Opinion
Civil Action 5:23-CV-262
06-11-2024
MYRON SYLVESTER JAMES, Plaintiff, v. DOCTOR WOODS, DOCTOR BRISHMAN, LT. SIOLE, and OFFICER G. KITCHEN, Defendants.
Bailey Judge
REPORT AND RECOMMENDATION
JAMES P. MAZZONE UNITED STATES MAGISTRATE
Plaintiff initiated this action on July 26, 2023, by filing a Complaint under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This matter is assigned to the Honorable John Preston Bailey, United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned recommends that defendants Doctor Woods, Doctor Brishman, and Lt. Siole be dismissed without prejudice.
On April 12, 2024, the undersigned conducted an initial review of the Complaint and determined that summary dismissal was not appropriate. Accordingly, the Clerk was directed to serve defendants at the addresses provided by the plaintiff. However, on April 18, 2024, the summons for defendants Woods, Brishman, and Siole were returned as unexecuted, with the United States Marshal Service (“USMS”) indicating that the Bureau of Prisons (“BOP”) was unable to identify Doctor Woods and Doctor Brishman and that Siole was no longer employed by the BOP. Accordingly, this Court directed plaintiff to provide further information on the correct names or addresses of these defendants so that they could be served. Plaintiff was warned that failure to do so would result in dismissal of the claims against these defendants.
On June 10, 2024, plaintiff filed a letter which related that he visited Doctor Woods for an issue with his ankle and that Lt. Siole had assaulted him. Although plaintiff states that an infirmary nurse, Nurse Hernaez, was a witness to the appointment with Doctor Woods, the letter contains no information from which the Court can properly identify these defendants for service. This Court must construe pro se filings liberally and hold them to less stringent standards than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, “[i]t is well settled that federal courts performing their duties of construing pro se pleadings are not required to be ‘mind readers' or ‘advocates' for prisoners or pro se litigants.” Corey v. Cartedge, No. CA 9:11-1078-HFF-BM, 2011 WL 5870040, at *6 (D.S.C. June 30, 2011) (Marchant, M.J.), report and recommendation adopted sub nom. Corey v. Cartledge, No. CA 9:11-1078-TMC-BM, 2011 WL 5877071 (D.S.C. Nov. 21, 2011) (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). Plaintiff has failed to provide information from which service of the Complaint can be achieved against defendants Woods, Brishman, and Siole, and, accordingly, the undersigned recommends that the claims against these three defendants be DISMISSED without prejudice and that the claims against defendant Kitchen proceed.
The plaintiff shall have fourteen days from the date of service of this Report and Recommendation within which to file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
The Clerk of the Court is further DIRECTED to mail a copy of this Report and Recommendation to the pro se plaintiff by certified mail, return receipt requested, to plaintiff's last known address as reflected on the docket sheet.