Worsley v. Anderson et al

Filing 77

ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE [DKT. NOS. 24, 62], GRANTING MOTION TO DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 37], DENYING MOTIONS TO AMEND [DKT. NOS. 45, 48], DENYING MOTIONSFOR EQUITABLE RELI EF AND FOR LEAVE TO FILE AMENDED COMPLAINT [DKT. NO. 22, 51, 66], DISMISSING PROPOSED FTCA COMPLAINTS [DKT. NOS. 47, 50] WITHOUT PREJUDICE, DENYING MOTIONS FOR EXTENSION [DKT. NOS. 75, 76], AND DISMISSING COMPLAINT [DKT. NO. 1] WITH PREJUDICE. The Court further DIRECTS the Clerk to enter judgment in favor of Defendants and that this matter be STRICKEN from the Courts docket. Signed by District Judge Thomas S. Kleeh on 3/31/2021. (copy pro se Plaintiff via certified mail)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TROY WORSLEY,
Plaintiff,
v.

Civ. Action No. 1:19-CV-213
(Judge Kleeh)

EDDIE ANDERSON and
ALICIA WILSON,
Defendants.
ORDER AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATIONS OF MAGISTRATE JUDGE [DKT. NOS. 24, 62], GRANTING
MOTION TO DISMISS OR MOTION FOR SUMMARY JUDGMENT [DKT. NO. 37],
DENYING MOTIONS TO AMEND [DKT. NOS. 45, 48], DENYING MOTIONS
FOR EQUITABLE RELIEF AND FOR LEAVE TO FILE AMENDED COMPLAINT
[DKT. NO. 22, 51, 66], DISMISSING PROPOSED FTCA COMPLAINTS [DKT.
NOS. 47, 50] WITHOUT PREJUDICE, DENYING MOTIONS
FOR EXTENSION [DKT. NOS. 75, 76], AND DISMISSING COMPLAINT [DKT.
NO. 1] WITH PREJUDICE
I.

Introduction and Procedural History

On December 3, 2019, the pro se Plaintiff, Troy Worsley
(“Worsley” or “Plaintiff”), an inmate at FCI Gilmer in Glenville,
West Virginia, filed a Bivens 1 civil rights complaint and a motion
to proceed as a pauper [Dkt. Nos. 1, 2].

Plaintiff filed a motion

for preliminary injunctive relief [Dkt. No. 15] which was denied
[Dkt. No. 16].

He filed a document stating that he intended to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
In Bivens, the Supreme Court created a
counterpart to 42 U.S.C. § 1983 and authorized suits against
federal employees in their individual capacities.
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Worsley v. Anderson, et al.

Civ. Act. No. 1:19cv213

only pursue a Bivens action and not one under the Federal Tort
Claims Act (“FTCA”) [Dkt. NO. 20], and filed a renewed letter
motion for preliminary injunctive relief [Dkt. NO. 22].

A March

30, 2020, Report and Recommendation (“R&R”) was entered [Dkt. No.
24] recommending the denial of that motion.

No objection to the

R&R was filed.
Defendants filed a motion to dismiss or motion for summary
judgment on June 15, 2020 [Dkt. No. 37], and on August 24, 2020,
Plaintiff filed duplicate FTCA complaints [Dkt. Nos. 47, 50],
duplicate

responses

in

opposition

to

Defendants’

dispositive

motions [Dkt. Nos. 46, 49], and duplicate motions for leave to
file an amended Bivens complaint [Dkt. Nos. 45, 48].

Plaintiff

filed

No.

another

motion

for

injunctive

relief

[Dkt.

51].

Defendants filed a response to Plaintiff’s motions to amend and
motion for equitable relief [Dkt. Nos. 56, 57].
The matter was referred to United States Magistrate Judge for
initial screening and proposed recommendations for disposition,
pursuant

to

28

U.S.C.

§

636(b)(1)(B).

On

March

30,

2020,

Magistrate Judge Michael J. Aloi entered a R&R recommending that
Plaintiff’s second motion for preliminary injunction [Dkt. No.
222] be denied.

No objections were filed to the R&R; accordingly,

the R&R [Dkt. No. 24] is ADOPTED and the motion for preliminary
injunction [Dkt. No. 22] is DENIED.

The magistrate judge issued

another R&R on December 18, 2020 [Dkt. No. 62] recommending that
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Worsley v. Anderson, et al.

Civ. Act. No. 1:19cv213

the motion to dismiss or motion for summary judgment [Dkt. No. 37]
be granted and that Plaintiff’s remaining motions [Dkt. Nos. 45,
48, 51] be denied.
prejudice

The magistrate recommended dismissal with

Plaintiff’s

Bivens

complaint,

and

dismissal

without

prejudice Plaintiff’s proposed FTCA complaints [Dkt. Nos. 47, 50].
The December 18, 2020, R&R was delivered to Plaintiff on December
22, 2020 [Dkt. No. 64], and Plaintiff filed a motion for extension
of time to file objections [Dkt. No. 65].

That motion was granted

by order entered on February 8, 2021 [Dkt. No. 68], and Plaintiff
was given until March 1, 2021, by which to file objections to the
R&R [Dkt. No. 62].

Plaintiff filed a letter motion to stay

responses and objections [Dkt. No. 69] which was denied by Order
entered on February 9, 2021 [Dkt. No. 70].

Plaintiff also filed

an omnibus motion for leave to file an amended complaint [Dkt. No.
66].

