McWilliams v. Frame

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

KEVIN X. MCWILLIAMS,

Plaintiff,

v. Civ. Action No. 1:19-CV-76

(Judge Kleeh)

J. FRAME, Senior Officer;

S. JAMISON, Maintenance Worker Foreman;

A. KUHL, Lieutenant; A. WEAVER,

Senior Officer; and

J. BARNES, Senior Officer Specialist,

Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

Pending before the Court is a Report and Recommendation

(“R&R”) by United States Magistrate Judge Michael J. Aloi. ECF No.

103. For the reasons discussed below, the Court adopts the R&R.

I. PROCEDURAL HISTORY

On April 11, 2019, the plaintiff, Kevin X. McWilliams

(“Plaintiff”), filed “Federal Civil Rights Complaint (Bivens

Action)” pursuant to Bivens v. Six Unknown Federal Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971) (the “Complaint”).

ECF No. 1. The Complaint stems from a fight between inmates that

occurred on January 10, 2018, in which Plaintiff was also involved

and sustained injuries. Id. Plaintiff filed a motion for leave to

proceed in forma pauperis which was granted by Court order

directing Plaintiff how to proceed with the necessary filing fee.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

ECF Nos. 2, 7. Petitioner paid the filing fee in full on May 12,

2020, with incremental payments occurring prior to that date. ECF

No. 31.

All summons having been returned executed, AUSA Prezioso

filed a notice of appearance on behalf of all defendants and a

dispositive motion to dismiss, which is the subject of the

Magistrate Judge’s R&R and this Order. ECF Nos. 40, 42. Thereafter

the Magistrate Judge issued a Roseboro notice, and by September

25, 2020, the motion was fully briefed. ECF Nos. 48, 87, 93.

II. THE BRIEFINGS AND REPORT AND RECOMMENDATION

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

referred the entire action to United States Magistrate Judge

Michael J. Aloi. On June 29, 2020, Defendants filed a Motion to

Dismiss with a memorandum in support, arguing Plaintiff’s

complaint should be dismissed because (1) Plaintiff failed to

exhaust the administrative remedies under the Administrative

Remedy Program (28 C.F.R. § 542.10 et seq.)1; (2) Plaintiff failed

to assert a cognizable Bivens claim; and (3) Defendants are

entitled to qualified immunity. ECF Nos. 42, 43.

1 The Administrative Remedy Program is one program promulgated by the Bureau of

Prisons under the United States Department of Justice pursuant to the Prison

Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

In response to the Motion, Plaintiff filed two responses on

September 11, 2020. ECF Nos. 86, 87.2 Plaintiff’s first response

reiterated much of the allegations in the complaint, highlighting

his claim of deprivation of constitutional rights, including his

time spent in the Special Housing Unit (“SHU”) and his argument

that he is due 27 days of Good Conduct Time (“GCT”). ECF No. 86.

Plaintiff further responded that he has a right to bring his claims

to this Court and that he has exhausted all available

administrative remedies, which is directly contrary to what he

stated in his complaint. ECF No. 1, Section IV, ¶ F (“I could not

exhaust administrative remedies because administration would not

acknowledge any of my complaints.”). In Plaintiff’s second

response, he takes issue with much of what he discussed in his

Complaint and first response, including: (1) the video

surveillance that Defendants submitted as Attachment B, (2)

Defendants’ description of Plaintiff’s injury from the January 10,

2018, incident, (3) the incident reports submitted by Plaintiff

and the GCT issue, (4) he exhausted the administrative remedies,

and (5) his Bivens claim is cognizable. ECF No. 87.

Defendants’ Reply states that “Defendants wish to stand upon

the facts and arguments previously asserted in their Motion to

2 Plaintiff also filed a surreply without leave of court on December 10, 2020.

ECF No. 101. This filing was not considered by the Magistrate Judge and will

not be discussed here. See LR PL 11(d); LR PL 13.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

Dismiss, or in the Alternative, for Summary Judgment and Memorandum

filed in support thereof (ECF Nos. 42, 43) and maintain that this

Court should dismiss the pending Bivens Complaint (ECF No. 1).”

ECF No. 93. Defendants further dispute that Plaintiff was not able

to view the video evidence submitted by Defendants or that the

video evidence was altered. Id.

