Hancock v. Rickard

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

GARY WARREN HANCOCK, JR.,

Plaintiff,

v. CIVIL ACTION NO. 1:18-00024

BARBARA RICKARD, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United States

Magistrate Judge Omar J. Aboulhosn for submission of proposed

findings and recommendation (“PF&R”). Magistrate Judge Aboulhosn

submitted his proposed findings and recommendation on October 25,

2019. In that Proposed Findings and Recommendation, the

magistrate judge recommended that this court grant in part and

deny in part defendants’ “Motion to Dismiss, or in the

Alternative, Motion for Summary Judgment.” Specifically,

Magistrate Judge Aboulhosn recommended that the motion be denied

as to plaintiff’s claim under the Federal Tort Claims Act

(“FTCA”) and granted in all other respects.

In accordance with the provisions of 28 U.S.C. § 636(b), the

parties were allotted fourteen days, plus three mailing days, in

which to file any objections to Magistrate Judge Aboulhosn’s

Findings and Recommendation. The failure of any party to file

such objections constitutes a waiver of such party's right to a

de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363

(4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985). Moreover,

this court need not conduct a de novo review when a petitioner

“makes general and conclusory objections that do not direct the

court to a specific error in the magistrate’s proposed findings

and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th

Cir. 1982). Plaintiff filed timely objections to the Proposed

Findings and Recommendation on November 7, 2019 and defendant

United States of America filed limited objections on November 5,

2019. The court has conducted a de novo review of the record as

to those objections. See 28 U.S.C. § 636(b)(1) (“A judge of the

court shall make a de novo determination of those portions of the

report or specified proposed findings and recommendations to

which objection is made.”).

I. Background

On January 8, 2018, plaintiff filed this complaint for

alleged violations of his constitutional and civil rights

pursuant to Bivens v. Six Unknown Federal Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). Hancock raised the

following claims:

1) That he was denied due process concerning the

disciplinary actions taken against him;

2) That he was subjected to cruel and unusual punishment

based upon the conditions he encountered in the Special

Housing Unit (“SHU”);

3) That he was denied breakfast on January 2, 2018;

2

4) That he is being denied appropriate medication to

assist with the digestion of food; and

5) That his First Amendment rights were violated while

placed in SHU.

In a supplemental complaint, Hancock alleges that he was given

the wrong medication for a week and that defendants’ actions in

doing so “amounts at least to medical negligence, and at most

deliberate indifference.” ECF No. 53 at 4. Named as defendants

are: (1) Barbara Rickard, the Warden of FCI McDowell; (2) Officer

Sawyers; (3) Librarian Norris; (4) Lieutenant Saunders; (5) Medic

Walters; (6) Officer Nowlin; (7) Officer John Doe #1; (8) Officer

John Doe #2; (9) Officer John Doe #3; and (10) Pharmacist John

Doe.

Defendants’ Motion to Dismiss/Motion for Summary Judgment

argued that plaintiff’s claims should be dismissed for the

following reasons:

(1) Failure to Exhaust Administrative Remedies;

(2) That the Supreme Court has not established a Bivens

remedy for violation of the First Amendment;

(3) Verbal comments and/or threats do not violate

constitutional rights;

(4) Hancock cannot establish an Eighth Amendment violation;

(5) The conditions in SHU do not violate the Eighth

Amendment;

(6) Plaintiff’s disciplinary action cannot be challenged in

this case;

(7) Plaintiff makes no specific allegations against Warden

Rickard; and

3

(8) Defendants are entitled to qualified immunity.

ECF No. 83 and 84.

As noted above, Magistrate Judge Aboulhosn recommended that

plaintiff’s FTCA claim be permitted to go forward. In so doing,

he denied defendants’ motion to dismiss for failure to exhaust.

As set forth more particularly in the PF&R, the magistrate judge

further recommended that plaintiff’s other claims be dismissed

and/or judgment granted in defendants’ favor.

II. Analysis

A. Plaintiff’s Objection 1

Hancock objects that the PF&R mixes up the names of two

medications. This error does not affect the analysis in the

PF&R. However, plaintiff’s objection is SUSTAINED.

