Dunham v. United States Penitentiary Hazelton

Filing 27

ORDER ADOPTING 15 OPINION/REPORT AND RECOMMENDATION; and finding as moot 19 Motion for Extension of Time to Amend re 1 Complaint filed by Tarvish Leviticus Dunham. Plaintiff's Complaint is DISMISSED without prejudice and ordered stricken from the record. Signed by District Judge Gina M. Groh on 2/6/2014. Copy sent certified mail, return receipt to pro se Plaintiff. (tlg) (Additional attachment(s) added on 2/6/2014: # 1 certified mail receipt) (tlg).

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

TARVISH LEVITICUS DUNHAM,
Plaintiff,
CIVIL ACTION NO. 3:13-CV-102
(JUDGE GROH)

v.

UNITED STATES PENITENTIARY
HAZELTON, NEIL SHULTZ, and UNITED
STATES OF AMERICA,
Defendants.
ORDER ADOPTING OPINION/REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge John S. Kaull.
By Standing Order, this action was referred to Magistrate Judge Kaull for submission of a
proposed R&R. Magistrate Judge Kaull filed his R&R [Doc. 15] on October 11, 2013. In the
R&R, he recommends that this Court dismiss the Plaintiff’s complaint without prejudice for
failure to exhaust administrative remedies.
Pursuant to 28 U.S.C.

§

636(b)(1)(c), this Court must make a de novo review of

those portions of the magistrate judge’s findings to which objection is made. 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. Am, 474 U.S. 140, 150 (1985). In
addition, failure to file timely objections constitutes a waiver of de novo review and the
Plaintiff’s 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 Kaull’s R&R were due within fourteen days
after being served with a copy of the R&R pursuant to 28 U.S.C.

§ 636(b)(1) and

Federal

Rule of Civil Procedure 72(b). The docket reflects that service was accepted on October
15, 2013. The Plaintiff timely filed his objections on October 23, 2013 [Doc. 19]. He filed
a second set of objections on November 14, 2013 [Doc. 22]. Accordingly, the Court will
undertake a de novo review of those portions of the magistrate judge’s findings to which
the Plaintiff objects. The Court will review the remainder of the R&R for clear error.
I. Background
On September 5, 2013, the prose Plaintiff initiated this action by filing a handwritten
complaint. This case was initially filed as a Federal Tort Claims Act (“FTCA”) case. The
Clerk accordingly sent the Plaintiff a Notice of Deficient Pleading that included an FTCA
complaint form. On September 6, 2013, this case was amended to a Bivens action. That
same day, the Clerk sent the Plaintiff a second Notice of Deficient Pleading that included
a Bivens complaint form
On October 10, 2013, the Plaintiff filed the Bivens and FTCA complaints. Both
complaints arise from allegations that Neil Shultz, a corrections officer, used excessive
force against the Plaintiff at USP Hazelton on June 14, 2011. His Bivens complaint names
United States Penitentiary Hazelton and Neil Shultz as defendants. In this complaint, the
Plaintiff states that he did not file a grievance in the prisoner grievance procedure
concerning the complaint’s underlying facts. He explains his failure to do so as follows:
“The incident was being handled by the FBI since 2011 and I just went to trial in Jan. 2013

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and received time for Mr. Shultz’s involvement in the incident and am ordered to pay
$25.00 to the courts.” His FTCA complaint names the United States of America as the
defendant. In it, the Plaintiff states that he did not file a FTCA Claim Form (SF-95) or
another form of written notice of his claim to the Bureau of Prisons (“BOP”). However, he
attached a Small Claims for Property Damage or Loss form that he submitted to the BOP
and a letter from the BOP to the complaint. The letter states that the BOP could not accept
the claim detailed on the Small Claims for Property Damage or Loss form because the
Plaintiff was alleging a personal injury. The BOP letter enclosed an SF-95 form and
directed the Plaintiff to file it if he sought to pursue his claim.
Magistrate Judge Kaull screened the complaint pursuant to 28 U.S.C.

§

191 5A(b).

On October 11, 2013, he entered an R&R that recommended dismissing the complaint
without prejudice for failure to exhaust administrative remedies. On October 23, 2013, the
Plaintiff filed objections to the R&R [Doc. i9j. He filed a second set of objections on
November 14, 2013 [Doc. 22].
II. Analysis
A. November 14, 2013 Objections to the R&R
On November 14, 2013, the Plaintiff filed additional objections to the R&R. As noted
earlier, the Plaintiff could file objections to the R&R within fourteen days of being served
with it. See L.R. P.L. P. 12. However, Local Rule of Prisoner Litigation Procedure 13
provides that “[p]risoners shall not file pleadings or papers not authorized by these Rules”
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In addition to docketing Document 19 as objections to the R&R, the Clerk docketed
it as a motion for extension of time to amend the complaint. Nowhere in the document,
however, does the Plaintiff ask to amend his complaint. Accordingly, the Court will order
that the Clerk terminate this motion because it was erroneously docketed as such.
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and that such pleadings or papers “will be stricken from the docket by the Court and
returned to the prisoner.”
Here, the Local Rules do not authorize the Plaintiff to file a second set of objections.
Even if they did, these objections would be untimely as he filed them more than fourteen
days after he was served with the R&R. Accordingly, the Court will disregard the Plaintiff’s
objections filed on November 14, 2013.
B. October 23, 2013 Objections to the R&R
The Court will now address the Plaintiff’s October 23, 2013 objections in turn.
1. Objections to Recommended Disposition of Bivens Claims
Magistrate Judge Kaull recommended dismissing the Plaintiff’s Bivens complaint
because he did not exhaust his administrative remedies. The Plaintiff objects to this
recommendation in two ways. First, he objects to the R&R’s “stance that [his] claim against
Neal Shultz not be considered because of the two year deadline.” Second, he argues that
the Court should waive the exhaustion requirement because he was removed from USP
Hazelton the day of the incident and “didn’t know what Neal Shultz had done.”
Under the Prison Litigation Reform Act (“PLRA”), a prisoner bringing an action
concerning prison conditions under 42 U.S.C.

§

1983 or any other federal law must have

first exhausted all available administrative remedies. 42 U.S.C.

§ 1 997e(a).

Exhaustion is

mandatory and applies in Bivens actions. Porter v. Nussle, 534 U.S. 516, 524 (2002).
Because exhaustion is a prerequisite to suit, a prisoner must have exhausted all available
administrative remedies before filing his complaint. Id. Exhaustion is required even if the
relief that the prisoner seeks is not available in grievance proceedings. Id. The PLRA also

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requires proper exhaustion. Woodford v. Ngo, 548

u.s.

81, 93 (2006). A prisoner,

however, need not exhaust administrative remedies if they “are not ‘available’ to” him.
Kaba v. Stepp, 458 F.3d 678, 684(7th Cir. 2006). Further, if “failure to exhaust is apparent
from the face of the complaint,” a court can dismiss the case sua sponte, such as when
screening the complaint pursuant to 28 U.S.C.

§

1915A. See Anderson v. XYZ

Correctional Health Servs., Inc, 407 F.3d 674, 681-82 (4th

Cir. 2005).

Here, the Plaintiff does not argue that he exhausted his administrative remedies.
Indeed, it is apparent from his Bivens complaint that he did not do so. The complaint
states that there was a grievance procedure at USP Hazelton and that the Plaintiff did not
file any grievances concerning the complaint’s underlying facts. ([Doc. 7], p. 4). The
allegation that the incident led to an FBI investigation and criminal charges does not relieve
the Plaintiff of his obligation to exhaust his administrative remedies.
As for the Plaintiff’s objections, they are without merit. He has not shown a basis for
waiving the exhaustion requirement because he has not contended that administrative
remedies were unavailable to him. See Kaba, 458 F.3d at 684. His objection concerning
a two-year deadline is irrelevant because a statute of limitations—the type of deadline that
the Plaintiff appears to reference—is not at issue. The court therefore OVERRULES the
Plaintiff’s objections. Accordingly, dismissal is appropriate because the Plaintiff did not
exhaust his administrative remedies before filing his Bivens complaint. See 42

u.s.c. §

1 997e(a); see also Anderson, 407 F.3d at 681-82.
2. Objection to Recommended Disposition of FTCA Claim
Magistrate Judge Kaull recommended dismissing the FTCA complaint for failure to

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exhaust administrative remedies. The Plaintiff objects to the R&R’s “stance that the basis
for denying [his] FTCA claim is that [he] failed to submit the standard 95 forms.” He argues
that the fact that he submitted a form shows his “willingness to comply with [the Court’s]
wishes” and that, after filing his complaint, he filed the S-95 form. He also states that,
when he read the S-95 form, he “became aware that [he] would not get the relief that [he]
sought and wrongly chose to go straight to the courts.”
Before initiating an FTCA action, a plaintiff must have “first presented the claim to
the appropriate Federal agency.” 28 U.S.C.

§ 2675(a).

This requirement is “jurisdictional

and may not be waived.” Plylerv. United States, 900 F.2d 41,42(4th Cir. 1990) (citation
omitted). Thus, “[t]he FTCA bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106,
113 (1993). If a plaintiff exhausts his administrative remedies after filing the complaint, the
court still lacks jurisdiction. Id. at 110-13 (rejecting the argument that exhausting remedies
after filing an FTCA complaint vested the district court with jurisdiction).
Here, the Plaintiff does not contest that he failed to exhaust his administrative
remedies before filing his FTCA complaint. He acknowledges that he did not do so in his
objections as he avers that, after reading the S-95 form, he realized that he “wrongly chose
to go straight to the courts.” A review of his complaint confirms that the Court lacks
jurisdiction over it. The complaint states that the Plaintiff did not file a SF-95 form or other
written notice before initiating this action. Though the complaint includes a Small Claims
for Property Damage or Loss form, this was not the proper form through which he could
exhaust his administrative remedies. Additionally, the Plaintiff’s willingness to exhaust
remedies after filing his complaint does not vest this Court with jurisdiction over it. As the
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Supreme Court held in McNeil, the Plaintiff must have exhausted his administrative
remedies before initiating this case. 508 U.S. at 113. His complaint therefore is subject to
dismissal pursuant to

§

2675(a). See Plyler, 900 F.2d at 42. Accordingly, the Court

OVERRULES the Plaintiff’s objection.
III. Conclusion
Upon careful review of the record, the Court OVERRULES the Plaintiff’s Objections.
It is the opinion of this Court that the magistrate judge’s Report and Recommendation
should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated therein.
Accordingly, the Plaintiff’s Bivens and FTCA complaints are hereby DISMISSED
WITHOUT PREJUDICE.
The Court further ORDERS that the Clerk TERMINATE the Motion for Extension of
Time to Amend the complaint [Doc. 191 because it was erroneously docketed as a motion.
The Court DIRECTS the Clerk to enter judgment in favor the Defendants.
The Court further DIRECTS the Clerk that this case be closed and stricken from the
active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and to
mail a copy to the pro se Plaintiff.
DATED: February 6, 2014.
GINA .GROH
UNITED STATES DISTRICT JUDGE

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