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Russell v. Anderson

United States District Court, N.D. West Virginia

March 21, 2017




         The pro se plaintiff filed this civil action asserting claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). The case was referred to United States Magistrate Judge Michael John Aloi. The defendants filed a motion to dismiss or, alternatively, for summary judgment. Magistrate Judge Aloi issued a report recommending that the defendants' motion be granted. The plaintiff filed timely objections to the report and recommendation.

         I. Background

         The plaintiff, David Lee Russell (“Russell”), alleges that he was subjected to cruel and unusual punishment at the federal correctional institution in Gilmer, West Virginia, (“FCI Gilmer”) because medical staff was deliberately indifferent to his medical needs in treating his hypertension. Russell alleges that he sought treatment from the defendants for symptoms of hypertension and that the defendants refused to perform proper medical procedures to stabilize his condition, resulting in hospitalization, a diagnosis of malignant hypertension and transient ischemic attack, and substantial weight loss. Specifically, on August 8, 2013, Russell reported to the Health Services Clinic (“the clinic”) at FCI Gilmore. Russell presented with an elevated blood pressure, dizziness, nausea, and other symptoms of severe hypertension. He was seen by Rebecca Grove (“Grove”), a Health Systems Specialist at FCI Gilmer, and Eddie Anderson, M.D. (“Dr. Anderson”). Russell told them that he had not taken his prescribed hypertension medication that morning. Grove and Dr. Anderson examined Russell, noting his high blood pressure and instructed him to return to the housing unit and to take his medication and to return to the clinic if his symptoms worsened. Russell asked Izetta Brannon (“Brannon”), a Health Information Technician, for a wheelchair to return to the housing unit. Brannon allegedly refused, then, after speaking with Grove, she provided Russell transportation back to the housing unit.

         Russell returned to the clinic that afternoon with the same symptoms and stated that he took his medication after returning to his cell that morning. He was examined by Christina Gherke, PA-C. His blood pressure continued to increase, and he was given clonidine to stabilize his blood pressure and was taken to the emergency room at Stonewall Jackson Memorial Hospital. The doctors at the hospital examined him fully and diagnosed him with essential poorly controlled hypertension, vertigo, hiccoughs, constipation, and apparent hypothyroidism. Russell was then discharged.

         The magistrate judge concluded that Grove has absolute immunity from Bivens suits and that Russell's allegations do not constitute a claim for a violation of his Eight Amendment rights. Russell filed timely objections to the report and recommendation. Russell also previously filed a motion for appointed counsel, which the magistrate judge recommends denying as moot.

         II. Applicable Law

         Under 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 the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. As to those findings to which objections were not filed, the findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

         To survive a motion to dismiss under Rule 12(b)(6), “a [pleading] must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff is plausibly entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard is not a probability requirement, but asks for more than a sheer possibility that a defendant has acted unlawfully.” Hall v. DirectTV, 846 F.3d 757, 765 (4th Cir. 2017). “[C]ourts must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.” Id. “[A] [pleading] is to be construed liberally so as to do substantial justice.” Id. (internal quotation marks omitted). Further, this Court must liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 2007). However, while the plaintiff's allegations are assumed to be true, Erickson, 551 U.S. at 93, this Court may not ignore a clear failure in the pleading to allege facts that set forth a claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). This Court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff's legal arguments for him, id., or “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Under Federal Rule of Civil Procedure 56, this Court must grant a party's motion for summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Id. If the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, ” summary judgment must be granted against that party. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex, 477 U.S. at 322-23. “The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact.” Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992). However, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Moreover, “[t]he nonmoving party cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (internal quotation marks omitted). The nonmoving party must produce “more than a ‘scintilla'” of evidence “upon which a jury could properly proceed to find a verdict for the party producing it.” Id. (internal quotation marks omitted) (quoting Anderson, 477 U.S. at 251).

         III. Discussion

         A. Public Health ...

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