Westbrook v. UNITED STATES OF AMERICA, No. 5:2009cv00056 - Document 24 (N.D.W. Va. 2010)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING IN PART 17 Report and Recommendation. The plaintiff's 1983 claims are DENIED and DISMISSED WITH PREJUDICE and the plaintiff's BIVENS and FTCA claims are DENIED and DISMISSED WITHOUT PRE JUDICE. DECLINING IN PART TO AFFIRM AND ADOPT 17 REPORT AND RECOMMENDATION to the extent that the report and recommendation denies the plaintiff's motion for summary judgment. The defendants shall file a response to 11 plaintiff's MOT ION for Summary Judgment by 1/20/2010; and plaintiff shall file any reply by 2/8/2010. Signed by Senior Judge Frederick P. Stamp, Jr on 1/5/10. (c to plaintiff by certified mail)(cc) (Additional attachment(s) added on 1/6/2010: # 1 certified mail receipt) (cc).
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA LARNETTE WESTBROOK, Plaintiff, v. Civil Action No. 5:09CV56 (STAMP) UNITED STATES OF AMERICA and KUMA DEBOO, Warden, Defendants. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING IN PART REPORT AND RECOMMENDATION AND DECLINING IN PART TO AFFIRM AND ADOPT REPORT AND RECOMMENDATION I. Procedural History The pro se1 plaintiff, Larnette Westbrook, commenced this civil action by filing a complaint pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act ( FTCA ). The plaintiff filed a motion for summary judgment, to which the defendants did not respond. This case was referred to United States Magistrate Judge John S. Kaull for initial review and recommendation pursuant to Local Rule of Prisoner Litigation 83.02 et seq., and 28 U.S.C. §§ 1915(e) and 1915A. On July 16, 2009, the magistrate judge issued a report and recommendation recommending that the plaintiff s claims under 42 U.S.C. § 1983 be denied and dismissed with prejudice; that the 1 Pro se describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black s Law Dictionary 1237 (9th ed. 2009). plaintiff s Bivens and tort claims be denied and dismissed without prejudice for failure to exhaust administrative remedies; and that the plaintiff s motion for summary judgment be denied as premature and moot. The magistrate judge advised the parties that, pursuant to 28 U.S.C. § 636(b)(1)(C), any party may file written objections to his proposed findings and recommendations within ten days after being served with a copy of the magistrate judge s recommendation. plaintiff filed objections. The For the reasons set forth below, this Court affirms and adopts in part the magistrate judge s report and recommendation, and declines in part to affirm and adopt the report and recommendation. II. Facts In his complaint, the plaintiff alleges that the defendants have denied him appropriate medical care. Specifically, the plaintiff asserts that he suffers from Human Immunodeficiency Virus ( HIV ) and colon warts, which can be fatal given his HIV. Although the plaintiff was approved for a colon examination more than thirty-six months ago, he claims that he has yet to receive that examination. The plaintiff also contends that the defendants are deliberately indifferent to a serious health risk by allowing staff members and visitors to smoke. While the plaintiff s current place of incarceration is a smoke-free facility, he alleges that the defendants allow people to smoke in designated areas that inmates 2 must pass through, placing him and other inmates health at risk of physical harm due to secondhand smoke. Finally, the plaintiff asserts that he is employed by Prison Industries ( UNICOR ), and that UNICOR s failure to pay him minimum wage violates the Fair Labor Standards Act ( FLSA ) and Walsh-Healy Act. The plaintiff requests an order from this Court directing UNICOR to pay all inmates either minimum wage or a wage comparable to the industry norm in the prison s geographical market. He also seeks $5,000.00 for breach of contract damages. III. Applicable Law Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge s recommendation to which objection is timely made. However, failure to file objections to the magistrate judge s proposed findings and recommendation permits the district court to review the recommendation under the standards that the district court believes are appropriate and, under these circumstances, the parties right to de novo review is waived. 825 (E.D. Cal. 1979). See Webb v. Califano, 468 F. Supp. Accordingly, because the plaintiff filed objections, this Court reviews the report and recommendation of the magistrate judge de novo. IV. A. Discussion Title 42, United States Code, Section 1983 Claim The magistrate judge recommended that the plaintiff s § 1983 claims be dismissed with prejudice because § 1983 only applies to 3 state actors. Based upon a de novo review, this Court agrees. Title 42, United States Code, Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable . . . Because § 1983 does not apply to the federal government and its employees, the statute has no application to this case. See Gomez v. Toledo, 446 U.S. 635, 640 (1980) ( [H]e must allege that the person who has deprived him of that right acted under color of state or territorial law. ). The plaintiff s therefore, must be dismissed with prejudice. § 1983 claims, Instead, this Court will address the plaintiff s claims under the appropriate standards of review. B. Bivens Act The magistrate judge recommended that the plaintiff s Bivens action be dismissed for failure to exhaust administrative remedies. Under the Prison Litigation Reform Act ( PLRA ), a prisoner bringing an action under 42 U.S.C. § 1983, or any other federal law, must first exhaust all available administrative remedies. U.S.C. § 1997e. 42 Exhaustion under § 1997e is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and applies to all inmate suits about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). If failure to exhaust is apparent from the complaint, federal 4 courts have the authority pursuant to 28 U.S.C. § 1915 to dismiss the case sua sponte. Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005). Actions brought pursuant to Bivens are subject to administrative exhaustion requirements of the PLRA. Porter, 534 U.S. at 524. Administrative exhaustion requires an inmate to pursue informal resolution before proceeding with a formal grievance. C.F.R. § 524.13. The Bureau of Prisons ( BOP ) formal administrative process is structured as a three-tiered system. C.F.R. § 542.10, et seq. 28 28 First, an inmate must submit a written complaint to the warden, to which the warden supplies a written response. 28 C.F.R. §§ 542.11 and 542.14. For inmates who do not obtain satisfactory relief at the first tier, the second tier allows the inmate to file an appeal with the Regional Director of the BOP. 28 C.F.R. § 542.15. The third, and final, tier of the formal administrative process is an appeal to the National Inmate Appeals Administrator for the Office of General Counsel. Id. An inmate s administrative remedies thus are considered exhausted only after pursuing a final appeal to the National Inmate Coordinator for the Office of General Counsel. Proper exhaustion of a PLRA or Bivens claim requires an inmate to file timely and procedurally sound administrative grievances in compliance with the BOP s administrative grievance process as outlined above. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) ( Proper exhaustion demands compliance with an agency s deadlines 5 and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings. ). Here, the plaintiff has failed to provide any evidence that he exhausted his administrative remedies regarding his Bivens claims. Furthermore, he concedes in his complaint that he has not completed this process, despite acknowledging that administrative remedy procedures are available. Accordingly, the plaintiff s Bivens claims must be dismissed for failure to properly exhaust his administrative remedies. C. Federal Tort Claims Act Claim The FTCA permits recovery of damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee. United States v. Muniz, 374 U.S. 150, 150 (1963). Pursuant to the provisions of the FTCA, the administrative process must be fully exhausted before FTCA claims may be brought in an action in federal court. 28 U.S.C. § 2675(a). Administrative exhaustion under the FTCA requires an inmate to submit written notification of the incident -- accompanied by a sum certain claim for monetary damages -- to the federal agency responsible for the activities giving rise to the claim. (b)(1). See 28 C.F.R. § 14.2(a) and The inmate may file an FTCA suit in federal court only after the agency denies the inmate s claim, and must do so within six months of the mailing of the denial. 6 28 C.F.R. § 14.9(a). An administrative tort claim is statutorily presumed denied if six months pass without action on a properly filed administrative claim. 28 U.S.C. § 2675(a) ( The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed final denial of the claim for purposes of this section. ). Failure to completely exhaust administrative remedies before filing an FTCA claim, however, is a jurisdictional defect that cannot be cured by administrative exhaustion after suit is filed. McNeil v. United States, 508 U.S. 106, 122 (1980). A prematurely filed FTCA claim cannot become timely by the passage of time after the complaint is filed. Id. at 106. In this case, the plaintiff filed a Claim for Damage, Injury or Death with the BOP on May 21, 2009. Approximately five days later, on May 26, 2009, he filed his complaint containing his FTCA claims in this Court. Because the plaintiff filed this action before the BOP denied his administrative remedies and before the passage of the six-month period which would implicate statutory presumption of denial, this Court finds, upon a de novo review, that the plaintiff has failed remedies for his FTCA claims. to exhaust his administrative Accordingly, those claims must be dismissed. D. Plaintiff s Summary Judgment Motion The plaintiff s summary judgment motion, which is attached to and made part of this memorandum opinion and order, was received by 7 this Court on June 15, 2009. Because this motion was not attached as a part of any pleading, and it does not appear that it was served upon the opposing party, this Court deems the plaintiff s motion to be an ex parte communication. All parties are notified that it is improper to communicate with this Court in this manner and that the appropriate procedure is to file pleadings with an appropriate certificate of service of the same upon all other parties. Accordingly, it is ORDERED that the plaintiff s motion for summary judgment (Docket No. 11) be filed and a copy sent to all parties and counsel of record herein. In his motion for summary judgment, the plaintiff asserts that no genuine issues of material fact exist and he is entitled to a judgment as a matter of law. In support of this motion, he claims that his rights have been violated and reiterates the claims raised in his complaint. As noted above, because this motion for summary judgment was never served on the defendants, they have not had the chance to respond to the plaintiff s arguments.2 For the reasons set forth above, this Court finds it appropriate to dismiss the plaintiff s § 1983, defendants inability Bivens, to and respond FTCA to the claims, motion despite for the summary judgment. Nevertheless, at this time, this Court finds it necessary for the defendants to respond to the plaintiff s breach of contract 2 The plaintiff s objections to the magistrate judge s report and recommendation argue that the defendants have not filed an answer in this case. 8 claims that he raises in his complaint, specifically the alleged violations of the FLSA and the Walsh-Healy Act. recommendation, the magistrate judge failed In his report and to address these claims, but rather denied the plaintiff s motion for summary judgment as premature and moot. Thus, the plaintiff s breach of contract claims have not been decided by this Court. Accordingly, the defendants shall file a response to the plaintiff s motion for summary judgment on or before January 20, 2010. The plaintiff shall file any reply on or before February 8, 2010. The magistrate judge s recommendation that the plaintiff s motion for summary judgment be denied as premature and moot is therefore not affirmed and adopted. V. Conclusion For the reasons set forth above, this Court AFFIRMS and ADOPTS IN PART the magistrate judge s report and recommendation and DECLINES IN PART to affirm and adopt the magistrate judge s report and recommendation. To the extent that the report and recommendation dismisses the plaintiff s § 1983, Bivens, and FTCA claims, the report and recommendation is adopted and affirmed. Accordingly, the plaintiff s § 1983 claims are DENIED and DISMISSED WITH PREJUDICE, and the plaintiff s Bivens and FTCA claims are DENIED and DISMISSED WITHOUT PREJUDICE. To the extent that the report and recommendation denies the plaintiff s motion for summary judgment, this Court declines to affirm and adopt the report and recommendation. 9 IT IS SO ORDERED. The Clerk is directed to transmit a copy of this order to the pro se plaintiff by certified mail and to counsel of record herein. DATED: January 5, 2010 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 10
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