Evans v. United States of America et al

Filing 38

ORDER ADOPTING 30 REPORT AND RECOMMENDATION; granting United States' 22 Motion to Dismiss; dismissing as moot Plaintiff's 32 Motion to Appoint Counsel and 37 Motion for Discovery; and dismissing Plaintiff's 1 Complaint. The Clerk is DIRECTED to enter judgment in favor of the Defendant. Signed by Chief Judge Gina M. Groh on 9/2/2016. Copy sent certified mail, return receipt to pro se Plaintiff.(tlg)

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

MICHAEL SHAWN EVANS,
Plaintiff,
v.

CIVIL ACTION NO.: 3:15-CV-64
(GROH)

UNITED STATES OF AMERICA,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court for consideration of a Report and Recommendation
(“R&R”) issued by United States Magistrate Judge Robert W. Trumble. On May 27, 2015,
the Plaintiff filed his complaint alleging violations of the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346, 1402(b), 2401(b), 2671-2680. Pursuant to this Court’s Local Rules,
the action was referred to Magistrate Judge Trumble for submission of an R&R. On April
11, 2016, Magistrate Judge Trumble issued his R&R, which recommends that this Court
grant the United States’ motion to dismiss, dismiss with prejudice the Plaintiff’s failure to
protect claim and dismiss without prejudice the Plaintiff’s claims regarding his disciplinary
hearing and psychological treatment.
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, this Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge to which no objections are made.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file objections in a timely manner

constitutes a waiver of de novo review and a plaintiff’s right to appeal this Court’s order.
28 U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United
States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Objections to Magistrate Judge
Trumble’s R&R were due within fourteen days after being served with a copy of the R&R.
See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). The Plaintiff was served with the
R&R on April 13, 2016. On April 27, 2016, he mailed out a motion for extension of time,
requesting an additional thirty days within which to file his objections. On May 3, 2016,
this Court granted in part the Plaintiff’s motion, requiring his objections to be filed within
fourteen days after receiving the order. On May 16, 2016, the Plaintiff timely filed his
objections.
The Court is aware of the Plaintiff’s pro se status. Pro se pleadings are held to
less stringent standards than those drafted by licensed attorneys. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971). Accordingly, the Court construes liberally the Plaintiff’s
objections to the R&R. However, this Court’s liberal construction does not extend so far
as to create objections where none exist. Importantly, objections to a magistrate judge’s
report and recommendation must be specific. See Fed. R. Civ. P. 72(b)(2); Orpiano v.
Johnson, 687 F.2d 44, 48 (4th Cir. 1982); see also Parker v. Comm’r of Soc. Sec., No.
4:11cv00030, 2012 WL 1356593, at *3 (W.D. Va. Apr. 19, 2012). General objections, or
mere reiterations of arguments already presented to the magistrate judge, “have the same
effect as a failure to object,” and thus do not warrant de novo review. Parker, 2012 WL
1356593, at *3; see also United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007);
Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003). Here, the Plaintiff raises various
arguments, all of which he styles as objections to the R&R. However, every argument is,

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in some form, a reiteration of a claim or factual scenario that he previously raised in his
complaint or response in opposition to the United States’ motion to dismiss. Therefore,
this Court will review the R&R for clear error.
Upon review, the Court agrees with Magistrate Judge Trumble’s finding that the
Plaintiff’s claim regarding negligence and failure to protect is jurisdictionally barred
pursuant to the FTCA’s discretionary function exception. See 28 U.S.C. § 2680(a). The
Plaintiff avers that the United States was negligent in its “failure to account for and secure
the screw driver” that another inmate used to injure him. ECF No. 1 at 11. However, the
act of securing prison tools is a discretionary function, and so the United States is immune
from any cause of action brought in relation to that act. A government act falls under the
discretionary function exception, and thus renders the United States immune from suit,
when it “involves an element of judgment or choice,” and that judgment or choice is “based
on considerations of public policy.” Berkovitz by Berkovitz v. United States, 486 U.S. 531,
536-37 (1988). “The requirement of judgment or choice is not satisfied if a ‘federal statute,
regulation, or policy specifically prescribes a course of action for an employee to follow.’”
United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz, 486 U.S. at 536).
The Plaintiff cites to BOP Program Statement (“PS”) 5500.14, which references
tool control procedures, in support of his argument that the act of securing prison tools is
not discretionary. However, PS 5500.14 applies to the control, use, storage and inventory
of tools that belong to federal prisons—not unauthorized contraband. The modified
screwdriver used in the Plaintiff’s assault was not a BOP tool and thus was not subject to
PS 5500.14. ECF No. 23-3, 23-5. Therefore, because there is no federal statute,
regulation or policy specifically prescribing a course of action for BOP employees to follow

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in regard to contraband weapons, the requirement of judgment or choice is satisfied.
Additionally, because the BOP is given discretion in exercising control over contraband
shanks, it “must be presumed” that its acts in this area are grounded in public policy. See
Gaubert, 499 U.S. at 324-25. Moreover, courts have consistently found that prisoner suits
alleging injury by other inmates are barred by the discretionary function exception. See,
e.g., Donaldson v. United States, 281 Fed. App’x 75, 76-78 (3d Cir. 2008); Cohen v.
United States, 151 F.3d 1338, 1344-45 (11th Cir. 1998); Little v. United States, Civil Action
No. 5:11CV41, 2014 WL 4102377, at *7 (N.D. W. Va. Aug. 18, 2014) (collecting cases).
For these reasons, the Plaintiff’s failure to protect claim is barred by § 2680(a) of the
FTCA and must be dismissed.
The Court also agrees with Magistrate Judge Trumble’s finding that the Plaintiff’s
claim with respect to his disciplinary hearing and loss of good conduct time is improper in
the instant FTCA action. Insofar as the Plaintiff seeks restoration of his good conduct
time, this claim must be brought in a habeas proceeding pursuant to 28 U.S.C. § 2241.
See Fontanez v. O’Brien, 807 F.3d 84, 87 (4th Cir. 2015) (“It is well established that
‘attacks on the execution of a sentence are properly raised in a § 2241 petition.’” (quoting
In re Vial, 115 F.3d 1192, 1994 n.5 (4th Cir. 1997))); Queen v. Miner, 530 F.3d 253, 254
n.2 (3d Cir. 2008) (per curiam) (“A challenge, such as this one, to a disciplinary action
that resulted in the loss of good-time credits, is properly brought pursuant to § 2241, as
the action could affect the duration of the petitioner’s sentence.”). Finally, any claim
related to inadequate medical or psychological treatment—if one exists1—must be

In his “objections” to the R&R, the Plaintiff states that he “did not file a suit for medical/psychological
negligence.” ECF No. 36 at 3. Nevertheless, in the interest of prudence, the Court has reviewed the portion
of the R&R addressing this topic.
1

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dismissed because the Plaintiff has not complied with the requirements of West Virginia
Code § 55-7B-6.
Accordingly, the Court finds that Magistrate Judge Trumble’s Report and
Recommendation [ECF No. 30] should be, and is, hereby ADOPTED.

The Court

ORDERS that the United States’ Motion to Dismiss [ECF No. 22] is GRANTED. The
Court further ORDERS that the Plaintiff’s complaint [ECF No. 1] is DISMISSED.
Specifically, the Plaintiff’s claim regarding negligence and failure to protect is DISMISSED
WITH PREJUDICE, and the Plaintiff’s claims regarding his disciplinary hearing, loss of
good conduct time and psychological treatment are DISMISSED WITHOUT
PREJUDICE.
The Court ORDERS that the Plaintiff’s Motion for Appointment of Counsel [ECF
No. 32] and Motion for Discovery [ECF No. 37] are DISMISSED AS MOOT.
The Clerk is DIRECTED to enter a separate judgment order in favor of the
Defendant.
The Clerk is further DIRECTED to transmit copies of this Order to all counsel of
record and the pro se Plaintiff.
DATED: September 2, 2016

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