Brown v. UNITED STATES OF AMERICA

Filing 18

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 14 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING CIVIL ACTION. Accordingly, the plaintiff's motions for leave to proceed in forma pauperis 2 3 and 12 are DENIED. This ci vil action is DISMISSED WITHOUT PREJUDICE. It is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. An appeal must be filed within 60 days after the date of the entry of the judgment order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/16/2013. (copy to Pro Se Plaintiff via Certified Mail, rrr) (nmm) (Additional attachment(s) added on 12/16/2013: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRIAN L. BROWN,
Plaintiff,
v.

Civil Action No. 5:13CV122
(STAMP)

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND DISMISSING CIVIL ACTION
I.

Procedural History

On September 4, 2013, the plaintiff, who is an inmate at USP
Victorville, filed this civil action in this Court.

In his

complaint, the pro se1 plaintiff raises claims under the Federal
Tort Claims Act pursuant to 28 U.S.C. § 2671, et seq., alleging
that he was denied his religious rights, was threatened with
physical injury with a sexual threat, was falsely accused of a
disciplinary infraction, was subjected to inhumane conditions of
confinement, and was denied appropriate medical care for an incisal
hernia. The petitioner has also filed a motion to proceed in forma
pauperis (“IFP”),2 a motion to waive filing fees and allow him to

1

“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).
2

In forma pauperis refers to the filing status as a “pauper,”
or “indigent who is permitted to disregard filing fees and court
costs.” Black’s Law Dictionary 849 (9th ed. 2009).

proceed under imminent danger of physical injury, and an amended
motion to waive filing fees and allow him to proceed under imminent
danger of physical injury.

Pursuant to Local Rule of Prisoner

Litigation 2, this case was referred to United States Magistrate
Judge John S. Kaull for report and recommendation.
Magistrate

Judge

Kaull

then

entered

a

report

and

recommendation recommending that the plaintiff’s motion for leave
to proceed IFP be denied, and that this case be dismissed pursuant
to 28 U.S.C. § 1915(g), because since the plaintiff has been
incarcerated he has filed at least two civil action that have been
dismissed as frivolous, for failing to state a claim, or for
seeking monetary relief against a defendant who is immune from such
relief. Further, the magistrate judge found that the plaintiff has
also brought an appeal in one of the cases, which was dismissed by
the United States Court of Appeals for the Fifth Circuit as
frivolous. The magistrate judge informed the plaintiff that he was
required to file any objections to the report and recommendation
recommending dismissal of this civil action within fourteen days of
the entry of the report and recommendation.

Thereafter, the

plaintiff did file objections.
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.

2

judge’s

Because the

plaintiff filed objections to the report and recommendation, the
magistrate judge’s recommendation will be reviewed de novo.
III.

Discussion

The Prisoner Litigation Reform Act of 1995 generally prohibits
prisoners from filing a complaint under IFP status if that prisoner
has filed at least three IFP cases previously which have been
dismissed as frivolous.

Title 28, United States Code, Section

1915(g) specifically provides as follows:
In no event shall a prisoner bring a civil action . . .
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of
serious physical injury.
The

magistrate

judge

found

that

this

section

of

the

Prison

Litigation Reform Act (“PLRA”) was applicable in this case, and
thus recommended dismissal of this civil action.
This Court has reviewed the record in this case, as well as
Magistrate Judge Kaull’s report and recommendation. This Court has
confirmed that, while he has been incarcerated, the plaintiff has
filed two civil actions in federal district courts which have been
dismissed as frivolous, for failing to state a claim, or for
seeking monetary relief against a defendant who is immune from such
relief. Further, the plaintiff has also brought an appeal that was
dismissed by the Fifth Circuit Court of Appeals as frivolous.

The

plaintiff does not object or contest the fact that he filed these
3

cases. The plaintiff’s objections seem to only deal with the issue
of not qualifying as being in danger of imminent physical injury.
As to the issue of whether he was in danger of imminent
physical injury, the magistrate judge found that the injunctive
relief sought to alleviate such danger is not available under the
FTCA, which only allows for monetary damages.
States, 479 F. Supp. 501, 550 (D. S.C. 2007).

Ajaj v. United

Thus, allowing this

case to proceed under the FTCA without the prepayment of fees will
not remove the plaintiff from “imminent danger of serious physical
injury.”

This Court agrees with the magistrate judge’s finding.

Allowing this case to proceed would only allow the plaintiff to
obtain monetary relief for the complained of injuries, it would not
change any type of danger he may be in.
The magistrate judge further found that because the complaint
involves actions or inactions of the prison personnel at USP
Hazelton, and he has been transferred at least twice since that
time, any threat of imminent danger or serious physical injury
alleged in the complaint is moot.

The plaintiff objects to this

argument numerous times as to all of his separate claims and states
that his claims are not moot, as they are “capable of repetition.”
This argument, however, fails to take into consideration the fact
that his request to prevent such actions from reoccurring would
require an award of injunctive relief, which is not available under

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the FTCA, as explained above.

Accordingly, the petitioner’s

objections are without merit.
IV.

Conclusion

For the reasons described above, the report and recommendation
of the magistrate judge (ECF No. 14) is AFFIRMED and ADOPTED in its
entirety.

Accordingly, the plaintiff’s motions for leave to

proceed in forma pauperis (ECF Nos. 2, 3 and 12) are DENIED.
civil action is DISMISSED WITHOUT PREJUDICE.

This

It is ORDERED that

this case be DISMISSED and STRICKEN from the active docket of 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 60
days after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this 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:

December 16, 2013

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

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