Baker v. LaConte et al
Filing
19
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 17 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/18/18. (Pro Se Plaintiff via CM/rrr) (lmm) (Additional attachment(s) added on 6/18/2018: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IRVIN JAYOINE LEE BAKER,
Plaintiff,
v.
Civil Action No. 5:17CV116
(STAMP)
PIERRE LACONTE, Acting
Residential Re-entry Manager
and EMILY GILLESPIE, Director
of Dismas Charities Clarksburg,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND DISMISSING THE COMPLAINT
I.
Background
The pro se1 plaintiff filed this civil action asserting three
claims under Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971).
ECF No. 1.
This complaint arises out of the
plaintiff’s removal from a halfway house program and placement in
West Virginia’s Central Regional Jail.
ECF No. 1 at 8.
The
plaintiff alleges (1) violation of due process, (2) violation of
his eighth amendment rights, and (3) discrimination.
7-8.
ECF No. 1 at
Although the plaintiff has not exhausted administrative
remedies, he contends that it is because he “was not given the
opportunity to do anything before [he] was transferred.”
1
ECF No.
“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).
1 at 6.
The plaintiff requests relief in the form of lost wages
and funds for time spent in the regional jail.
ECF No. 1 at 9.2
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.
report and recommendation.
the
magistrate
judge
The magistrate judge entered a
ECF No. 17.
found
that
the
In that recommendation,
complaint
contains
allegations against the first defendant, Pierre LaConte.
17 at 4-5.
no
ECF No.
Further, the magistrate judge found that the second
defendant, Emily Gillespie, is not a federal employee and thus
cannot be found liable in a Bivens action.
ECF No. 17 at 5.
Accordingly, the magistrate judge recommended that the complaint be
dismissed with prejudice against Emily Gillespie and dismissed
without prejudice against Pierre LaConte.
ECF No. 17 at 5.
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 14 days after being
served a copy of the report and recommendation.
Neither party
filed any objections to the report and recommendation.
2
As the magistrate judge noted, the plaintiff also requested
to be placed in another halfway house, but this is now moot since
the plaintiff is no longer in the custody of the Federal Bureau of
Prisons.
2
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
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).
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.
The magistrate judge correctly
held the pro se petition to less stringent standards than those
complaints drafted by attorneys.
519, 520 (1972).
See Haines v. Kerner, 404 U.S.
Upon review, the magistrate judge correctly
determined that the complaint contains no allegations about the
first defendant, Pierre Laconte, and the second defendant, Emily
Gillespie,
is
not
a
federal
employee.
ECF
No.
17
at
4-5.
Therefore, these individuals cannot be found liable in a Bivens
action.
ECF No. 17 at 4-5.
The magistrate judge correctly
3
concluded that the complaint must be dismissed with prejudice as to
Emily Gillespie and without prejudice as to Pierre Laconte.
ECF
No. 17 at 5.
This
Court
has
reviewed
the
record
and
the
report
and
recommendation and finds that the findings of the magistrate judge
are
not
clearly
erroneous.
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, the report and recommendation of the magistrate judge
(ECF No. 17) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, the plaintiff’s claim against Emily Gillespie is
DISMISSED WITH PREJUDICE and the plaintiff’s claim against Pierre
Laconte is DISMISSED WITHOUT PREJUDICE.
It is further ORDERED that this case be DISMISSED and 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
4
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (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.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk is
DIRECTED to enter judgment on this matter.
DATED:
June 18, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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