Maxten v. UNITED STATES OF AMERICA
Filing
16
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 13 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE DISMISSING PLAINTIFF'S COMPLAINT AND DENYING PLAINTIFF'S 2 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS MOOT. It is ORDER ED that this civil action be STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/21/18. (Pro Se Plaintiff via CM/rrr) (lmm) (Additional attachment(s) added on 5/21/2018: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THERON JOHNNY MAXTEN,
Plaintiff,
v.
Civil Action No. 5:17CV50
(STAMP)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
DISMISSING PLAINTIFF’S COMPLAINT AND
DENYING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS AS MOOT
I.
Background
The pro se1 plaintiff, a federal inmate who is housed at USP
Hazelton, initiated this case by filing a complaint pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.
In his
complaint, the plaintiff alleges that the Warden at USP Hazelton
keeps putting inmates “back on the yard,” after repeatedly getting
caught with knives and drugs.
ECF No. 1 at 6.
The plaintiff
alleges that since January 2017, at least six inmates have been
either stabbed or hit with locks.
ECF No. 1 at 6.
The plaintiff
further alleges that the Attorney General is aware of the problem
and that the staff at USP Hazelton is racist and allows problem
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
inmates out of the special housing unit within seven days. ECF No.
1 at 6.
Finally, the plaintiff alleges that he has had outside medical
appointments cancelled as a result of these issues.
9.
ECF No. 1 at
For relief, the plaintiff requests an order sending him to a
medical institution either in North Carolina, Springfield, or
Atlanta until he is “healed.”
ECF No. 1 at 9.
The plaintiff
requests relief in the form of $300,000.00 in damages for the pain
and suffering he has endured.
ECF No. 1 at 9.
The plaintiff also
filed a motion for leave to proceed in forma pauperis.
ECF No. 2.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of
Prisoner Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert.
The magistrate judge entered a
report and recommendation recommending that this Court dismiss the
plaintiff’s claim and deny the plaintiff’s motion for leave to
proceed in forma pauperis as moot.
judge
advised
the
parties
that,
ECF No. 13.
pursuant
The magistrate
to
28
U.S.C.
§ 636(b)(1)(C), any party may file written objections to his
proposed findings and recommendations within 14 days after being
served a copy of the report and recommendation.
Neither party
filed any objections to the report and recommendation.
For the reasons set forth below, the report and recommendation
of the magistrate judge (ECF No. 13) is affirmed and adopted.
Therefore,
the
complaint
(ECF
No.
2
1)
is
dismissed
and
the
plaintiff’s motion for leave to proceed in forma pauperis (ECF No.
2) is denied as moot.
II.
Applicable Law
Under 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.
file
any
objections
to
the
Because the plaintiff did not
report
and
recommendation,
the
magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”
28 U.S.C.
§ 636(b)(1)(A). As the Supreme Court of the United States stated in
United States v. United States Gypsum Co., “a finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” 333 U.S.
364, 395 (1948).
III.
Discussion
After reviewing the parties’ filings and the record, this
Court is not “left with the definite and firm conviction that a
mistake has been committed” by the magistrate judge. United States
v. Gypsum Co., 333 U.S. at 395.
In this civil action, the
magistrate judge correctly held the pro se complaint to less
stringent standards than those complaints drafted by attorneys.
See Haines v. Kerner, 404 U.S. 519, 520 (1972).
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This Court agrees
with the magistrate judge’s finding that the plaintiff has not
exhausted his administrative remedies.
ECF No. 13 at 3-4.
To bring a claim under the Federal Tort Claims Act (“FTCA”),
a plaintiff must fully exhaust the administrative process.
U.S.C. § 2675(a).
28
In order to exhaust the administrative process,
the plaintiff must submit a written notification of the incident,
accompanied by a claim for money damages, to the federal agency
whose activities gave rise to the claim. 28 C.F.R. §§ 14.2(a)-(b).
After the plaintiff receives notification of final denial, he may
file suit within six months under the FTCA.
28 C.F.R. § 14.9.
In
this case, the magistrate judge correctly found that because the
plaintiff had not exhausted his administrative remedies, the case
should be dismissed.
Additionally, the magistrate judge found that, even if the
plaintiff had exhausted administrative remedies, the plaintiff’s
complaint would still be subject to dismissal because the plaintiff
does not allege physical injury.
ECF No. 13 at 4.
The magistrate
judge specifically noted that, under the FTCA, the waiver of
sovereign
immunity
is
subject
to
several
requirements,
concluded that those requirements have not been met.
at 4.
and
ECF No. 13
Further, the magistrate judge added that to recover for
mental or emotional injury, a prisoner under the FTCA must show a
physical injury.
ECF No. 13 at 4-5.
Accordingly, the magistrate
judge found that the plaintiff has only alleged types of mental and
4
emotional injuries and thus “has no chance for success.”
ECF No.
13 at 5.
This Court finds no clear error in the findings of the
magistrate judge and thus upholds his recommendation. Accordingly,
the report and recommendation is affirmed and adopted in its
entirety.
IV.
Conclusion
Because the parties have 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, this Court AFFIRMS and ADOPTS the magistrate judge’s
report and recommendation (ECF No. 13) in its entirety.
The
plaintiff’s complaint (ECF No. 1) is thus DISMISSED and the
plaintiff’s motion for leave to proceed in forma pauperis (ECF No.
2) is DENIED AS MOOT.
Further, it is ORDERED that this civil
action be STRICKEN from the active docket of this Court.
Finally, 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 would result in a
waiver of appellate rights.
Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
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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:
May 21, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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