United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING
THE PLAINTIFF'S OBJECTIONS, DENYING PLAINTIFF'S
REQUEST TO AMEND AND GRANTING DEFENDANTS' MOTIONS TO
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Randy Cordle, filed this civil
action asserting claims against the defendants under 42
U.S.C. § 1983. The case was referred to United States
Magistrate Judge Michael John Aloi under Local Rule of
Prisoner Litigation Procedure 2. The defendants filed several
motions to dismiss and the magistrate judge issued a report
and recommendation (ECF No. 62) following the plaintiff's
responses to the defendants' motions. The magistrate
judge recommended that the defendants' motions to dismiss
be granted; that the plaintiff's complaint be dismissed
with prejudice as to defendants Jim Rubenstein
(“Rubenstein”), Karen Pszczolkowski
(“Pszczolkowski”), James Greathouse, Ryan Adams
(“Adams”) and Dale Griffith
(“Griffith”); and that the plaintiff's
complaint be dismissed without prejudice as to defendants
C.O. McGlochlin (“McGlochlin”), Amanda Sabatino,
LPN (“Sabatino”), David Ballard
(“Ballard”), Mike Neese (“Neese”),
Cheryl Chandler (“Chandler”) and Sherrill Snyder
(“Snyder”). ECF No. 62 at 22.
plaintiff then filed objections (ECF No. 64.) to the report
and recommendation and the defendants filed separate
responses to the plaintiff's objections. ECF Nos. 65, 66,
67. The plaintiff also replied to the defendants'
separate responses to his objections. ECF No. 68.
following reasons, this Court affirms and adopts the
magistrate judge's report and recommendation, overrules
the plaintiff's objections, denies the plaintiff's
request to amend, and grants the defendants' motions to
pro se plaintiff, Randy Cordle, filed this civil
rights matter pursuant to 42 U.S.C. § 1983 against the
defendants raising Due Process and Eighth Amendment
violations. The plaintiff was granted leave to proceed in
forma pauperis and paid the required initial partial filing
to his complaint, the plaintiff was sentenced in the Circuit
Court of Mercer County, West Virginia on April 15, 2014, to a
term of 10 to 20 years. ECF No. 1 at 9. The plaintiff alleges
that prior to his incarceration, he worked as a police
officer for approximately 17 years. ECF No. 1 at 9. He
maintains that he arrived at Mount Olive Correctional Center
(“MOCC”) on or about April 17, 2014, and upon his
arrival he requested that he be placed in protective custody
to avoid being attacked by other prisoners because of his law
enforcement service. ECF No. 1 at 9. The plaintiff also
maintains that in July 2014, a special management hearing was
conducted at which it was determined that there was
sufficient verifiable information to warrant plaintiff's
placement in special management. ECF No. 1 at 9. The
plaintiff alleges that he never received any documentation
related to the special management hearing, but was,
nonetheless, transferred to the Northern Correctional
Facility (“NCF”) on or about August 1, 2014. ECF
No. 1 at 10. However, the plaintiff alleges that upon
arriving at NCF, he realized he was not in special management
but was, instead, housed in the general population as a
mainline inmate. ECF No. 1 at 10. The plaintiff claims that
other inmates learned of his prior service as a police
officer and began to harass and threaten him, which resulted
in a vicious attack. ECF No. 1 at 10. Plaintiff asserts he
was knocked unconscious, the molars in the rear of his mouth
were shattered and broken off at the gum line, he suffered a
protein splatter inside his eyes which has impaired his
vision, and has also suffered from hearing damage and a
shoulder injury. ECF No. 1 at 10.
plaintiff claims that once he regained consciousness, he was
handcuffed and escorted to an interview room where his
injuries were then photographed and screened by defendant
Sabatino. ECF No. 1 at 11. The plaintiff maintains that
despite complaining of extreme oral and dental pain, blurred
vision, ringing in his ears, pain in his left shoulder,
memory loss, head pain, and the fact that she could see the
broken molars, defendant Sabatino did not treat his injuries
or order him taken to the hospital, and he was sent back to
his cell. ECF No. 1 at 3. The plaintiff continues by alleging
that on July 9, 2015, he was seen by an eye doctor at NCF,
who indicated that he observed spots on the back of
plaintiff's left eye. The doctor then ordered that
plaintiff be seen by a specialist no later than July 14,
2015. ECF No. 1 at 12. However, the plaintiff alleges he was
not, until August 31, 2015, taken to an eye specialist, who
observed protein splatters in the rear of plaintiff's
left eye. ECF No. 1 at 12. The plaintiff maintains that this
injury is consistent with his being struck with extreme force
and is likely to cause him blurred vision. ECF No. 1 at 13.
The plaintiff alleges that on July 25, 2015, he saw the
prison dentist who determined that removing the
plaintiff's shattered teeth was too complicated for his
practice and that the plaintiff needed to see an oral
surgeon. ECF No. 1 at 12. The dentist attempted to apply a
filling to the plaintiff's exposed nerves. The plaintiff
saw the oral surgeon on September 28, 2015. ECF No. 1 at 13.
with respect to his injuries, the plaintiff alleges that, as
of the date he prepared his complaint, despite submitting
multiple nurse sick calls trying to receive treatment for his
shoulder, he had not been treated. ECF No. 1 at 13.
magistrate judge conducted an initial review of the
plaintiff's complaint and found that, to the extent the
plaintiff may have raised a viable constitutional claim
against the defendants employed at Mount Olive Correctional
Complex (“MOCC”), the Court lacked jurisdiction
to entertain the same because MOCC is located within the
jurisdiction of the Southern District of West Virginia.
However, with respect to the remaining named defendants, the
magistrate judge determined that summary dismissal was not
warranted and summonses were issued for defendants
Rubenstein, Pszczolkowski, Greathouse, McGlochlin, Adams, and
Griffith. In addition, because the plaintiff had yet to
provide the court with the identity of the Jane Does, he was
given an additional 30 days in which to identify the two Jane
Greathouse, Griffith, Pszczolkowski and Rubenstein jointly
filed a motion to dismiss. ECF No. 30. These defendants state
that the complaint is void of any references to either
Rubenstein or Pszczolkowski. In addition, the defendants
Pszczolkowski and Rubenstein argue that the plaintiff's
claims must be dismissed because there is no supervisory
liability in a § 1983 action. With regard to Greathouse,
Adams, and Griffith, these defendants argue that no conduct
is alleged which would rise to the level of a constitutional
tort and argue that each is protected by the doctrine of
qualified immunity. ECF No. 62 at 5.
McGlochlin filed a motion to dismiss stating, “[t]his
alleged fact pattern [by the plaintiff] does not rise to the
level of deliberate indifference and it is therefore clear
that Plaintiff has failed to sufficiently allege a Section
1983 claim against C.O. McGlochlin.” ECF No. 32 at 1.
Further, defendant McGlochlin argues that “[p]laintiff
has not utilized any administrative remedies with regard to
any of the alleged actions of C.O. McGlochlin” and
thus, “all claims against this defendant must be
dismissed as a result of plaintiff's failure to exhaust
administrative remedies.” ECF No. 32 at 2. Defendant
also claims that “[b]ecause defendant is a government
official, and because all actions and/or inactions described
in plaintiff's complaint were discretionary in nature,
defendant is entitled to a qualified immunity.” ECF No.
32 at 2.
Roseboro notice was issued as to each of these
motions. ECF No. 35. The plaintiff filed a response (ECF No.
52) to the motion to dismiss filed by Adams, Greathouse,
Griffith, Pszczolkowski and Rubenstein. Plaintiff asserts
that he has stated a claim upon which relief can be granted
as to these defendants and claims that his Eight Amendment
rights and Fourteenth Amendment rights were violated.
Plaintiff also alleges a claim of deliberate indifference to
serious medical need and asserts that these named defendants
are not entitled to qualified immunity.
plaintiff filed a response (ECF No. 53) to the motion to
dismiss filed by defendant McGlochlin (ECF No. 32). Plaintiff
states that the alleged fact pattern demonstrates McGlochlin
was deliberately indifferent to a known risk of harm to the
plaintiff and that “[p]laintiff has utilized and
exhausted his available administrative remedy in regards to
C.O. McGlochlin.” ECF No. 53 at 1.
Adams, Greathouse, Pszczolkowski, Griffith and Rubenstein
filed a reply to the plaintiff's response. ECF No. 54.
These defendants state that “[p]laintiff has failed to
respond to the Motion to Dismiss of Defendants Rubenstein and
Pszczolkowski and has therefore conceded that dismissal is
appropriate as to those Defendants.” ECF No. 54 at 2.
Further, defendants assert “[p]laintiff's Response
brief provides no analysis of justify the absence of facts
alleged in the Complaint as to defendants Greathouse, Adams
and Griffith. Accordingly, dismissal as to these Defendants
is appropriate for failure to state a claim for which relief
can be granted.” ECF No. 54 at 3. Lastly, defendants
argue that “[t]he factual basis of the complaint does
not state a claim under the Eighth or Fourteenth Amendments
to the United States Constitution as to defendants
Rubenstein, Pszczolkowski, Greathouse, Adams, or
Griffith.” ECF No. 54 at 4.
Sabatino filed a motion to dismiss for failure to state a
claim arguing that “[t]he Plaintiff has failed to
exhaust his administrative remedies with respect to the
complaint against this Defendant.” ECF No. 57 at 1.
plaintiff filed a response stating, “[t]he Plaintiff
has exhausted his available administrative remedies in
regards to all Defendants, including, Defendant
Sabatino.” ECF No. 59-1 at 1.
Sabatino then filed a reply to plaintiff's response. ECF
No. 60. Defendant Sabatino states: “Despite
Plaintiff's attempt to argue that his grievance filed on
or about September 21, 2015 is sufficient to exhaust his
administrative remedies with respect to Amanda Sabatino, LPN,
it is clear that the grievance had nothing to do with Jane
Doe or Amanda Sabatino, LPN.” ECF No. 60 at 1.
Defendant asserts that the plaintiff's “grievance
was filed nearly two and a half months after Nurse Sabatino
allegedly saw the Plaintiff on July 3, 2015” (ECF No.
60 at 1) and that plaintiff never filed a grievance with
respect to Nurse Sabatino and therefore has failed to exhaust
his administrative remedies.
Judge Michael John Aloi issued a report and recommendation.
ECF No. 62. The magistrate judge recommended that
“[d]efendants Rubenstein, Pszczolkowski, Greathouse,
Adams, and Griffith's motion to dismiss (ECF No. 30) be
granted; Defendant McGlochlin's motion to dismiss (ECF
No. 32) be granted; Defendant Sabatino's motion to
dismiss (ECF No. 57) be granted; the Plaintiff's
complaint be dismissed with prejudice against defendants
Rubenstein, Pszczolkowski, Greathouse, Adams and Griffith for
failure to state a claim upon which relief may be granted;
the Plaintiff's complaint be dismissed without prejudice
against defendants McGlochlin and Sabatino for failure to
exhaust administrative remedies; and the plaintiff's
complaint be dismissed without prejudice against the Mount
Olive Correction Complex defendants: David Ballard, Mike
Neese, Cheryl Chandler and Sherrill Snyder for lack of
jurisdiction.” ECF No. 62.
defendants Rubenstein and Pszczolkowski,  the magistrate
judge found: “It [is] clear that the Plaintiff has
failed to allege facts which would sustain a finding of
supervisory liability. The Plaintiff does not allege any
causal link between either Rubenstein or Pszczolkowski and
any alleged failure to protect or deliberate indifference to
a serious medical need. Accordingly, it is clear that the
Plaintiff has simply named these two defendants in their
official capacities as Commissioner and Warden . . . [and]
Plaintiff's claims against Rubenstein and Pszczolkowski
should be dismissed.” ECF No. 62 at 14-15.
defendants Greathouse, Adams, and Griffith, the magistrate
judge found that the plaintiff has failed to state a claim
that these defendants failed to protect him, violated his Due
Process rights, or were deliberately indifferent to his
serious medical need, and that the complaint as it relates to
these three defendants should be dismissed. The magistrate
judge found that, “the Plaintiff has failed to state a
claim for either theory, and the complaint as it relates to
these three defendants should be dismissed.” ECF No. 62
defendants McGlochlin and Sabatino, the magistrate judge
found that “the Plaintiff failed to exhaust his
administrative grievances with respect to either McGlochlin
or Sabatino, and accordingly the ...