United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING
IN PART REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE,
DENYING § 1983 PETITION AND SUSTAINING PLAINTIFF'S
OBJECTIONS AS TO EXHAUSTION OF REMEDIES
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Marquel Anderson
(“Anderson”), filed a civil rights action under
42 U.S.C. § 1983 alleging he was denied seizure
medication at the Northern Regional Jail. Anderson further
alleges that after being without his medication an entire
month, he suffered a seizure. Anderson maintains that during
the seizure, he hit his head and bit his tongue. Anderson
claims that the Northern Regional Jail and Wexford Medical
Services (“Wexford”) violated his Eighth
Amendment rights by failing to administer his medication.
Anderson seeks $500, 000.00 due to pain and suffering,
neglect, and failure to provide him with treatment in a
case was referred to United States Magistrate Judge Michael
John Aloi for initial review and recommendation under Local
Rule of Prisoner Litigation Procedure 83.01 and 28 U.S.C.
§§ 1915(e) and 1915A. After conducting a
preliminary review of the complaint, Magistrate Judge Aloi
recommended that Anderson's complaint be dismissed
without prejudice for a failure to name proper defendants and
a failure to exhaust all administrative remedies. Anderson
then filed an objection to the portion of Magistrate Judge
Aloi's recommendation regarding his failure to exhaust.
For the following reasons, the report and recommendation is
adopted and affirmed in part, Anderson's petition is
denied, and his objections are sustained.
to 28 U.S.C. § 636(b)(1)(C), any portion of the
magistrate judge's recommendation to which objection is
timely made will be reviewed de novo by this Court.
Any portions of a recommendation to which no objection is
made, will be reviewed under a “clearly
erroneous” standard. 28 U.S.C. § 636(b)(1)(A).
Because the plaintiff has filed timely objections, this Court
will undertake a de novo review as to those portions
of the report and recommendation to which objections were
Judge Aloi first concluded that Anderson failed to name
proper defendants because neither is a “person”
under § 1983. To this conclusion, Anderson offered no
objection. The magistrate judge next concluded that Anderson
failed to exhaust his administrative remedies. Specifically,
he concluded that Anderson failed to follow the proper
grievance procedure because he filed a grievance with the
medical unit but did not file a grievance with the Northern
Regional Jail Administrator. Anderson objects to this part of
the recommendation and it will be reviewed de novo.
magistrate judge first concluded that Anderson failed to name
a proper “person” as a defendant because he
instead names only the Northern Regional Jail and Wexford
Medical Services. Anderson does not object to this portion of
the magistrate judge's review and it will be reviewed
under a clear error standard. This Court finds no clear error
with regard to this issue.
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State, subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. Generally, the language of § 1983
provides that natural “persons” are appropriate
defendants, and does not expressly state that municipal
corporations fall under the statute. Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 660 (1978). For a
municipal entity or a private corporation that is a state
actor to be held liable under § 1983, there must be an
official policy adopted that is responsible for the
deprivation of rights. Id. at 690 (U.S. June 6,
1978); see also Paige v. Kirby, 314 F.Supp.2d 619,
622 (N.D. W.Va. 2004).
does not name a natural person as a defendant. Further,
Anderson's complaint fails to allege that Wexford or the
Northern Regional Jail have official policies or customs that
prevent the surgery and or treatment the plaintiff believes
is required to alleviate ...