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Baughman v. Rubenstein

United States District Court, N.D. West Virginia

February 23, 2017

PHILIP ANDREW BAUGHMAN, JR., Plaintiff,
v.
JAMES RUBENSTEIN, Commissioner of Corrections, PAT MIRANDY, Warden, JOYCE BILLS, IPO, in their professional and individual capacities, Defendants.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Background

         The pro se[1] plaintiff instituted this civil action pursuant to 42 U.S.C. § 1983. ECF No. 1. The plaintiff was incarcerated at St. Marys Correctional Center (“SMCC”) at the time he filed his complaint but discharged his sentence on February 17, 2016. In his complaint, the plaintiff alleges that the defendants violated his civil rights with respect to his parole consideration. On March 4, 2016, the magistrate judge determined that summary dismissal was not appropriate and entered an order to answer. On April 4, 2016, the defendants filed a motion to dismiss or, in the alternative, motion for summary judgment. ECF No. 48. The magistrate judge issued a Roseboro notice on April 5, 2016, and, to date, the plaintiff has not responded to the defendants' motion.

         The plaintiff, a convicted sex offender, was an inmate at SMCC between August 15, 2014, and February 17, 2016. Because he was a convicted sex offender, he was required to have a psychological evaluation before consideration for parole. A third-party provider, PsiMed Corrections, LLC (“PsiMed”), conducts the psychological evaluations and services for inmates in facilities operated by the West Virginia Division of Corrections (“WVDC”). When the plaintiff arrived at SMCC in August 2014, the Parole Board placed him on the list for parole consideration, and the institutional parole officer, defendant Joyce Bills (“Bills”), advised PsiMed that the plaintiff required a psychological evaluation.

         The necessary test was administered and scored on September 25, 2014, and sent to a PsiMed psychologist, Aimee Meadows, on that same day. On October 14, 2014, defendant Bills again emailed Ms. Meadows requesting that the plaintiff receive a psychological evaluation. Defendant Bills also sent Ms. Meadows a follow-up email on October 23, 2014. On November 5, 2014, defendant Bills sent a third email to Ms. Meadows and copied Ashley Spruce, a PsiMed psychologist at Mount Olive Correctional Center (“MOCC”), on that email. The third email noted that the plaintiff had been referred for a psychological evaluation in September and that the evaluation had still not been completed.

         On November 14, 2014, Dana McVey from the West Virginia State Parole Board emailed Ms. Meadows and defendant Bills about the status of the plaintiff's psychological evaluation. The delay was apparently due to a staff shortage at PsiMed. Specifically, Ms. Meadows had left her employment with PsiMed, and Ms. Spruce was covering psychological evaluations for both SMCC and MOCC. Defendant Bills informed Ms. Spruce that the plaintiff could be put on the parole hearing list for January 2015, and Ms. Spruce responded that the plaintiff's evaluation would be done for the January 2015 parole hearing.

         Ms. Spruce forwarded the plaintiff's psychological evaluation to the Parole Board on January 5, 2015, and informed defendant Bills of that action on January 27, 2015. The Parole Board saw the plaintiff for a hearing in February 2015 and denied parole to the plaintiff because of his prior unsatisfactory supervision history. The Parole Board scheduled the plaintiff for reconsideration in February 2016. However, the plaintiff's sentence expired and he was discharged from his term of imprisonment on February 17, 2016.

         The plaintiff alleges that each defendant violated his civil rights with respect to his parole consideration. As to the Commissioner of Corrections, defendant James Rubenstein (“Rubenstein”), the plaintiff alleges that defendant Rubenstein failed to instruct and direct his subordinates in the proper process of preparing the plaintiff to go before the Parole Board, thus denying the plaintiff proper parole consideration. As to the Warden, defendant Pat Mirandy (“Mirandy”), the plaintiff alleges that defendant Mirandy usurped the Parole Board and denied him parole by failing to provide proper instruction on the preparation of necessary paperwork for the Parole Board to consider him for parole eligibility. As to defendant Bills, the plaintiff alleges that she (1) failed to prepare the proper paperwork for the Parole Board to consider his parole eligibility and (2) failed to correct incorrect information and outdated facts in the parole report.

         For relief, the plaintiff seeks compensatory and punitive damages, an immediate parole reconsideration, and termination of defendant Bills's employment as the institutional parole officer at SMCC. The plaintiff's request for an immediate parole hearing, however, is moot because the plaintiff has been released from custody.

         The defendants' motion to dismiss or, in the alternative, motion for summary judgment, alleges that the plaintiff's complaint fails to state a claim upon which relief may be granted under 42 U.S.C. § 1983. The defendants' motion also alleges that the plaintiff's claims regarding his parole hearing must be dismissed because the plaintiff failed to exhaust his administrative remedies. The defendants further allege that, even if the plaintiff had exhausted his administrative remedies, his complaint would be moot because he suffered no actual harm.

         United States Magistrate Judge Michael John Aloi then entered a report and recommendation. ECF No. 58. In that report and recommendation, the magistrate judge concluded that, with respect to defendants Rubenstein and Mirandy, the plaintiff's complaint fails to make specific allegations against the two defendants to indicate that either was personally involved in any alleged violation of the plaintiff's constitutional rights. Additionally, the magistrate judge found that the plaintiff fails to make any allegations against defendant Rubenstein or defendant Mirandy that contain the required elements for supervisory liability. With respect to defendant Bills, the magistrate judge concluded that the plaintiff's first allegation against her fails to state a cause of action because the delay in the plaintiff's appearance before the Parole Board is attributable to a third-party provider of psychological evaluations, PsiMed, not defendant Bills. As to the plaintiff's second allegation against defendant Bills, the magistrate judge concluded that the plaintiff failed to exhaust his administrative remedies as to the specific grievance that there was incorrect information in his parole report.

         The plaintiff did not file objections to the report and recommendation of the magistrate judge. For the reasons set forth below, the report and recommendation of the magistrate judge (ECF No. 58) is AFFIRMED and ADOPTED. Therefore, the defendants' motion to dismiss or, in the alternative, for summary judgment (ECF No. 48) is GRANTED. Additionally, the plaintiff's complaint (ECF No. 1) is DENIED WITH PREJUDICE with respect to all claims against defendants Rubenstein and Mirandy, DENIED WITH PREJUDICE with respect to the claim that defendant Bills failed to present the plaintiff before the Parole Board in a timely manner, and DENIED WITHOUT PREJUDICE with respect to the claim that defendant Bills failed to correct information on the Parole Board for failure to exhaust administrative remedies.

         II. Applicable Law

         Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which objection is timely made. Because no objections were filed, all findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). As the Supreme Court of the United States stated in United States v. United States Gypsum Co., “a finding is ‘clearly erroneous' when although there is evidence to support it, the ...


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