Owl Feather-Gorby v. Meyer et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 6/21/2018. 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 S. OWL FEATHER-GORBY,
Plaintiff,

v.

CIVIL ACTION NO.: 3:17-CV-134
(GROH)

MEYER, Medical PA in SHU, MAJOR
MCKARDLE, Major Medical Department,
B. FRIEND, Health Services Supervisor,
BLUNT, B-2 United Counselor, HIXENBOUGH,
B-1 Unit Counselor, NURSE LANDIN, B
House Unit Manager, FRISS, Assistant Warden,
KEEYS, Assistant Warden, COAKLY, Warden,
FIBBS, Captain, WETSIDE-WELCOME, SHU Lt.,
CONNER, Regional Director, MICHAEL J.
FRAZIER, Associate General Counsel, ISICSON,
Regional Director, MS. L. SMITH, Remedy Coordinator
Unit Manager, UNKNOWN NAME, Remedy Clerk, R.
BIRD, Trust Fund Employee
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION
Currently pending before the Court is a Report and Recommendation (“R&R”)
issued by United States Magistrate Judge Robert W. Trumble. ECF No. 31. Pursuant to
this Court’s Local Rules and 28 U.S.C. § 1915A, this action was referred to Magistrate
Judge Trumble for submission of an R&R. On May 17, 2018, Magistrate Judge Trumble
issued his R&R, recommending that this Court dismiss the action without prejudice.

I. Background
On October 30, 2017, the Plaintiff filed this Bivens action, alleging claims against
18 individuals for violation of his due process, Eighth Amendment, and Fourteenth
Amendment rights. ECF No.1. ECF No. 1. Specifically, the Plaintiff avers: (1) that he
was subjected to cruel and unusual punishment because he was refused medical
treatment for various injuries; (2) that staff refused to act upon his grievances; and (3)
that he was denied access to his mail and access to the law library. The Plaintiff seeks
damages in the amount of $250,000 and three separate injunctions. Magistrate Judge
Trumble recommended that the action be dismissed without prejudice pursuant to 28
U.S.C. § 1915(g).
I. Standard of Review
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).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure, objections to Magistrate Judge Trumble’s R&R were due within fourteen days
after being served with a copy of the same. The R&R was sent to the Plaintiff by certified
mail, return receipt requested, on May 17, 2018. ECF No. 4. The Plaintiff accepted

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service on May 22, 2018. ECF No. 46. The Plaintiff filed objections on June 7, 2018.
ECF No. 48. Accordingly, this Court will review the portions of the R&R to which the
Plaintiff objects de novo.
III. Discussion
The Plaintiff makes three objections: (1) that he did not receive any motion to
dismiss; (2) that Magistrate Judge Trumble harbors “personal or judicial bias” toward him;
and (3) that the Court failed to address his imminent danger issues and that he should be
permitted to proceed because imminent danger existed when he filed this action. Each
objection will be addressed in turn.
First, the Plaintiff argues that this action should not be dismissed because he did
not receive notice of the Government’s motion to dismiss, styled as Objections to Order
on Motion for Leave to Proceed in Forma Pauperis. ECF No. 30. However, the certificate
of service provides that it was mailed to the Plaintiff at his mailing address. ECF No. 30
at 7. Moreover, there are no objections that the Plaintiff could have made in response
that would change the outcome of this case. Accordingly, this objection is without merit
and is OVERRULED.
Next, the Plaintiff argues that Magistrate Judge Trumble harbors personal or
judicial bias and antagonism toward him because Magistrate Judge Trumble outlined the
Plaintiff’s underlying conviction and prior civil litigation in the R&R. However, providing
the Plaintiff’s underlying conviction merely serves as background and it was necessary to
emphasize the Plaintiff’s prior prisoner litigation to dismiss the case under the PLRA.
Neither indicate that Magistrate Judge Trumble harbors any bias toward the Plaintiff.
Accordingly, this objection is without merit and is OVERRULED.

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Finally, the Plaintiff argues that he should be permitted to proceed without
prepayment of fees because he was under threat of imminent danger when he initiated
this action. However, it is well established that the imminent danger exception focuses
on the risk that the conduct complained of threatens continuing or future injury, “not on
whether the inmate deserves a remedy for past misconduct.” Chase v. O’Malley, 466
Fed. Appx. 185, 186 (4th Cir. 2012). To proceed without prepayment of fees, the inmate
must “make specific fact allegations of ongoing serious physical injury, or of a pattern of
misconduct evidencing the likelihood of imminent serious physical injury.” Id. (internal
citations omitted). Here, as discussed more fully in the R&R, the Plaintiff has been moved
at least twice since the alleged events occurred at USP Hazelton. The Plaintiff is now
incarcerated at FCI Cumberland in Cumberland, Maryland. Accordingly, the complaint
does not allege any facts which would indicate that the Plaintiff is under continuing
imminent danger of serious physical injury. Therefore, this objection is without merit and
is OVERRULED.
V. Conclusion
Accordingly, upon review and finding no error, the Court ORDERS Magistrate
Judge Trumble’s Report and Recommendation [ECF No. 31] be ADOPTED for the
reasons more fully stated therein.

The Plaintiff’s objections [ECF No. 48] are

OVERRULED. Therefore, the Court hereby ORDERS that the Plaintiff’s Complaint [ECF
No. 1] be DISMISSED WITHOUT PREJUDICE.
The Court further ORDERS that the Plaintiff’s Motion for Order of Direction or
Injunction [ECF No. 19], Motion for Clarification [ECF No. 20], and Motion for Hearing
[ECF No. 49] be DENIED AS MOOT.

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The Court DIRECTS the Clerk to strike this case from the active docket and
transmit a copy of this Order to the pro se Plaintiff by certified mail, return receipt
requested.
DATED: June 21, 2018

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