United States District Court, N.D. West Virginia
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
AND RECOMMENDATION [DKT. NO. 51] AND GRANTING IN PART AND
DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
M. KEELEY UNITED STATES DISTRICT JUDGE
2, 2015, the plaintiff, Melvin Givens (“Givens”),
filed this Bivens action against the defendants, Warden
Charles Williams (“Warden Williams”), C.
Eichenlaub (“Director Eichenlaub”), Ellen
Mace-Leibson, M.D. (“Dr. Mace-Leibson”), James
Nolte, Nurse Practitioner (“NP Nolte”), and
Joshua Hall, RN (“RN Hall”) (Dkt. No. 1). His
complaint alleges that the defendants exhibited deliberate
indifference to his medical needs by exposing him to
tuberculosis (“TB”) and prolonging treatment for
his “eye condition.” Id. at 7-9.
to 28 U.S.C. § 636 and LR PL P 2, the Court referred the
case to the Honorable Michael J. Aloi, United States
Magistrate Judge, for initial review. On June 7, 2016, the
defendants filed a motion to dismiss or, in the alternative,
for summary judgment (Dkt. No. 35). After full briefing,
Magistrate Judge Aloi entered a Report and Recommendation
(“R&R”) recommending that the Court grant in
part and deny in part the motion (Dkt. No. 51).
support of their motion, the defendants attached
declarations, administrative grievances, and medical records
(Dkt. No. 36). Fed.R.Civ.P. 12(d) provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under
Rule 56. All parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.
Court thus has discretion to consider extra-pleading material
if it wishes to treat a Rule 12(b)(6) motion as one for
summary judgment. McBurney v. Cuccinelli, 616 F.3d
393, 410 (4th Cir. 2010) (Gregory, J., concurring) (citing 5C
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1371 (3d ed. 2010)).
case, the defendants have only submitted medical records
through November 30, 2010, despite the fact that Givens's
complaint and administrative grievances clearly implicate
actions occurring through 2013 (Dkt. Nos. 36-3 at 43; 36-1 at
19). Therefore, based on such an incomplete record, the Court
will not convert the defendants' motion to dismiss to one
for summary judgment. Further, following a careful review,
the Court GRANTS in part and DENIES in part the
defendants' motion to dismiss (Dkt. No. 36).
Court takes its recitation of the facts from Givens's
complaint and administrative grievances, and construes those
facts in the light most favorable to Givens. See
De'Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir.
transferred to Federal Correctional Institute, Gilmer
(“FCI Gilmer”) from United States Penitentiary
Big Sandy in February 2009 (Dkt. No. 1 at 7-8). Since he was
transferring from another Bureau of Prisons
(“BOP”) facility, medical staff at FCI Gilmer did
not screen him for tuberculosis (“TB”)
immediately upon his arrival. On May 28, 2009, after
complaining of light-headedness, Givens was diagnosed with
hypertension (Dkt. No. 36-1 at 23). Then, seven months after
arriving at FCI Gilmer, in September 2009, Givens tested
positive for TB exposure via a purified protein derivative
(“PPD”) test (Dkt. No. 1 at 9). Prior to arriving
at FCI Gilmer, Givens had never before tested positive for
TB, and alleges that another inmate at FCI Gilmer had to have
exposed him to the disease (Dkt. No. 36-1 at 13, 20).
result of the positive PPD test, FCI Gilmer placed Givens in
a special housing unit (“SHU”) isolation cell in
December 2009 and “prescribed ‘Rifampin' to
counter the [TB].” FCI Gilmer removed Givens from
isolation on January 9, 2010, but he continued taking
medication to treat his TB until April 10, 2010. Id.
taking Rifampin in early 2010, Givens expressed concern to
Eddie Anderson, DO, an optometrist at FCI Gilmer, that the
medication was causing “adverse eye problems.”
Dr. Anderson nevertheless instructed Givens to continue
taking the medication. Id. Thereafter, Givens
visited the West Virginia University (“WVU”) Eye
Institute in Morgantown, West Virginia, where he was examined
by ophthalmology consultants on April 7 and August 23, 2010.
Id. at 12. During this same time frame, an unnamed
doctor recommended eye surgery to Givens; Givens's
grievances do not make clear whether this surgery was
recommended by ophthalmologists at WVU or other doctors. In
September 2010, the BOP approved Givens for eye surgery. In
August 2011, however, Givens discovered that he was no longer
scheduled for surgery, despite the fact that he “needed
the surgery right away, ” and his “eyesight [was]
getting progressively worse.” Id. at 12-13.
on October 31 and November 21, 2011, an unnamed optometrist
and unnamed mid-level practitioner at FCI Gilmer evaluated
Givens and requested an ophthalmology consultation.
Id. at 14. Givens was seen by an ophthalmologist at
WVU on January 18, 2012, and underwent a retinal attachment
on his right eye on February 27, 2012. He then received
post-operative evaluations on March 7 and May 2, 2012.
Id. at 16, 19. Following another evaluation at WVU,
Givens underwent further unspecified eye surgery there on
November 17, 2013, and was seen for a post-operative visit on
December 9, 2013. Id. at 26.
complaint asserts five claims. In his first and second
claims, Givens alleges that, when he arrived at FCI Gilmer on
February 27, 2009, he should have been screened for TB
immediately, rather than seven months later when staff
discovered he had been exposed to the disease (Dkt. No. 1 at
8-9). Givens attributes this failure to test to
Warden Williams and Dr. Mace-Leibson, the Clinical Director
at FCI Gilmer. In his third and fourth claims, Givens alleges
that Dr. Anderson and RN Hall, both members of the medical
staff at FCI Gilmer, wrongfully “prolonged his
treatment, ” “which caused him to suffer a
detached retina, resulting in permanent vision loss.”
Id. at 8. Finally, in his fifth claim, Givens
alleges that Director Eichenlaub knew his rights were being
violated, but still denied his administrative grievances when
he appealed to the BOP Mid-Atlantic Regional Office, thus
depriving him of due process. Givens seeks $2, 000, 000 in
damages from each defendant. Id. at 9.
defendants' motion to dismiss Givens's complaint
(Dkt. No. 35) argues that Givens's claims, which reach
back to 2009, are barred by the statute of limitations, and
also fail to state a claim for deliberate indifference
against any of them (Dkt. No. 36 at 10-18, 21-22). In
addition, the defendants contend that NP Nolte is entitled to
absolute immunity pursuant to 42 U.S.C. § 233(a), as he
is an officer of the Public Health Service. Id. at
January 24, 2017, Magistrate Judge Aloi filed an R&R
recommending that the defendants' motion be granted in
part and denied in part (Dkt. No. 51). Thereafter, Dr.
Mace-Leibson filed objections to the R&R (Dkt. No. 55),
RN Hall moved to clarify the record (Dkt. No. 56), and Givens
filed an “Objection and Amendment to Report and
Recommendation” (Dkt. No. 58).
STANDARDS OF REVIEW
Pro Se Pleadings
Court must liberally construe pro se pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe
v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A
pro se complaint is subject to dismissal, however,
if the Court cannot reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail. Barnett
v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A
court may not construct the plaintiff's legal arguments
for him, nor should it “conjure up questions never
squarely presented.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss
Civ. P. 12(b)(6) allows a defendant to move for dismissal on
the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing a
complaint, the Court “must accept as true all of the
factual allegations contained in the complaint.”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). “While a complaint . . . does not need
detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and ...