Young v. Thompson et al

Filing 74

ORDER OVERRULING OBJECTIONS TO THE REPORT AND RECOMMENDATION AND ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Plaintiff's objections to the 69 Report and Recommendation is overruled; Magistrate Kaull's 69 Report and Reco mmendation is affirmed and adopted; Defendants' 33 Motion to Dismiss, Motion for Summary Judgment is granted; Plaintiff's 41 Motion to Amend/Correct is denied; and Plaintiff's 1 Complaint is dismissed with prejudice. Signed by C hief Judge John Preston Bailey on 7/29/11. (Attachments: # 1 Certified Mail Receipt label)(copy Plaintiff [7011 0470 0001 4610 0480])(cnd) (Additional attachment(s) added on 7/29/2011; NEF regenerated: # 2 Certified Mail Receipt label - updated) (cnd).

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

LARRY ARNOLD YOUNG,
Plaintiff,
v.

Civil Action No. 2:10-cv-66
(BAILEY)

D. THOMPSON, Correctional Officer,
DURANKO, S.I.S. Technician, D. SHAW,
Lieutenant, UNKNOWN MAIL ROOM
PERSONNEL, and D. YOST, I.S.O.,
Defendants.

ORDER OVERRULING OBJECTIONS TO THE REPORT AND RECOMMENDATION
AND ORDER ADOPTING REPORT AND RECOMMENDATION
This case is pending before this Court on the Opinion/Report and Recommendation
(hereinafter “R&R”) filed by Magistrate Judge John S. Kaull [Doc. 69], Plaintiff’s Objections
to Report and Recommendation [Doc. 71], and Plaintiff’s Supplemental Objections to
Report and Recommendation [Doc. 72-1], regarding plaintiff’s Bivens1 action [Doc. 1].
After reviewing the R&R, the record, and the arguments of the parties, the Court finds that
plaintiff’s objections to the R&R should be OVERRULED, the R&R should be ADOPTED,
plaintiff’s Motion for Leave to Amend and Supplement [Doc 41] should be DENIED,
defendants’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment [Doc.
33] should be GRANTED, and plaintiff’s complaint [Doc. 1] should be DISMISSED with

1

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403

U.S. 388 (1971) (authorizing suits against federal employees in their individual capacities).
1

prejudice.
I.

FACTS AND PROCEDURAL BACKGROUND
The pro se plaintiff initiated this Bivens action on May 24, 1 2010. [Doc. 1]. The

magistrate judge granted plaintiff permission to proceed as a pauper on June 9, 2010.
[Doc. 10]. Plaintiff paid his initial partial filing fee on June 28, 2010. [Doc. 13].
After completing a preliminary review, the magistrate judge issued an Order to
Answer. [Doc. 14]. Defendants filed a Motion to Dismiss, or in the Alternative, for
Summary Judgment on November 24, 2010. [Doc. 33]. As plaintiff is proceeding without
counsel, on December 2, 2010, the magistrate judge issued a Roseboro Notice advising
plaintiff of his right to file a response to defendants’ motion. [Doc. 35]. Plaintiff filed his
response on December 7, 2010. [Doc. 38].
On December 13, 2010, plaintiff moved to amend and supplement his complaint.
[Doc. 41]. Defendants responded on December 15, 2010, with a Motion to Strike Plaintiff’s
Motion to Amend/Correct [Doc. 47], which was denied on May 31, 2011. [Doc. 65].
On June 8, 2011, the magistrate judge filed a Report and Recommendation that
plaintiff’s Motion for Leave to Amend and Supplement [Doc. 41] be DENIED; defendants’
Motion to Dismiss, or in the Alternative, Motion for Summary Judgment [Doc. 33] be
GRANTED; and plaintiff’s complaint [Doc. 1] be DISMISSED with prejudice.

