# Kempker v. United States

> District Court, N.D. West Virginia · September 7, 2021

URL: https://www.frixlaw.com/law-library/cases/10726035

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 7, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726035

## How later opinions describe it (automated extraction)

- finding that a party’s objections to the magistrate judge’s R&R were not specific enough to preserve the claim for review

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726035. Public record. Not legal advice.