Magistrate Judge Aloi issued the R&R on January 21, 2021,

recommending that the Court grant Defendants’ Motion [ECF No. 42]

and dismiss Plaintiff’s Complaint [ECF No. 1] with prejudice for

failure to exhaust the administrative remedies. ECF No. 103. The

Magistrate Judge also recommended that all other pending motions

in this matter be denied as moot.

The R&R also informed the parties that they had fourteen (14)

days from the date of service of the R&R to file “specific written

objections, identifying the portions of the Report and

Recommendation to which objection is made, and the basis of such

objection.” It further warned them that the “[f]ailure to file

written objections . . . shall constitute a waiver of de novo

review by the District Court and a waiver of appellate review by

the Circuit Court of Appeals.” The docket reflects that Plaintiff

accepted service of the R&R on January 25, 2021. ECF No. 104.

Plaintiff filed timely objections to the R&R on February 4, 2021.

ECF No. 105.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

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 there are no objections. 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).

“When a party does make objections, but these objections are

so general or conclusory that they fail to direct the district

court to any specific error by the magistrate judge, de novo review

is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730

(S.D. W. Va. 2009) (emphasis added) (citing Orpiano v. Johnson,

687 F.2d 44, 47 (4th Cir. 1982)). “When only a general objection

is made to a portion of a magistrate judge’s report-recommendation,

the Court subjects that portion of the report-recommendation to

only a clear error review.” Williams v. New York State Div. of

Parole, No. 9:10-CV-1533 (GTS/DEP), 2012 WL 2873569, at *2

(N.D.N.Y. July 12, 2012).

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

A party waives any objection to an R&R that lacks adequate

specificity. See Mario v. P & C Food Markets, Inc., 313 F.3d 758,

766 (2d Cir. 2002) (finding that a party’s objections to the

magistrate judge’s R&R were not specific enough to preserve the

claim for review). Bare statements “devoid of any reference to

specific findings or recommendations . . . and unsupported by legal

authority, [are] not sufficient.” Mario, 313 F.3d at 766. Pursuant

to the Federal Rules of Civil Procedure and this Court’s Local

Rules, “referring the court to previously filed papers or arguments

does not constitute an adequate objection.” Id.; see also Fed. R.

Civ. P. 72(b); LR PL P 12.

IV. OBJECTION

Plaintiff filed a five-page document titled “Objections to

Report and Recommendation.” ECF No. 105. The Court gleans one

objection from this filing; specifically, Plaintiff’s objection to

the Magistrate Judge’s recommendation that Plaintiff’s Complaint

be dismissed for failure to exhaust the administrative remedies.

Plaintiff reiterates much of his argument from previous filings

and cites no legal authority supporting his objection. Plaintiff

attached an exhibit to the objections. ECF No. 105-1 (Exhibit A,

Inmate Admission & Orientation Handbook).

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

V. DISCUSSION

After reviewing for clear error and finding none, the Court

adopts and incorporates by reference all portions of the R&R to

which no objection – or an objection too vague – was made.

A. Objection – Exhaustion of Administrative Remedies

Plaintiff takes issue with the Magistrate Judge’s finding

that he failed to exhaust his administrative remedies under the

“Administrative Remedy Process.” ECF No. 105. Specifically,

Plaintiff argues in his objection that Defendants’ claim that he

failed to exhaust the administrative remedies is false and

misleading. Id. He further argues that the Administrative Remedy

Program pursuant to 28 C.F.R. § 542.10 et seq. is not an option

for him, nor is it the “proper venue” in which to file his complaint

of assault. Id. Plaintiff asserts “[t]here is no informal

resolution or a complaint of any form of ‘assault’” and step one

of the administrative remedy program is “impossible” to complete

“without a [sic] investigation being conducted.” Id.

The Court adopts the Magistrate Judge’s R&R on this issue.

Congress enacted the Prison Litigation Reform Act (“PLRA”) in 1995

which required that administrative remedies be exhausted prior to

a prisoner plaintiff bringing an action pursuant to 42 U.S.C. §

1983 with respect to prison conditions. 42 U.S.C. § 1997e. A Bivens

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

action, like an action under § 1983, is subject to the exhaustion

requirement. Porter v. Nussle, 534 U.S. 516, 524 (2002).

