Carter v. Division of Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

KENNETH EUGENE CARTER,

Plaintiff,

v. Civil Action No. 2:17-cv-03743

DIVISION OF CORRECTIONS,

WARDEN DAVID BALLARD, and

TOM CHANDLER, CFCI,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the motion to dismiss filed on December 1,

2017 by the defendants. In the complaint, the plaintiff, an

inmate at Mount Olive penitentiary, seeks possession of

prescription sunglasses that have been withheld from him by the

prison officials where he is incarcerated because the glasses do

not conform to the prison’s requirements.

This action was previously referred to the Honorable

Dwane L. Tinsley, United States Magistrate Judge, for submission

to the court of his Proposed Findings and Recommendation

(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

On August 9, 2018, the magistrate judge entered his PF&R

recommending that the motion to dismiss be granted, that the

plaintiff’s complaint be dismissed, that the temporary

restraining order against the defendants be terminated, and that

this matter be dismissed from the docket of the court. The

plaintiff filed objections to the PF&R on August 27, 2018, and

amended the objections on September 4, 2018 to include a case

citation, which the court has taken into consideration in this

decision. Defendants Division of Corrections and Tom Chandler

filed a response to the plaintiff’s objections on September 10,

2018.

The court reviews objections de novo. Furthermore,

“[t]he Federal Magistrates Act requires a district court to

‘make a de novo determination of those portions of the

[magistrate judge’s] report or specified proposed findings or

recommendations to which objection is made.’” Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.

2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).

Plaintiff lodges several objections to the PF&R, all

but two of which fail to identify specific portions to which

objection is made or fail to clearly state the basis for the

objection. However, to the extent the objections may be

discerned, the court evaluates the merit of each.

The first objection is that of a general disagreement

with the ultimate conclusion of the PF&R--that the complaint

should be dismissed. ECF No. 41, at 1-2. The plaintiff states

that the decision of the magistrate judge was based on his

confusion of the facts. Id. The plaintiff argues that he

should be given an opportunity to amend the pleadings to

“correct deficiencies” and “accurately clarify the

circumstances.” Id. The defendants respond by correctly noting

that the plaintiff has already had reasonable opportunity to

correct any deficiencies in the pleading. ECF No. 44, at 2.

The proposed amendment is made without basis, as the plaintiff

has not demonstrated that he can plead any facts that would lead

the court to believe that an amendment to the complaint is not

futile. See Edwards v. City of Goldsboro, 178 F.3d 231, 242

(4th Cir. 1999) (“[L]eave to amend a pleading should be denied .

. . when the amendment would be . . . futile.”). The request to

amend his complaint is denied.

In objection 2B, the plaintiff objects to the finding

that the complaint failed to state a plausible Fourth Amendment

claim. ECF No. 41, at 3. As the magistrate judge discussed in

the PF&R, there was no unlawful search or seizure in this case.

PF&R 5-8. West Virginia Division of Corrections (“WVDOC”)

Policy Directive 400.03 states that sunglasses for inmates are

approved only if they are non-prescription, unless the lenses

are transition lenses. ECF No. 27, Ex. 2 at 14, 28; ECF No. 28,

at 3. Defendant Chandler issued the package refusal notice

because the delivered item was a pair of prescription sunglasses

that did not have transition lenses. ECF No. 28, at 3; ECF No.

2, Ex. G. WVDOC is permitted by well established law to search

prisoners’ mail and seize any contraband. See Hudson v. Palmer,

468 U.S. 517, 526 (1984) (prisoners do not have an expectation

of privacy in their incoming mail); Wenzler v. Warden of

G.R.C.C., 949 F. Supp. 399, 402 (E.D. Va. 1996) (a prisoner does

not have a property interest in an item he is not permitted to

have under prison policy).

The rest of the plaintiff’s argument in this objection

reasserts the claim that the prison should not have approved the

purchase of these glasses. ECF No. 41, at 3. As the magistrate

stated in the PF&R, the prison’s approval of the voucher that

allowed plaintiff to purchase the sunglasses has no bearing on

the Fourth Amendment claims asserted against the defendants.

PF&R 7-8. Inasmuch as the magistrate judge sufficiently

considered and properly rejected this argument, the objection is

denied.

Objections 2A, 3, 4, and 6 assert claims not raised in

the complaint, and the plaintiff may not raise those claims for

the first time here.1 The remaining objections, numbered 5, 7,

1 The plaintiff argues that the PF&R did not address the liability of

defendants Division of Corrections and Warden Ballard under the doctrine of

respondeat superior. ECF No. 41, at 2-5. However, nowhere in the pleadings

and 8, are not germane to the complaint nor do they object to

any of the findings of the PF&R.2 Finally, the arguments in the

section of the objections titled “General Allegation,” ECF No.

41, at 6-7, merely reiterate arguments previously made and

contain no particular objections to the PF&R other than

disagreeing, generally, with its findings.

Therefore, it is ORDERED as follows:

1. That the plaintiff’s objections to the PF&R be, and hereby

are, overruled.

2. That the magistrate judge’s Proposed Findings and

Recommendation be, and they hereby are, adopted and

incorporated in full.

3. That the pending motion to dismiss be, and it hereby is,

granted.

did the plaintiff allege that the Division of Corrections or Warden Ballard

should be held liable under respondeat superior.

2 Objection 5 references two documents attached to his objection, an optometry

report and a memorandum from the Superintendent to the prison staff and

inmates, in an effort to show malice and wrongdoing by the defendants, but

makes no actual objection to the PF&R. ECF No. 41, at 4-6. Objection 7 is a

laundry list of jurisdictional statutes that were not at issue in the

complaint and are irrelevant here. Id. at 5. Objection 8 erroneously relies

on West Virginia Code § 29-12-5 in support of a meritless claim that

plaintiff may receive monetary damages in this suit, up to the amount of the

state’s insurance coverage, despite defendants’ Eleventh Amendment immunity.

Id.; see Westinghouse Elec. Corp. v. W. Va. Dep’t of Highways, 845 F.2d 468,

470 (4th Cir. 1988).

4. That the temporary restraining order against the defendants

be, and it hereby is, terminated; and

5. That this civil action be dismissed and stricken from the

docket of the court.

The clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and to any

unrepresented parties.

Enter: September 13, 2018