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Forde v. Reed

United States District Court, D. South Carolina, Aiken Division

July 27, 2016

Kevin Gerald Forde, Plaintiff,
v.
Dr. Edward Reed; RN Albert Crosby; and Lieutenant Pelt Defendants.

          Kevin Gerald Forde, Plaintiff, Pro Se.

          Dr Edward Reed, Defendant, represented by Christopher Gibbs, U.S. Attorneys Office.

          RN 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

          BRUCE HOWE HENDRICKS, District Judge.

         Plaintiff 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.)

         BACKGROUND AND PROCEDURAL HISTORY

         The 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 [1] 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.[2] ( Id. ) The Court has reviewed the objections to the Report, but finds them to be without merit. Therefore, it will enter judgment accordingly.[3]

         STANDARD OF REVIEW

         The 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).

         In 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).

         DISCUSSION

         As an 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.

         The 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.[4] 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 ...


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