# Bates v. United States

> District Court, N.D. West Virginia · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10725804

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** November 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725804. Public record. Not legal advice.