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Cordle v. Rubenstein

United States District Court, N.D. West Virginia

September 14, 2017

RANDY CORDLE, Plaintiff,
v.
JIM RUBENSTEIN, Commissioner, WVDOC, KAREN PSZCZOLKOWSKI, Warden, Northern Correctional Facility, JAMES GREYHOUSE,[1] Northern Correctional Facility Staff, C.O. McGLOCHLIN, Northern Correctional Facility Staff;, RYAN ADAMS, Northern Correctional Facility Staff, AMANDA SABATINO, LPN, JANE DOE, Nurse, Northern Correctional Facility Staff, JANE DOE, Medical Servs. Coord., Northern Correctional Facility Staff, DALE GRIFFITH, Northern Correctional Facility Staff, DAVID BALLARD, Warden, Mt. Olive Correctional Complex, MIKE NEESE, Special Management Committee, Mt. Olive Correctional Complex, CHERYL CHANDLER, Special Management Committee, Mt. Olive Correctional Complex and SHERRILL SNYDER, Special Management Committee, Mt. Olive Correctional Complex, Defendants.

          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 DISMISS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         The pro se[2] 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.

         The 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.

         For the 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 dismiss.

         I. Background

         The 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 fee.

         According 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.

         The 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.

         Finally, 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.

         The 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 Does.[3]

         Adams, 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.

         Defendant 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.

         A Roseboro[4] 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.

         Additionally, 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.

         Defendants 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.

         Defendant 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.

         The 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.

         Defendant 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.

         Magistrate 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.

         As to defendants Rubenstein and Pszczolkowski, [5] 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.

         As to 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 at 15.

         As to 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 ...


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