United States District Court, S.D. West Virginia
ORDER
Dwane
L. Tinsley United States Magistrate Judge
Pending
before the court are the following motions: a Motion to
Dismiss Amended Complaint filed by defendant PrimeCare
Medical, Inc. (ECF No. 39); a Motion to Dismiss Amended
Complaint filed by defendants Akers, Diamond, Martin, Racer,
Williamson and the Western Regional Jail (ECF No. 41); a
Motion for Leave to Amend Memorandum of Law in support of
Motion to Dismiss filed by defendants Akers, Diamond, Martin,
Racer, Williamson and the Western Regional Jail (ECF No. 45);
a Motion to Dismiss Amended Complaint for Failure to Exhaust
Administrative Remedies filed by defendant Musick (ECF No.
46); the plaintiff's Motion to Amend Amended Complaint
(ECF No. 50); the plaintiff's Motion for Appointment as
Expert (ECF No. 57) and the plaintiff's Motion for
Issuance of Subpoenas (ECF No. 60).
A
motions hearing and status conference was held before the
undersigned on Thursday, July 27, 2017. The plaintiff
appeared by telephone from the Western Regional Jail. Laci B.
Browning, of Anspach Meeks Ellenberger, counsel for all of
the defendant correctional officers and the Western Regional
Jail, and Anne Liles O'Hare, of Offutt Nord Burchett,
counsel for defendant PrimeCare Medical, Inc., appeared in
person.
A.
The plaintiff's Motion to Amend Amended
Complaint.
The
court first addressed the plaintiff's Motion to Amend
Amended Complaint (ECF No. 50). As stated on the record, the
plaintiff seeks to amend his request for relief to include
additional requests for monetary damages, and he does not
seek to add any new defendants or claims. Because Rule 15 of
the Federal Rules of Civil Procedure provides that leave
shall be freely given when justice so requires, it is hereby
ORDERED that the plaintiff's Motion to Amend Amended
Complaint (ECF No. 50) is GRANTED. The parties were advised
that no additional briefing or responsive pleadings are
presently required due to this amendment.
B.
The Regional Jail defendants' Motion for Leave to File
Amended Memorandum of Law in support of Motion to
Dismiss.
On
November 16, 2016, defendants Akers, Diamond, Martin, Racer,
Williamson and the Western Regional Jail filed a Motion for
Leave to File an Amended Memorandum of Law in support of
their Motion to Dismiss (ECF No. 45). These defendants wish
to amend their Memorandum of Law to include an argument that
the plaintiff failed to exhaust his administrative remedies
concerning his claims against them. For the reasons stated on
the record, the Motion for Leave to File Amended Memorandum
of Law (ECF No. 45) is GRANTED. The court will rely upon the
Amended Memorandum of Law contained in ECF No. 45-1, rather
than the initial Memorandum of Law filed by these defendants,
which is docketed as ECF No. 42.
C.
The plaintiff's discovery motions.
On
December 16, 2016, the plaintiff filed a Motion for Expert
Testing (ECF No. 57), seeking the court to order an MRI of
his spine. On March 3, 2017, and July 19, 2017, respectively,
the plaintiff filed two Letter-Form Motions for Issuance of
Subpoenas (ECF Nos. 60 and 63), seeking the production of
various documents and video evidence. During the hearing, the
court determined that these motions, which are in the nature
of discovery, are premature in light of the pending Motions
to Dismiss. Accordingly, it is hereby ORDERED that these
motions are DENIED WITHOUT PREJUDICE. The plaintiff was
advised that, if the Motions to Dismiss are denied, he may
re-assert his requests for discovery of relevant information
either in written discovery requests to any party or via
subpoena at that time.[2]
D.
The defendants' Motions to Dismiss.
All of
the defendants' Motions to Dismiss assert, inter
alia, that the plaintiff has failed to properly exhaust
the available and mandatory administrative remedy process
concerning his claims for relief. The plaintiff attached two
written grievances to his Amended Complaint (ECF No. 6 at
11-12), concerning an altercation with defendant Musick and
alleged inadequate medical treatment thereafter. However, the
copies of the grievances provided by the plaintiff do not
contain any responses by any West Virginia Regional Jail
& Correctional Facility Authority (“WVRJCFA”)
officials. Thus, the undersigned inquired of defense counsel
as to whether they had reviewed any and all grievances filed
by the plaintiff in the time period between these incidents
and when the plaintiff's initial Complaint was filed.
Counsel for the WVRJCFA defendants indicated that she had
requested, but not yet been provided, the plaintiff's
inmate file, which would contain any such grievances. Counsel
for PrimeCare indicated that her client would not have
possession of any of the grievances, which would be in his
inmate file.
The
plaintiff asserted that he completed the two grievances filed
with his Amended Complaint, as well as others to which he
does not have access because they were filed electronically,
and that he failed to receive any responses thereto. Because
defense counsel has not obtained access to the
plaintiff's inmate file and the subject grievances, there
are unresolved issues concerning the defendants'
exhaustion defense.
Accordingly,
it is hereby ORDERED that, by August 7, 2017 defense counsel
shall obtain and file copies of all grievances filed
by the plaintiff between July 23, 2016 (when the alleged
incident with defendant Musick occurred), and August 29, 2016
(when the plaintiff filed his initial Complaint), and any
responses thereto. It is further ORDERED that defense counsel
shall serve copies of the same on the plaintiff and the
undersigned. The defendants' Motions to Dismiss will be
taken under advisement pending such production.
The
Clerk is directed to mail a copy of this Order to the
plaintiff and to ...