Givens v. Williams

          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]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         On July 2, 2015, the plaintiff, Melvin Givens (“Givens”), filed this Bivens^[1] 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.

         Pursuant 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).

         In 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.

         The 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)).

         In this 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).

         I. BACKGROUND

         A. Factual Background

         The 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. 2013).^[2]

         Givens 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).

         As a 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. at 20.

         While 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.

         Thereafter, 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.

         B. Procedural Background

         Givens's 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).^[3] 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.

         The 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 24-25.

         On 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).

         II. STANDARDS OF REVIEW

         A. Pro Se Pleadings

         The 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).

         B. Motion to Dismiss

         Fed. R. 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 ...