Vaughn v. Croagan et al

Filing 20

MEMORANDUM OPINION AND ORDER Affirming re 18 And Adopting Report and Recommendation Of Mag Judge. Pla's complaint 1 is DISMISSED WITHOUT PREJUDICE. Clerk is directed to enter judgment. Signed by Senior Judge Frederick P Stamp, Jr on 9/17/09. (c to Judge, JSK, pla by certified mail)(mji) (Additional attachment(s) added on 9/17/2009: # 1 certified mail receipt) (mji).

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA DWAYNE CURTIS VAUGHAN, Plaintiff, v. J. R. D. D. R. CROAGAN, J. CROSS, CHEATMAN, T. GERGAMI, PETRISKO, J. HEPNER, LOHR, J. HAMMOND and MILTON, Defendants. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE I. Background Civil Action No. 5:09CV42 (STAMP)

The pro se1 plaintiff, Dwayne Curtis Vaughan, filed a civil rights complaint Agents, of his pursuant 403 to Bivens 388 at v. Six Unknown Federal of the

Narcotics conditions

U.S.

(1971), United

complaining States

confinement

Penitentiary-

Hazelton. This case was referred to United States Magistrate Judge John S. Kaull for initial review and recommendation pursuant to Local Rule of Prisoner Litigation 83.01 et seq., and 28 U.S.C. §§ 1915(e) and 1915A. After a preliminary review of the record,

the magistrate judge determined that the plaintiff failed to exhaust his administrative remedies. The magistrate judge allowed

"Pro se" describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black's Law Dictionary 1341 (9th ed. 2009).

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the plaintiff twenty days to refute this finding, but the plaintiff failed to file any response. On August 12, 2009, Magistrate Judge Kaull issued a report and recommendation recommending that the plaintiff's complaint be dismissed without prejudice for failure to exhaust administrative remedies. The magistrate judge advised the parties that, pursuant

to 28 U.S.C. § 636(b)(1)(C), any party may file written objections to his proposed findings and recommendations within ten days after being served with a copy of the magistrate judge's recommendation. Neither party filed objections. For the reasons set forth below,

this Court affirms and adopts the magistrate judge's report and recommendation. II. Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's

recommendation to which objection is timely made. However, failure to file objections to the magistrate judge's proposed findings and recommendation permits the district court to review the

recommendation under the standards that the district court believes are appropriate and, under these circumstances, the parties' right to de novo review is waived. 825 (E.D. Cal. 1979). See Webb v. Califano, 468 F. Supp.

Accordingly, because the plaintiff did not

file objections, this Court reviews the report and recommendation of the magistrate judge for clear error.

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III.

Discussion

The magistrate judge recommended that the plaintiff's civil action be dismissed for failure to exhaust administrative remedies. Under the Prison Litigation Reform Act ("PLRA"), a prisoner

bringing an action under any federal law, must first exhaust all available administrative remedies. 42 U.S.C. § 1997e. Exhaustion

under § 1997e is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and applies to "all inmate suits about prison life." Porter v. Nussle, 534 U.S. 516, 532 (2002). If failure to exhaust

is apparent from the complaint, federal courts have the authority pursuant to 28 U.S.C. § 1915 to dismiss the case sua sponte. Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005). Actions brought pursuant to Bivens are subject to administrative exhaustion requirements of the PLRA. U.S. at 524. Administrative exhaustion requires an inmate to pursue 28 Porter, 534

informal resolution before proceeding with a formal grievance. C.F.R. § 524.13. The Bureau of Prisons' ("BOP")

formal 28

administrative process is structured as a three-tiered system. C.F.R. 542.10, et seq.

First, an inmate must submit a written

complaint to the warden, to which the warden supplies a written response. 28 C.F.R. §§ 542.11 and 542.14. For inmates who do not

obtain satisfactory relief at the first tier, the second tier allows the inmate to file an appeal with the Regional Director of the BOP. 28 C.F.R. § 542.15. The third, and final, tier of the

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formal administrative process is an appeal to the National Inmate Appeals Administrator for the Office of General Counsel. Id. An

inmate's administrative remedies thus are considered exhausted only after pursuing a final appeal to the National Inmate Coordinator for the Office of General Counsel. Proper exhaustion of a PLRA or Bivens claim requires an inmate to file timely and procedurally sound administrative grievances in compliance with the BOP's administrative grievance process as outlined above. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006)

("Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings."). Here, the plaintiff asserts that he filed grievances at the first two tiers of the administrative process, but that he did not receive responses from either of these tiers. Nevertheless, "[i]f

an inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level." 28 C.F.R. § 542.18. The

plaintiff has not sought relief at tier three, and therefore, he has not exhausted his administrative remedies. Thus, the

magistrate judge recommended that the plaintiff's complaint be dismissed remedies. for failure to properly exhaust his administrative

This Court finds no clear error in the magistrate

judge's report and recommendation.

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IV.

Conclusion

Because the plaintiff has not objected to the report and recommendation of the magistrate judge, and because this Court finds that the magistrate judge's recommendation is not clearly erroneous, the ruling of the magistrate judge is hereby AFFIRMED and ADOPTED in its entirety. forth above, the plaintiff's Accordingly, for the reasons set complaint is DISMISSED WITHOUT

PREJUDICE.

It is ORDERED that this civil action be DISMISSED and

STRICKEN from the active docket of this Court. Moreover, this Court finds that the plaintiff was properly advised by the magistrate judge that failure to timely object to the report and recommendation in this action will result in a waiver of appellate rights. object to the magistrate Thus, the plaintiff's failure to judge's proposed findings and

recommendation bars the plaintiff from appealing the judgment of this Court. See 18 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985). IT IS SO ORDERED. The Clerk is directed to transmit a copy of this memorandum opinion and order to the pro se plaintiff by certified mail and to counsel of record herein. Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is directed to enter judgment on this matter.

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DATED:

September 17, 2009

/s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

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