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McDermitt v. Rubenstein

United States District Court, N.D. West Virginia, Elkins

August 17, 2017

WILLIAM RAY McDERMITT, Plaintiff,
v.
JIM RUBENSTEIN, Commissioner, PATRICK MIRANDY, Warden, TAMMY DAUGHERTY, HSA, SHERRY DAVIS, Associate Warden, DR. JAMES BEAN, M.D., and WEXFORD HEALTH SOURCES, INC., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOM PRESTON BAILEY UNITED-STATES DISTRICT JUDGE.

         On this 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].

         Pursuant 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 clear error.

         I. BACKGROUND

         The 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 concrete ground.

         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.

         The 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.

         On 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.].

         Magistrate 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.

         The plaintiff filed his Objection to the R&R on July 20, 2017. [Doc. 21].

         II. DISCUSSION

         The 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.”

         As an 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).

         A 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 ...


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