Carter v. Division of Corrections et al
Filing
45
MEMORANDUM OPINION AND ORDER directing that the plaintiff's 41 Objections to the Proposed Findings and Recommendation are overruled; the 40 Proposed Findings and Recommendation are adopted and incorporated in full; the 27 Motion by T om Chandler, Division of Corrections to Dismiss is granted; the 16 , 19 temporary restraining order against the defendants is terminated; and this civil action be dismissed and stricken from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 9/13/2018. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KENNETH EUGENE CARTER,
Plaintiff,
v.
Civil Action No. 2:17-cv-03743
DIVISION OF CORRECTIONS,
WARDEN DAVID BALLARD, and
TOM CHANDLER, CFCI,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion to dismiss filed on December 1,
2017 by the defendants.
In the complaint, the plaintiff, an
inmate at Mount Olive penitentiary, seeks possession of
prescription sunglasses that have been withheld from him by the
prison officials where he is incarcerated because the glasses do
not conform to the prison’s requirements.
This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission
to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On August 9, 2018, the magistrate judge entered his PF&R
recommending that the motion to dismiss be granted, that the
plaintiff’s complaint be dismissed, that the temporary
restraining order against the defendants be terminated, and that
this matter be dismissed from the docket of the court.
The
plaintiff filed objections to the PF&R on August 27, 2018, and
amended the objections on September 4, 2018 to include a case
citation, which the court has taken into consideration in this
decision.
Defendants Division of Corrections and Tom Chandler
filed a response to the plaintiff’s objections on September 10,
2018.
The court reviews objections de novo.
Furthermore,
“[t]he Federal Magistrates Act requires a district court to
‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”
Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
Plaintiff lodges several objections to the PF&R, all
but two of which fail to identify specific portions to which
objection is made or fail to clearly state the basis for the
objection.
However, to the extent the objections may be
discerned, the court evaluates the merit of each.
The first objection is that of a general disagreement
with the ultimate conclusion of the PF&R--that the complaint
should be dismissed. ECF No. 41, at 1-2.
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The plaintiff states
that the decision of the magistrate judge was based on his
confusion of the facts.
Id.
The plaintiff argues that he
should be given an opportunity to amend the pleadings to
“correct deficiencies” and “accurately clarify the
circumstances.”
Id.
The defendants respond by correctly noting
that the plaintiff has already had reasonable opportunity to
correct any deficiencies in the pleading.
ECF No. 44, at 2.
The proposed amendment is made without basis, as the plaintiff
has not demonstrated that he can plead any facts that would lead
the court to believe that an amendment to the complaint is not
futile.
See Edwards v. City of Goldsboro, 178 F.3d 231, 242
(4th Cir. 1999) (“[L]eave to amend a pleading should be denied .
. . when the amendment would be . . . futile.”).
The request to
amend his complaint is denied.
In objection 2B, the plaintiff objects to the finding
that the complaint failed to state a plausible Fourth Amendment
claim.
ECF No. 41, at 3.
As the magistrate judge discussed in
the PF&R, there was no unlawful search or seizure in this case.
PF&R 5-8.
West Virginia Division of Corrections (“WVDOC”)
Policy Directive 400.03 states that sunglasses for inmates are
approved only if they are non-prescription, unless the lenses
are transition lenses.
at 3.
ECF No. 27, Ex. 2 at 14, 28; ECF No. 28,
Defendant Chandler issued the package refusal notice
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because the delivered item was a pair of prescription sunglasses
that did not have transition lenses.
2, Ex. G.
ECF No. 28, at 3; ECF No.
WVDOC is permitted by well established law to search
prisoners’ mail and seize any contraband.
See Hudson v. Palmer,
468 U.S. 517, 526 (1984) (prisoners do not have an expectation
of privacy in their incoming mail); Wenzler v. Warden of
G.R.C.C., 949 F. Supp. 399, 402 (E.D. Va. 1996) (a prisoner does
not have a property interest in an item he is not permitted to
have under prison policy).
The rest of the plaintiff’s argument in this objection
reasserts the claim that the prison should not have approved the
purchase of these glasses.
ECF No. 41, at 3.
As the magistrate
stated in the PF&R, the prison’s approval of the voucher that
allowed plaintiff to purchase the sunglasses has no bearing on
the Fourth Amendment claims asserted against the defendants.
PF&R 7-8.
Inasmuch as the magistrate judge sufficiently
considered and properly rejected this argument, the objection is
denied.
Objections 2A, 3, 4, and 6 assert claims not raised in
the complaint, and the plaintiff may not raise those claims for
the first time here.1
The remaining objections, numbered 5, 7,
The plaintiff argues that the PF&R did not address the liability of
defendants Division of Corrections and Warden Ballard under the doctrine of
respondeat superior. ECF No. 41, at 2-5. However, nowhere in the pleadings
1
4
and 8, are not germane to the complaint nor do they object to
any of the findings of the PF&R.2
Finally, the arguments in the
section of the objections titled “General Allegation,” ECF No.
41, at 6-7, merely reiterate arguments previously made and
contain no particular objections to the PF&R other than
disagreeing, generally, with its findings.
Therefore, it is ORDERED as follows:
1. That the plaintiff’s objections to the PF&R be, and hereby
are, overruled.
2. That the magistrate judge’s Proposed Findings and
Recommendation be, and they hereby are, adopted and
incorporated in full.
3. That the pending motion to dismiss be, and it hereby is,
granted.
did the plaintiff allege that the Division of Corrections or Warden Ballard
should be held liable under respondeat superior.
2 Objection 5 references two documents attached to his objection, an optometry
report and a memorandum from the Superintendent to the prison staff and
inmates, in an effort to show malice and wrongdoing by the defendants, but
makes no actual objection to the PF&R. ECF No. 41, at 4-6. Objection 7 is a
laundry list of jurisdictional statutes that were not at issue in the
complaint and are irrelevant here. Id. at 5. Objection 8 erroneously relies
on West Virginia Code § 29-12-5 in support of a meritless claim that
plaintiff may receive monetary damages in this suit, up to the amount of the
state’s insurance coverage, despite defendants’ Eleventh Amendment immunity.
Id.; see Westinghouse Elec. Corp. v. W. Va. Dep’t of Highways, 845 F.2d 468,
470 (4th Cir. 1988).
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4. That the temporary restraining order against the defendants
be, and it hereby is, terminated; and
5. That this civil action be dismissed and stricken from the
docket of the court.
The clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and to any
unrepresented parties.
Enter: September 13, 2018
John T. Copenhaver, Jr.
United States District Judge
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