Pursuant to the PLRA, the Bureau of Prisons promulgated 28

C.F.R. § 542.10 et seq., which is the “Administrative Remedy

Program [] to allow an inmate to seek formal review of an issue

relating to any aspect of his/her own confinement,” and constitutes

the four-step administrative process required. 28 C.F.R. §

542.10(a). If an inmate is unable to resolve his complaint

informally, he may file a formal written complaint with the

institution on the appropriate form (BP-9) within 20 calendar days

of the date of the occurrence on which the complaint is based. See

28 C.F.R. § 542.14(a). “An inmate who is not satisfied with the

Warden’s response may submit an Appeal on the appropriate form

(BP-10) to the appropriate Regional Director within 20 calendar

days of the date the Warden signed the response.” 28 C.F.R. §

542.15(a). If the inmate is still not satisfied, he may appeal the

Regional Director’s response to the Washington, D.C., Office of

General Counsel, using the appropriate form (BP-11) within 30

calendar days of the date the Regional Director signed the

response. Id. Appeal to the General Counsel is the final

administrative appeal. See 28 C.F.R. § 542.15(a).

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

Where exhaustion is not apparent from an inmate’s pleading,

“a complaint may be dismissed on [administrative] exhaustion

grounds so long as the inmate is first given an opportunity to

address the issue.” Custis v. Davis, 851 F.3d 358 (4th Cir. 2017)

(quoting Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)).

In Plaintiff’s Complaint, he stated: “I could not exhaust

administrative remedies because administration would not

acknowledge any of my complaints.” ECF No. 1, Section IV, ¶ F.

Plaintiff stated in his responses that he did exhaust the

administrative remedies. See ECF Nos. 86, 84. In contrast to

Plaintiff’s contention in his Complaint, the record shows that

since Plaintiff’s arrival at FCI Gilmer, he has filed at least 20

administrative remedies over matters not at issue to the claims

raised in the Complaint, and successfully exhausted at least two

of those. See Administrative Remedy Generalized Retrieval, ECF No.

43-1 at 28-30. Plaintiff himself attached copies of grievances he

filed between 2019 and 2020, all after he filed the instant

Complaint. See ECF No. 87-1. Plaintiff attached no grievances that

are relevant to the instant claims raised in the Complaint.

In reviewing the Magistrate Judge’s R&R and this objection,

which goes to the heart of the Magistrate Judge’s R&R and

Defendants’ motion to dismiss, the Court adopts the R&R on this

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

ground and overrules Plaintiff’s objection. Because Plaintiff has

not exhausted his claims, they must be dismissed.

VI. CONCLUSION

Upon careful review, the Court ADOPTS the R&R [ECF No. 103]

and OVERRULES Plaintiff’s objection [ECF No. 105]. The Defendants’

Motion to Dismiss [ECF No. 42] is GRANTED, and the Plaintiff’s

Complaint is DISMISSED WITH PREJUDICE.3 ECF No. 1.

Further, Plaintiff’s Motion to Suspend and/or Continue

Roseboro Notice/Defendant’s Motion to Dismiss or in the

Alternative, Motion for Summary Judgment [ECF No. 74]; Motion for

Court Review of Video Footage and Sanctions Against Defendants’

Counsel for Tamperering [sic] with Evidence by Giving Plaintiff

Altered/Modified Video Footage Hendering [sic] Plaintiff[’s]

Ability to View Evidence and Respond [ECF No. 79]; Motion to Amend

Request for Sanctions and Request to Strike Government[’]s Exhibit

[ECF No. 80]; Motion for Discovery [ECF No. 81]; Motion to

Reconsider Plaintiff’s Motion to View Video Evidence/Objection to

Ruleing [sic] [ECF No. 85]; Motion to Amend Complaint [ECF No.

95]; Motion to Reconsider Order Denying his Motion for Discovery

and Request for Inclusion of Additional Facts [ECF No. 97]; and

3 As the Magistrate Judge stated, such a dismissal would normally be without

prejudice, but here, because so much time has now elapsed, Plaintiff is time-

barred from finishing the exhaustion process. See 28 C.F.R. § 542.18.

ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 103] AND

OVERRULING PLAINTIFF’S OBJECTIONS [ECF NO. 105]

Motion to Reconsider Order Denying Sanctions, and Request for

Inclusion of Additional Facts [ECF No. 98] are DENIED AS MOOT.

The Court ORDERS that this matter be STRICKEN from the Court’s

active docket and DIRECTS the Clerk to enter a separate judgment

order.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record and the pro se Plaintiff, via certified mail,

return receipt requested.

DATED: March 15, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE