Opinion
C.A. No. 6:04-23418-HMH-WMC.
May 11, 2006
OPINION ORDER
This matter is before the court with the Report and Recommendation of United States Magistrate Judge William M. Catoe, made in accordance with 28 U.S.C. § 636(b)(1) (West Supp. 2005) and Local Rule 73.02 DSC. Collie T. Ellerbe ("Ellerbe"), a federal prisoner proceeding pro se, alleges that the Defendants violated his constitutional rights while he was incarcerated at FCI-Estill and raises numerous claims pursuant to pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In his Report and Recommendation, Magistrate Judge Catoe recommended granting in part and denying in part the Defendants' motion to dismiss. In particular, Magistrate Judge Catoe recommended as follows: dismissing Lt. M. Murphy ("Murphy") and Senior Officer S. Terry ("Terry") for Ellerbe's failure to show good cause for failing to serve them with the summons and complaint within 120 days under Federal Rule of Civil Procedure 4(m); dismissing the claims against the Defendants in their official capacities because the United States has not waived its sovereign immunity for constitutional misconduct; dismissing the claims against Gerald Maldonado ("Maldonado") and Matthew Hamidullah ("Hamidullah") based on supervisory liability because Ellerbe has alleged no facts to support this claim; and denying the Defendants' motion to dismiss on the remaining grounds. (Report and Recommendation 4-8.)
The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
Ellerbe filed objections to the Report and Recommendation. Objections to the Report and Recommendation must be specific. Failure to file specific objections constitutes a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the district judge.See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir. 1984). In the absence of specific objections to the Report and Recommendation of the Magistrate Judge, this court is not required to give any explanation for adopting the recommendation.See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Upon review, the court finds that some of Ellerbe's objections are non-specific, unrelated to the dispositive portions of the Magistrate Judge's Report and Recommendation, or merely restate his claims. However, construing his objections liberally, Ellerbe objects to the Magistrate Judge's conclusion that Terry and Murphy have not been served. Ellerbe sent the summons and compliant to Terry and Murphy by certified mail with return receipt requested. (Objections 1.) Ellerbe argues that service was effected on Terry and Murphy because "the summons/complaint was signed for by institutional staff." (Id. 2.)
On October 18, 2005, Ellerbe moved to amend his complaint, and on November 22, 2005, Magistrate Judge Catoe granted in part and denied in part Ellerbe's motion to amend. In particular, Magistrate Judge Catoe denied Ellerbe's motion to amend with respect to Murphy and Terry because they had not been served in compliance with Rule 4(m). (Nov. 22, 2005, Order 3.) In addition, on February 17, 2006, Magistrate Judge Catoe ordered the clerk to edit the docket to reflect that Terry and Murphy were no longer parties in this case. (Feb. 17, 2006, Order 1.) Moreover, the envelope sending a copy of the summons and complaint to Terry was stamped "return to sender" and "unable to identify." (Docket Number 8 (Envelope).) A return of service for Murphy has not been filed. The Defendants state that Terry and Murphy are no longer employed at FCI-Estill. (Defs.' Mot. Dismiss 2.)
Rule 4(m) states:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Magistrate Judge Catoe addressed whether Ellerbe had shown good cause for the lack of service of the summons and complaint on Murphy and Terry in the Report and Recommendation. After review, the court finds that Ellerbe has not shown good cause for his failure to serve Terry and Murphy. As such, Terry and Murphy are dismissed.
Second, Ellerbe objects to Magistrate Judge Catoe's recommendation to dismiss the Defendants in their official capacities on the basis of sovereign immunity. Ellerbe argues that he has stated a claim against the Defendants in their official capacities and that the United States has waived sovereign immunity. (Objections 2-3.) The United States has not waived its sovereign immunity for constitutional misconduct. See Fed. Deposit Ins. Corp. v. Myers, 510 U.S. 471, 477-78 (1994). Moreover, "[a]ny remedy under Bivens is against federal officials individually, not the federal government." Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). Therefore, Ellerbe has not stated a claim against the Defendants in their official capacities. Based on the foregoing, after a thorough review of the Magistrate Judge's Report and the record in this case, the court adopts Magistrate Judge Catoe's Report and Recommendation. Therefore, it is
ORDERED that the Defendants' motion to dismiss, docket number 13, is granted in part and denied in part.
IT IS SO ORDERED.