Scott v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JEROME SCOTT,

Plaintiff,

v. Civil Action No. 1:18-cv-61

(Kleeh)

UNITED STATES OF AMERICA,

Defendant.

ORDER ADOPTING REPORT AND RECCOMENDATION [DKT. NO. 102],

GRANTING DEFENDANT’S MOTION TO DISMISS, OR IN THE ALTERNATIVE,

MOTION FOR SUMMARY JUDGMENT [DKT. NO. 77], OVERRULING

PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

Pending before the Court is a Report and Recommendation

(“R&R”) by United States Magistrate Judge Michael J. Aloi

(“Magistrate Judge”) [Dkt. No. 102], and Plaintiff’s objection

thereto [Dkt. No. 103]. The R&R recommends that the Court grant

the Motion to Dismiss, or in the alternative, Motion for Summary

Judgment [Dkt. No. 77]. It also recommends that the Court dismiss

the Plaintiff’s Complaint [Dkt. No. 1] with prejudice. For the

reasons discussed below, the Court ADOPTS the Magistrate Judge’s

R&R.

I. BACKGROUND

On March 23, 2018, pro se Plaintiff, Jerome Scott

(“Plaintiff”), a former inmate incarcerated at FCI Hazleton in

Bruceton Mills, West Virginia, filed a Complaint pursuant to the

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

Federal Tort Claims Act (“FTCA”) [Dkt. No. 1]. The Complaint

challenges the Bureau of Prison’s (“BOP”) search of Plaintiff’s

person after he was found to be in possession of a prison-made

weapon Id. Pursuant to 28 U.S.C. § 636 and the local rules, the

Court referred this matter to the Magistrate Judge for initial

screening and a report and recommendation. A full procedural

history is set forth in the R&R [Dkt. No. 102].

On April 3, 2019, Defendant filed a Motion to Dismiss for

Failure to State a Claim, or in the alternative, Motion for Summary

Judgment [Dkt. No. 77]. On April 8, 2019, Plaintiff filed a

“Motion for Default of Judgment” [Dkt. No. 79]. That same day,

the Magistrate Judge issued an Order denying Plaintiff’s Motion

for Entry of Default or Default Judgment [Dkt. No. 84]. On April

8, 2019, a Roseboro Notice was issued to pro se Plaintiff, advising

him of his right to respond to Defendant’s Motion [Dkt. No. 86].

On April 22, 2019, Plaintiff filed a Response in Opposition to

Defendant’s Motion [Dkt. No. 89].

On January 22, 2020, the Magistrate Judge’s R&R [Dkt. No.

102] recommended that the Defendant’s Motion to Dismiss or Motion

for Summary Judgment [Dkt. No. 77] be granted. The R&R recommends

that Plaintiff’s FTCA claim be dismissed with prejudice pursuant

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon

which relief can be granted [Dkt. No. 77, at 24].

II. DISCUSSION

When reviewing a R&R, the Court must review de novo only the

portions to which a specific objection has been timely made. 28

U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt, without

explanation, any of the magistrate judge’s recommendations to

which the [parties do] not object.” Dellarcirprete v. Gutierrez,

479 F. Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v.

Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold

portions of a recommendation to which no objection has been made

unless they are clearly erroneous. See Diamond v. Colonial Life

& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

The Fourth Circuit has held that an objecting party must do

so “with sufficient specificity so as reasonably to alert the

district court of the true ground for the objection.” United

States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert denied,

127 S.Ct. 3032 (2007). The court explained that “[t]o conclude

otherwise would defeat the purpose of requiring objections. We

would be permitting a party to appeal any issue that was before

the magistrate judge, regardless of the nature and scope of

objections made to the magistrate judge’s report.” Id. This would

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

result in wasted judicial resources and “the district court’s

effectiveness based on help from magistrate judges would be

undermined.” Id.

“General objections that merely reiterate arguments presented

to the magistrate judge lack the specificity required under Rule

72, and have the same effect as a failure to object, or as a waiver

of such objection.” Moon v. BMX Technologies, Inc., 742 F. Supp.

2d 827, 829 (W.D. Va. 2010), aff’d, 498 F. App’x 268 (4th Cir.

2012). A plaintiff who reiterates his previously raised arguments

will not be given “the second bite at the apple []he seeks.” Veney

v. Astrue, 539 F.Supp.2d 841, 846 (W.D. Va. 2008).

On February 7, 2020, in response to the Magistrate Judge’s

R&R, Plaintiff filed a variety of generalized “objections” [Dkt.

No. 103], which incorporate recitations of fact and law outlined

in his Complaint [Dkt. No. 1] and Reply to the Defendant’s Motion

to Dismiss, or in the alternative, Motion for Summary Judgment

[Dkt. No. 89]. Because the objections lack specificity to the

R&R, the Court reviews the R&R for clear error. Diamond, 416 F.3d

at 315.

Moreover, to the extent that any specific objections are

deemed to have been raised, the Court likewise considers those

objections, but ultimately finds that they fail to overcome the

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

Magistrate Judge’s R&R. After an analysis of the circumstances

presented and the applicable law, the Magistrate Judge found that

Plaintiff’s claim is not barred by the 28 U.S.C. § 2401(b)’s

statute of limitations, and this Court has subject matter

jurisdiction over the claims raised [Dkt. No. 102, at 14]. While

Plaintiff must exhaust all administrative remedies, here, the

Magistrate Judge found that “[t]he failure of an agency to make

final disposition of a claim within six months after it is filed

shall, at the option of the claimant at any time thereafter, be

deemed a final denial of the claim for purposes of this section.”

28 U.S.C. § 2675(a) (emphasis added). Accordingly, Plaintiff has

the right at “any time of his own to deem such a failure to be a

final agency denial.” Boyd v. United States, 482 F. Supp. 1126,

1129 (W.D. Pa. 1980) (citing Mack v. United States Postal Service,

414 F. Supp. 504 (E.D. Mich. 1976)).

Here, Plaintiff’s FTCA claims can readily be characterized as

claims for (1) deliberate indifference and (2) intentional

infliction of emotional distress (“IIED”), in addition to his

medical negligence claim. In the R&R, however, the Magistrate

Judge found that Plaintiff’s deliberate indifference claim should

be analyzed as a negligence claim [Dkt. No. 102, at 15] because

deliberate indifference claims are not cognizable under the FTCA.

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

See Royster v. United States, 2008 U.S. Dist. LEXIS 106634 *13

(W.D. Pa. December 1, 2008). The Court agrees with this

conclusion. For the subsequent reasons, the Court ADOPTS the

Magistrate Judge’s R&R.

A. Plaintiff’s Negligence Claim

Even as a negligence claim, however, the R&R finds that the

Plaintiff cannot satisfy the elements to prove negligence under

the FTCA. In West Virginia, plaintiffs must establish three

elements in a negligence suit: (1) a duty that the defendant owes

to the plaintiff, (2) a negligent breach of that duty, and (3)

injuries received as a proximate result from that breach. Webb v.

Brown & Williamson Tobacco Co., 2 S.E.2d 898, 899 (W. Va. 1939).

The plaintiff must prove these elements by a preponderance of the

evidence. Id. at 899. Pursuant to the FTCA, the BOP owes prisoners

a duty of care that specifically requires the BOP to provide for

the safekeeping, care, subsistence, and protection of all

prisoners. See 18 U.S.C. § 4042; Muniz, 374 U.S. 150 (1963).

Under West Virginia law, the duty of care that the BOP owes to

inmates is one of “reasonable care.” See McNeal v. United States,

979 F. Supp. 431 (N.D. W.Va. 1997).

As a negligence claim, the Magistrate Judge finds that the

Plaintiff provides “only a portion of the events, does not explain

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

how and why he came to be ‘dry celled’ in the first place, and

never mentions that he attempted to assault BOP staff, leading to

the use of force” [Dkt. No. 102, at 17]. The Magistrate Judge

also notes that the Plaintiff’s claims of physical injuries or

permanent injuries “lack any support in the record” [Id.]. To the

contrary, records indicate that medical staff provided him with

medical treatment on or around the time this alleged assault

occurred [Id. at 17-18]. The Magistrate Judge notes that despite

the Plaintiff’s claim in his Complaint that he was so afraid “for

his life” that he did not report the assault, the record

contradictorily shows that he did report the incident less than

two months later, on July 22, 2017, while at USP Hazelton [Id.].

At bottom, the Magistrate Judge finds that the Plaintiff has

failed to produce any evidence of a breach of duty on the part of

the Respondent, or any evidence of damages, beyond his own

assertions, which are contradicted by the record [Dkt. No. 102, at

20]. Accordingly, the Magistrate Judge recommends that

Plaintiff’s negligence claim cannot survive summary judgment. The

Court has reviewed the R&R’s finding on negligence in its entirety,

and finds it thorough, well-reasoned, and without error.

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

B. Plaintiff’s IIED Claim

The Magistrate Judge notes that the FTCA’s waiver of sovereign

immunity is subject to several requirements and limitations [Dkt.

No. 102, at 21]. 28 U.S.C. § 1346(b)(2) provides that

No 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 or an agency,

officer, or employee of the Government, for

mental or emotional injuries suffered while in

custody without a prior showing of physical

injury.

Further, § 803(d) of the Prison Litigation Reform Act, codified at

42 U.S.C. § 1997(e)(2), also predicates a prisoner’s claim for

mental or emotional injuries suffered while in custody on a showing

of an accompanying physical injury. See 42 U.S.C. § 1997e(e) ("No

Federal civil action may be brought by a prisoner confined in a

jail, prison, or other correctional facility, for mental or

emotional injuries suffered while in custody without a prior

showing of physical injury.").

