Bowman v. Beasley

8 F. App'x 175

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 26, 2001
• Docket: 00-7505, 00-7506
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Inmates Lorenzo Bowman and Kevin Jones protest South Carolina Department of Corrections’ (“SCDC”) practice of segregating all persons testing positive for human immunodeficiency virus (“HIV”) at Broad River Correctional Institution (“BRCI”). The district court, adopting the recommendation of the magistrate judge, granted summary judgment to the Defendants; Bowman and Jones appealed.

As to Bowman, we grant his motion seeking to supplement his pro se brief, and have fully considered his additional supporting memorandum, with attachments. We dismiss as moot Bowman’s appeal of the denial of injunctive and declaratory relief as he was released and is not currently incarcerated at BRCI. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991); Inmates v. Owens, 561 F.2d 560, 562 (4th Cir.1977). We have thoroughly reviewed the record and finding no reversible error, we affirm the district court’s order as to Bowman’s remaining claims. We deny Bowman’s motion to appoint counsel.

Bowman initially filed suit protesting the segregation of HIV positive inmates. Several dozen other plaintiffs, including Jones, filed similar suits over the past two years. The district court, upon recommendation of the magistrate judge, consolidated the actions. The court also dismissed without prejudice all claims of all plaintiffs not involving the segregation of HIV positive inmates. The court then granted summary judgment to the Defendants on the segregation claim. 1

Appellants argue that SCDC violated its policy of not separating HIV positive prisoners when it moved all HIV positive inmates to BRCI. Appellants argue that because this policy was reviewed by the court in Portee v. Tollison, 753 F.Supp. 184 (D.S.C.1990), aff'd, 929 F.2d 694 (4th Cir.1991), the SCDC is collaterally es-topped from changing its policy. We disagree and affirm substantially on the reasoning of the district court. See Bowman v. Beasley, CA-98-3716-0-22BD (D.S.C. Sept. 29, 2000). As the Portee court observed, “the practices and regulations governing the admission of prisoners as well as the handling of prisoners with AIDS ... are precisely the kind [of decisions] that are best left to prison officials.” Portee, 753 F.Supp. at 186 (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 353, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987)). The practice of segregating HIV positive in mates is within the wide deference afforded prison administrators, see Sandin v. Conner, 515 U.S. 472, 482-83, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and it is “reasonably related to legitimate penological interests.” See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

Bowman argues that he did offer a reasonable accommodation, in accordance with the Americans with Disabilities Act (“ADA”), and therefore meets the criteria set forth in the ADA as an otherwise qualified individual. We disagree; Bowman has not submitted adequate pleadings or affidavits to withstand a motion for summary judgment on the question of whether he is an “otherwise qualified” individual. We therefore affirm the district court’s order as to the ADA claim on that basis.

Bowman argues that he has not received rulings on motions for intervention, for permissive joinder, for appointment of counsel. Each of these motions was denied explicitly or implicitly by the district court. Finding no abuse of discretion, we affirm. See Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999) (providing abuse of discretion standard regarding motions to intervene); Gould v. Alleco, Inc., 883 F.2d 281, 284, 286 (4th Cir.1989) (providing abuse of discretion standard regarding permissive joinder); Whisenant v. Yuam, 739 F.2d 160, 163 n. 3 (4th Cir.1984) (providing standard regarding appointment of counsel). We note that Bowman lacks standing to challenge the denial of motions for intervention filed by other inmates. To the extent Bowman seeks appointment of counsel on appeal, we also deny Bowman’s motion.

Finally, Bowman appeals the dismissal of his claim of deliberate indifference to a serious medical need under 42 U.S.C.A. § 1983. The district court, adopting the recommendations of the magistrate judge, dismissed without prejudice claims not related to the segregation of HIV positive inmates. This dismissal is a final reviewable order. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir.1993). We have reviewed the pleadings and affirm the district court’s dismissal under 28 U.S.C.A. § 1915A (West 2000) on the modified grounds of failure to state a claim upon which relief could be granted. We note the court’s dismissal without prejudice allows the Plaintiffs to file a new complaint with the district court, setting forth with particularity the individual persons who violated their civil rights and the specific acts or omissions taken by such persons. In addition, the district court declined to exercise pendent jurisdiction over any state law claims based on negligence. Such claims may be properly addressed in state court.

As to Jones, although he noted an appeal, he did not file objections to the magistrate judge’s reports and recommendations. Jones’ failure to timely and specifically object to the magistrate judge’s reports and recommendations effectively waives appellate review of the substance of the report. 2 See generally Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). We deny Jones’ motion to stay the proceedings.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED IN PART, AFFIRMED IN PART.

1 . The magistrate judge did not issue a consolidation recommendation as to appellant Kevin Jones (listed as James on the order) until January 10, 2000. The district court’s order of December 8, 1999, notes that it adopted the magistrate judge’s recommendations dismissing collateral claims. Because the district court did not issue a separate order adopting the magistrate judge’s reports and recommendations occurring after December 8, 1999, the district court’s order of September 29, 2000 is construed as adopting the magistrate judge's January 10, 2000 recommendation for consolidation and dismissing collateral claims without prejudice.

2 . Plaintiffs are generally permitted ten days from the entry of a magistrate judge’s report and recommendation to file an objection. See Fed.R.Civ.P. 6(a), (e); 72(b). The district court, in response to a motion to extend time filed by Bowman, accorded plaintiffs fifty days, rather than ten days, to file objections.