Bates v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

KENNETH RAY BATES,

Plaintiff,

v. Civ. Action No. 1:19CV171

(Judge Kleeh)

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

I. Introduction and Procedural History

On September 5, 2019, pro se Plaintiff Kenneth Ray Bates

(“Plaintiff”), an inmate incarcerated at FCI Hazelton in Bruceton

Mills, West Virginia, initiated this case by filing a Complaint

pursuant to the Federal Tort Claims Act (“FTCA”) [Dkt. No. 1]. By

Order entered October 1, 2019, Defendant was ordered to answer the

Complaint [Dkt. No. 12]. On December 6, 2019, Defendant filed a

motion to dismiss or in the alternative, motion for summary

judgment with a memorandum in support with attachments and a motion

to seal [Dkt. Nos. 18, 19]. Defendant’s motion to seal was granted

on December 9, 2019 [Dkt. No. 20]. A Roseboro Notice was also

issued to Plaintiff [Dkt. No. 22]. Plaintiff did not file a

response but, on December 18, 2019, he moved for appointed counsel

[Dkt. No. 26]. That motion was denied [Dkt. No. 28]. Defendant

filed a motion to dismiss for lack of prosecution on May 14, 2020

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

[Dkt. No. 30] because Plaintiff had not filed a Roseboro response.

Plaintiff filed a response in opposition on May 26, 2020 [Dkt. No.

31].

On June 29, 2020, Magistrate Judge Michael J. Aloi entered a

Report and Recommendation (“R&R”), recommending that the Court

grant Defendant’s motion for summary judgment [Dkt. No. 18] and

that Plaintiff’s Complaint [Dkt. No. 1] be dismissed with prejudice

[Dkt. No. 32 at 28].

In the R&R, Magistrate Judge Aloi also informed the parties

of their right to file objections within fourteen (14) days of

being served with the R&R [Dkt. No. 32 at 28]. “Objections shall

identify each portion of the magistrate judge’s recommended

disposition that is being challenged and shall specify the basis

for each objection” [Id.]. Plaintiff received the R&R on July 6,

2020 [Dkt. No. 34]. Plaintiff filed objections, titled a “Notice

of Appeal Recommendations,” on July 10, 2020 [Dkt. No. 33]. He

argues that Defendant is acting as “Judge, Jury, prosecutor as

well as an expert professional Doctor” in this case and has used

deceptive “language of the law” to discredit the Plaintiff’s claim

of relief [Id. at 7]. Plaintiff contends that he proved the three

elements necessary to prove negligence and that his Complaint

should not be dismissed [Id.]. Plaintiff believes he should be

afforded an expert witness and be able to cross examine the

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

Defendant’s witnesses [Id.]. Plaintiff contends that an expert

witness can give “Factual testimony of the bird flu avian, and how

long it would take just to become” sick from bird droppings [Id.].

Defendant asserts that Plaintiff fails to state a claim upon

which relief can be granted [Dkt. No. 18-1 at 4]. It argues that

the duty of care owed to an inmate under West Virginia law is

consistent with 18 U.S.C. § 4042, which provides that the BOP must

exercise “ordinary diligence to keep prisoners safe and free from

harm” [Id.]. See Little v. United States, 2014 WL 4102377, *14

(N.D. W. Va. 2014) (citations omitted). Under West Virginia law,

to prove a negligence claim, a plaintiff must establish a duty

owed by the defendant, a negligent breach of that duty, and

injuries received thereby, that were a proximate cause from the

breach of duty [Id. at 5]; Little, at *13. These elements must be

proved by a preponderance of the evidence which Defendant claims

that Plaintiff fails to do [Id.].

Defendant argues that Plaintiff fails to allege details of

his actual contact with birds in the Housing Unit, and fails to

show any causal connection between the injuries he claims to have

sustained and the presence of the birds [Dkt. No. 18-1 at 5].

Defendant further contends that Plaintiff’s claims of deliberate

indifference can only be pursued in a civil rights case which

Plaintiff fails to present [Id. at 6]. Defendant maintains that

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

Plaintiff’s allegation regarding birds in the Housing Unit does

not rise to the level of a viable claim [Id.].

II. Facts

A full recitation of the facts in this case is unnecessary

here. The Court relies on the detailed recitation of facts

provided in Sections II, III and V of the R&R [Dkt. No. 32 at 2-

5, 9-16]. An abbreviated review of the relevant facts follows

below.