Simply put, under West Virginia law, the Plaintiff cannot

produce any evidence that his IIED claim can survive summary

judgment. Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W.

Va. 1998). The burden on the plaintiff to prevail on an IIED claim

is extremely high. See Pegg v. Herrnberger, 845 F.3d 112, 122

(4th Cir. 2017). With only mere assertions and no evidence to

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

back them up, the Magistrate Judge finds that summary judgment

should be granted with respect to this claim [Dkt. No. 102, at

22]. Finding no clear error in the Magistrate Judge’s well-

reasoned analysis, the undersigned agrees that summary judgment is

appropriate for Plaintiff’s IIED claim.

C. Plaintiff’s Medical Negligence Claim

Finally, the Magistrate Judge considers Plaintiff’s medical

negligence claim [Dkt. No. 102, at 23] under West Virginia Code

Section 55-7B-3. See also Banfi v. American Hosp. for

Rehabilitation, 529 S.E.2d 600, 605-606 (W. Va. 2000). However,

because compliance with West Virginia Code Section 55-7B-6

(obtaining a screening certificate of merit) is mandatory prior to

filing a suit in federal court, Stanley v. United States, 321

F.Supp. 2d 805, 806-807 (N.D. W.Va. 2004), the Magistrate Judge

finds that the Plaintiff’s medical negligence claim1 cannot survive

summary judgment [Dkt. No. 102, at 23]. Accordingly, the

Magistrate Judge finds that the Plaintiff’s medical negligence

claim should be dismissed [Id.]. Finding no clear error in this

recommendation, the Court agrees with the R&R’s finding.

1 The Magistrate Judge also finds that this is not a case of alleged

malpractice so obvious that it entitles Plaintiff to the common

knowledge exception of W. Va. Code § 55-7B6(c). The Court agrees

with this finding.

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

However, the Court likewise finds that Plaintiff’s medical

negligence claim should be dismissed without prejudice. Because

the Plaintiff failed to comply with West Virginia’s statutory

requirements, dismissal of the negligence claim without prejudice

is warranted. See Davis v. Mount View Health Care, 640 S.E.2d 91

(W. Va. 2006) (dismissal without prejudice warranted where

Plaintiff failed to comply with MPLA pre-filing requirements).

Accordingly, the Court dismisses without prejudice Plaintiff’s

medical negligence claim.

III. CONCLUSION

While the Plaintiff made only general objections to the R&R,

the Court is not obligated to provide a review of the conclusions

of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 150 (1985).

Accordingly, the Court is under no obligation to conduct a de novo

review. Therefore, upon careful review and analysis of all the

issues relevant to this case,2 the Court hereby:

2 Although not raised in the R&R, the Court would advise the

parties of the following. Throughout the Plaintiff’s pleadings

and responses, he raises alleged constitutional violations that

occurred during this incident akin to the “8, 4 and 14 amendment.”

[Dkt. No. 7-1, at 1]. However, the FTCA does not permit a plaintiff

to bring forth “constitutional claims.” FDIC v. Meyer, 510 U.S.

471 (1994) (constitutional torts are not cognizable under the

FTCA); see also 28 U.S.C. § 2676. As the Fourth Circuit

recognizes, the utilization of the FTCA rather than a Bivens action

is a calculated risk:

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

1) ADOPTS the R&R [Dkt. No. 102];

2) GRANTS the Defendant’s Motion to Dismiss, or in the

alternative, Motion for Summary Judgment [Dkt. No. 77];

3) DISMISSES WITH PREJUDICE all of Plaintiff’s claims [Dkt. No.

1] related to negligence and IIED;

4) DISMISSES WITHOUT PREJUDICE Plaintiff’s remaining medical

negligence claim [Dkt. No. 1];

5) OVERRULES the response and objection filed by pro se Plaintiff

[Dkt. No. 103]; and

6) ORDERS this matter stricken from the Court’s docket.

It is so ORDERED.

In pursuing an intentional tort claim against

a federal law enforcement officer, a

prospective plaintiff may pursue two

alternative avenues of relief. She may either

pursue a constitutional claim against the

officer directly under the Constitution, as

recognized in Bivens, or she may file a tort

claim under the FTCA. Should a plaintiff

pursue the latter course, she runs the risk

that her constitutional claim will be subject

to the FTCA's “judgment bar” provision . . .

Unus v. Kane, 565 F.3d 103, 122 (4th Cir. 2009).

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NO. 77], OVERRULING PLAINTIFF’S OBJECTIONS [DKT. NO. 103], AND DISMISSING

PLAINTIFF’S COMPLAINT [DKT. NO. 1]

Pursuant to Fed. R. Civ. P. 58, the Court DIRECTS the Clerk

of Court to enter a separate judgment order and to transmit copies

of both orders to counsel of record and to the pro se Petitioner,

certified mail, return receipt requested.

DATED: March 30, 2020

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE