Defendant [Dkt. No. 5].

The

Amended Complaint was accompanied by a memorandum of law [Dkt. No.
6].

The facts giving rise to the Complaint occurred primarily at

Hazelton Secure Female Facility (“HSFF”), in Bruceton Mills, West
Virginia.

By Order entered in the Southern District of West

Virginia on July 1, 2019, the case was transferred to this Court
[Dkt. Nos. 10, 12].
Plaintiff was sent a Court-approved FTCA packet and directed
to clarify her claims [Dkt. No. 14].

Plaintiff moved for a 90-

day extension of time in which to file her Bivens 2 and FTCA
complaints on the approved forms [Dkt. No. 17] and the motion was
granted in part, with Plaintiff being given 30 days to file her
form

complaints

and

her

motion

to

supporting documents [Dkt. No. 18].

proceed

as

a

pauper

with

Plaintiff’s Second Amended

FTCA Complaint was filed on September 3, 2019 with supporting
documents [Dkt. Nos. 20, 21, 22, 23].

A September 5, 2019, Order

was entered in error dismissing Plaintiff’s FTCA case for failure
to prosecute [Dkt. No. 24].

The dismissal Order was vacated on

September 10, 2019, and the case reopened [Dkt. No. 25].
After

some

confusion

about

whether

her

case

was

still

dismissed and whether Plaintiff was still proceeding with both her
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
2

2

Smith v. United States of America
Bivens

complaint

and

FTCA

1:29-cv-133

complaint,

on

September

18,

2019,

Plaintiff filed a letter with the Court contending that she had
returned both completed complaints [Dkt. No. 32].

After having

been directed to refile a copy of her Bivens complaint and having
not done so, on October 24, 2019, an Order to Show Cause was
entered giving Plaintiff another 14 days in which to comply [Dkt.
No. 45].

Plaintiff replied to the Order requesting an extension

of time to mail a third copy of the Bivens complaint [Dkt. No.
49], and a motion for reconsideration was denied as moot because
Plaintiff was already given three months to file a third copy of
the

complaint

[Dkt.

No.

53].

Plaintiff’s

Bivens

action

was

dismissed without prejudice for failure to prosecute on April 14,
2020 [Dkt. No. 63].
Following additional filings, including another motion for
reconsideration by Plaintiff [Dkt. No. 67], on August 26, 2020,
the United States filed a motion to dismiss or for summary judgment
with supporting memorandum, together with certain records to be
filed under seal [Dkt. Nos. 94, 95, 96].
extensions

of

time

by

which

to

respond

Plaintiff requested
and

was

specifically

directed not to produce records from outside providers until such
time as the Court determined whether a genuine issue of material
fact existed [Dkt. No. 102].

Plaintiff filed her response with

records from outside providers on October 23, 2020 [Dkt. No. 104].
Pursuant to Local Rule of Prisoner Litigation Procedure (“LR
3

Smith v. United States of America

1:29-cv-133

PL P”) 2, the case was referred to the magistrate judge for a
preliminary review and report and recommendation (“R&R”).

The R&R

was issued on January 5, 2021, and recommended that the motion to
dismiss or for summary judgment be granted and that Plaintiff’s
FTCA Complaint be dismissed with prejudice [Dkt. No. 109 at 1920].

It further recommended that a motion for reconsideration

filed by Plaintiff be denied as moot [Id. at 20].

The magistrate

judge found that Plaintiff’s claims for medical negligence and
malpractice were barred under West Virginia Medical Professional
Liability Act (“MPLA”) requiring a screening certificate of merit
and

that

her

claims

were

untimely.

The

magistrate

further

determined that Plaintiff could not prove that any act or omission
by a medical provider proximately caused her injury, and that her
claim for damages was improper as in excess of that requested in
her administrative tort claim.
The R&R also stated that “any party shall have fourteen days
(filing of objections) and then three days (mailing/service), from
the date of filing this Report and Recommendation within which to
file with the Clerk of this Court, specific written objections,
identifying the portions of the Report and Recommendation to which
objection is made, and the basis of such objection” [Dkt. No. 109
at 20].

It further warned that the “[f]ailure to file written

objections . . . shall constitute a waiver of de novo review by
the District Court and a waiver of appellate review by the Circuit
4

Smith v. United States of America
Court of Appeals” [Id.].

1:29-cv-133

The R&R was forwarded to Plaintiff by

certified mail on January 5, 2021, to the last known address that
she provided the Clerk of Court [Dkt. Nos. 109, 107], but the
mailing was returned as undeliverable on March 17, 2021 [Dkt. No.
110].

To date, no party has filed objections to the R&R.

When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection has been timely
made. 28 U.S.C. § 636(b)(1)(C).

Otherwise, “the Court may adopt,

without

of

explanation,

any

the

magistrate

recommendations” to which there are no objections.

judge’s

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).
Plaintiff was informed by both the Local Rules of Prisoner
Litigation and the Pro Se Prisoner Litigation Packets she received
of the importance of keeping the Court advised of her current
address.

The prisoner packets specifically state as Important

Additional Information that “IF YOU DO NOT KEEP THE COURT ADVISED
OF YOUR CURRENT ADDRESS, YOUR CASE WILL BE DISMISSED BY THE COURT”.
Here, because no objections were filed, the Court is under no
obligation to conduct a de novo review.
reviewed the R&R for clear error.
5

Accordingly, the Court

Upon review, and finding no

Smith v. United States of America

1:29-cv-133

clear error, the Court ADOPTS the R&R [Dkt. No. 109].

The

Defendant’s motion to dismiss or motion for summary judgment [Dkt.
No. 94] is GRANTED, Plaintiff’s motion for reconsideration [Dkt.
No. 67] is DENIED AS MOOT, and Plaintiff’s Complaint [Dkt. No. 1]
is DISMISSED WITH PREJUDICE.
The Court further DIRECTS the Clerk to enter judgment in favor
of Defendant and to STRIKE this matter from the Court’s active
docket.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record and to the pro se Plaintiff, via certified mail,
return receipt requested, at the last known address as shown on
the docket.
DATED: March 31, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

6