The

magistrate judge found that because allowing plaintiff to amend his complaint would be
futile, plaintiff’s motion should be denied. Further, the magistrate judge found that plaintiff
had failed to exhaust his administrative remedies as to all but three of the claims stated in
his Complaint. Accordingly, the magistrate judge found that defendants’ motion to dismiss

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should be granted as to all plaintiff’s claims, except the three claims for which plaintiff had
exhausted his administrative remedies. The magistrate judge then found that of the
remaining three claims, only one was not barred by the two year statute of limitations.
Thus, the magistrate judge found that only one claim, plaintiff’s claim of retaliation2, was not
barred. As to that remaining claim, the magistrate judge found that plaintiff’s claim was
incognizable because inmates do not have a constitutional right to participate in grievance
procedures. Accordingly, the magistrate judge found that plaintiff’s remaining claim should
be dismissed with prejudice for the failure to state a claim upon which relief may be
granted.
On June 20, 2011, plaintiff filed Exceptions and Objections to the Opinion/Report
and Recommendation [Doc. 71]. On July 7, 2011, plaintiff filed Supplemental Exceptions
and Objections to the Opinion/Report and Recommendation [Doc. 72-1].
III.

PLAINTIFF’S OBJECTIONS
In his June 20, 2011, Objections to Report and Recommendation [Doc. 71], plaintiff

objected to the R&R on the following grounds: (1) that his retaliation claim was not
exhausted (the magistrate judge found that the claim was exhausted); (2) that plaintiff’s
claims which the R&R recommended be dismissed for failure to exhaust administrative
remedies should not be dismissed because “All claims against all defendants have been
alleged at least once in all administrative remedies most of which have never been

2

Plaintiff asserts that he filed a grievance against defendant Thompson, and that

Thompson proceeded to retaliate against him by planting a meat thermometer in plaintiff’s
authorized locker, and falsifying an incident report against him on February 19, 2008. [Doc.
1].
3

addressed by BOP nor this Court and responded to”; (3) that the finding in the R&R that
certain claims were barred by the statute of limitations was incorrect because the statute
of limitations must be tolled while a prisoner exhausts the administrative grievance process;
(4) that plaintiff was denied due process of law by Lt. Shaw when he withheld evidence
from plaintiff, and denied due process of law by D. Thompson because he denied plaintiff
access to the law library while he was lodged in the Special Housing Unit (“SHU”); and (5)
that plaintiff’s motion to amend should have been granted as there “is no res judicata bar
to Movant’s filing” and because denial of the motion to amend delays the proper disposition
of the case. (See generally [Doc. 71]).
Plaintiff’s Objections to Report and Recommendation [Doc. 72-1], received by the
Court on July 7, 2011, are identical to the first page of plaintiff’s June 20, 2011, Objections
to Report and Recommendation.

Additionally, it includes copies of two documents

originally filed with plaintiff’s June 20, 2011 Objections.
IV.

DISCUSSION
The Court will now address each of plaintiff’s objection in turn:

1.

Plaintiff’s first objection is his retaliation claim was not administratively exhausted.

(See [Doc. 71] at 23). This objection is not helpful to plaintiff’s case. In the R&R the
3

Plaintiff states that he objects to the magistrate’s finding on page 8, paragraph 4,

lines 3-4. There are no lines 3-4 in paragraph 4 on that page. The quotation, however, is
from lines 3-4 of paragraph 3. At that point in the R&R, the magistrate judge makes the
finding that defendants concede that plaintiff has exhausted his administrative remedies
as to his retaliation claim. In the remainder of the paragraph addressing plaintiff’s objection
on this point, plaintiff discusses: the timing of the incident report; how he was removed from
the area he was in when the incident happened; allegations that evidence was withheld
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magistrate judge found that plaintiff had exhausted the administrative remedies process as
to his retaliation claim, that it was not barred by the two year statute of limitations, and that,
therefore, the claim should be considered on its merits. If the Court were to sustain
plaintiff’s objection and reject the recommendation of the magistrate judge on this point,
plaintiff’s claim would be denied for failure to exhaust administrative remedies. Further, in
reviewing the record, the Court finds that plaintiff did exhaust administrative remedies as
to his retaliation claim. (See [Doc. 34] at 5; [Doc. 34-1]). Plaintiff’s objection on this point
is, therefore, OVERRULED.
2.

