Brown v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MARTINSBURG

MICHAEL SHAWN BROWN,

Plaintiff,

v. CIVIL ACTION NO.: 3:22-CV-124

(GROH)

UNITED STATES OF AMERICA,

Defendant.

ORDER ADOPTING THE MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

Currently before the Court is a Report and Recommendation (“R&R”) entered by

United States Magistrate Judge Robert W. Trumble, filed April 28, 2023. ECF No. 29.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 2 of the Local Rules of Prisoner Litigation

Procedure, this action was referred to Magistrate Judge Trumble for submission of an

R&R. Therein, Magistrate Judge Trumble recommends that this Court dismiss with

prejudice the allegations in the Complaint that address events that occurred in FCI

Williamsburg and dismiss without prejudice the remaining claims. On June 5, 2023, after

being granted an extension of time by this Court, the Michael Shawn Brown (“Plaintiff”)

timely filed his Objections to the R&R, along with a Motion for Leave to File Excess Pages.

ECF Nos. 34, 35. Accordingly, this matter is now ripe for adjudication.

I. Background

The Plaintiff acting pro se, filed a Complaint pursuant to the Federal Tort Claims

ACT (“FTCA”) while incarcerated at the Gilmer Federal Correctional Institution (“FCI

Gilmer”). ECF No. 1. In his complaint, Plaintiff raises claims of intentional infliction of

emotional distress and negligence stemming from the institutional response to the

COVID-19 pandemic at Williamsburg Federal Correctional Institution (“FCI Williamsburg”)

and FCI Gilmer. The Plaintiff alleges that Bureau of Prisons (“BOP”) staff failed to follow

the BOP Guidance on Aerosol Generating Procedures governing the use of CPAP

machines when providing care to his cellmate. In terms of injuries suffered, the Plaintiff

lists over forty medical conditions and symptoms, ranging from drooling to memory loss,

from strep throat to erectile dysfunction, and from nausea to nightmares, among many

others. For relief, the Plaintiff requests $20,000,000.00 in compensatory damages.

On September 29, 2022, the Defendant filed a Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(1). ECF No. 15. Therein, the Defendant argues that

this Court lacks subject matter jurisdiction over the Plaintiff’s complaint because (1) the

FTCA’s discretionary function exception applies, (2) the FTCA’s quarantine exception

applies, (3) the Plaintiff’s claims of medical negligence lack merit, and (4) the Plaintiff’s

claims pertaining to events at FCI Williamsburg are improper in this venue. In support of

its first argument, the Defendant asserts that the Bureau of Prisons Guidance document

cited by the Plaintiff does not qualify as a federal statute, regulation, or policy that

prescribes a specific, mandated course of action for employees to follow. Instead, the

institutional response to COVID-19, particularly as it pertains to the use of CPAP

machines, involves an element of judgment. Further, the Defendant argues that this

element of judgment is of the kind that the discretionary function exception was designed

to shield because it required significant policy analysis. The Defendant also argues that

the FTCA bars claims involving the imposition or establishment of a quarantine.

Next, the Defendant argues that the Plaintiff cannot sufficiently allege a medical

malpractice claim under West Virginia law. In particular, the Defendant avers that the

Plaintiff has failed to allege facts sufficient to find that any of the Defendant’s employees

acted or failed to act in a way that breached a duty or caused harm. Lastly, the Defendant

argues that the Plaintiff’s claims addressing events that occurred in FCI Williamsburg are

not properly before this Court. The Defendant explains that FCI Williamsburg is in the

District of South Carolina and that the Defendant resided in North Carolina prior to his

incarceration at FCI Williamsburg. Thus, the Defendant avers that all of the Plaintiff’s

claims relating to acts or omissions that occurred at FCI Williamsburg are not properly

brought before this Court and should be dismissed for improper venue.

The Plaintiff filed a Response to the Defendant’s motion on October 21, 2022. ECF

No. 23. Therein, the Plaintiff argues that his claims do not involve any discretionary

function by BOP employees. The Plaintiff reasserts his claims against FCI Williamsburg

without addressing the issue of proper venue for those claims. The Plaintiff also reasserts

his claims against staff at FCI Gilmer for their failure to follow BOP guidance related to

aerosols and CPAP machines. Additionally, the Plaintiff argues that the Defendant failed

to answer or otherwise plead in regards to the allegations against FCI Williamsburg.

Lastly, the Plaintiff contends that he resides in West Virginia, where he is now

incarcerated.

In January 2023, the Plaintiff filed a Motion for Judgment on the Pleadings and two

Motions for Default Judgment. ECF Nos. 24, 25, 26. The Defendant filed a Response in

opposition to all three of the Plaintiff’s motions, asserting that it addressed all the Plaintiff’s

claims in its motion to dismiss. ECF No. 27. The Plaintiff entered a Reply arguing that the

Defendant failed to deny, oppose, or rebut the arguments raised in his complaint.

On April 28, 2023, Magistrate Judge Robert W. Trumble entered an R&R,

recommending that the Plaintiff’s complaint be dismissed. ECF No. 29. First, the

magistrate found that this Court is an improper venue for the Plaintiff’s claims related to

events that occurred at FCI Williamsburg. In particular, the magistrate found that FCI

Williamsburg is not located in this district and, prior to his incarceration, the Plaintiff was

not domiciled in this district.

Next, as it pertained to the Plaintiff’s claims involving FCI Gilmer, the magistrate

found that the discretionary function precludes the Plaintiff from relief. The magistrate

found that the Plaintiff failed to show that the FCI Gilmer employees were not performing

a discretionary function at the time he was injured and failed to show that the FCI Gilmer

employees were instead performing a mandatory course of action governed by a statute,

regulation, or policy. In his analysis, the magistrate identified specific language from the

BOP Guidance relied on by the Plaintiff and explained how the language informs the

reader that the guidance is discretionary, not mandatory. Further, the magistrate found

that the FTCA’s quarantine exception applies and provides the Defendant with immunity

from suit for any claim related to a quarantine. Therefore, all the actions taken by the

Defendant—determining whether, when, and how to implement a quarantine—are

precluded under either the discretionary function or quarantine exception of the FTCA.

Lastly, the magistrate found that the Plaintiff failed to state a medical malpractice

claim under West Virginia state law. After reviewing over five hundred pages of medical

records, the magistrate found that at least ten of the injuries the Plaintiff alleges in this

suit predate the COVID-19 pandemic. Moreover, the magistrate found that two months

after the Plaintiff contracted COVID-19, he denied having twenty of the symptoms he now

alleges in this suit. Ultimately, of the forty-one injuries the Plaintiff alleges in his complaint,

the magistrate found no evidence that those injuries resulted from the conduct of FCI

Gilmer employees.

Based on his reported findings, the magistrate recommends that this Court dismiss

with prejudice the Plaintiff’s claims against FCI Williamsburg for lack of proper venue and

dismiss without prejudice the remaining claims for lack of subject matter jurisdiction. After

being granted an extension of time by this Court, the Plaintiff filed his objections to the

R&R, along with a motion for leave to file excess pages, on June 5, 2023. ECF Nos. 34,

35. The Plaintiff’s objections and motion for leave remain pending before this Court and

are ripe for adjudication.

II. Legal Standards

Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo

review of those portions of the magistrate judge’s findings to which objection is made.

However, the Court is not required to review, under a de novo or any other standard, the

factual or legal conclusions of the magistrate judge as to those portions of the findings or

recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,

150 (1985). Further, failure to file timely objections constitutes a waiver of de novo review

and the Plaintiff’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v.

Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,

94 (4th Cir. 1984).

Under this Court’s Local Rules, “written objections shall identify each portion of the

magistrate judge’s recommended disposition that is being challenged and shall specify

the basis for each objection.” LR PL P 12(b). Objections “shall not exceed ten (10)

typewritten pages or twenty (20) handwritten pages, including exhibits, unless

accompanied by a motion for leave to exceed the page limitation.” LR PL P 12(d). “Failure

to comply with the page limitations set forth in these Rules will, upon Court order, result

in the entire document being stricken from the docket.” LR PL P 11.

“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) (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). “Similarly, when an

objection merely reiterates the same arguments made by the objecting party in its original

papers submitted to the magistrate judge, the Court subjects that portion of the report-

recommendation challenged by those arguments to only a clear error review.” Taylor v.

Astrue, 32 F. Supp. 3d 253, 260-61 (N.D.N.Y. 2012).

Courts have also held that when a party’s objection lacks adequate specificity, the

party waives that objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766

(2d Cir. 2002) (finding that even though a party filed objections to the magistrate judge’s

R&R, they 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.” Id. at 766. Indeed, under 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. Finally, the Fourth Circuit has long held that “[a]bsent objection, we do not

believe that any explanation need be given for adopting [an R&R].” Camby v. Davis, 718

F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no explanation is required

of the district court when adopting an R&R).

III. Analysis

Now pending before this Court are the Plaintiff’s motion for leave to file excess

pages [ECF No. 34] and objections to the magistrate’s R&R [ECF No. 35]. The deadline

to file objections and the deadline to respond to the Plaintiff’s objections have lapsed

without submission from the Defendant. Both the Plaintiff’s motion and objections are ripe

for review, and the Court will address each filing in turn.

A. Motion for Leave to File Excess Pages

Under this Court’s Local Rules, objections to an R&R “shall not exceed ten (10)

typewritten pages or twenty (20) handwritten pages, including exhibits, unless

accompanied by a motion for leave to exceed the page limitation.” LR PL P 12(d). Here,

the Plaintiff’s objections total sixty-six pages, exceeding this Court’s page limitations three

times over. In his motion requesting leave for excess pages, the Plaintiff first argues that

the handwritten argumentative portion of his objections is limited to twenty-five pages.

Even so, this Court’s page limitation explicitly includes exhibits in the limitation, and the

page limitation is twenty pages, not twenty-five.

Next, the Plaintiff argues that the magistrate’s R&R “was a lengthy 29 pages and

full of objection material.” ECF No. 34 at 1. The Plaintiff also included the R&R as an

exhibit attached to his objections. Lastly, the Plaintiff asserts that his objections and

attached exhibits are critical to this Court’s review and appellate review if necessary.

Upon review and consideration, the Court finds good cause to allow the Plaintiff to

exceed this Court’s page limitation. Accordingly, the Plaintiff’s Motion for Leave to File

Excess Pages [ECF No. 34] is GRANTED.

B. Objections

In his filing, the Plaintiff raises thirteen objections to the magistrate’s R&R. ECF

No. 35. Many assertions made by the Plaintiff in his objections are contradicted by his

own medical records. The remainder of his objections mostly reassert slightly different

iterations of the same central argument: that the BOP Guidance promulgates a mandatory

course of action. The Court will address each objection in turn.

In his first objection, the Plaintiff objects to the magistrate’s finding that the Plaintiff

listed “a number of other medical conditions which he claims to have, but does not assert

those conditions were caused, or exacerbated, by the actions of the Government’s

agents.” ECF No. 29 at 3 n.4. The Plaintiff argues that his PTSD is an exacerbated injury,

along with the comorbidities related to PTSD, including anxiety, depression, and

psychological distress.

However, in the sentence following the quoted excerpt, which was omitted by the

Plaintiff, the magistrate clarifies that he is referring to “hypothyroidism, hyperlipidemia,

astigmatism, refractive amblyopia, myrosis [sic], and prurigo.” Id. Further, the magistrate

listed “worsening PTSD,” anxiety, depression, and psychological distress as injuries

alleged by the Plaintiff. The Court finds that the Plaintiff misinterpreted the focus of the

magistrate’s footnote. Therefore, the Plaintiff’s first objection is OVERRULED.

Second, the Plaintiff objects to the magistrate’s finding that the Plaintiff’s medical

records show a diagnosis for joint and muscle pain for his right shoulder and left ankle

dating back to May 15, 2018. The Plaintiff argues that his joint and muscle pain resulted

from his COVID-19 infection and subsequent long COVID-19 condition. Upon review of

the Plaintiff’s medical records, this Court finds that the Plaintiff’s joint and muscle pain for

his right shoulder and left ankle predates the Plaintiff’s diagnosis of COVID-19. For

example, the Plaintiff’s BOP Health Services Clinical Encounter dated August 13, 2020,

states that the Plaintiff continues to experience pain in his right shoulder and left ankle.

ECF No. 20 at 221. Presumably, this pain existed before August 2020; the Plaintiff did

not contract COVID-19 until February 2021.

Further, the Plaintiff’s medical records document chronic shoulder pain as early as

May 2018. ECF No. 20-1 at 221. Similarly, the Plaintiff’s right shoulder pain existed prior

to May 2018, which long predates not only the Plaintiff’s COVID-19 diagnosis but the

onset of the COVID-19 pandemic entirely. Thus, the Court finds that the Plaintiff’s

shoulder and ankle joint and muscle pain predate his COVID-19 diagnosis. Accordingly,

the Plaintiff’s second objection is OVERRULED.

Next, in his third objection, the Plaintiff objects to the magistrate’s finding that his

sleep apnea diagnosis dates back to August 17, 2020. As in his prior objection, the

Plaintiff also argues that his inability to sleep stems from his long COVID-19 condition.

Again, upon review of the Plaintiff’s medical records [ECF No. 20-1 at 220], the Court

confirms the magistrate’s finding that the Plaintiff had a sleep apnea diagnosis on August

17, 2020, which predates the Plaintiff’s contraction of COVID-19. Moreover, the Plaintiff’s

medical record also notes a 2009 sleep study connected to his sleep apnea diagnosis.

Therefore, the Plaintiff’s third objection is OVERRULED.

Fourth, the Plaintiff’s objects to the magistrate’s finding that he was diagnosed with

hypertension on December 21, 2011, which was later documented again on August 24,

2020, and September 23, 2020. The Plaintiff again argues that his hypertension worsened

after he contracted COVID-19. The Plaintiff avers that he was prescribed

“lisinopril/hydrochlorothiazide 20/12.5 mg tab, amlodipine 10 mg tab, and furosemide 40

mg tab” only after he contracted COVID-19. ECF No. 35 at 3. However, upon review of

the Plaintiff’s medical records, the Court finds that the Plaintiff was prescribed 20mg tabs

of lisinopril as early as July 2019, months before the COVID-19 pandemic even began.

ECF No. 20-1 at 240. The Court is unable to find any record of the Plaintiff’s prescription

for amlodipine or furosemide in the medical records that were available to the magistrate

[ECF No. 20] or in the exhibits the Plaintiff attached to his objections [ECF No. 35-1].

Accordingly, the Plaintiff’s fourth objection is OVERRULED.

Next, in his fifth objection, the Plaintiff similarly objects to the magistrate’s finding

that he was diagnosed with “erectile dysfunction or ‘unspecified testicular dysfunction’”

on February 19, 2014, as documented on August 12, 2020. Instead, the Plaintiff avers

that this condition resulted from his COVID-19 infection. Upon review of the Plaintiff’s

medical records the Court finds that the Plaintiff was first diagnosed with unspecified

testicular dysfunction on February 19, 2014. ECF No. 20-1 at 221. Therefore, having

found that the Plaintiff’s diagnosis predates his COVID-19 infection, the Plaintiff’s fifth

objection is OVERRULED.

Sixth, the Plaintiff objects to the magistrate’s finding that the Plaintiff failed to

address the Defendant’s improper venue argument when reasserting his claims against

FCI Williamsburg in his response to the Defendant’s motion to dismiss. In his R&R, the

magistrate noted that the Plaintiff appeared to “argue that because the undersigned did

not dismiss this action after the Government filed its motion to dismiss, that Plaintiff’s

argument must have merit as it relates to Plaintiff’s claims against FCI Williamsburg.” ECF

No. 29 at 9 (footnote omitted). In his objection, the Plaintiff once again argues that

because the magistrate did not dismiss this action, he can continue with his claims against

FCI Williamsburg. As explained by the magistrate, magistrate judges may not rule on

motions to dismiss. Indeed, this Court similarly finds that the lack of a dismissal order

from the magistrate does not bestow venue on the Plaintiff for his claims against FCI

Williamsburg.

In his objection, the Plaintiff further argues that “there are no venue restrictions

that apply to the government” and that the Plaintiff “resides in West Virginia.” ECF No. 35

at 3-4. Additionally, the Plaintiff avers that his claims and injuries arise out of the same

set of facts involving FCI Williamsburg and FCI Gilmer, so he should be allowed to

proceed before this Court with claims against employees from both institutions. However,

this Court finds that it is an improper venue for the Plaintiff’s claims related to events that

occurred at FCI Williamsburg, and there are indeed venue restrictions that apply to civil

cases, including the civil action presently before this Court. Moreover, because the

Plaintiff merely reiterates the same arguments previously made in his filings before the

magistrate, this Court need only apply a clear error review to his sixth listed objection.

Taylor, 32 F. Supp. 3d at 260-61.

Venue in federal district courts is governed by 28 U.S.C. § 1391, which provides

in part that, “a natural person, including an alien lawfully admitted for permanent

residence in the United States, shall be deemed to reside in the judicial district in which

that person is domiciled.” 28 U.S.C. § 1391 (c)(1). Further, 28 U.S.C. § 1402 provides,

“[a]ny civil action on a tort claim against the United States under subsection (b) of section

1346 of this title may be prosecuted only in the judicial district where the plaintiff resides

or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b). The Fourth

Circuit has recognized that “a prisoner’s domicile is presumed to be where he was

domiciled prior to incarceration.” Roberts v. Morchower, 956 F.2d 1163 (4th Cir. 1992);

see Ownby v. Cohen, 19 F. Supp. 2d 558, 563 (W.D. Va. 1998), aff’d, 194 F.3d 1305 (4th

Cir. 1999) (finding that “prisoners usually retain the domicile they had prior to

incarceration”) (citing 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure, § 3618 (1984)).

This Court finds that FCI Williamsburg is not located in this district, and, prior to his

incarceration, the Plaintiff was not domiciled in this district. FCI Williamsburg is located in

Salters, South Carolina, and falls under the jurisdiction of the District of South Carolina.

Prior to his incarceration, the Plaintiff was domiciled in Chadbourn, North Carolina, which

falls under the jurisdiction of the Eastern District of North Carolina. ECF No. 82 at 2 in

7:11-CR-90-1 in E.D.N.C. Therefore, the Plaintiff cannot establish venue with this Court

for his claims against FCI Williamsburg. Accordingly, finding no clear error, the Plaintiff’s

sixth objection is OVERRULED.

In his seventh objection, the Plaintiff again objects to the magistrate’s finding that

this Court is an improper venue for the Plaintiff’s claims involving FCI Williamsburg. The

Plaintiff expands upon his objection to the magistrate’s finding that the Plaintiff was not

previously domiciled in this district and FCI Williamsburg is not within the reach of this

Court’s jurisdiction. The Plaintiff argues that the magistrate erroneously applied the venue

requirement for criminal cases that requires that a trial be held in the state or district where

the crime was committed. The Plaintiff reasserts his contention that no venue restrictions

apply to the government and that the government can file cases in any district or state of

its choosing regardless of where the act occurred or where an individual lives. The Plaintiff

believes that he similarly should be allowed to file his lawsuit anywhere. The Plaintiff

reiterates that his injuries and claims arise out of the same set of facts involving FCI

Williamsburg and FCI Gilmer, so jurisdiction is proper in this district. Lastly, the Plaintiff

requests that if his objection is overruled and his pending motions are denied, that this

Court issue an order directing that a copy of the docket be forwarded to the appropriate

jurisdiction.

As with his sixth objection, the Plaintiff has merely reasserted arguments

previously made in his filings before the magistrate. Further, his seventh objection objects

to the same findings as his sixth objection. Therefore, the Plaintiff’s seventh objection is

OVERRULED for all the same reasons provided above in this Court’s analysis of the

Plaintiff’s sixth objection.

Next, the Plaintiff objects to the magistrate’s finding that the discretionary function

of the FTCA applies and precludes the Plaintiff’s claims involving events that occurred at

FCI Gilmer. The Plaintiff quotes the magistrate’s finding from page twenty-one of the R&R

at length. The Plaintiff then states that he vehemently disagrees with the magistrate’s

characterization of the BOP Guidance on Aerosol Generating Procedures governing the

use of CPAP machines. The Plaintiff also cites to later-issued Guidance from the BOP

regarding the use of CPAP machines. Despite the Plaintiff’s repeated assertions that the

BOP Guidance documents dictate a specific, mandatory course of action, it is plainly

obvious that they do not.

Much like the BOP Guidance excerpts quoted by the Plaintiff in his earlier filings,

the Plaintiff has still failed to show how the BOP Guidance amounts to a mandatory course

of action pursuant to statute, regulation, or policy. The use of “guidance” in the title is

instructive; the document cited by the Plaintiff is not titled “BOP Requirements” or “BOP

Mandated Procedure” but “BOP Guidance on Aerosol Generating Procedures (AGPs).”

BOP Guidance on Aerosol Generating Procedures (AGPs), Version 1.1, at 1, May 8,

2020.

The main source of support for the Plaintiff’s argument stems from the BOP

Guidance related to patients with severe sleep apnea, which states that “when the

decision is made to allow the patient to continue using CPAP/BiPAP, the machine must

be set up and used with a full-face, non-vented CPAP mask with an in-line viral filter

attached to the intake and exhalation ports.” BOP Pandemic Response Plan, Appendices,

Version 9.0, Appendix U. The Plaintiff’s argument hinges on the use of “must” in this

excerpt. This is the only excerpt quoted by the Plaintiff in his objection and attached

thereto, and the Plaintiff claims that this is the mandatory procedure. However, this

excerpt is not the extent of the BOP’s Guidance on this issue. Indeed, the excerpt quoted

by the Plaintiff is merely an appendix to a larger module, which in turn is only part of a

larger framework.

Upon review of the BOP’s Guidance on aerosol generating procedures as a whole,

it is clear that, like earlier guidance, the instructions are discretionary. Under the section

governing “severe sleep apnea with co-morbidities,” the Guidance states that “the

following procedures should be considered to mitigate the spread of COVID-19.” BOP

Guidance on AGPs, Version 1.1, at 2. Further, the Guidance provides alternatives “[i]f the

recommended setup is not readily obtainable.” Id. at 2, 7. When the Guidance is read in

full, not cherry-picked appendix excerpts, the intent of the Guidance is clearly to provide

helpful instruction that may guide BOP employees in their use of discretion when making

decisions related to the use of CPAP machines. Moreover, the updated Guidance is

substantially similar to the earlier versions used by the magistrate.

Further, the Guidance is but one part of a larger BOP Pandemic Response Plan.

The first module of the BOP Plan reads as follows, “This framework recognizes that

pandemics can make ordinary or well-established standards difficult or impossible to

achieve and proposes reasonable alternative standards that provide an acceptable

balance of risk and benefit, in light of the limitations created by the pandemic.” BOP

COVID-19 Pandemic Response Plan 4.0, Module 1, at 7. The BOP’s own description of

its document makes clear that the protocols are not mandatory, and the BOP even

acknowledges that it may be impossible to establish or enforce mandatory uniform

policies. Thus, this Court finds that the Plaintiff has failed to show that the BOP Guidance

amounts to a mandatory course of action pursuant to statute, regulation, or policy. The

Plaintiff’s eighth objection is OVERRULED.

In his ninth objection, the Plaintiff objects to the magistrate’s finding that the BOP

employees engaged in a discretionary function in determining whether, when, and how

to implement a quarantine. The Plaintiff also objects to the magistrate’s finding that, under

Fourth Circuit precedent, “decisions relating to the accommodation of inmates, such as

cell assignments, are the type of day-to-day judgments that rest firmly in the discretion of

prison officials.” Veney v. Wyche, 293 F.3d 726, 733 (4th Cir. 2002).

In support of his objection, the Plaintiff argues that all the events that occurred in

FCI Gilmer occurred in the housing unit in general population, not quarantine. It appears

to the Court that the Plaintiff has misunderstood the magistrate’s use of the word

quarantine. The magistrate was not referring to isolated solitary housing for inmates

currently infected with COVID-19. Instead, the magistrate was referring to the larger

institutional response to the COVID-19 pandemic and the new protocols imposed in

response to the pandemic. Further, while the Plaintiff argues that Veney should not apply

because it was decided before the onset of the COVID-19 pandemic, this Court finds that

Veney remains good law. Therefore, the Plaintiff’s ninth objection is OVERRULED.

Next, in his tenth objection, the Plaintiff again objects to the magistrate’s finding

that the language used in the BOP Guidance is discretionary. The Plaintiff cites at length

the section of the R&R where the magistrate pinpoints examples of words and phrases

that exemplify how the BOP Guidance consists of discretionary measures. The Plaintiff

applies a different interpretation to the language used in the Guidance. In particular, the

Plaintiff believes that the word “should” was used to communicate that the Guidance is

mandatory. The Plaintiff again reiterates that his cellmate did not receive medical care in

line with certain suggested protocols outlined in the Guidance. Therefore, the Plaintiff

argues that the BOP employees were not performing a discretionary duty and instead

violated mandatory policies.

As stated above, this Court has found that the BOP Guidance represents a

discretionary set of recommendations for BOP employees to consider and abide by as

they see fit. Further, this Court disagrees with the Plaintiff’s definition of “should” as

imposing a mandatory requirement. This Court affirms the magistrate’s finding that the

use of the word “should” in the BOP Guidance implies discretion. In the context of the

BOP Guidance, the Court finds the following definition of ‘should’ most accurate: “used to

say or suggest that something is the proper, reasonable, or best thing to do.”1 Indeed,

this matches the BOP Plan’s stated objective to provide the best and most up-to-date

recommendations for responding to COVID-19. Accordingly, the Plaintiff’s tenth objection

is OVERRULED.

The Plaintiff’s eleventh objection once again argues that the BOP Guidance

establishes a mandatory course of action. The Plaintiff cites again to the magistrate’s

analysis detailing the word and phrase choice found in the Guidance. The Plaintiff again

reiterates that his cellmate did not receive medical care in line with certain suggested

protocols outlined in the Guidance. Finding that the Plaintiff’s eleventh objections is

largely repetitive of his tenth objection, the Plaintiff’s objection is OVERRULED for the

reasons previously stated above.

Next, in his twelfth objection, the Plaintiff challenges the magistrate’s application

of the FCTA’s quarantine exception. The Plaintiff objects to the magistrate’s finding that

the Defendant is immune from suit for any claim related to quarantine. In support, the

Plaintiff explains that he arrived to FCI Gilmer on August 19, 2021, “after the BOP and

nationwide COVID-19 quarantine officially ended.” ECF No. 35 at 16. The Plaintiff cites

no authority for his claim that quarantines ended before August 19, 2021, and the Court

finds no support for this claim. Indeed, the BOP continued to update its COVID-19

Response Plan after August 2021, and the Plan includes quarantine procedures. The

federal government did not declare an end to the COVID-19 public health emergency until

1 Should, Britannica Dictionary, https://www.britannica.com/dictionary/should (last visited July 24, 2023).

2023. Therefore, the Court finds no support for the Plaintiff’s argument against the

application of the quarantine exception.

After making his quarantine argument, the Plaintiff once again dives back into his

argument that the BOP Guidance related to aerosol generating procedures is a

mandatory course of action. The Plaintiff contends that the language in the Guidance is

mandatory, and the FCI Gilmer staff violated the FTCA by not following protocol. As

elaborated upon above, this Court has found that the BOP Guidance, and the larger

Response Plan, are discretionary. Accordingly, the Plaintiff’s twelfth objection is

OVERRULED.

