United States District Court, D. South Carolina, Aiken Division
Gerald Forde, Plaintiff, Pro Se.
Edward Reed, Defendant, represented by Christopher Gibbs,
U.S. Attorneys Office.
Albert Crosby, Defendant, represented by Christopher Gibbs,
U.S. Attorneys Office.
Lieutenant Pelt, Defendant, represented by Christopher Gibbs,
U.S. Attorneys Office.
ORDER AND OPINION
HOWE HENDRICKS, District Judge.
Kevin Gerald Forde ("Plaintiff") filed this action
on or about May 25, 2015, alleging violation of his
constitutional rights. (ECF No. 1 at 7.) In accordance with
28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this
matter was referred to United States Magistrate Judge Shiva
V. Hodges, for consideration of pretrial matters. The
Magistrate Judge prepared a thorough Report and
Recommendation which recommends that Defendants' Motion
to Dismiss be granted. (ECF No. 29.) Plaintiff filed timely
objections to the Report and Recommendation. (ECF No. 34.)
AND PROCEDURAL HISTORY
Report and Recommendation sets forth in detail the relevant
facts and standards of law, and the Court incorporates them
and summarizes below only in relevant part. Although
Plaintiff did not explicitly state the legal basis for his
action, the Defendants argued that Plaintiff was bringing a
Bivens  suit. (ECF No. 23 at 2.) The
Defendants filed a Motion to Dismiss pursuant to Fed.R.Civ.P.
12(b)(1), "on the grounds that Plaintiff failed to
exhaust the Administrative process. ( Id. at 1.) By
order filed November 10, 2015, pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was
advised of the dismissal procedure and the possible
consequences if he failed to adequately respond to the
motion. (ECF No. 24.) Plaintiff submitted an Affidavit in
Response to the Defendants' Motion to Dismiss
("Response"). (ECF No. 27.) The Magistrate Judge
issued a Report and Recommendation ("Report")
recommending that the motion to dismiss be
granted. ( Id. ) The Court has
reviewed the objections to the Report, but finds them to be
without merit. Therefore, it will enter judgment
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270
(1976). The Court is charged with making a de novo
determination of any portions of the Report and
Recommendation to which a specific objection is made. The
Court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or may recommit
the matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b)(1). The Court need not
conduct a de novo review when a party makes only
"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). In the absence
of a timely filed, specific objection, the Magistrate
Judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
reviewing these pleadings, the Court is mindful that
Plaintiff is proceeding pro se. When dealing with a
pro se litigant, the Court is charged with liberal
construction of the pleadings. See, e.g.,
De'Lonta v. Angelone, 330 F.3d 630, 633 (4th
Cir. 2003). The requirement of a liberal construction does
not mean, however, that the Court can ignore a
plaintiff's clear failure to allege facts that set forth
a cognizable claim, or that the Court must assume the
existence of a genuine issue of material fact where none
exists. See United States v. Wilson, 699
F.3d 789, 797 (4th Cir. 2012).
initial matter, the Court notes that Plaintiff fails to raise
any arguments that would invoke de novo review. In
fact, Plaintiff acknowledges that "[he] understands that
exhaustion is a mandate but [he] will and can only explain to
the court that this is not something that was purposely
done." (ECF No. 34 at 4.) Accordingly, the Court is
tasked only with review of the Magistrate Judge's
conclusions for clear error.
Magistrate Judge correctly found that Plaintiff is asserting
a Bivens claim against the Defendants. (ECF No. 29
at 1.) Plaintiff's allegations suggest that he is
bringing a Bivens claim and a claim pursuant to the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. §
2671-2680. Although Plaintiff appears to bring a
FTCA claim in his Complaint, he clearly states in his
Response that "[t]he Defendant's [sic] in this case
are being sued individually' and not the
Government." (ECF No. 27 at 3.) Plaintiff's Response
forecloses the possibility of asserting a claim under the
FTCA because "[p]ersonal capacity suits against
employees are not cognizable under the FTCA."
Terrell v. United States, No. C/A 4:08-2228-HFF-TER,
2009 WL 2762516, at *4 (D.S.C. Aug. 27, 2009) (citing 28
U.S.C. § 2679(b)(1)). The Court recognizes that Plaintiff may
have intended to assert a claim under the FTCA, but ...