United States District Court, N.D. West Virginia
OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION, GRANTING
DEFENDANTS' MOTION TO DISMISS, DENYING AS MOOT
PLAINTIFF'S MOTION FOR APPOINTED COUNSEL AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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).
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).
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).
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).
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