In his thirteenth and final objection, the Plaintiff objects to the magistrate’s finding

that the Plaintiff failed to state a claim of medical negligence under West Virginia state

law. The magistrate found that the Plaintiff failed to explain how his medical treatment fell

below the applicable standard of care or how any of the actions or inactions of the BOP

employees proximately caused him any injury. Once again, the Plaintiff refers this Court

to the “mandatory” BOP Guidance and explains how his cellmate did not receive care as

outline in the BOP Guidance. The Plaintiff argues that his cellmate’s use of a CPAP

machine caused his alleged injuries. The Plaintiff’s final objection veers off from any

specific point made by the magistrate and instead becomes a rehashing of claims raised

in his complaint. Towards the end of his final objection, the Plaintiff introduces new

information pertaining to his mental health and a BOP Program Statement about the

treatment and care of inmates with mental illness.

Upon review of the magistrate’s finding pertaining to the Plaintiff’s claim of medical

negligence, this Court similarly finds that the Plaintiff failed to establish the applicable

standard of care or how any BOP staff breached their duty of care. While the Plaintiff

maintains that the BOP Guidance is mandatory, the Court emphasizes that the BOP

describes its own Response Plan as a “framework” and the BOP “recognizes that

pandemics can make ordinary or well-established standards difficult or impossible to

achieve.” BOP COVID-19 Pandemic Response Plan 4.0, Module 1, at 7. As previously

found, the BOP Guidance, and the Response Plan as a whole, is not a mandatory course

of action and does not represent an applicable standard of care for purposes of a medical

negligence claim.

Applying a clear error review to the remainder of the Plaintiff’s argument, the Court

finds no error in the magistrate’s finding that, of the forty-one injuries the Plaintiff alleges

in his complaint, the Plaintiff proffered no evidence that those injuries resulted because

of conduct of FCI Gilmer’s employees. Indeed, two months after the Plaintiff contracted

COVID-19, he denied having twenty of the symptoms he now alleges in this suit. Further,

all the diagnoses that the Plaintiff raised in his second, third, fourth, and fifth objections

and argued resulted from his bout with COVID-19 were contradicted by his own medical

records. Ultimately, this Court affirms the magistrate’s finding that even if any BOP staff

member failed to implement the discretionary BOP Guidance, that failure does not satisfy

the West Virginia state law requirement that a plaintiff’s injury must result from a

healthcare provider’s failure to follow the accepted standard of care because the Plaintiff

both failed to allege an applicable standard of care and failed to allege how any of the

actions or inactions of the BOP employees proximately caused him any injury. Therefore,

the Plaintiff’s thirteenth objection is OVERRULED.

IV. Conclusion

Accordingly, it is the opinion of this Court that Judge Trumble’s Report and

Recommendation [ECF No. 29] should be, and is hereby, ORDERED ADOPTED. For the

reasons more fully stated in the R&R, the Court ORDERS that the Plaintiff's Complaint

[ECF No.1] be DISMISSED WITH PREJUDICE as to all claims alleged to have occurred

at FCI Williamsburg and DISMISSED WITHOUT PREJUDICE for lack of subject matter

jurisdiction as to all other claims. The Court FURTHER ORDERS that the Defendant's

Motion to Dismiss [ECF No. 15] be GRANTED. The Court FURTHER ORDERS that the

Plaintiffs Motion for Judgment on the Pleadings [ECF No. 24] and Motions for Default

Judgment [ECF Nos. 25, 26] be DENIED. Lastly, the Court FURTHER ORDERS that the

Plaintiff's Motion for Leave to File Excess Pages [ECF No. 34] be GRANTED and his

Objections [ECF No. 35] OVERRULED.

The Clerk of Court is DIRECTED to STRIKE this case from the Court’s active

docket. The Clerk is FURTHER DIRECTED to mail a copy of this Order to the Plaintiff by

certified mail, return receipt requested, at his last known address as reflected on the

docket sheet.

DATED: July 25, 2023 .

UNITED STATES DISTRICT JUDGE

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