Plaintiff, Kenneth Ray Bates, Federal Register Number 42519-

060, is currently incarcerated at FCI Hazelton (“Hazelton”)

serving a sentence for a conviction in the United States District

Court for the Northern District of Ohio for Armed Robbery and Use

of a Firearm During a Crime of Violence [Dkt. No. 32 at 2].

Plaintiff was sentenced to an aggregate prison term of 324 months

on both counts, and on April 15, 2002, the district court’s

judgment was affirmed by the Sixth Circuit Court of Appeals [Id.].

Plaintiff was designated to Hazelton on January 20, 2015 [Id.].

On May 14, 2018, Plaintiff was seen at his Housing Unit for

a Sick Call Health Services encounter for complaints of a runny

nose, sore throat, chills, dry cough, and intermittent joint pain

for the past 4 days [Dkt. No. 32 at 9]. He requested Tylenol for

relief and was diagnosed with acute pharyngitis, or a sore throat

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

[Id.]. He received Tylenol, as needed for fever, pain, and

inflammation [Id.].

On June 17, 2018, Plaintiff sent an email to

“Ms. Bird” at Hazelton stating “that we have about five birds from

the outdoors flying in the d-2unit, 3 of the birds was apprehended

by the second shift officers. There is still two of the birds been

flying around, they drink out of the water fountains where we get

hot & cold water. there is different inmates in the unit that is

sick” [Dkt. No. 32 at 10]. Plaintiff complained in the email that

“when i come in from outdoors i automatically start coughing and

sneezing. i have contacted some type of flu systems, i would

appreciate being seen by medical” [Id.].

On June 18, 2018, Plaintiff presented to Health Services via

Sick Call and complained of itchy eyes, cough, and green nasal

discharge [Dkt. No. 32 at 10]. Plaintiff reported that there were

birds living in the housing unit vents and that for the past five

days, whenever he came from outdoors, he began coughing and

sneezing; he denied having taken anything for the symptoms [Id.].

He denied fever or chills, and reported a single episode of

diarrhea [Id.]. Plaintiff’s vital signs were within normal limits,

except for his blood pressure, which was slightly elevated at

134/90 [Id. at 11]. Upon examination, Plaintiff was not in

distress, had clear nasal discharge, and sinus drainage [Id.]. He

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

also had fluid in the middle ear with no signs of acute infection

[Id.]. A complete blood count (“CBC”) was ordered, as was a chest

x-ray [Id.]. He was diagnosed with allergic rhinitis, also known

as hay fever, and instructed to follow up at Sick Call as needed

[Id.]. Plaintiff was prescribed the following for his “allergic

rhinitis”: “Methylprednisolone acetate injection 80 mg/ml, 1 ml to

be given intra-articularly [sic] one time”1 [Id. at 12].

Plaintiff’s CBC and chest x-ray were checked to rule out any

additional abnormalities, and he was encouraged to purchase OTC

Allergy relief and/or nasal spray [Id.].

On or about June 20, 2018, Plaintiff filed a Request for

Administrative Remedy Information Resolution For, complaining of

violations of “Rules 38, 41, 42, ad 43 (Misconduct) 3420.11 [Dkt.

No. 32 at 12]. His request was that “[b]irds [be] removed from

unit (unsanitary conditions)”2 [Dkt. No. 32 at 12]. On June 20,

2018, the United Manager responded noting “Issue Un-resolved No

1 An intra articular injection is one that is given into a joint,

and its reference in the record appears to be a typographical

error, possibly related to computer-assisted charting. Intra-

articular injection would not be the method of administration of

a steroid given for seasonal or perennial allergic rhinitis;

rather, the provider likely meant to choose “intra muscular,” which

would be the proper way to administer the drug under those

circumstances [Dkt. No. 32 at 11 and n.15].

2 In the R&R, Magistrate Judge Aloi included details from

Plaintiff’s statement that was attached to the Informal Resolution

Form [Dkt. No. 32 at 12].

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

Relief granted,” and that “I have notified Safety and Facilities

Depts” [Id.]. Plaintiff repeated his claim about the birds in

filing a Request for Administrative Remedy [Id. at 12-13].

Plaintiff’s chest x-ray was performed on June 26, 2018, and no

acute cardiopulmonary disease was seen and his lungs were clear

[Id. at 13].

