Jordan v. Federal Bureau of Prisons et al, No. 5:2016cv00031 - Document 77 (N.D.W. Va. 2018)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, GRANTING DEFENDANTS' MOTION TO DISMISS OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S CASE WITH PREJUDICE: Granti ng 67 Motion to Dismiss for failure to State a Claim/Motion for Summary Judgment; Adopting 75 Report/Recommendation and Dismissing with Prejudice 1 Complaint, filed by Charles Jerome Jordan. Appellate rights have been waived; case to be dismis sed and stricken from the active docket of this Court; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 1/31/18. (copy to pltff. by cert. mail)(soa) (Additional attachment(s) added on 1/31/2018: # 1 Certified Mail Return Receipt) (soa).
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Jordan v. Federal Bureau of Prisons et al Doc. 77 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CHARLES JEROME JORDAN, Plaintiff, v. Civil Action No. 5:16CV31 (STAMP) FEDERAL BUREAU OF PRISONS, ANTHONY MORI, Unit Manager, KATHY LANE, Warden and MELISSA WILSON, Correctional Counselor, Defendants. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, GRANTING DEFENDANTS’ MOTION TO DISMISS OR ALTERNATIVELY, MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFF’S CASE WITH PREJUDICE I. Background The pro se1 plaintiff, Charles Jerome Jordan, who is housed at FCI Hazelton, filed this civil action asserting claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). In his complaint, plaintiff alleges claims against the defendants for abuse of authority, harassment, interfering with the filing of his administrative grievances by “making them disappear” and conspiring to harass him in retaliation for filing grievances, by constantly moving his cell and removing his relatives from his visiting list. ECF No. 1. The plaintiff contends that he exhausted his 1 “Pro se” describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black’s Law Dictionary 1416 (10th ed. 2014). Dockets.Justia.com administrative remedies, and as relief, plaintiff requests that the court fine these Federal Bureau of Prisons (“BOP”) officials and award him $450,000.00 in monetary damages. Defendants filed an answer (ECF ECF 1 at 9. No. 64) responded to defendants’ answer (ECF No. 65). and plaintiff Defendants then filed a motion to dismiss or alternatively, motion for summary judgment, along with a memorandum in support, attaching numerous affidavits. ECF Nos. 67 and 68. Plaintiff filed a response in opposition to the defendants’ motion (ECF No. 73). This civil action was referred to the United States Magistrate Judge for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2. By order entered on September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to Magistrate Judge Michael John Aloi. United States Magistrate Judge Michael John Aloi entered a report and recommendation. ECF No. 75. The magistrate judge found that the Federal Bureau of Prisons (“BOP”) is not a proper defendant, and the complaint must be dismissed as to the BOP. No. 75 at 9. ECF The magistrate judge also found that “[d]espite Plaintiff’s arguments that he exhausted all of the administrative remedies that were available to him, it is apparent from a thorough review of the record that Plaintiff nonetheless implicitly admits that he did not fully exhaust his grievances before filing suit, because he admits that at least some of his grievances regarding 2 staff interference with his filing his BP-8s were rejected, not denied.” bare Id. at 19-20. allegation grievance forms, that The magistrate states that plaintiff’s defendant or that his refused to completed provide him grievance with forms “disappeared,” lacks credibility, as plaintiff makes no claim that defendant or any other prison official ever threatened him with violence to discourage him from filing grievances. Id. at 23. The magistrate judge found that plaintiff has had the opportunity to address the issue, and that his failure to exhaust cannot be excused, and this matter must be dismissed for failure to exhaust administrative remedies. Id. The magistrate states that although normally, such a dismissal would be without prejudice, because so much time has elapsed, plaintiff cannot now exhaust under the BOP’s administrative remedy procedure, and therefore, his claims should be dismissed with prejudice. Id. The magistrate judge recommended that the defendants’ motion to dismiss or alternatively, motion for summary judgment (ECF No. 67) be granted and that plaintiff’s complaint (ECF No. 1) be denied and dismissed with prejudice. ECF No. 75 at 24. The magistrate judge informed the plaintiff that “[w]ithin fourteen (14) days after being served with a copy of this Report and Recommendation, any party may file with the Clerk of Court written objections identifying those portions of the recommendation to which objection is made and the basis for such objections. 3 A copy of any objections shall also be submitted to the United States District Judge. Failure to timely file objections to this recommendation will result in waiver of the right to appeal from a judgment of this Court based upon such recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984).” ECF No. 75 at 24 (emphasis in original). The plaintiff did not file objections to the magistrate judge’s report and recommendation. For the reasons that follow, this Court finds that the report and recommendation of the magistrate judge should be adopted in its entirety. II. Applicable Law Under 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. file any objections to the Because the plaintiff did not report and recommendation, the magistrate judge’s findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). III. Discussion In his report and recommendation, the magistrate judge first correctly found that the Federal Bureau of Prisons (“BOP”) is not 4 a proper defendant, and the complaint must be dismissed as to the BOP. The magistrate judge also properly concluded that plaintiff did not fully exhaust his grievances before filing suit, and his failure to exhaust cannot be excused. Furthermore, the magistrate judge correctly determined that plaintiff cannot now exhaust under the BOP’s administrative remedy procedure, and therefore, his claims should be dismissed with prejudice. Lastly, the magistrate properly found that defendants’ motion (ECF No. 67) should be granted. This Court determinations finds of the no clear error magistrate in any judge and of thus the above upholds his rulings. IV. Conclusion Because the plaintiff did not object to the report and recommendation of the magistrate judge, and because this Court finds that the magistrate judge’s recommendation is not clearly erroneous, the report and recommendation of the magistrate judge (ECF No. 75) is hereby AFFIRMED and ADOPTED in its entirety. Accordingly, defendants’ motion to dismiss or alternatively, motion for plaintiff’s summary claims judgment against (ECF the No. 67) defendants is are GRANTED, DISMISSED and WITH PREJUDICE. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. 5 Finally, this Court finds that the plaintiff was properly advised by the magistrate judge that failure to timely object to the report and recommendation in this action would result in a waiver of appellate rights. Because the plaintiff has failed to object, he has waived his right to seek appellate review of this matter. See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir. 1985). IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein and to the pro se plaintiff by certified mail. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. DATED: January 31, 2018 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 6
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