Damon v. United States of America

Filing 26

MEMORANDUM OPINION AND ORDER: The court GRANTS Plaintiff's 20 Motion for an Extension of Time to File Objections to the Proposed Findings and Recommendation, ADOPTS the 18 Proposed Findings and Recommendation by Magistrate Judge Aboulhosn, D ENIES Plaintiff's 4 Application to Proceed Without Prepayment of Fees, DISMISSES Plaintiff's 1 Complaint and DIRECTS the Clerk to remove the case from the court's docket. Signed by Senior Judge David A. Faber on 3/7/2017. (cc: Plaintiff, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
MARVIN X. DAMON,
Plaintiff,
v.

Civil Action No: 1:15-02216

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed
findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

The magistrate judge submitted his

proposed findings and recommendations (“PF&R”) on May 11, 2016.
In the PF&R, Magistrate Judge Aboulhosn recommended that the
court deny plaintiff's application to proceed without prepayment
of fees, dismiss plaintiff’s complaint, and remove the matter
from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days, plus three mailing days, in
which to file any objections to the PF&R.

Plaintiff timely filed

objections to the PF&R on June 6, 2016.1

 Plaintiff filed a motion for an extension of time to file
objections to the PF&R. (ECF No. 20). That motion is GRANTED
and his objections are deemed to be timely filed.
1

Plaintiff is a federal inmate formerly incarcerated at the
Federal Correctional Institution located in McDowell County, West
Virginia.

On February 25, 2015, plaintiff, acting pro se, filed

the instant complaint seeking relief under the Federal Tort
Claims Act (“FTCA”).

Plaintiff’s complaint alleges that, in

October of 2013, FCI McDowell staff acted negligently by failing
to label the salad dressing placed on the food bar.

According to

Damon, a practicing Muslim, proper labeling of the salad dressing
was necessary in order for him to determine if the salad dressing
contained pork or a pork byproduct.

Damon further contends that

he consumed the unlabelled salad dressing which, according to
him, contained pork or pork byproducts and, therefore, he
violated his religious beliefs.
Plaintiff’s first objects that the magistrate judge was
entitled to consider only his economic status, and not the merits
of his case, in ruling on his motion to proceed in forma
pauperis.

However, plaintiff’s complaint was dismissed pursuant

to 28 U.S.C. § 1915A.

That statute directs a district court to

conduct an early review of any action filed by a prisoner against
“a governmental entity or officer or employee of a governmental
entity” and to dismiss any claims that are “frivolous, malicious,
or fail[ ] to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(b)(1).

Likewise, the in forma pauperis

statute, which permits an indigent litigant to commence an action

2

in federal court without prepaying the administrative costs of
proceeding with the lawsuit, also allows a district court to
dismiss the case upon a finding that the action “is frivolous or
malicious,” “fails to state a claim on which relief may be
granted,” or “seeks monetary relief against a defendant who is
immune from such relief.”

28 U.S.C. § 1915(e)(2)(B).

Plaintiff cites no authority for the proposition that
Magistrate Judge Aboulhosn was required to reach the merits of
his in forma pauperis application, under 28 U.S.C. § 1915, before
turning to the mandatory screening required under 28 U.S.C. §
1915A.

Indeed, § 1915A mandates that a court make the requisite

review “before docketing, if feasible or, in any event, as soon
as practicable after docketing. . . .”

28 U.S.C. § 1915A(a).

Accordingly, Damon’s first objection is without merit and
OVERRULED.
Plaintiff next objects that the magistrate judged erred in
dismissing his complaint prior to requiring a responsive pleading
from the United States.

However, as noted above, the text of §

1915A undermines Damon’s argument as the statute contemplates
that the requisite screening happen as early as possible -preferably “before docketing.”

As such, there is no requirement

that the court wait until a responsive pleading is filed in order
to do so.

See Jones v. Bock, 549 U.S. 199, 213 (2007) (noting

that screening under 1915A “may take place before any responsive

3

pleading is filed”); see also Black v. United States, Civil
Action No 4:14-CV-502-O, 2016 WL 54369, *1 (N.D. Tex. Jan. 5,
2016) (“Consistent with § 1915A is prior case law recognizing
that a district court is not required to await a responsive
pleading to conduct its § 1915 inquiry.”).

Likewise, the in

forma pauperis statute does not require a responsive pleading be
filed prior to dismissal.

See Rogers v. Isom, 709 F. Supp. 115,

117 (E.D. Va. 1989) (“District courts have broad discretion to
dismiss complaints without issuance of process when an
examination of the record reveals the action is `frivolous or
malicious’ within the meaning of 28 U.S.C. § 1915(d)”); see also
Todd v. Baskerville, 712 F.2d 70, 71 (4th Cir. 1983) (affirming
dismissal of suit “as frivolous under § 1915(d) without requiring
any responsive pleading by the defendant).

Plaintiff’s objection

is without merit and OVERRULED.
Plaintiff’s third objection is to the magistrate judge’s
observation that the FTCA does not provide a remedy for
constitutional torts.

According to Damon, he is not alleging

that the prison officials violated his constitutional rights but,
rather, that their negligence led him to violate his own
religious beliefs.

This is really a distinction that makes no

difference and the magistrate judge was correct that, to the
extent Damon’s complaint is founded on a constitutional tort, he
Godbey v. Wilson, No. 1:12cv1302

may not proceed under the FTCA.

4

(TSE/TRJ), 2014 WL 794274, at *4 (E.D. Va. Feb. 26, 2014) (“Thus,
the FTCA provides no jurisdiction for this Court to entertain
plaintiff's claims that his inabilities to use alcoholic mead in
religious ceremonies and to wear his hlath at all times violate
his rights under the First and Fifth Amendments.”); see also
Ready Trans., Inc. v. Military Traffic Mgmt. Command, 86 Fed.
App'x 561, 565 (4th Cir. Jan. 22, 2004) (“FTCA does not provide a
remedy for constitutional torts.”); Williams v. United States,
242 F.3d 169, 175 (4th Cir. 2001) (“[A] federal constitutional
tort cannot provide the source of law under the FTCA”).

In any

event, Magistrate Judge Aboulhosn did not recommend dismissal of
Damon’s FTCA claim for this reason and, therefore, plaintiff’s
objection is OVERRULED.
The PF&R recommends dismissal because plaintiff did not
allege that he suffered a physical injury, as required by the
Prison Litigation Reform Act (“PLRA”).

Damon’s fourth objection

goes to this conclusion and he argues that he does not have to
show a physical injury to proceed with his FTCA claim.
wrong.

Damon is

The PLRA expressly prohibits the filing of civil actions

by prisoners “confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.”

5

42 U.S.C. §

1997e(e).2

Therefore, given plaintiff’s acknowledgment that he

did not allege a physical injury because he thought he did not
have to do so, dismissal is appropriate.

Sisney v. Reisch, 674

F.3d 839, 843 (8th Cir. 2012) (finding PLRA barred prisoner’s
free exercise claims because there was no allegation of physical
injury).

Plaintiff’s fourth objection is OVERRULED.

Damon’s final objection is related to his second objection.
He argues that, in the court’s initial screening of this matter,
the court should not “defend and/or argue” this case on behalf of
the United States.

ECF No. 21 at p.3.

However, as noted above,

the court is required to screen his complaint and it may dismiss
the case even before the United States has appeared.
Accordingly, this objection is OVERRULED.
Having reviewed the Findings and Recommendation filed by
Magistrate Judge Aboulhosn, the court adopts the findings and

2

The FTCA also requires a physical injury. 28 U.S.C. §
1346(b)(2) provides that “[n]o person convicted of a felony who
is incarcerated while awaiting sentencing or while serving a
sentence may bring a civil action against the United States . . .
for mental or emotional injury suffered while in custody without
a prior showing of physical injury.” See Zierke v. United
States, No. 16-1734, 2017 WL 541407, *1 (3d Cir. Feb. 10, 2017)
(noting that dismissal was appropriate under the FTCA where
inmate “did not allege any physical injury resulting from
restrictions on his religious practice”); Michtavi v. United
States, 345 F. App’x 727, (3d Cir. Sept. 21, 2009) (“The FTCA
provides that a prisoner such as Michtavi may not recover
compensatory damages for exclusively mental or emotional injuries
without also showing an accompanying physical injury.”); Rosales
v. Watts, 2:15-cv-94, 2016 WL 1064578, *6 (S.D. Ga. Mar. 15,
2016) (“Therefore, the physical injury exception provides yet
another bar to Plaintiff’s FTCA claims.”).
6

recommendations contained therein.

Accordingly, the court hereby

DENIES plaintiff's application to proceed without prepayment of
fees; DISMISSES plaintiff’s complaint; and DIRECTS the Clerk to
remove the case from the court’s docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to plaintiff, pro se, and counsel of record.
IT IS SO ORDERED this 7th day of March, 2017.
ENTER:

David A. Faber
Senior United States District Judge

7