Kempker v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

SCOTT FRANCIS KEMPKER,

Plaintiff,

v. Civ. Action No. 1:19-cv-198

(Judge Kleeh)

THE UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

Pending before the Court is Report and Recommendation (“R&R”)

[ECF No. 65] by United States Magistrate Judge Michael J. Aloi.

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

I. BACKGROUND AND REPORT AND RECOMMENDATION

On October 25, 2019, the pro se Plaintiff, Scott Francis

Kempker (“Plaintiff”), filed this action against the Defendant,

the United States of America (“Defendant”). [ECF No. 1]. Plaintiff

brought three claims under the Federal Tort Claims Act (“FTCA”).

The allegations in the Complaint relate to intentional acts: an

alleged physical assault, false statements, administrative failure

to address the appeal, and missing property. Id. No negligence

claims were pleaded. Id. Specifically, Plaintiff contends that

after he and inmate Fisher smoked the chemical-laced piece of paper

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

before becoming “unconscious,” he was physically assaulted, shot

with pepper balls, dragged down range and down the stairs, kicked

in the ribs, and repeatedly dropped, while being transported to

the SHU. [ECF Nos. 1-7, 65]. Plaintiff alleges that as a result of

these wrongful acts, he sustained nerve damage in his wrists/hands,

broken ribs, scars, chemical burns, concussion, bruising, and

mental anguish/PTSD. Id.

Subject of this order, Defendant filed a motion to dismiss on

December 14, 2020. [ECF No. 35]. Defendant argues that Plaintiff’s

case should be dismissed because Plaintiff cannot establish that

a duty of care owed to him was breached, sufficient to maintain

any negligence claims, and a review of the evidence makes it clear

that all of Plaintiff’s claims lack merit. [ECF No. 36]. Further,

Defendant contends the Court lacks subject matter jurisdiction

over the lost property claims pursuant to 28 U.S.C. § 2680(c). Id.

Notably, Defendant’s version of the event at issue in the Complaint

varies from Plaintiff’s. Defendant indicates that when BOP staff

discovered Plaintiff and inmate Fisher rolling around on the cell

floor, shaking and yelling incoherently, they ordered both inmates

to submit to restraints, which was ignored. [ECF Nos. 36, 65]. The

two inmates began exchanging punches to each other’s head and upper

torso, orders to stop that were likewise ignored. Id. They were

finally placed on stretchers and removed from the cell, taken to

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

the SHU, and examined. Id. Plaintiff responded in opposition to

the motion, arguing claims of negligence, violation of the Accardi

doctrine, and other misconduct of the BOP. [ECF No. 50].

Pending before the Court is Report and Recommendation (“R&R”)

[ECF No. 65] recommending the Court grant Defendant’s Motion to

Dismiss or in the Alternative, Motion for Summary Judgment [ECF

No. 35]. The R&R also recommends that Plaintiff’s Complaint [ECF

No. 1] be denied and dismissed with prejudice; Plaintiff’s pending

letter motion to introduce evidence into case record [ECF No. 26]

and Motion to Submit Medical Records into Evidence [ECF No. 27] be

granted; that Plaintiff’s Motion for Summary Judgment in Favor of

the Plaintiff . . . and Response [sic] to Declaration to Michael

Moore [ECF No. 53] be denied; and that Plaintiff’s pending Motion

for Discovery [ECF No. 56] and Motion for the Defendant to Produce

a Copy of Policy and Procedure for Video Retainment [ECF No. 54]

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

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

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

accepted service of the R&R on July 6, 2021. [ECF Nos. 67, 68]. On

July 19, 2021, Plaintiff filed timely objections to the R&R. [ECF

No. 69].

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

[ECF No. 65] and overrules Plaintiff’s objections [ECF No. 69].

II. FTCA AND ADMINISTRATIVE CLAIM REQUIREMENT

Federal courts generally lack subject matter jurisdiction to

address lawsuits against the federal government unless the United

States expressly consents by waiving sovereign immunity. FDIC v.

Meyer, 510 U.S. 471, 475 (1994). The FTCA, 28 U.S.C. § 1346, is a

waiver of sovereign immunity when the federal government “would be

liable to the claimant in accordance with the law of the place

where the act or omission occurred” for certain torts, such as

negligence, committed by federal government employees acting

within the scope of their employment. See 28 U.S.C. § 1346(b)(1).

Before filing suit under the FTCA, “the claimant shall have

first presented the claim to the appropriate Federal agency and

his claim shall have been finally denied by the agency in writing

and sent by certified or registered mail.” Id. § 2675(a).

Generally, the plaintiff must file the administrative complaint

within two years of the claim’s accrual. Id. § 2401(b). Then, the

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

plaintiff must wait either six months or until the agency denies

the complaint, whichever comes first, before filing suit with the

court. Id. § 2675(a).

The United States Court of Appeals for the Fourth Circuit

has recognized that the filing of an administrative complaint is

a jurisdictional requirement that cannot be waived. See Henderson

v. United States, 785 F.2d 121, 123 (4th Cir. 1986). Failure to

file an administrative complaint within the designated time period

must result in a mandatory dismissal of the plaintiff’s claim. Id.

at 124.

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).

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

“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).

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.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

IV. OBJECTIONS

Plaintiff filed a twelve-page document pointing out sections

of the R&R to which Plaintiff disagrees, purporting to be his

objections. [ECF No. 69]. Plaintiff begins by asserting there are

“large parts overlooked or even acknowledged” in the R&R. Id. He

then listed each page that allegedly contained errors. Id. The

Government’s response to Plaintiff’s objections confirms the

Court’s assessment the objections fall short of the specificity

requirement. [ECF No. 70]. Particularly, the Government correctly

notes Plaintiff’s primary argument is Magistrate Judge Aloi’s

findings are “false.” [Id. at 2.] Plaintiff’s general grievances

and repeated conclusory allegations do not merit a de novo review.

Petitioner’s objections, while descriptive and even lengthy,

are vague, and none preserve a claim for review by this Court. The

objections are unspecific and are devoid of any reference to

specific findings or recommendations and are unsupported by legal

authority. Therefore, because Plaintiff’s objections are

conclusory and are not specific to the findings and recommendation

of the Magistrate Judge with respect to the necessary standard for

the issuance of an order dismissing the complaint or entering

summary judgment. Because Plaintiff’s objections refer the court

to previously filed papers or arguments and therefore do not

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

constitute adequate objections, Plaintiff’s objections fail to

merit de novo review from this Court, and therefore, the Court is

under no obligation to conduct a de novo review as to any objection

to the R&R. Accordingly, the Court reviewed the R&R for clear error

and found none.

“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.” Scott v. Harris, 550 U.S. 372, 380 (2007). Beyond the

unsupported conclusory assertions to the contrary in Plaintiff’s

admittedly verified complaint, when weighed against the sworn

declarations by the Defendant’s employees and the facts in each of

the incident reports, Tort Investigations, memoranda to the

Operations Lieutenant by numerous BOP staff, and particularly the

medical reports, long before any of them were aware that litigation

would ensue, Plaintiff fails to present sufficient evidence to

dispute the video evidence and Defendant’s assertions that the

force applied on February 8, 2019 was deployed in a good-faith

effort to maintain or restore discipline to Plaintiff and inmate

Fisher, and not maliciously to cause harm. For these reasons, and

because Plaintiff failed to provide any evidence to refute

Defendant’s declarations beyond bare conclusory statements, and

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

[ECF NO. 65] AND OVERRULING OBJECTIONS [ECF NO. 69]

failed to point to any reference to specific findings or

recommendations and the objections were wholly unsupported by

legal authority, Plaintiff’s objections are overruled.

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Defendant’s

Motion to Dismiss or in the Alternative, Motion for Summary

Judgment [ECF No. 35]. Plaintiff’s Complaint [ECF No. 1] is DENIED

and DISMISSED WITH PREJUDICE. Plaintiff’s pending letter motion to

introduce evidence into case record [ECF No. 26] and Motion to

Submit Medical Records into Evidence [ECF No. 27] are GRANTED.

Plaintiff’s Motion for Summary Judgment in Favor of the Plaintiff

. . . and Response [sic] to Declaration to Michael Moore [ECF No.

53] is DENIED. Plaintiff’s Motion for Discovery [ECF No. 56] and

Motion for the Defendant to Produce a Copy of Policy and Procedure

for Video Retainment [ECF No. 54] are DENIED AS MOOT. Plaintiff’s

Motion for Defendant to Produce Photos and PREA Report and

Plaintiff’s Response to Defendant’s Motion for Leave to File

Exhibit Outside of Time is DENIED AS MOOT. [ECF No. 66].

It is so ORDERED.

DATED: September 7, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE