United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING MAGISTRATE JUDGE'S  REPORT AND
RECOMMENDATION; GRANTING DEFENDANT UNITED STATES OF
AMERICA'S  MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION; AND DISMISSING PLAINTIFF'S REMAINING
CLAIMS WITHOUT PREJUDICE
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo, entered in this case on January 31, 2019, and the
Motion to Dismiss for Lack of Subject Matter Jurisdiction
 filed by Defendant United States of America on April 19,
2018. Based upon the Magistrate Judge's review of the
pleadings and relevant legal authority, he recommended that
the Motion to Dismiss  be granted and that
Plaintiff's remaining claims against Defendant United
States of America be dismissed without prejudice for lack of
subject-matter jurisdiction. R. & R.  at 5.
reasons that follow, the Court finds that the Report and
Recommendation  should adopted in its entirety as the
finding of this Court, that the Motion to Dismiss  should
be granted, and that Plaintiff's remaining claims against
Defendant United States of America should be dismissed
without prejudice for lack of subject-matter jurisdiction.
Carlos Lajuan Cathey (“Plaintiff”) claims that in
October 2014, while he was incarcerated at the Federal
Correctional Institution in Yazoo City, Mississippi, another
inmate struck him with a lock while he was watching
television. Am. Compl.  at 1-2. A month later, Plaintiff
was released from the “SHU, ” but he continued to
complain to medical personnel about headaches and
“floaters in [his] eye and blurriness in [his]
vision.” Id. at 2. Plaintiff contends that
medical staff did not send him to a specialist until March
2016, when the specialist informed him that he had a tumor
and blindness from a delay in treatment. Id.
Plaintiff alleges that the medical staff was deliberately
indifferent to his head injury and that this delay in
treatment caused him permanent blindness. Id.
filed a pro se Complaint  pursuant to 42 U.S.C. §
1983 in this Court on October 31, 2016, seeking monetary
damages from Defendants Norma Natal, Bureau of Prisons, the
United States of America, Unknown Pendleton, Sharon Baymon,
E. Burkhalter, and Retired Counselor B. Smith. Compl.  at
1-6. Plaintiff is proceeding in forma pauperis.
March 23, 2017, Plaintiff filed an Amended Complaint ,
naming as Defendants the United States of America, Norma
Natal, Unknown Pennington, Unknown Fernanders, Sharon Baymon,
E. Burkhalter, Counselor B. Smith, and the Bureau of Prisons
(“BOP”). In addition to claims under 42 U.S.C.
§ 1983, the Amended Complaint  advanced claims
pursuant to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), and the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346,
2671-2680. Am. Compl.  at 1-14.
4, 2017, the Court dismissed BOP as a Defendant and dismissed
all of Plaintiff's claims under 42 U.S.C. § 1983.
See Order  at 3. On January 8, 2018, the Court
dismissed Plaintiff's Bivens claims against the
individual Defendants Norma Natal, Unknown Pennington,
Unknown Fernanders, Sharon Baymon, E. Burkhalter, and
Counselor B. Smith. See Order  at 5-6. Only
Plaintiff's FTCA claims against the United States of
April 19, 2018, the Government filed a Motion to Dismiss for
Lack of Subject Matter Jurisdiction  based upon
Plaintiff's failure to exhaust administrative remedies.
The Government presented evidence that administrative
remedies were available to Plaintiff, yet he failed to
exhaust them prior to filing the present case. Plaintiff
filed a Response  in opposition to the Motion, and the
Government filed a Rebuttal .
Magistrate Judge entered his Report and Recommendation 
on January 31, 2019, recommending that the Government's
Motion to Dismiss  be granted and that Plaintiff's
remaining claims be dismissed without prejudice for lack of
subject-matter jurisdiction. R. & R.  at 5. The
Report and Recommendation  was mailed to Plaintiff on
January 31, 2019. Any objection to the Magistrate Judge's
Report and Recommendation  was due within fourteen (14)
days of service, or by February 14, 2019. See L.U.
Civ. R. 72(a)(3). To date, Plaintiff has not filed any
objection to the Report and Recommendation , and the time
for doing so has passed.
no party has objected to a magistrate judge's report and
recommendation, a court need not conduct a de novo review of
it. 28 U.S.C. § 636(b)(1) (“a judge of the court
shall make a de novo determination of those portions of the
report or specified proposed findings and recommendations to
which objection is made”). In such cases, a court
applies the “clearly erroneous, abuse of ...