B. Plaintiff’s Objection 2

Hancock objects to the recommendation in the PF&R that his

First Amendment claim be dismissed. Hancock does not point to

any error in the PF&R’s analysis nor does he grapple at all with

its ultimate conclusion that the Bivens remedy has not been

expanded to include First Amendment claims.

As the PF&R noted, the Supreme Court’s decision in Ziglar v.

Abbasi, 137 S. Ct. 1843 (2017), governs the court’s consideration

of plaintiff’s First Amendment claim. Of Bivens’ origins and its

development, the Court summarized:

In 1871, Congress passed a statute that was later

codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It

4

entitles an injured person to money damages if a state

official violates his or her constitutional rights.

Congress did not create an analogous statute for

federal officials. Indeed, in the 100 years leading up

to Bivens, Congress did not provide a specific damages

remedy for plaintiffs whose constitutional rights were

violated by agents of the Federal Government.

In 1971, and against this background, this Court

decided Bivens. The Court held that, even absent

statutory authorization, it would enforce a damages

remedy to compensate persons injured by federal

officers who violated the prohibition against

unreasonable searches and seizures. See 403 U.S. at

397, 91 S. Ct. 1999. The Court acknowledged that the

Fourth Amendment does not provide for money damages “in

so many words.” Id. at 396, 91 S. Ct. 1999. The Court

noted, however, that Congress had not foreclosed a

damages remedy in “explicit” terms and that no “special

factors” suggested that the Judiciary should

“hesitat[e]” in the face of congressional silence. Id.

at 396-397, 91 S. Ct. 1999. The Court, accordingly,

held that it could authorize a remedy under general

principles of federal jurisdiction. See id. at 392, 91

S. Ct. 1999 (citing Bell v. Hood, 327 U.S. 678, 684, 66

S. Ct. 773, 90 L. Ed. 939 (1946)).

In the decade that followed, the Court recognized

what has come to be called an implied cause of action

in two cases involving other constitutional violations.

In Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60

L. Ed.2d 846 (1979), an administrative assistant sued a

Congressman for firing her because she was a woman.

The Court held that the Fifth Amendment Due Process

Clause gave her a damages remedy for gender

discrimination. Id. at 248-249, 99 S. Ct. 2264. And

in Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64

L. Ed.2d 15 (1980), a prisoner’s estate sued federal

jailers for failing to treat the prisoner’s asthma.

The Court held that the Eighth Amendment Cruel and

Unusual Punishments Clause gave him a damages remedy

for failure to provide adequate medical treatment. See

id. at 19, 100 S. Ct. 1468. These three cases—Bivens,

Davis, and Carlson—represent the only instances in

which the Court has approved of an implied damages

remedy under the Constitution itself.

5

Id. at 1854-55. The Court went on to state that “expanding the

Bivens remedy is now a disfavored judicial activity” and noted

that it has “consistently refused to extend Bivens to any new

context or new category of defendants . . . for the past 30

years.” Id. at 1857 (internal quotations and citations omitted).

Of this reluctance to expand Bivens, the court went on to

say that:

When a party seeks to assert an implied cause of

action under the Constitution itself, just as when a

party seeks to assert an implied cause of action under

a federal statute, separation-of-powers principles are

or should be central to the analysis. The question is

who should decide whether to provide for a damages

remedy, Congress or the courts?

The answer most often will be Congress. When an

issue involves a host of considerations that must be

weighed and appraised, it should be committed to those

who write the laws rather than those who interpret

them. In most instances, the Court’s precedents now

instruct, the Legislature is in the better position to

consider if the public interest would be served by

imposing a new substantive legal liability. As a

result, the Court has urged caution before extending

Bivens remedies into any new context. The Court’s

precedents now make clear that a Bivens remedy will not

be available if there are special factors counselling

hesitation in the absence of affirmative action by

Congress.

Id. After considering the “special factors necessarily

implicated by the detention policy claims” in that case, the

Ziglar court concluded that the detainees’ claims should not be

the basis for a Bivens action. Id. at 1860 (“After considering

the special factors necessarily implicated by the detention

policy claims, the Court now holds that those factors show that

6

whether a damages action should be allowed is a decision for the

Congress to make, not the courts.”).

