United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se 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.
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.
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.
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
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,
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.
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.
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.
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
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.
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 ...