Clemmons v. Caraway et al
Filing
125
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 106 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING WITHOUT PREJUDICE PLAINTIFF'S 83 MOTION TO AMEND COMPLAINT. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/16/19. (Pro Se Plaintiff via CM/rrr) (lmm) (Additional attachment(s) added on 10/16/2019: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SEAN CHRISTOPHER CLEMMONS,
Plaintiff,
v.
Civil Action No. 5:17CV62
(STAMP)
REGIONAL DIRECTOR, J. CARAWAY,
CHARLES WILLIAMS, EX-WARDEN,
MR. GREENFIELD, MICHAEL WEAVER,
EDDIE ANDERSON, ALICIA WILSON,
ANDREA HALL, SARAH HUDNALL,
ANDREA SMITH-POSEY,
LINDA CARPENTER, H. WILLIAMS
and UNITED STATES OF AMERICA,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO AMEND COMPLAINT
I.
Background
The pro se1 plaintiff, Sean Christopher Clemmons, a federal
inmate, filed a federal civil rights complaint pursuant to Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).
ECF Nos. 1 and 18.
In his Bivens complaint, the
plaintiff requests that the Court award him damages and injunctive
relief.
ECF No. 1 at 11; ECF No. 18 at 24.
The plaintiff also
later filed a civil action based on the Federal Tort Claims Act
(“FTCA”), and the Bivens action and the FTCA action were joined
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).
together.
ECF No. 23.
In the plaintiff’s FTCA complaint, the
plaintiff alleges that he “was subjected to ‘ordinary negligence’
by the acts/omissions of the United States and its [Federal Bureau
of Prison’s (“FBOP”)] employees.”
ECF No. 33 at 6.
Specifically,
the plaintiff states that he “was neglected/delayed a colace
laxative medication that was prescribed for [him] by a free-world
‘MD’, GI - surgeon specialist - Salvatore Lanassa, concerning a
hemorrhoidectomy
8/25/2015.”
procedure
Id. at 7.
that
was
performed
on
[him]
on
Moreover, the plaintiff alleges that “[he]
was delayed an appointment date in reasonable time frame concerning
a referred/approved ‘colonoscopy diagnosis treatment’, to determine
why [he] was constantly bleeding ‘everyday’ during and after [his]
defecations, and why [he] was constantly having a yellow ‘pus’
drainage leakage coming from [his] rectal anus area.”
plaintiff
also
threatened,
against him.
states
and
that
that
FBOP
Id. at 7-13.
he
was
employees
denied
took
Id.
prescriptions,
retaliatory
The
was
actions
Lastly, the plaintiff asserts that
“[he] was also delayed at different dates and times treatment from
the eye doctor.”
Id. at 14-15.
The plaintiff then filed a motion for leave to amend his FTCA
complaint. ECF No. 83. Specifically, the plaintiff seeks to amend
“[his] Claim 4 and 5 (“FTCA”) claims concerning delay to a NEURO
Doctor and Claim 5 concerning excessive delay to a Glaucoma
Doctor.”
Id. at 1.
Specifically, the plaintiff states that
2
“[t]hese new amended claim (if [he is] allowed to amend) will be
claims arising from the same transactions, occurrences, or series
of transaction or occurrences against the FBOP’s employees here at
FCI Jesup, GA., whom the United States (as a defendant) employ and
act by and through concerning these claims and this case at bar.”
Id.
The defendants did not file a response to the plaintiff’s
motion for leave to amend.
United States Magistrate Judge James P. Mazzone entered a
report
and
recommendation,
in
which
he
recommends
that
the
plaintiff’s motion for leave to amend be denied without prejudice
to the plaintiff’s right to file a complaint in the United States
District Court for the Southern District of Georgia.
ECF No. 106
at 2.
The plaintiff then filed objections.
ECF No. 124.
The
plaintiff first states that the FTCA is an action against the
United States “as a whole an[d] [sic] a district should have
jurisdiction against the United States concerning any action no
matter what venue the claim was brought.”
Id. at 1.
Moreover, the
plaintiff asserts “that a district court no matter what venue it’s
in should have power and authority to use its long arm statute to
hold the United States liable for prosecution in a civil action,
because again this is a case against the ‘United States’ as a whole
3
in its officials capacity and not as suing its employees in their
individual capacity under a Bivens constitutional action.”
II.
Id.
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.
Because the plaintiff filed objections to the report and
recommendation, the magistrate judge’s recommendation will be
reviewed de novo as to those findings to which the plaintiff
objected.
As to those findings to which objections were not
filed, all findings and recommendations will be upheld unless they
are
“clearly
§ 636(b)(1)(A).
erroneous
or
contrary
to
law.”
28
U.S.C.
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.
Upon
review,
this
Discussion
Court
finds
that
in
his
report
and
recommendation, the magistrate judge correctly determined that the
claims underlying the issues which the plaintiff seeks to add to
his pending FTCA action took place at FCI Jesup, which is in the
jurisdiction of the United States District Court for the Southern
4
District of Georgia.
ECF No. 106 at 2.
Since liability under the
FTCA is based on the law of the state where the event giving rise
to liability occurred, the magistrate judge properly concluded that
the United States District Court for the Southern District of
Georgia is the proper venue for the plaintiff’s claims that
occurred at FCI Jesup.
Id.
Thus, this Court finds that the plaintiff’s pending motion to
amend should be denied without prejudice to the plaintiff’s right
to file a complaint in the United States District Court for the
Southern District of Georgia.
This Court finds no error in any of
the above determinations of the magistrate judge and thus upholds
his rulings.
IV.
Conclusion
The report and recommendation of the magistrate judge (ECF No.
106) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, plaintiff’s motion for leave to amend (ECF No.
83) is hereby DENIED WITHOUT PREJUDICE to the plaintiff’s right to
file a complaint in the United States District Court for the
Southern District of Georgia.
IT IS SO ORDERED.
The Clerk is DIRECTED to retain a copy of this memorandum
opinion and order and transmit a copy of this memorandum opinion
and order to counsel of record herein and to the pro se plaintiff
by certified mail.
5
DATED:
October 16, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
6
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