Plaintiff returned to Health Services on June 29, 2018 for a

Sick Call with complaints of sneezing, watery eyes, and rhinorrhea

of several days’ duration [Dkt. No. 32 at 13]. Plaintiff reported

that he was exposed to bird dropping “antigens” he felt were

responsible for his symptoms but reported that his symptoms were

improving [Id.]. He denied fever, chills, shortness of breath,

chest pain, cough, nosebleed, or coughing up blood, and his vitals

were normal [Id.]. His lungs were clear but he was diagnosed with

an acute upper respiratory infection and instructed to follow up

as needed at Sick Call or with the Chronic Care Clinic [Id.].

On July 9, 2018, Plaintiff received a response to his Request

for Administrative Remedy [Dkt. No. 32 at 13]. In relevant part,

the response noted that six birds were residing in the ventilation

system in Unit D2 and that the Safety and Facilities Departments

were notified [Id.]. Both departments attempted to remove the

birds from the ventilation system, and on June 25, 2018, the

Facilities Department brought equipment to the unit and removed

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

five of the birds [Id. at 13-14]. The final bird had already been

apprehended the day before [Id. at 14]. The response further

states that there was no record of inmates reporting flu like

symptoms [Id.].

Plaintiff filed a Regional Administrative Remedy Appeal on

July 13, 2018, to “set the record straight” about the Warden’s

July 9, 2018 response [Dkt. No. 32 at 14]. Plaintiff disputed the

Warden’s statement that there was no record of inmates reporting

flu like symptoms [Id.]. He also contends that the infestation

lasted through July 8, 2018 and did not end on or about June 25,

2018 [Id.].

On July 20, 2018 Plaintiff presented on a Sick Call with

complaints of soft loose stools for the past 4 to 6 weeks and the

provider noted “[m]ild diarrhea symptoms previously reported

without antidiarrheal treatment being initiated due to computer

problem/error. Diarrhea symptoms have been worsening and now occur

daily” [Dkt. No. 32 at 14]. Plaintiff denied fever/chills,

abdominal pain, loss of appetite, weight loss [sic],

nausea/vomiting, hematochezia (bright red blood in stool), black

tarry stools, consumption of spoiled food, and steatorrhea

(excretion of abnormal quantities of fat with the feces owing to

reduced absorption of fat by the intestine) [Id.]. Plaintiff was

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

diagnosed with “diarrhea unspecified” and prescribed a Loperamide

capsule3 to take daily for seven days [Id.].

Plaintiff received a response to his Regional Administrative

Remedy Appeal from the Regional Director, Mid-Atlantic Region, who

noted that the birds were promptly removed from the ventilation

system [Dkt. No. 32 at 15]. The response further noted that

Plaintiff’s medical record indicates no bird related illness [Id.]

On August 24, 2018, Plaintiff filed a Central Office Administrative

Remedy Appeal, stating that “the records show that I was treated

for symptoms caused by exposure to strains of a subtype of the

causative orthomyxovirus that has produced epidemics in birds and

humans (which I was not tested for)” [Id.].

Plaintiff received a response to his Central Office Appeal

from the Acting Administrator for National Inmate Appeals on

November 18, 2018 [Dkt. No. 32 at 15]. The Acting Administrator

concurred with the manner in which the Warden and Regional Director

addressed your issue at the time of your lower-level grievances

[Id.]. The response states that once the Unit Team became aware

of the situation, the birds were immediately removed, and no

further relief is warranted [Id.].

3 Loperamide (brand name Immodium) is an anti-diarrheal medication

[Dkt. No. 32 at 15, n.21].

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

Plaintiff filed his Administrative Tort Claim Form 95 on

January 18, 2019, and it was assigned Administrative Claim Number

TRT-MXR-2019-03149 [Dkt. No. 32 at 16]. The claim was denied by

a letter that was received by Plaintiff on May 23, 2019 [Id.].

The denial letter states that after reporting to health services

on June 18, 2018 with complaints of itchy eyes, cough, and runny

nose, Plaintiff’s blood work and a chest x-ray showed that his

symptoms were related to seasonal allergies [Id.]. It also states

that Plaintiff was seen in health services on May 14, 2018 for

similar complaints, which was prior to the discovery of birds in

the housing unit [Id.]. Because there was no evidence of

negligence or deliberate indifference on behalf of BOP or medical

staff, Plaintiff’s claim was denied [Id.].

III. Standard of Review

When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an 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

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

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

Plaintiff’s Complaint will be liberally construed because he is

proceeding pro se. Plaintiff’s objections [Dkt. No. 33] are

addressed to Defendant’s arguments in support of the motion to

dismiss as well as the Magistrate Judge’s recommendation on the

negligence claim. The Court will only address the objections

directed to the recommendation on the negligence claim.

IV. Legal Standard

a. FTCA

As noted in the R&R, the FTCA is a comprehensive legislative

scheme by which the United States has waived its sovereign immunity

to allow civil suits for actions arising out of the negligent acts

of agents of the United States [Dkt. No. 32 at 16]. An inmate

“can sue under the FTCA to recover damages from the United States

Government for personal injuries sustained during confinement in

a federal prison, by reason of the negligence of a government

employee.” United States v. Muniz, 374 U.S. 150 (1963). The FTCA

provides at § 2674 as follows:

The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the

same manner and to the same extent as a private

individual under like circumstances, but shall not be

liable for interest prior to judgment or for punitive

damages.

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

However, the FTCA does not create a new cause of action. Medina

v. United States, 259 F.3d 220, 223 (4th Cir. 2001). “The statute

merely permits the United States to be held liable in tort in the

same respect as a private person would be liable under the law of

the place where the act occurred.” Id.

In order to maintain a case against the United States under

the FTCA, the Plaintiff must demonstrate that his action is

permissible under the FTCA and satisfies the necessary elements of

a tort claim cognizable under the laws of the state in which the

action accrued. Under West Virginia law, the Plaintiff must

establish, by a preponderance of the evidence, 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., 121 W.Va. 115, 2 S.E.2d 898, 899 (1939).

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 18 U.S.C. § 4042, the BOP must “exercise

… ordinary diligence to keep prisoners safe and free from harm.”

Little, at *14 (citing United States v. Munitz, 280 F.Supp. 542,

546 (S.D.N.Y. 1968); Jones v. United States, 534 F.2d 53, 54 (5th

Cir. 1976)). Under West Virginia law, the duty of care that the

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

BOP owes to inmates is one of reasonable care. See McNeal v.

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

b. Motion to Dismiss

As to the failure to state a claim, “Rule 12(b)(6) authorizes

a court to dismiss a claim on the basis of a dispositive issue of

law.” Neitzke v. Williams, 490 U.S. 319, 326 (1989). The

“complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although pro se

pleadings are to be liberally construed, a plaintiff must do more

than make vague and conclusory statements to state a claim for

relief. Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994), cert.

denied, 514 U.S. 1022 (1993). A plaintiff must allege facts that

actually support a plausible claim for relief. Iqbal, 556 U.S. at

678.

Courts liberally construe pro se documents and hold them to

a less stringent standard than those drafted by attorneys. Estelle

v. Gamble, 429 U.S. 97 (1976); Hughes v. Rowe, 449 U.S. 5 (1980)

(per curiam). The liberal construction that is afforded pro se

pleadings means that if the court can reasonably read the pleadings

to state a valid claim, it should do so, but a district court need

not rewrite a complaint to “conjure up questions never squarely

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th

Cir. 1985), cert. denied, 475 U.S. 1088 (1986). “Liberal

construction” does not mean that a court will ignore a clear

failure in the pleadings to allege facts which set forth a claim

cognizable in federal court.” Weller v. Dep’t. of Social Servs.,

901 F.2d 387 (4th Cir. 1990).

c. Motion for Summary Judgment

Summary judgment is appropriate if “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18. Summary judgment is proper “[w]here the

record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there [being] no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

V. Discussion

The Court has reviewed the record and finds no error in the

Magistrate Judge’s R&R. There appears to be no dispute that in

late May or at least June 7 or June 17, 2018, 5 or possibly 6 birds

gained entry to the ventilation shafts of Plaintiff’s unit, Unit

D-2 at Hazelton [Dkt. No. 32 at 18]. Plaintiff made a complaint

about the birds by an email to “Ms. Bird” on June 17, 2018, stating

that 3 of the birds had already been apprehended “by the second

shift officers” and that there were only 2 “flying around” [Id.].

Although the statement attached to Plaintiff’s Informal Resolution

Form filed on June 20, 2018 seems to contradict his email to “Ms.

Bird,” in the June 20, 2018 Request for Administrative Remedy,

Plaintiff indicates the birds had been in the unit for over 3 weeks

and still had not been removed [Id.]. In his July 13, 2018 Regional

Administrative Remedy Appeal, Plaintiff states that “[f]rom the

time of our May lockdown until July 8, the unit was infested with

these birds” [Id. at 19]. Plaintiff failed to mention that by

June 17, 2018, when he first reported the issue, only 2 birds were

left, or that by June 25, 2018, the Facilities Department had

removed all but 1 of the birds, and the final bird was extracted

on July 8, 2018 [Id].

