Thornton v. O'Bryant et al

Filing 78

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 66 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DENYING PLAINTIFF'S MOTION TO AMEND AND OVERRULING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGES ORDER DENYING APPOINTMENT OF COUNSEL. Pla intiff's motion for summary judgment 62 is DENIED. The defendants' motion to dismiss or in the alternative, for summary judgment 44 is GRANTED. The plaintiff's complaint 1 is DENIED and DISMISSED WITHOUT PREJUDICE for failure t o exhaust his administrative remedies. The plaintiff's motion to amend is DENIED, and the plaintiffs objections to the magistrate judge's orders denying appointment of counsel are OVERRULED. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Should the plaintiff choose to appeal the judgment of this Court to the United States Court of Appeals for the Fourth Circuit on the issues to which objection was made, he is ADVISED that he must file a notice of appeal with the Clerk of this Court within 30 days after the date of the entry of the judgment order. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/21/2013. (copy to Pro Se Plaintiff via Certified Mail, rrr; copy to counsel of record via CM/ECF) (nmm) (Additional attachment(s) added on 8/21/2013: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
HAROLD JEROME THORNTON,
Plaintiff,
v.

Civil Action No. 5:12CV74
(STAMP)

TERRY O’BRIEN, Warden,
JOHN SQUIRES, Officer,
ANDREW CRAWFORD, Counselor
and ROBERT BRINSON, Lieutenant,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
DENYING PLAINTIFF’S MOTION TO AMEND AND
OVERRULING PLAINTIFF’S OBJECTIONS TO MAGISTRATE
JUDGE’S ORDER DENYING APPOINTMENT OF COUNSEL
I. Background
On May 31, 2012, the plaintiff initiated the above-styled
civil action.

The clerk docketed this action a Bivens action, as

the plaintiff made claims against federal employees. See Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

The

plaintiff claims against the federal employees involve allegations
surrounding a purported use of excessive force against him while he
was incarcerated at USP Hazelton in May 2010. The plaintiff claims
that certain named defendants used excessive force against him, he
was forced to house with a hostile cellmate, the warden failed to
take

disciplinary

action,

there

was

a

conspiracy

between

defendants, and certain officers not named in the complaint failed

to report the conduct that he claims constituted excessive force.
As

a

result

of

these

claims,

the

plaintiff

alleges

that

he

sustained an injury to his lower back and suffered mentally and
emotionally.

He requests compensatory damages in the amount of

$900,000.00.
The defendants filed a motion to dismiss or in the alternative
a motion for summary judgment.

In this motion, the defendants

argued: (1) the plaintiff has failed to administratively exhaust
any of his claims against the named defendants;1 (2) plaintiff’s
excessive force claims are unsubstantiated by the plaintiff’s
medical records; (3) the hostile cellmate claim is unsupported in
fact or law; (4) plaintiff’s claims against the warden lack any
allegation of personal involvement and are improperly based upon
the theory of respondeat superior; and (5) the defendants are
entitled to qualified immunity.
Rather

than

responding

to

the

defendants’

plaintiff filed a motion for summary judgment.
reiterates the allegations in his complaint.

motion,

the

The plaintiff

However, he does not

respond to the defendants’ argument that he failed to exhaust his
administrative remedies.

1

The government contends that plaintiff’s claim against
persons not named in the complaint concerning a failure to report
the excessive force is not a viable cause of action because those
persons have not been named or served.
2

Pursuant to Local Rule of Prisoner Litigation Procedure 2,
this case was referred to United States Magistrate Judge John S.
Kaull for an initial review and for a report and recommendation on
disposition of this matter.
issued

a

report

and

Thereafter, the magistrate judge

recommendation,

recommending

that

the

defendants’ motion to dismiss be granted due to the plaintiff’s
failure to exhaust his administrative remedies.

As such, he also

recommended that the plaintiff’s motion for summary judgment be
denied as moot.

Further, the plaintiff had filed two motions for

default judgment that the magistrate judge also recommended be
denied because the United States filed a timely response to the
plaintiff’s complaint.

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

fourteen

days

after

being

served

with

a

copy

of

the

magistrate judge’s recommendation.
The

plaintiff

then

filed

three

separate

motions.

The

plaintiff first filed his initial motion to alter or amend the
judgment.

As no final judgment existed at the time of the filing,

this Court construes plaintiff’s motion as objections to the report
and recommendation.

In this first motion, the plaintiff argues

that due to alleged issues with his exhibits being filed, the
magistrate judge did not take into account the entire record when
issuing his report and recommendation.

3

The plaintiff then filed

another motion to alter or amend the judgment.

This motion

outlines the plaintiff’s version of the events that led to him
filing his Bivens action and then takes issue with the magistrate
judge’s denial of plaintiff’s motion for appointment of counsel.
Thus, this Court will construe plaintiff’s second motion to alter
or amend the judgment as an objection to the magistrate judge’s
order denying plaintiff’s motion for appointment of counsel.
The plaintiff lastly filed a motion for leave to file an
amended complaint.
claims.

The plaintiff seems to seek to add additional

He states he is seeking to add “proof of diligence to

expidite [sic] and exhaust administrative remedies in spite of
injury, excessive force; [sic] denial of medical treatment, denial
of an investigation; [sic] and unit team failure to provide
grievence [sic] unit investigation and DHO packet was served.” The
plaintiff includes exhibits with this motion, but does not argue
why he should be granted leave to amend his complaint other than
arguing that these are exhibits that were once lost or were not
before the magistrate judge when the magistrate judge issued his
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

recommendation to which objection is timely made.

judge’s

As to those

portions of a recommendation to which no objection is made, a

4

magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”

28 U.S.C. § 636(b)(1)(A).

Although the plaintiff does not specifically state that the motions
to alter or amend the judgment constitute objections to the report
and recommendation, this Court construes them as such. See Hill v.
Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (“[T]he long-standing
practice is to construe pro se pleadings liberally.”). Because the
plaintiff has filed objections, this Court will undertake a de novo
review as to those portions of the report and recommendation to
which objections were made.
III.
A.

Discussion

Report and Recommendation
The magistrate judge recommended that the plaintiff’s claims

be dismissed with prejudice because the plaintiff failed to exhaust
his administrative remedies.

Under the Prison Litigation Reform

Act (“PLRA”), a prisoner bringing an action “with respect to prison
conditions” under 42 U.S.C. § 1983, or any other federal law, must
first exhaust all available administrative remedies.
§ 1997e.

42 U.S.C.

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.,

5

407 F.3d 674, 682 (4th Cir. 2005).

Actions brought pursuant to

Bivens are subject to administrative exhaustion requirements of the
PLRA.

Porter, 534 U.S. at 524.
Administrative

exhaustion

requires

an

inmate

to

pursue

informal resolution before proceeding with a formal grievance.
C.F.R. § 542.13.

28

The formal administrative process of the Bureau

of Prisons (“BOP”) is structured as a three-tiered system.
C.F.R. § 542.10, et seq.

28

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.2

28 C.F.R. § 542.15.

The third, and final, tier of the

formal administrative remedy 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)

2

For inmates confined at USP Hazelton, those appeals are sent
to the Mid-Atlantic Regional Director in Annapolis Junction,
Maryland.
6

(“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.”).
The plaintiff claims in his amended complaint that he did
exhaust his administrative remedies.

The defendants, however,

assert

filed

that

while

the

plaintiff

has

16

administrative

remedies since the date of the alleged incident in May 2010, none
of these grievances dealt with that alleged incident.

After

reviewing the documentation provided by the defendants, this Court
agrees with the magistrate judge’s finding that the plaintiff
failed to exhaust his administrative remedies as to the claims he
is now asserting in this Bivens action.
As the magistrate judge stated, none of the administrative
remedies complain of the incident, which the plaintiff alleged
occurred in May 2010 at USP Hazelton.
Instead,

these

administrative

See ECF No. 44 Ex. 4 *8-11.

remedies

relate

to

contesting

Disciplinary Hearing Officer (“DHO”) procedures, evidence, and
sanctions, appeals of DHO actions, Special Unit polices on personal
property, rejection of personal property, and claims of staff
misconduct at USP Lewisburg.

Id.

The plaintiff’s initial motion to alter or amend the judgment,
which this Court construes as the plaintiff’s objections of the
magistrate judge’s report and recommendation, alleges that the

7

magistrate judge did not have the full record when issuing his
report and recommendation due to issues with mail not being
received because of the negligence of others.

He claims that as a

result of the “negligent actions” involving the non-receipt of his
mail, which allegedly contained exhibits in support of his claim,
that he is entitled to a “reargument and evidentiary hearing.” ECF
No. 68 *3.

Nowhere in the plaintiff’s objections does he claim

that he actually exhausted his remedies or provide proof of such
exhaustion. Further, he does not claim that the exhibits that were
missing from the record illustrate that he did in fact exhaust his
remedies.

Plaintiff’s generalized complaints about the negligent

acts of others in conjunction with the delivery of his mail, do not
suffice to overcome the evidence, which shows that plaintiff did
not exhaust his administrative remedies.

Therefore, after a de

novo review, this Court affirms the magistrate judge’s findings as
to plaintiff’s Bivens claims.
The magistrate judge also found that the plaintiff’s motions
for default judgment should be denied because the defendants filed
a timely response.

The plaintiff did not file objections to this

finding. As the magistrate judge stated, according to Federal Rule
of Civil Procedure 55(a), “[w]hen a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise
defend . . . and that fact is made to appear by affidavit or
otherwise, the Clerk shall enter the party’s default.”

8

In the

plaintiff’s motions for default judgment, the plaintiff takes issue
with the truthfulness of the defendants’ pleading, but does not
allege that the defendants failed to plead.

Further, as the

magistrate judge indicated, the defendants filed a timely response
to the plaintiff’s complaints, which was their motion to dismiss or
in the alternative, motion for summary judgment.

Therefore, this

Court finds no clear error in the magistrate judge’s finding that
the plaintiff is not entitled to a finding of default.
B.

Motion to appoint counsel
Federal courts have discretion in civil cases to request an

attorney

to

represent

§ 1915(e)(1).

an

indigent

party.

See

28

U.S.C.

However, such an appointment may be made only where

the indigent party has shown particular need or circumstances.
Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975).

This Court has

reviewed the plaintiff’s complaint and both of his motions to
appoint counsel and concludes that the plaintiff has not made the
requisite showing of particular need or exceptional circumstances
to

warrant

appointing

him

counsel

in

this

action.

In

the

plaintiff’s objections, he merely asserts that he is being denied
counsel,

while

the

practicing attorneys.

defendants

are

benefitting

from

trained

The defendants have counsel because it is

required by statute, as this is a Bivens action.

According to 28

U.S.C. § 547, the United States Attorney must “prosecute or defend,
for the Government, all civil actions, suits or proceedings in

9

which the United States is concerned.”

Thus, after de novo review

of the record, this Court overrules the plaintiff’s objections
concerning his request for counsel and affirms the magistrate
judge’s denial of the plaintiff’s motion to appoint counsel.
C.

Motion to amend
Federal Rule of Civil Procedure 15(a) states, in pertinent

part, that “[a] party may amend its pleading once as a matter of
course . . . 21 days after serving it, or . . . 21 days after
service of a responsive pleading . . . whichever is earlier.”

If

a party seeks to amend its pleadings in all other cases, it may
only do so “with the opposing party’s written consent or the
court’s leave.
requires.”
Rule

The court should freely give leave when justice so

Fed. R. Civ. P. 15(a)(2).
15(a)

grants

the

district

court

broad

discretion

concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith, or dilatory
motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment or
futility of the amendment.”

Foman v. Davis, 371 U.S. 178, 182

(1962); see also Ward Elec. Serv. v. First Commercial Bank, 819
F.2d 496, 497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743
F.2d 1049, 1052 (4th Cir. 1984).

10

As the plaintiff’s motion to amend was made much later than 21
days after being served with the defendants’ responsive pleading,
he may only amend with leave from this Court, as the defendants
have not provided written consent to such amendment.

As stated

above, the plaintiff seems to seek to add additional claims against
the defendants.
incident

he

previously

All of these claims, however, arise from the same

complains

of,

which

occurred

explained,

the

plaintiff

in

failed

May
to

2010.

As

exhaust

his

administrative remedies as to claims arising from this incident
and, therefore, he is not entitled to judicial relief based on
those alleged claims unless he has evidence of exhaustion.
The plaintiff attaches numerous exhibits to his motion to
amend.

Although, he does not explain how these exhibits relate to

the exhaustion of his administrative remedies, this Court notes
that one of these exhibits is a regional administrative remedy
appeal form.

This appeal form complains of incidents involving

excessive force, which he claims occurred in March 2010.3
form, however, is dated February 10, 2011.
after the alleged incidents took place.

The

This is almost a year

As stated above, 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

3

As the complained of incidents match that which he alleged in
his complaint occurred in May 2010, this Court assumes that
plaintiff meant to write May 2010, rather than March 2010.
11

outlined

above.

See

(2006)(emphasis added).

Woodford

v.

Ngo,

548

U.S.

81,

90-91

Based on the BOP’s three-tiered system,

the inmate must submit a written complaint to the warden within 20
days from the date of the incident, which is the basis for the
request.

28 U.S.C. § 542.14(a).

Then, after receiving a response

from the warden, the inmate has 20 days from the receipt of the
warden’s written response to file an appeal with the Regional
Director.

28 U.S.C. § 542.15(a).

Not only did the plaintiff not

produce any evidence of submitting his written complaint to the
warden, he also submitted his appeal almost a year after the
alleged incident.

Such a period of time is clearly beyond the 20

days plaintiff had to initially submit his complaint. Further, the
plaintiff was aware his submission was untimely, as he includes in
his exhibits a rejection notice from the administrative remedy
coordinator alerting him that his regional appeal was untimely.
Therefore, as the plaintiff has failed to show that he exhausted
his administrative remedies as to any claims arising from these
alleged incidents, he is not entitled to judicial relief. As such,
any amendment made by the plaintiff arising from these incidents
would be futile.
IV.
After

a

de

novo

Conclusion

review,

this

Court

concludes

that

the

magistrate judge’s recommendation is proper as to plaintiff’s
Bivens claims and the plaintiff’s objections to the report and

12

recommendation lack merit.
magistrate
erroneous

judge’s
as

to

report

Further, this Court finds that the
and

plaintiff’s

recommendation
motions

for

is

not

default

clearly

judgment.

Therefore, the magistrate judge’s report and recommendation is
hereby AFFIRMED and ADOPTED in its entirety.

Accordingly, the

plaintiff’s motion for summary judgment is DENIED, the defendants’
motion to dismiss or in the alternative, for summary judgment is
GRANTED, and the plaintiff’s complaint is DENIED and DISMISSED
WITHOUT

PREJUDICE

for

failure

to

exhaust

his

administrative

remedies.
Furthermore, for the reasons stated above, the plaintiff’s
motion to amend is DENIED, and the plaintiff’s objections to the
magistrate
OVERRULED.

judge’s

orders

denying

appointment

of

counsel

are

It is further ORDERED that this civil action be

DISMISSED and STRICKEN from the active docket of this Court.
While this Court is aware of plaintiff’s attempt to appeal the
magistrate judge’s report and recommendation and the magistrate
judge’s order denying plaintiff’s motion for counsel, such appeals
were improper prior to a final judgment from this Court.

Should

the plaintiff choose to appeal the judgment of this Court to the
United States Court of Appeals for the Fourth Circuit on the issues
to which objection was made, he is ADVISED that he must file a
notice of appeal with the Clerk of this Court within 30 days after

13

the date of the entry of the judgment order.

Fed. R. App. P.

4(a)(1).
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.
DATED:

August 21, 2013

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

14