The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc. 14), filed on September 15, 2011. Magistrate Judge Smyser recommends that the complaint be dismissed as against certain Defendants for failure to state a claim upon which relief can be granted and that a number of the claims be dismissed because they are barred by the statute of limitations. The Magistrate Judge also recommends that some of the claims be severed and transferred to the United States District Court for the District of New Jersey. Finally, Magistrate Judge Smyser recommends that the remaining claims be remanded to him for further proceedings. Pro se Plaintiff Arthur L. Hairston ("Plaintiff" or "Hairston") filed objections to the R&R (Doc. 15) on September 26, 2011. Accordingly, this matter is ripe for our review.
For the reasons that follow, we shall adopt the Magistrate Judge's recommendation in part and reject it in part, to the extent reflected herein.
Plaintiff, a federal prisoner, commenced this Bivens*fn1
action by filing a complaint. He also filed an application
for leave to proceed in forma pauperis. The complaint names the Bureau
of Prisons, fifteen federal prison officials or employees, and four
unidentified individuals as Defendants. The allegations in the
complaint concern the medical care that the Plaintiff received from
2001 to the present for a back condition at three different federal
institutions. The Plaintiff complains about the medical care he
received at the Federal Correctional Institution at Schuylkill
("FCI-Schuylkill") from 2001-2004, at the Federal Correctional
Institution at Fort Dix ("FCI-Fort Dix") from 2004 to early 2010, and
at the Federal Correctional Institution at Allenwood ("FCI-Allenwood")
from 2010 to the present.
By Order dated August 12, 2011, Magistrate Judge Smyser granted the Plaintiff's in forma pauperis application and reviewed the complaint as required by 28 U.S.C. § 1915A. Magistrate Judge Smyser determined that the complaint was deficient in various areas, thus he granted the Plaintiff leave to file an amended complaint, however the Plaintiff refused to do so, indicating his intent to stand on his original complaint. (Doc. 10).
Thereafter, Magistrate Judge Smyser issued the instant R&R, reviewing the original complaint under 28 U.S.C. § 1915A.*fn2 He recommends that the Plaintiff's claims be dismissed against Defendants Lappin, Watts and Norwood because Plaintiff has failed to sufficiently allege the personal involvement on the part of these Defendants to state a Bivens claim. Magistrate Judge Smyser also recommends that the claims related to Plaintiff's medical care at FCI-Schuylkill, which took place from 2001 to 2004, be dismissed because those claims arose outside of the applicable statute of limitations and that Plaintiff's allegations concerning his treatment at FCI-Fort Dix be severed and that those claims be transferred to the District of New Jersey. Finally, Magistrate Judge Smyser requests that this matter be remanded to him to conduct further pre-trial proceedings. As noted above, Hairston has filed timely objections to the Magistrate Judge's R&R.
When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
Within his objections, the Plaintiff objects to all of the Magistrate Judge's recommendations. He argues that his complaint contains sufficient factual averments to state claims against the Defendants that Magistrate Judge Smyser recommends be dismissed. He also asserts that the claims related to his treatment at FCI-Schuylkill from 2001 to 2004 are part of a continuing violation, thus they are not barred by the statute of limitations. Finally, Hairston argues that the FCI-Fort Dix claims should not be severed and transferred to the District of New Jersey because they are also part and parcel of a continuing violation related to his treatment for his back problems at the hands of Bureau of Prisons officials.
We agree with the Magistrate Judge with respect to his recommendation of dismissal as to Defendant Lappin, the former director of the Bureau of Prisons, for lack of personal involvement with the Plaintiff's claims. Within his complaint, at paragraphs 33 to 36, Plaintiff makes general allegations that Lappin was aware that Plaintiff was being denied "recommended medical treatment" for "non-medical reasons," because Lappin had testified before "the House Subcommittee stating that over-crowding has decreased his ability to provide medical care among other things." (Doc. 1, ¶ 36). Plaintiff makes no allegation that Lappin knew or had reason to know that Plaintiff himself was being denied medical care, only that Lappin had previously expressed that prison over-crowding prevented adequate medical care of inmates in general. It is well established that liability in Bivens actions generally cannot be based on respondeat superior, and that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has ...