The Court’s Orders addressing the March 1, 2021, due date

for objections were served on Plaintiff on February 11 and 12,
2021, respectively [Dkt. Nos. 71, 72]. Rather than file objections
addressing the R&R [Dkt. No. 62], Plaintiff Worsley filed two
successive motions for extensions of time [Dkt. No. 75, 76].
In the R&R [Dkt. No. 62], Magistrate Judge Aloi informed the
parties of their right to file specific written objections within
fourteen (14) days of being served with the R&R [Id. at 24].

The

objections

and

were

to

identify

“the

portions

of

the

Report

Recommendation to which objection is made, and the basis of such
3

Worsley v. Anderson, et al.

objection” [Id.].

Civ. Act. No. 1:19cv213

Plaintiff received the R&R on December 22, 2020

[Dkt. No. 64], and filed a motion for extension which was granted,
allowing

Plaintiff

objections.

until

March

1,

2021,

by

which

to

file

To date, no objections have been filed.
II.

Standard of Review

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). “When
a party does make objections, but these objections are so general
or conclusory that they fail to direct the district court to any
specific

error

unnecessary.”

by

the

magistrate

judge,

de

novo

review

is

Green v. Rubenstein, 644 F. Supp. 2d 723, 730

(S.D.W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982) (emphasis added)).
Timely,

specific

objections

are

court’s attention on disputed issues.

necessary

to

focus

the

Thomas v. Arn, 474 U.S.

140, 148 (1985). General objections to a magistrate judge’s report
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Worsley v. Anderson, et al.

Civ. Act. No. 1:19cv213

and recommendation are tantamount to a failure to object because
they do not direct the court’s attention to any specific portions
of the report.

Howard v. Secretary of Health & Human Servs. 932

F.2d 505, 529 (6th Cir. 1991); Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982) (de novo review is not required where objections
are general and conclusory); United States v. Midgette, 478 F.3d
616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a
magistrate judge’s report, a party must object to the finding or
recommendation

on

that

issue

with

sufficient

specificity

as

reasonably to alert the district court of the true ground for the
objection.”).
As previously noted, while Plaintiff received the R&R [Dkt.
No. 62] on December 22, 2021 [Dkt. No. 64], and has filed multiple
motions for extension and a new omnibus motion for leave to file
an amended complaint [Dkt. No. 66], Plaintiff has failed to object
to the R&R.

Further extensions are not justified in this matter

and the Court reviews the R&R to which the Plaintiff has not
objected for clear error.
III. Discussion
The Court finds that the Magistrate Judge properly analyzed
the law governing Bivens claims and applied the law to the facts
as alleged in the pleadings.

Plaintiff failed to exhaust his

administrative remedies regarding his claims related to health
care received at FCI Ray Brook in New York before filing suit in
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Worsley v. Anderson, et al.

Civ. Act. No. 1:19cv213

this matter, and none of his claims rise to the level of Eighth
Amendment violations.

Additionally, Plaintiff has never attempted

to correct deficiencies with his administrative remedy and has not
filed any administrative remedy for health care he received once
transferred to FCI Gilmer.

His failure to exhaust his Bivens

claim, alleging deliberate indifference to serious medical needs
by FCI Gilmer medical Defendants, cannot be excused and warrants
dismissal.

As to Plaintiff’s proposed FTCA complaint, filed

without supporting memorandum, Plaintiff has not satisfied the
Medical Professional Liability Act (“MPLA”) and is not excused
from filing a screening certificate of merit.
proposed complaint must be dismissed.

Accordingly, the

While Plaintiff attempts to

amend his Bivens complaint to add another individual Defendant,
that is K. Sorrell, an employee of FCI Ray Brook and citizen of
New York, such amendment is futile because Plaintiff has still
failed to exhaust his administrative remedies which bars the claim.
Finally, there is no justification for Plaintiff’s requests for
injunctive relief related to FCI Gilmer’s mail policies.
no

merit

to

Plaintiff’s

case

and

the

Court

agrees

There is
with

the

magistrate judge’s findings in each R&R [Dkt. Nos. 24, 62].
IV.

Conclusion

The Court is of the opinion that the Magistrate Judge’s Report
and Recommendations [Dkt. Nos. 24, 62] accurately reflects the law

6

Worsley v. Anderson, et al.

applicable

to

the

facts

Civ. Act. No. 1:19cv213

and

circumstances

before

the

Court.

Accordingly, it is
ORDERED that the Report and Recommendations [Dkt. Nos. 24,
62] be AFFIRMED and ADOPTED in their entirety;
ORDERED that the motion to dismiss or motion for summary
judgment [Dkt. No. 37] be GRANTED;
ORDERED that the motions to amend [Dkt. Nos. 45, 48] and
motions for equitable relief [Dkt. Nos. 22, 51, 66] be DENIED;
ORDERED that the proposed FTCA complaints [Dkt. Nos. 47, 48]
be DISMISSED WITHOUT PREJUDICE;
ORDERED that the Bivens Complaint [Dkt. Not. 1] be DISMISSED
WITH PREJUDICE; and
ORDERED that Plaintiff’s motions for extension [Dkt. No. 75,
76] be DENIED.
The Court further DIRECTS the Clerk to enter judgment in favor
of Defendants and that this matter be STRICKEN from the Court’s
docket.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to

the

pro

se

Plaintiff,

by

certified

mail,

return

receipt

requested.
DATED: March 31, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE
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