United States District Court, N.D. West Virginia, Elkins
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY UNITED-STATES DISTRICT JUDGE.
day, the above-styled matter came before this Court for
consideration of the Report and Recommendation of United
States Magistrate Judge Michael John Aloi [Doc. 18]. Pursuant
to this Court's Local Rules, this action was referred to
Magistrate Judge Aloi for submission of a proposed report and
recommendation (“R&R”). Magistrate Judge Aloi
filed his R&R on July 10, 2017, wherein he recommends
this Court deny the plaintiff's Motion for Emergency
Injunction [Doc. 6].
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S.
140, 150 (1985). In addition, failure to file timely
objections constitutes a waiver of de novo review
and the right to appeal this Court's Order. 28 U.S.C.
§ 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d
91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge
Aloi's R&R were due within fourteen (14) days of
service, pursuant to 28 U.S.C. § 636(b)(1) and
Fed.R.Civ.P. 72(b). The docket reflects that service was
accepted on July 11, 2017. [Doc. 19]. The plaintiff timely
filed his Objection on July 20, 2017. [Doc. 21]. Accordingly,
this Court will review the portions of the R&R to which
the plaintiff objects under a de novo standard of
review. The remainder of the R&R will be reviewed for
plaintiff, a state inmate, initiated this action on December
23, 2016, by filing a State Civil Rights Complaint pursuant
to 42 U.S.C. § 1983 [Doc. 1], which alleges a number of
claims concerning his medical care following an accident and
that he has attempted to amend twice [Docs. 15; 22]. The
various versions of the Complaint establish that, from August
8, 2016, until August 18, 2016, the plaintiff was assigned to
work with maintenance personnel at Huttonsville Correctional
Center (“HCC”) to construct a large gable roof
entrance to the building. The plaintiff alleges that, on
August 18, 2016, while working atop one level of scaffold,
approximately five and one-half feet high, he fell. He
alleges that during the fall, he hit his head, both arms, and
most of his torso on a 6x6 post. He then landed on the
plaintiff alleges that he was treated by HCC medical staff
for open wounds, but no x-ray or MRI was performed to
diagnose possible internal injuries. He indicates that he was
transferred to St. Marys Correctional Center
(“SMCC”) after his accident, and the medical
staff there promptly continued treatment of his open wounds.
In addition, when his pain worsened, Defendant Dr. James Bean
ordered x-rays of his shoulder and knee, which were negative
for broken bones. The plaintiff further alleges that, after
several appointments, Dr. Bean opined that the plaintiff had
significant soft tissue damage and possibly nerve damage to
several areas that only an MRI would reveal. However, the
plaintiff maintains that Dr. Bean advised him that Wexford
Health would not approve an MRI, and that he was doing all
that he was allowed to treat the injuries. The plaintiff also
alleges that Dr. Bean informed him that Wexford would not
approve an MRI unless certain other procedures were tried.
Finally, the plaintiff alleges that, when his pain and
decreased mobility worsened, he asked for an MRI to diagnose
his internal injuries but was denied because his injuries
were “not life threatening.” On April 26, 2017,
the plaintiff was transferred to Stevens Correctional Center
(“SCC”), where he allegedly only receives
Naproxen as medical treatment. He alleges that he is no
longer receiving medical attention for either his external or
internal injuries sustained in his fall, and, to date, no MRI
has been performed.
plaintiff alleges that he suffers from several symptoms
including, but not limited to: headaches; blurred vision;
limited mobility; pain and numbness in both knees, both hands
and arms; severe pain in right shoulder; pain in right ankle
and back; scars from open wounds; stress; depression; and
severe trouble sleeping from pain, especially right shoulder.
December 23, 2016, the plaintiff filed a Motion for Emergency
Injunction [Doc. 6]. Therein, the plaintiff states that the
motion is “requested due to the continuing
deterioration of [his] serious medical need” and that
if he must wait until the end of his § 1983 litigation,
“permanent and irreparable damage could result.”
[Id.]. He further avers that “the serious
medical condition is continuing to negatively progress and
the pain has become intolerable, ” and that he has been
told that his condition is not life-threatening and will be
reevaluated in six months. [Id.].
Judge Aloi filed the instant R&R [Doc. 18] on July 10,
2017, recommending this Court deny the plaintiff's Motion
for Emergency Injunction. Specifically, Magistrate Judge Aloi
notes first that, although not entirely clear, it appears
that the plaintiff is seeking a mandatory injunction
requiring the defendants to authorize an MRI and offer
treatment beyond that which he is currently receiving.
However, the magistrate judge explains that the
plaintiff's motion does not make a clear showing that he
is likely to succeed on the merits of his Complaint, a
requirement to obtain an injunction pursuant to
Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008). He also expresses
doubt, based upon the grievances attached to the pleadings,
that the plaintiff properly exhausted his administrative
remedies as required by the Prison Litigation Reform Act. As
such, Magistrate Judge Aloi recommends the Motion for
Emergency Injunction be denied.
plaintiff filed his Objection to the R&R on July 20,
2017. [Doc. 21].
plaintiff begins his Objection by reminding the Court that he
is an incarcerated inmate with limited access to medical
records, legal help, or even a typewriter. He explains his
difficulties in working on the case because he has been
transferred to different facilities and his doubt that his
medical records actually reflect the severity of his
injuries. The plaintiff states that “only time will
tell” if he will suffer irreparable harm “since
proper medical treatment, such as an MRI” has not been
performed. He further asserts that it has been eleven months
since the accident, and he still suffers “pain and
anguish” from his injuries, the extent of which will
not be proven until proper medical treatment, including an
MRI, is given. Finally, the plaintiff notes his displeasure
with the requirement that he provide specific information
when the defendants keep him “in a position where he is
unable to provide information or defend himself.”
initial matter, this Court notes that pro se
allegations are held to a less stringent standard than those
drafted by lawyers and must be liberally construed.
Haines v. Kerner, 404 U.S. 519, 520
(1972); Hudspeth v. Figgins, 584
F.2d 1345, 1347 (4th Cir. 1978).
liberal reading of the plaintiff's Motion does indicate
that he is requesting an immediate injunction in order to
compel certain medical procedures. Magistrate Judge
Aloi's R&R thoroughly explains the requirements
necessary to ...