Patton v. Kimbell

Filing 68

ORDER ADOPTING 65 REPORT AND RECOMMENDATIONS: granting 48 Motion to Dismiss for failure to State a Claim; finding as moot 48 Motion for Summary Judgment; denying as moot 63 Motion for Leave to File. The plaintiffs Objections [Doc. 67 are OVERRULED. This Court ORDERS that the Complaint [Doc. 1 be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted. This Court further DIRECTS the Clerk to enter judgment in favor of the defendant and to STRIKE this case from the active docket of this Court. Signed by District Judge John Preston Bailey on 7/27/17. copy mailed to pro se pla via cert. return rec't mail(njz) (Additional attachment(s) added on 7/27/2017: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
OMARI H. PATTON,
Plaintiff,
v.
CIVIL ACTION NO. 2:16-CV-10
(BAILEY)
CRYSTAL KIMBLE,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Michael John Aloi [Doc.
65]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Aloi
filed his R&R on July 11, 2017, wherein he recommends this Court dismiss the plaintiff’s
Bivens Complaint with prejudice.
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 conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo

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review and the right to 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). 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 Fed.R.Civ.P. 72(b).
Plaintiff timely filed his Objections [Doc. 67] on July 27, 2017. Accordingly, this Court will
review the portions of the R&R to which the plaintiff objects under a de novo standard of
review. The remainder of the R&R will be reviewed for clear error.
Discussion
Plaintiff’s Complaint alleges that the defendant, a housing officer at USP Hazelton,
searched his cell and confiscated a binder containing some of his legal documents. He
alleges the next day, he verbally complained to Lieutenant Wiliams regarding the alleged
search and confiscation. Plaintiff alleges that upon hearing of this complaint, defendant
again searched the plaintiff’s cell and confiscated his sentencing transcripts and part of his
trial transcripts.
Plaintiff alleges violations of his First, Fourth, Sixth and Fourteenth Amendment
rights, and that by taking his sentencing and trial transcripts, his ability to access the courts
has been significantly impaired.
Defendant argues that she documented both searches and the records reflect that
no legal materials were ever confiscated. Further, plaintiff filed an administrative complaint,
which triggered an internal investigation. This investigation revealed that the searches only
removed some nude photographs from plaintiff’s cell. In support of her motion to dismiss,
the defendant asserts that the plaintiff has failed to establish that the defendant violated
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any constitutional rights; therefore, she is immune from Bivens liability.
As noted in the R&R, even if the defendant did remove the alleged legal documents,
the Complaint nevertheless fails to state a claim upon which relief can be granted. The
R&R thoroughly outlines the law governing the plaintiff’s alleged various constitutional
violations. This Court finds no need to rehash the same here. This Court simply notes that
it has conducted a de novo review of that law, and has come to the same conclusion that
the R&R states in forming its opinion that no constitutional rights were violated.
In his Objections, the plaintiff first states that “[t]he Magistrate Judge decision
conflicts with the facts of the case, and applies an incorrect legal standards in his decision
making process.” [Doc. 67 at 2].

This is simply inaccurate, and the Objection is

OVERRULED.
Next, the plaintiff incorrectly argues that the Magistrate Judge should have
concluded that he states a claim. In support of this assertion, the plaintiff again argues that
the Complaint alleges that the defendant confiscated his legal documents in retaliation for
making a verbal complaint. As the R&R noted, however, even if this claim were true, it
nevertheless fails. The Fourth Circuit Court of Appeals has made it clear that a federal
inmate’s verbal complaints are not constitutionally protected and cannot support a
retaliation claim. See Daye v. Rubenstein, 417 Fed.Appx. 317, 319 (4th Cir. 2011).
In response, the plaintiff cites Crocker v. Wright, 143 Fed.Appx. 523 (4th Cir.
2005), which plaintiff contends makes it clear that confiscating an inmate’s letters to
Congress was considered legal material and violated the First Amendment. That case
involved legal mail, which is not at issue in this case. The Court noted that there are
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special regulations governing the BOP which provide that prisoner correspondence with
Congress is considered “special mail” that is subject to specific protections, including the
requirement that it be reviewed only in the presence of the inmate. 28 C.F.R. §§ 540.2, .12
(2005). This is not relevant to this case. The law is clear that the plaintiff is not entitled to
any relief. Accordingly, the plaintiff’s Objections [Doc. 67] are OVERRULED.
Conclusion
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 65] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. The plaintiff’s Objections [Doc.
67] are OVERRULED. Defendant’s Motion to Dismiss, or in the Alternative, for Summary
Judgment [Doc. 48] is GRANTED as to the Motion to Dismiss and MOOT as to the
Motion for Summary Judgment. Accordingly, this Court ORDERS that the Complaint
[Doc. 1] be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief
can be granted. The Motion for Leave to Reply [Doc. 63] is DENIED AS MOOT. This
Court further DIRECTS the Clerk to enter judgment in favor of the defendant and to
STRIKE this case from 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 and
to mail a copy to the pro se plaintiff.

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DATED: July 27, 2017.

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