Plaintiff’s second objection is that his claims which the R&R recommended be

dismissed for failure to exhaust administrative remedies should not be dismissed because
“[a]ll claims against all defendants have been alleged at least once in all administrative
remedies most of which have never been addressed by BOP nor this Court and responded
to.” ([Doc. 71] at 3). Plaintiff’s allegation that all claims have been “alleged at least once
in all administrative remedies”–even if accepted as true–is insufficient to save the claims
the R&R recommended be dismissed. See 42 U.S.C. § 1997e (stating that a prisoner
bringing an action “with respect to prison conditions” under 42 U.S.C. § 1983 must first
exhaust all available remedies).
from him with regard to the incident, and a previous petition under § 2241 related to the
incident. It is unclear to the Court how any of this discussion is related to the substance
of the R&R. If plaintiff is attempting to challenge the finding of the magistrate as to whether
or not his retaliation claim should have been allowed to proceed on the merits, the Court
finds that defendant’s objection on that point is OVERRULED. The Court finds overruling
plaintiff’s objection is proper because as stated below (see infra) defendant’s retaliation
claim must be dismissed as it fails to state a claim upon which relief may be granted.
5

As discussed by the magistrate judge, in order for plaintiff’s claims to be able to
proceed (and not be barred by failure to comply with the Prison Litigation Reform Act4),
plaintiff need not simply have previously “alleged” some claim when seeking an
administrative remedy, but must have exhausted all administrative remedies as to that
particular claim/allegation. 42 U.S.C. § 1997e; see Porter v. Nussle, 534 U.S. 516, 524
(2002), Booth v. Churner, 532 U.S. 731, 741 (2001).
Further, based on a review of the record in the above-styled case, the Court finds
that plaintiff only exhausted all administrative remedies as to three claims: (1) plaintiff’s
claims against defendant Yost regarding mailing a hobby craft item through the mail room;
(2) plaintiff’s claim against defendant Thompson pertaining to incident report number
1701379, received by plaintiff on February 17, 2008, for unauthorized possession of a meat
thermometer; and (3) plaintiff’s claim that he was denied his legal mail regarding the
Magistrate Judge’s Report and Recommendation in Case # 3:06-CV-00110, resulting in an
unfavorable decision against him, and thereby denying him access to the courts. (See [Doc.
34-1]).
As noted by the magistrate, the BOP provides a four-step administrative process
beginning with attempted informal resolution with prison staff (BP-8). If the prisoner

4

The Court notes that the Fourth Circuit has determined that the PLRA does not

require a prisoner to allege that he has exhausted administrative remedies. See Anderson
v. XYZ Correctional Health Services, 407 F.3d 647 (4th Cir. 2005). It is not, therefore,
plaintiff’s failure to allege exhaustion that this Court finds improper; it is the fact that plaintiff
alleges he has not exhausted his administrative remedies, and has in fact not exhausted
his administrative remedies.
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achieves no satisfaction informally, he must file a written complaint with the warden (BP-9),
followed by an appeal to the regional director of the Federal Bureau of Prisons (BP-10).
Finally, if the prisoner has received no satisfaction, he may appeal to the office of the
General Counsel (BP-11). 28 C.F.R. § 542.10-542.15; Gibbs v. Bureau of Prison Office,
FCI, 986 F.Supp. 941, 943 (D.Md. 1997). Here, plaintiff only completed the process as to
the three claims noted above. (See generally [Doc. 34-1]).
3.