Magistrate Judge Aboulhosn analyzed Hancock’s First

Amendment claim under the Ziglar framework and recommended that

the court decline to find an implied Bivens cause of action for

that claim. The court finds no error in the PF&R’s disposition

of this issue. See Reichle v. Howard, 566 U.S. 658, 663 n.4

(2012) (“We have never held that Bivens extends to First

Amendment claims.”); Bush v. Lucas, 426 U.S. 367, 390 (1983)

(declining to create an implied damages remedy in a First

Amendment suit against a federal employer); see also Kirtman v.

Helbig, Civil Action No. 4:16-cv-2839-AMQ, 2018 WL 3611344, *5

(D.S.C. July 27, 2018) (declining to find an implied Bivens cause

of action for federal prisoner’s First Amendment retaliation

claim after conducting special factors analysis). Hancock’s

objection is OVERRULED.

C. Plaintiff’s Objection 3

Hancock objects to the PF&R’s conclusion that Hancock’s

claims against defendant Norris for verbal harassment did not

amount to a constitutional violation. According to him, Norris’s

“actions contributed to the totality of the unconstitutional

conditions.” ECF No. 100 at 1. “Generally, mere verbal

harassment does not give rise to a constitutional violation.”

Belt v. Federal Bureau of Prisons, 336 F. Supp.3d 428, 437

7

(D.N.J. 2018); see also Clark v. United States, Civil No. 6:16-

252-GFVT, 2018 WL 1950427, *2 (E.D. Ky. Apr. 25, 2018) (“[V]erbal

harassment and insults, particularly on only one isolated

occasion, are insufficient to state a claim of constitutional

magnitude.”); Snoussi v. Bivona, No. 05CV3133(RJD)(LB), 2008 WL

3992157, *7 (E.D.N.Y. Aug. 22, 2008) (“It is also clear that

verbal harassment alone does not constitute a cognizable

violation of an individual’s constitutional rights.”). As these

cases and the numerous authorities cited therein confirm,

Hancock’s verbal abuse/harassment claim against defendant Norris

does not amount to a violation of the Eighth Amendment.

Hancock, in apparent recognition of this truth, states that

Norris’s verbal abuse/harassment was just part of a claim based

on the totality of his conditions of confinement. However, the

Supreme Court has held that “[n]othing so amorphous as ‘overall

conditions’ can rise to the level of cruel and unusual punishment

when no specific deprivation of a single human need exists.”

Wilson v. Seiter, 501 U.S. 294, 305 (1991). The Court confirmed

that “[s]ome conditions of confinement may establish an Eighth

Amendment violation ‘in combination’ when each would not do so

alone, but only when they have a mutually enforcing effect that

produces the deprivation of a single, identifiable human need

such as food, warmth, or exercise—for example, a low cell

8

temperature at night combined with a failure to issue blankets.”

Id. at 304.

Hancock does not identify, nor can the court discern, a

“single, identifiable human need” of which he was deprived due to

Norris’s alleged verbal harassment, either alone or in

combination with his other complaints. This objection is

OVERRULED.

D. Plaintiff’s Objection 4, 5, 6, and 7

Hancock complained about a number of his conditions of

confinement. The PF&R concluded that these conditions, neither

alone or in combination with each other, rose to the level of an

Eighth Amendment violation. Hancock objects to this finding.

1. Sanitation

Hancock objected to the PF&R’s conclusion that being

confined in a hard, dirty cell without hand soap for a four-day

period showed deliberate indifference on the part of defendants.

The Fourth Circuit has previously held that denial of a shower on

two separate occasions does not violate the Eighth Amendment.

See Langston v. Fleming, 38 F.3d 1213, 1994 WL 560765, *1 (4th

Cir. 1994); see also Davenport v. DeRobertis, 844 F.2d 1310,

1316-17 (7th Cir.) (one shower per week for inmates in

administrative segregation does not violate Eighth Amendment),

cert. denied, 488 U.S. 908 (1988); Davis v. Villers, Civil Action

No. 5:12cv48, 2012 WL 7017863, *5 (N.D.W. Va. Oct. 9, 2012)

9

(temporary lack of toilet paper does not state a claim of

constitutional magnitude); McCoy v. Meredith, C/A No. 4:10-1687-

JFA-TER, 2011 WL 2223160, *2 (D.S.C. June 6, 2011) (denial of

right to take shower on two occasions is not violation of Eighth

Amendment); Shannon v. Graves, No. CIV.A.98-3395-KHV, 2000 WL

206315, *11 (D. Kan. Jan. 5, 2000) (“[C]ourts have noted that the

failure to provide deodorant and shampoo is not cruel and

unusual, because these items are not ‘essential human needs.’”).

2. Food

Although “[i]t is well established that inmates must be

provided nutritionally adequate food, prepared and served under

conditions which do not present an immediate danger to the health

and well-being of the inmates who consume it[,] . . . one-time or

intermittent mishaps with respect to food are not a

constitutional violation.” Miller v. Fogle, Civil Action No.

613-1670-TMC, 2013 WL 4499479, *2 (D.S.C. Aug. 19, 2013).

Therefore, Hancock’s claim that he received spoiled milk on one

occasion likewise does not state an Eighth Amendment violation.

See Perez v. Sullivan, 100 F. App’x 564, 567 (7th Cir. June 4,

2004)(no deliberate indifference to inmate’s health based upon

ingesting spoiled milk on one occasion); Miller, 2013 WL 4499479,

at *2 (fact that prisoner was served spoiled milk on one occasion

does not establish a constitutional violation); Shannon, 2000 WL

206315, at * 14 (fact that inmate is served spoiled food on

10

occasion and food with insect on one occasion insufficient for a

jury to find cruel and unusual punishment).

3. Warmth

As for Hancock’s complaints regarding cold temperatures, his

allegations do not establish that he was deprived of a basic

human need. He alleges that the temperatures in SHU were

extremely cold at night but concedes that he was provided two

blankets. Likewise, with respect to his ability to exercise

outdoors, he concedes that he was provided a coat even though he

was not provided with sweats. These conditions, standing alone

or in concert with each other, do not establish that Hancock was

deprived of the basic human need of warmth. See, e.g., Strickler

v. Waters, 989 F.2d 1375, 1382 (4th Cir. 1993) (no Eighth

Amendment violation based upon cold temperatures where prisoner

was provided with blankets); Carabello v. Ingram, No. 5:10-CT-

3056-FL, 2012 WL 699518, *5 (E.D.N.C. Mar. 1, 2012) (no Eighth

Amendment violation due to cold temperatures in cell where

“inmates were permitted to wear socks on their arms to provide

warmth . . . and were provided blankets and sheets”).

Based upon the foregoing, the court agrees with the PF&R

that these conditions do not violate the Eighth Amendment.

As for Hancock’s claim that these conditions, taken

together, violate the Eighth Amendment, he does not identify the

single, identifiable human need that these conditions denied him.

11

Rather, his allegations touch on a number of different human

needs, such as sanitation, food, and warmth. Therefore, these

conditions do not have a “mutually enforcing effect”. See

Saunders v. Sheriff of Brevard County, 736 F. App’x 559, 571

(11th Cir. 2018) (holding that inmate’s “broad swath of

allegations”, including overcrowding, deprivation of toiletries,

inadequate cell cleaning, and failure to provide air conditioning

“fail[ed] to illustrate the deprivation of . . . single

identifiable human need. . . or . . . minimal civilized measures

of life’s necessities”) (internal citations and quotations

omitted); Hood v. Evans, No. 92-15549, 37 F. 3d 1505, *2-3 (7th

Cir. Sept. 28, 1994) (holding inmate’s allegations of overcrowded

cells, inadequate and unsanitary shower facilities, lack of

access to cleaning materials, inadequate heating, cooling, and

ventilation, failure to provide clean clothing and bedding,

inadequate opportunities for exercise, inadequate and poorly

prepared food, confinement in a cell with drug addicts and

mentally ill prisoners, and lack of access to current legal

materials did not have a “mutually enforcing effect”); Strickler

v. Waters, 989 F.2d 1375, 1382 (4th Cir. 1993) (inmate’s

complaints about overcrowding and excessive temperatures did not

have “mutually enforcing effect”).

Hancock’s objections are OVERRULED.

12

E. Plaintiff’s Objection 8, 9, and 10

Under the Eighth Amendment, a prison official may violate a

prisoner's right to medical care if the official is “deliberately

indifferent” to a “serious medical need.” Estelle v. Gamble, 429

U.S. 97, 104–05 (1976). In evaluating Hancock’s claims regarding

inadequate medical care, the PF&R assumed that his ailments were

serious enough to give rise to an Eighth Amendment claim. As for

the subjective component, the PF&R found that the record did not

show that defendants were aware of, but deliberately disregarded,

that serious medical need. In so finding, the PF&R provided a

thorough summary of the medical evidence which the court finds

unnecessary to repeat herein. Suffice it to say, the evidence of

record, which plaintiff has not rebutted in any meaningful way,

demonstrates that defendants consulted with plaintiff on numerous

occasions regarding his complaints and prescribed treatment

options. Just because Hancock did not agree with the suggested

course of treatment does not mean that a violation of the Eighth

Amendment has occurred.

Plaintiff’s objections largely are directed at the various

findings in the PF&R which are based upon the medical evidence of

record. Significantly, as the PF&R explained, “[p]laintiff’s

attempt to dispute the medical records with a conclusory, self-

serving statement that he reported complaints of his need for

Metamucil to medical staff ‘on several different occasions’ is

13

insufficient because Plaintiff fails to provide factual details,

such as date, time, and to whom the medical issue was reported.”

ECF No. 98 at 40 n.4 (and authorities cited therein). Hancock’s

objections are OVERRULED.

F. Plaintiff’s Objection 11

The PF&R concluded that plaintiff had not shown deliberate

indifference on the part of the John Doe pharmacist for allegedly

prescribing the wrong medication. In one sentence, Hancock

states that he objects to this finding but he does not explain

how the PF&R errs.

As the PF&R explained, there is simply no evidence to

establish the John Doe pharmacist knew he had prescribed the

wrong medication and continued to do so despite this knowledge.

Therefore, plaintiff has failed to show that John Doe pharmacist

knew of and disregarded an excessive risk to his health or

safety. Plaintiff’s allegations, even if true, are at best

allegations of negligence. See Daniels v. Beasley, No. 241 F.

App’x 219, 220 (5th Cir. 2007) (allegation that prison official

gave prisoner wrong medication resulting in excessive sleep, loss

of appetite, and temporary loss of vision did not establish “more

than negligence”); Greene v. Watson, Case No. 3:15-cv-00621-MJR,

2015 WL 4609977, *2 (S.D. Ill. July 31, 2015) (“[A] bare

allegation that an official gave a detainee the wrong medication

suggests only negligent conduct by that official, and not the

14

kind of recklessness needed to put forth a constitutional

claim.”); Cruz v. Archie, CIVIL ACTION NO. 5:12cv86, 2013 WL

3544764, *7 (E.D. Tex. July 12, 2013) (“Cruz has failed to show

Archie’s actions in giving him the wrong pill amounted to

anything more than negligence or lack of due care.”).

G. Plaintiff’s Objection 12

Hancock’s final objection is to the PF&R’s conclusion that

he has not stated a sufficient claim against defendants Saunders

and Rickard because he has failed to show how they violated his

constitution rights. According to Hancock:

In a prison setting, like the military, rank holds

ultimate power. After notifying the defendant’s

subordinates, Plaintiff notified the supervisory

defendants of the constitutional violations. In

prison, the Warden is the Commander in Chief. If the

warden gives an order to subordinates, the order must

be followed; and the Warden can make sure it is

followed. The same goes for defendant Saunders, he was

the SHU supervisor and had the power to give orders

that would correct the unconstitutional conditions.

Once both supervisory defendants were notified of the

unconstitutional conditions, it was their duty to do

whatever necessary to correct them.

ECF No. 100 at 5.

The Fourth Circuit has explained:

Bivens liability may not be based on respondeat

superior. Jett v. Dallas Ind. School Dist., 57

U.S.L.W. 4858, 4867 (U.S. June 22, 1989) (No. 87–2084).

This Court has held, however, that supervisory

officials may be held liable in certain circumstances

for constitutional injuries inflicted by their

subordinates. Slakan v. Porter, 737 F.2d 368, 372 (4th

Cir. 1984), cert. denied, 470 U.S. 1035 (1985).

Instead of respondeat superior, liability is premised

“on a recognition that supervisory indifference or

15

tacit authorization of subordinates' misconduct may be

a causative factor in the constitutional injuries they

inflict on those committed to their care.” Id. A

plaintiff must show “a pervasive and unreasonable risk

of harm from some specified source and that the

supervisor's corrective inaction amounts to deliberate

indifference or ‘tacit authorization of the offensive

[practices].’” Id. at 373 (citations omitted).

Evidence of a supervisor's continued inaction in the

face of documented widespread abuses provides an

independent basis for finding he either was

deliberately indifferent or acquiesced in the

constitutionally offensive conduct of his subordinates.

Johnathan Lee X v. Casey, No. 90-6677, 924 F.2d 1052, *1 (4th

Cir. Feb. 4, 1991).

Hancock’s objection to the PF&R is OVERRULED for four

reasons. First, as noted above, Hancock has not alleged or

proven an injury of constitutional magnitude against anyone.

Second, the record is devoid of the sort of documented widespread

abuses contemplated by Slakan. See Caldwell v. Green, 451 F.

Supp.2d 811, 821 (W.D. Va. 2006) (“Documentation of widespread

abuses are necessary to establish a sheriff’s liability for

constitutional violations by a subordinate.”). Third, despite

Hancock’s attempt to characterize it otherwise, a careful reading

of plaintiff’s objection is that his theory of liability against

Rickard and Saunders actually rests on respondeat superior

liability, which is not allowed under Bivens. See Ziglar v.

Abbasi, 137 S. Ct. 1843, 1860 (2017) (“Bivens is not designed to

hold officers responsible for acts of their subordinates.”).

Finally, Hancock has failed to show an affirmative causal link

16

between the alleged inaction on the part of Rickard and Saunders

and any constitutional injury he suffered.

H. Defendants’ Objection: Failure to Exhaust

As noted above, Magistrate Judge Aboulhosn concluded that

only plaintiff’s FTCA claim survived defendants’ motion. With

respect to Hancock’s alleged failure to exhaust his

administrative remedies, Magistrate Judge Aboulhosn could not

find that Hancock failed to exhaust his available administrative

remedies. See ECF No. 98. Specifically, based upon the

conflicting evidence of record, the PF&R could not conclude that

the administrative remedy process was available to Hancock while

he was placed in SHU. For that reason, the PF&R recommended that

insofar as defendants sought dismissal based upon the failure to

exhaust, their motion be denied.

The government objects to the PF&R’s conclusion that Hancock

was unable to file an administrative claim under the FTCA. See

ECF No. 99. Pointing to the different requirements for

exhaustion under the Prison Litigation Reform Act (“PLRA”) and

the FTCA, defendants argue that Magistrate Judge Aboulhosn

“appear[ed] to conflate the administrative remedy process under

the PLRA and the administrative claim process under the FTCA.”

Id. at 2. According to defendants, even if Hancock’s placement

in SHU made it impossible for him to get the specific forms

17

necessary to exhaust his administrative remedies under the PLRA,

he was still able to file an administrative claim under the FTCA.

As sovereign, the United States "can be sued only to the

extent that it has waived its immunity" from suit. United States

v. Orleans, 425 U.S. 807, 814 (1976); see also Department of the

Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (“Absent a

waiver, sovereign immunity shields the Federal Government and its

agencies from suit.”). Under the FTCA, the United States has

waived its immunity and is liable for any “negligent or wrongful

act or omission of any employee of the Government while acting

within the scope of his office or employment, under circumstances

where the United States, if a private person, would be liable to

the claimant in accordance with the law of the place where the

act or omission occurred.” 28 U.S.C. § 1346(b). The FTCA

provides for government liability for "tort claims, in the same

manner and to the same extent as a private individual under like

circumstances." 28 U.S.C. § 2674.

In order to bring a tort claim against the United States

under the Federal Tort Claims Act, a claimant must first file an

administrative claim with the appropriate federal agency within

two years of accrual of the claim. See 28 U.S.C. § 2401(b). 28

U.S.C. § 2401(b) specifies that “[a] tort claim against the

United States shall be forever barred unless it is presented in

writing to the appropriate Federal agency within two years after

such claim accrues.” Before bringing a claim in federal court,

18

“a 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. at § 2675(a). The claim-filing

requirement may not be waived. See Plyler v. United States, 900

F.2d 41, 42 (4th Cir. 1990); see also Garza-Ovalle v. Armstrong,

Civil Action No. ELH-19-895, 2020 WL 230896. *12 (D. Md. Jan. 15,

2020) (“That the claim must be presented to the appropriate

agency is ‘jurisdictional and may not be waived.’”) (quoting

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

Lamerique v. United States, Case No. 3:18-cv-00532, 2019 WL

2932673, *10 (S.D.W. Va. June 14, 2019) (“The requirement of

filing an administrative complaint is jurisdictional and cannot

be waived.”); Baynes v. United States, 1:15-CV-1604 (LMB/TCB),

2016 WL 4492807, *8 (E.D. Va. Aug. 25, 2016) (“This

jurisdictional requirement may not be waived.”) (citing Kokotis

v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000)).

“Litigants must strictly comply with the requirements of the

FTCA before this Court obtains jurisdiction to consider such

claim.” Brown v. United States, Civil Action No. 5:11CV63-DCB-

RHW, 2012 WL 7655323, *1 (S.D. Miss. Dec. 19, 2012); see also

Robinson v. United States, Civil Action No. 3:13-CV-1106, 2014 WL

2940454, *5 (M.D. Penn. June 30, 2014) (“Therefore, prior to

commencing an FTCA action a plaintiff must comply with the

19

procedural prerequisites set forth by the FTCA. Such procedural

compliance is the price plaintiff must pay to take advantage of

the limited waiver of sovereign immunity granted by the FTCA.”).

There is no dispute that Hancock has not filed an

administrative claim regarding his FTCA claim. He claims he was

unable to do so while he was in SHU. Nevertheless, even when he

was in SHU, he was able to institute this civil action on January

8, 2018, see ECF Nos. 1 and 2, and file documents that were

received in this court on January 11, 2018, January 26, 2018,

March 1, 2018, and March 8, 2018. See ECF Nos. 5-9, 21-24, and

26. Therefore, Hancock’s actions in filing this lawsuit and

pursuing it indicate that he was not unable to file an

administrative claim while in SHU. Furthermore, given that

plaintiff was only in SHU from December 17, 2017 through April 4,

2018, he has failed to explain his failure to file an

administrative claim since then and well within the two-year

period. Cf. Clark v. United States, Civil No. 6:16-252-GFVT,

2018 WL 1950427, *3 (E.D. Ky. Apr. 25, 2018) (“Clark complains

that unidentified BOP officials violated his right of access to

the courts by failing to give him a complaint form to file this

action. . . . This claim is without merit. Even ignoring

Clark’s failure to identify a culpable defendant, the filing of

this action demonstrates that Clark was not prevented from

20

asserting his claims.”). Therefore, Hancock’s FTCA cause of

action is subject to dismissal for failure to exhaust.

Based upon the foregoing, defendants’ objection is SUSTAINED

to the extent it argues that exhaustion is mandatory and,

therefore, plaintiff’s FTCA claim is subject to dismissal.

ITI. Conclusion

Having reviewed the Findings and Recommendation filed by

Magistrate Judge Aboulhosn, the court hereby OVERRULES

plaintiff’s objections except for Objection 1 which was

sustained. The court SUSTAINS defendants’ objection on the issue

of exhaustion of plaintiff’s FTCA claim. With these exceptions,

the court adopts the findings and recommendations contained in

the PF&R. Accordingly, the court GRANTS defendants’ “Motion to

Dismiss, or in the Alternative, Motion for Summary Judgment;

DISMISSES this action; and directs the Clerk to remove this case

from the court’s active docket.

The Clerk is further directed to forward a copy of this

Memorandum Opinion and Order to counsel of record and to

plaintiff pro se.

IT IS SO ORDERED this 30th day of March, 2020.

ENTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

21