The record shows that BOP staff attempted to remove the birds

as soon as they were notified and continued until the task was

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

complete. During much of the time Plaintiff alleged an infestation

of birds and their “contagion,” there may have only been 1 or 2

birds in the ventilation shafts. This can hardly be characterized

as gross negligence by the BOP or a lengthy infestation. Plaintiff

offers no detailed allegation regarding the duty owed to him by

the BOP, and he references irrelevant environmental rule

violations. There is no proof that Plaintiff’s “entire unit” was

infected, and the allegations of his personal injuries are

speculative with no causal connection shown between Plaintiff’s

actual exposure to bird droppings and the medical issues for which

he sought treatment.

While not in the context of claim under the FTCA, courts

analyzing cases that allege a constitutional deprivation have

found that “a prolonged pest infestation” may be considered a

deprivation sufficient to constitute a constitutional violation.

See Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (citation

omitted). In doing so, the court must consider “how extensive the

infestation of a prisoner’s cell is, what the infesting pests are,

what odors or bites or risk of disease they create, what particular

psychological sensitivities the prisoner was known to have … and

how long the infestation continues.” See Thomas v. Illinois, 697

F.3d 612, 614-15 (7th Cir. 2012). The record before the Court

establishes that Defendant addressed the birds inside the

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

ventilation system of Plaintiff’s Housing Unit as soon as it was

notified. The “infestation” alleged by Plaintiff was neither so

extensive that personal contact with the birds or droppings

occurred nor of such a duration that a significant risk of disease

was created.

Moreover, Plaintiff’s allegations of injury lack any support

in the record. The R&R identifies the symptoms of avian flu, as

well as some of the potential complications once infected [Dkt.

No. 32 at 20]. Plaintiff’s records do not support his claim that

treatment for seasonal allergy symptoms and an episode of diarrhea

were caused by an exposure to “strains of a subtype of the

causative orthomyxovirus that has produced epidemics in birds and

humans” [Id. at 21]. Plaintiff failed to allege facts that show

he personally came into contact with bird droppings which is

necessary to become infected with avian flu [Id. at 22]. As found

by the Magistrate Jude, the record contradicts Plaintiff’s claims

and he has not produced evidence of a breach of duty on the part

of the Government, or any evidence of damages beyond speculation.

With no proof of the elements necessary for a negligence action,

Plaintiff’s claim must fail.

In his objections, Plaintiff asserts that he should be

entitled to an expert to help him prove his negligence claim.

However, this is not a medical negligence case and Plaintiff’s

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

medical records are clear – his health issues were not determined

by medical staff to be causally related to the avian flu or

exposure to bird droppings. His conclusory statements otherwise

do not change the record. See Scott v. Harris, 550 U.S. 372, 380

(2007) (“When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary

judgment.”). The request for an expert witness is untimely and

unwarranted.4 Plaintiff’s Complaint fails to state a claim upon

which relief may be granted and Defendant is entitled to dismissal

of the Complaint.

VI. Conclusion

For the reasons stated herein and as detailed in the

Magistrate Judge’s R&R [Dkt. No. 32], the Court ORDERS that

(1) The Report and Recommendation [Dkt. No. 32] be AFFIRMED

and ADOPTED in its entirety;

(2) The Plaintiff’s Objections to the R&R [Dkt. No. 33] be

OVERRULED;

4 Plaintiff filed a motion to appoint counsel [Dkt. No. 26] in this

matter which was denied [Dkt. No. 28], but he never requested the

assistance of an expert witness until he referenced the same in

his objections to the R&R.

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE [DKT. NO. 32]

(3) Defendant’s Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment [Dkt. No. 18] be GRANTED;

(4) Defendant’s Motion to Dismiss for Lack of Prosecution [Dkt.

No. 30] be DENIED AS MOOT; and

(5) The Complaint [Dkt. No. 1] be DISMISSED WITH PREJUDICE for

failure to state a claim upon which relief can be granted.

The Court further DIRECTS the Clerk to enter judgment in favor

of Defendant.

It is so ORDERED.

The Court DIRECTS the Clerk to transmit copies of this Order

to counsel of record and the pro se Plaintiff, by certified mail,

return receipt requested.

DATED: November 30, 2020

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE