United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
action, brought pro se, was referred to a United States
Magistrate Judge for proposed findings of fact and
recommendation for disposition (“PF&R”)
pursuant to 28 U.S.C. § 636(b)(1)(B). Now pending before
the Court are Defendants' Motions to Dismiss (ECF Nos.
39, 41, 46). By a PF&R entered August 10, 2017, the
Magistrate Judge recommends that Defendants' Motions to
Dismiss be granted and that Plaintiff's Amended Complaint
(ECF No. 67) be dismissed (ECF No. 71). Plaintiff filed
objections to the PF&R on August 16, 2017 (ECF No. 73).
For the reasons set forth below, the Court rejects
Plaintiff's objections, accepts the Magistrate
Judge's proposed findings, and adopts the Magistrate
filed an Amended Complaint with this Court on September 22,
2016 (ECF No. 6) and a Second Amended Complaint on July 28,
2017 (ECF No. 67). First, Plaintiff alleges that Defendant
Eric Musick, a Correctional Officer at the Western Regional
Jail, “lifted [Plaintiff] off the ground and slam[m]ed
[Plaintiff] to the concrete” even though Plaintiff was
not doing anything aggressive (ECF No. 6 at 7-9). As a
result, Plaintiff claims that he was the victim of
“unnecessary force” (ECF No. 6 at 9).
Plaintiff alleges that he received inadequate medical
attention from Defendant PrimeCare Medical, Inc. following
the alleged incident with Officer Musick (ECF No. 6 at 11).
He claims that he suffered injury to his back as a result of
the altercation and that the injury persisted even after
PrimeCare staff performed an X-ray of Plaintiff's back
and found that no bones had been broken (ECF No. 6 at 3). His
Amended Complaint states, “PrimeCare Medical has
refused any further care that would include going to an
actual hospital for [an] MRI” (ECF No. 6 at 9).
Plaintiff asks the Court to grant him further medical testing
and treatment to remedy this alleged wrong (ECF No. 67).
Plaintiff alleges that he was “wrongfully [denied]
recreational time” from July 27, 2016 to August 15,
2016 (ECF No. 6 at 4). He asserts this claim against
Defendants Western Regional Jail, Correctional Officer
Williamson, Corporal Diamond, Correctional Officer Akers,
Correctional Officer Racer, and Correctional Officer Martin
(“the Regional Jail Defendants”). Plaintiff seeks
relief for this alleged injury in the form of monetary
compensation (ECF No. 67).
Defendants filed motions to dismiss Plaintiff's claims.
Officer Musick filed a Motion to Dismiss on November 16, 2016
in which he asserted that Plaintiff's claims against him
should be dismissed for failure to exhaust administrative
remedies (ECF No. 46).
filed a Motion to Dismiss on November 15, 2016 in which it
alleged five grounds for dismissal: (1) Plaintiff failed to
state a claim upon which relief can be granted; (2) Plaintiff
failed to exhaust his administrative remedies; (3) Plaintiff
failed to comply with the notice requirements of the Medical
Professional Liability Act (“MPLA”); (4)
PrimeCare is not a person subject to suit under 42 U.S.C.
§ 1983; and (5) Plaintiff's allegations do not meet
the legal threshold for a viable Eighth Amendment claim (ECF
Regional Jail Defendants filed a motion to dismiss on
November 15, 2016, asserting that: (1) Plaintiff's
Section 1983 claim against Western Regional Jail should be
dismissed because “a jail is not a ‘person'
for purposes of § 1983;” (2) each individual
Regional Jail Defendant is protected by sovereign immunity
and is therefore immune from Plaintiff's suit; (3)
Plaintiff failed to state a claim upon which relief can be
granted; and (4) Plaintiff's claims against Correctional
Officers Williamson, Diamond, Akers, Racer, and Martin must
be dismissed because these individual defendants are
protected by qualified immunity (ECF No. 42). The Regional
Jail Defendants filed an Amended Memorandum of Law in Support
of their Motion to Dismiss on July 28, 2017 in which they
added that Plaintiff's claims against them should be
dismissed for failure to exhaust (ECF No. 68).
Magistrate Judge's Proposed Findings and
consideration of the record, the Magistrate Judge proposes
that the Court find that Plaintiff failed to exhaust the
available administrative remedies for his claims against
Officer Musick, PrimeCare, and the Regional Jail Defendants
(ECF No. 71 at 8-9). Regarding Plaintiff's claims against
PrimeCare, the Magistrate Judge further proposes that the
Court find that Plaintiff failed to comply with the MPLA and
that Plaintiff failed to assert a “plausible federal
constitutional claim against PrimeCare” (ECF No. 71 at
consideration of Plaintiff's claims against the Regional
Jail Defendants, the Magistrate Judge proposes that the Court
find that Plaintiff's claims against the defendants in
their official capacities are barred by sovereign immunity
and that Plaintiff failed to state a “plausible claim
for relief” against the Regional Jail Defendants (ECF
No. 71 at 16-21). Pursuant to his proposed findings, the
Magistrate Judge recommends that the Court grant the motions
to dismiss filed by Officer Musick, PrimeCare, and the
Regional Jail Defendants and dismiss this civil action (ECF
No. 71 at 22).
Plaintiff's Objections to PF&R
August 16, 2017, Plaintiff raised eight objections to the
present PF&R. First, Plaintiff objects to the Magistrate
Judge's proposed finding that Plaintiff “fail[ed]
to allege any serious injury or harm as a result of the
alleged deprivation of outdoor recreation for a period of 17
days” (ECF No. 71 at 21) (ECF No. 73, Objection 1).
Plaintiff asserts in his objection that he suffered from
depression, panic attacks, and anxiety as a result of the
deprivation of his outdoor time (ECF No. 73, Objection 1).
Second, Plaintiff objects to the Magistrate Judge's
proposed finding that Plaintiff failed to state a claim
against PrimeCare upon which relief can be granted (ECF No.
73, Objection 2). Plaintiff also asserts in his objections
that there is evidence that the Regional Jail Defendants are
responsible for denying him recreation time (ECF No. 73,
next objects to the Magistrate Judge's proposed finding
that Plaintiff failed to exhaust his administrative remedies
(ECF No. 73, Objections 4 and 5). Plaintiff alleges that the
administrative process was unavailable to him because prison
administrators failed to respond to his complaints (ECF No.
73, Objection 4). Plaintiff further alleges that the
grievance procedure's appeal process was not made ...