Plaintiff’s third objection is that magistrate judge’s finding in the R&R that certain

claims were barred by the statute of limitations was incorrect because the statute of
limitations must be tolled while a prisoner exhausts the administrative grievance process.
Plaintiff’s objection on this point is misguided. When the magistrate judge considered
whether plaintiff’s claims were barred by the statute of limitations, he considered the time
that had run since the last administrative action was taken by the BOP; and thus, effectively
tolled the statute of limitations on plaintiff’s claims despite his failure to explicitly label it as
such. ([Doc. 69] at 9).
The magistrate judge noted, “[f]or purposes of a Bivens action, ‘a cause of action
accrues either when the plaintiff has knowledge of his claim or when he is put on notice .
. . to make reasonable inquiry and that inquiry would reveal the existence of a colorable
claim.’” ([Doc. 69] at 9) (quoting Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955
(4th Cir.1995)). The magistrate judge did not, however, calculate the statute of limitations
from the time the complained of incident occurred (and plaintiff’s claim accrued). Instead,
the magistrate tolled the statute of limitations until plaintiff had completed the administrative
grievance process.

7

The magistrate’s tolling of the statute of limitations in the above-styled case was in
line with the law of this circuit. As noted by Judge Johnston in Johnson v. Lappin, 2011
WL 560459 (S.D.W.Va. Jan. 6, 2011):
Federal Courts... apply the forum state's law regarding tolling,
including equitable tolling, when not inconsistent with federal
law. Hardin v. Straub, 490 U.S. 536, 537-39 (1989). In Irwin
v. Dep't of Veteran's Affairs, 498 U.S. 89, 97 (1990), the
United States Supreme Court recognized that statutes of
limitations in actions against the government are subject to a
rebuttable presumption of equitable tolling. The Irwin Court
stated that equitable tolling should apply in cases “where the
claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary's
misconduct into allowing the filing deadline to pass.” Id.
Federal Courts have held that because the Prison Litigation
Reform Act requires a prisoner to exhaust administrative
remedies, the prisoner is entitled to equitable tolling of the
applicable limitations period while he exhaust[s] the remedies.
See Clifford v. Gibbs, 298 F.3d 328, 333 (5th Cir.2002);
Brown v. Morgan, 209 F.3d 595 (6th Cir.2000); Howard v.
Mendez, 304 F.Supp.2d 632, 638 (M.D.Pa.2004)(a Bivens
case); Aguirre-Castillo v. United States, 2004 WL 594105
(N.D.Tex.)(a Bivens/FTCA case); Lopez v. S.C.D.C., 2007 WL
2021875 (D.S.C.)
Johnson v. Lappin, 2011 WL 560459 *1, at *10 (S.D.W.Va. Jan. 6, 2011); see Lopez v.
S.C.D.C., 2007 WL 2021875 *2 (D.S.C. 2007) (“The Fourth Circuit has not addressed the
issue of whether the statute of limitations for a § 1983 action should be equitably tolled
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while a prisoner is exhausting the administrative exhaustion process. However, the
‘uniform holdings of the circuits that have considered the question’ have expressed that the
‘mandatory exhaustion process’ typically tolls the statute of limitations. Brown v. Valoff,
422 F.3d 926, 943 (9th Cir.2005) (citing Johnson v. Rivera, 272 F.3d 519, 522 (7th
Cir.2001); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir.2000); Harris v. Hegmann, 198
F.3d 153, 157-59 (5th Cir.1999)”).
In the above-styled case, the Prison Litigation Reform Act governs all of plaintiff’s
claims. Accordingly, plaintiff was required to exhaust administrative remedies before filing
suit in this Court. Plaintiff exhausted his administrative remedies for three of his claims.
The magistrate judge found that plaintiff was entitled to equitable tolling of the applicable
limitations period for those claims while he exhausted the administrative remedies. Thus,
the magistrate judge calculated the limitations period for each of those three claims from
the time of BOP’s last administrative action.
Specifically, the magistrate judge found:
In regards to plaintiff’s allegation against defendant Yost
regarding mailing a hobby craft item through the mail room, the
BOP issued its final response to plaintiff on February 27, 2007.
[Dckt 34-1 Ex.1 at Attach. F]. Further, in regards to plaintiff’s
allegation concerning denial of his legal mail resulting in a
denial of his access to the courts, plaintiff exhausted his
administrative remedies and received the BOP’s final response
on August 30, 2007. [Dckt 34-1 Ex.1 at Attach. F]. Both of
these allegations accrued well before May 24, 2008 [plaintiff
filed his Complaint on May 24, 2010]. Both claims are therefore
barred by the two-year statute of limitations period, and should
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be dismissed with prejudice.
([Doc. 69] at 9).
As the magistrate judge properly tolled the statute of limitations with regard to
plaintiff’s claims, while plaintiff was exhausting the required administrative remedies; and
as the magistrate properly determined that despite such tolling, plaintiff’s claims were
barred by the applicable statute of limitations, this Court finds that plaintiff’s third objection
should be OVERRULED.
4.

Plaintiff’s fourth objection is that he was denied due process of law by Lt. Shaw

when he withheld evidence from plaintiff, and denied due process of law by defendant
Thompson because he denied plaintiff access to the law library while he was lodged in the
Special Housing Unit (“SHU”)5.

5

Plaintiff also states that his “Due Process of Law” was violated by “Duranko and

D. Yost”. ([Doc. 71] at 4). In his objections, however, plaintiff never makes a specific
objection to the magistrate’s analysis with regard to these two defendants. Thus, any
objection that plaintiff may have made regarding the magistrate judge's determination on
these issues is conclusory. De novo review is unnecessary when a party makes objections
that are so general or conclusory that they fail to direct the district court to any specific error
by the magistrate judge. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); Howard's
Yellow Cabs, Inc. v. United States, 987 F.Supp. 469, 474 (W.D.N.C.1997). A litigant who
makes only vague objections to the magistrate judge's findings prevents the district court
from focusing on disputed issues and thus renders the initial referral to the magistrate judge
pointless. Howard's Yellow Cabs, 987 F.Supp. at 474. A general objection does not meet
the requirements of 28 U.S.C. § 636(b)(1), and failure to file a specific objection constitutes
a waiver of the right to de novo review. Id. (citing Mercado v. Perez Vega, 853 F.Supp. 42,
44 (D.P.R.1993)).
Were plaintiff’s objections specific, however, on de novo review, this Court would still
10

Plaintiff claims that Lt. Shaw’s alleged failure to provide him with “exculpatory
evidence... that was photographed proof of [plaintiff’s] innocence” ([Doc. 71] at 3) violated
plaintiff’s right to due process of law. Plaintiff, however, never exhausted the administrative
remedy process with regard to this claim against Lt. Shaw6. (See [Doc. 34-1]). As
plaintiff’s claim against defendant Shaw is barred due to his failure to exhaust
administrative remedies, this Court finds that plaintiff’s claim was properly addressed by
the magistrate judge and should be dismissed.

find plaintiff’s objections as to defendants Duranko and Yost to be without merit. In his
complaint, plaintiff makes allegations that defendant Duranko: (1) spit tobacco juice, and
(2) tossed plaintiff’s cell in an improper manner. Plaintiff also makes allegations that
defendant Yost improperly handled the mailing of a hobby craft item through the mail room
by plaintiff. (See generally [Doc. 1]). Plaintiff’s claims against both defendant Duranko and
defendant Yost were thoroughly and properly considered by the magistrate judge. He
found that plaintiff’s claims against defendant Duranko should be dismissed for failure to
exhaust administrative remedies; and that plaintiff’s claim against defendant Yost should
be dismissed as barred by the statute of limitations. This Court finds based on a review of
the record, that both determinations were proper and that plaintiff’s claims against
defendants Duranko and Yost should be dismissed.
6

Plaintiff includes this allegation with a discussion of the “meat thermometer

incident” which relates to plaintiff’s claim against defendant Thompson. To the extent that
plaintiff’s objection that Lt. Shaw denied him due process is related to plaintiff’s claim
against defendant Thompson, it was still properly dismissed. This Court finds that plaintiff’s
retaliation claim against defendant Thompson was properly dismissed because plaintiff
made no claim that defendant Thompson retaliated against him for the exercise of any of
his constitutional rights. (See [Doc. 69] at 10-11 (noting that inmates have no constitutional
right to participate in grievance procedures)).
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Plaintiff also claims that defendant Thompson violated his due process rights when
he denied plaintiff access to the law library while plaintiff was lodged in the Special Housing
Unit. ([Doc. 71] at 3-4). Plaintiff does not inform the Court in his objection when this
alleged ‘deprivation’ occurred, or with regard to what case it applies. Presumably, plaintiff
is arguing that defendant Thompson interfered with plaintiff’s access to the courts. The
only claim before the Court related to plaintiff’s access to the courts, however, is plaintiff’s
claim that he failed to receive his legal mail in Case # 3:06-CV-00110 (See generally [Doc.
1], [Doc. 38], [Doc. 69]). The magistrate judge found that claim was barred by the
applicable statute of limitations. (See [Doc. 69] at 9). This court, for reasons stated above,
agrees with the magistrate judge’s finding (See discussion of objection 3, supra).
Thus, plaintiff’s objection that he was denied due process either relates to a claim
that was properly barred (the claim that he failed to receive his legal mail in Case # 3:06CV-00110), or relates to a claim that is not before the Court. Accordingly, this Court finds
that plaintiff’s fourth objection should be OVERRULED.
5.

Plaintiff’s fifth objection is that his motion to amend [Doc. 41] should have been

granted as there “is no res judicata bar to Movant’s filing” and because denial of the motion
to amend delays the proper disposition of the case. ([Doc. 71] at 4-5).
The magistrate judge found that plaintiff should not be allowed to amend his
complaint because allowing amendment would be futile since plaintiff’s additional claims
would fail as a matter of law. As noted by the magistrate judge, plaintiff seeks to amend
his complaint with “events that happened after the date of the pleading,” and further, to
supplement his complaint with a due process claim for improper administrative segregation.
(See [Doc. 41]). The problem with plaintiff’s fifth objection is that it overlooks the key
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finding of the magistrate judge with regard to amendment: that even if the Court were to
allow amendment, plaintiff’s claims would fail.
Specifically, plaintiff’s claims relating to “events that happened after the date of the
pleading,” would be barred for failure to exhaust administrative remedies. The PLRA
requires that administrative remedies be exhausted as to all claims prior to the filing of the
initial complaint. 42 U.S.C. § 1997e; see Porter v. Nussle, 534 U.S. 516, 524 (2002),
Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, because the events that plaintiff
complains of happened after he filed his initial complaint, it is impossible for plaintiff to have
exhausted his administrative remedies as to those claims prior to the filing of the initial
complaint.

Additionally, as to plaintiff’s claims relating to improper administrative

segregation, plaintiff’s proposed amendments fail to state a claim upon which relief may be
granted. As noted by the magistrate, the Fourth Circuit has found that “confinement to
administrative segregation does not implicate a liberty interest.” Beverati v. Smith, 120
F.3d 500, 504 (4th Cir. 1997).
As the amendments that plaintiff proposes would be futile, the Court finds that it
does not matter whether or not plaintiff’s claims are or are not barred by res judicata; and
that allowing plaintiff to amend his complaint would not advance the case as plaintiff claims.
Accordingly, as “justice” does not require the Court to allow plaintiff to amend, and as the
magistrate judge properly recommended that plaintiff’s motion to amend be denied, the
Court finds that plaintiff’s fifth objection should be OVERRULED. See Fed.R.Civ.P. 15(a).

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CONCLUSION
For the reasons stated above, the Magistrate Judge’s Opinion/Report and
Recommendation [Doc. 69] is AFFIRMED and ADOPTED as it recommends that plaintiff’s
Motion for Leave to Amend and Supplement [Doc. 41] be DENIED, defendant’s Motion to
Dismiss, or in the Alternative for Summary Judgment [Doc. 33] be GRANTED, and
plaintiff’s complaint [Doc. 1] be DISMISSED with prejudice from the active docket of this
Court.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to all counsel of record
herein and to mail a copy to the pro se plaintiff.
DATED: July 29, 2011

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