United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE; GRANTING
DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT; AND DENYING PLAINTIFF'S MOTION FOR
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se plaintiff, Ray Blanchard, initiated this
case by filing a complaint pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671,
et seq., alleging that he was denied his right to
emergency medical treatment while incarcerated at
FCC-Hazelton. Specifically, the plaintiff alleges that the
negligence of the Hazelton staff led to him requiring two
knee surgeries for an injury that he is still suffering from.
The plaintiff alleges that page 21 of Hazelton's Inmate
Handbook provides that emergency health services are
available 24 hours daily. For relief, the plaintiff requests
either that a settlement be arranged or that a trial be set
on the claims presented.
to Local Rule of Prisoner Litigation 2, this case was
referred to United States Magistrate Judge Robert W. Trumble
for initial review and report and recommendation. Upon
preliminary review, it appeared to the magistrate judge that
the plaintiff might not have exhausted his administrative
tort claim as required by 28 U.S.C. § 2675, or might
have filed his FTCA claim beyond the statute of limitations.
Accordingly, the magistrate judge instructed the defendant to
file an answer limited to the issues of exhaustion and
timeliness. The defendant filed its response, in which it
acknowledged that the plaintiff did exhaust his
administrative remedies and filed his claim within the
statute of limitations. Thus, the defendant was then ordered
to file an answer addressing the merits of the complaint.
defendant then filed a motion to dismiss or, alternatively,
for summary judgment. In its motion, the defendant contends
that the plaintiff has failed to file a screening certificate
of merit with his complaint as required by West Virginia law.
The defendant also argues that the plaintiff has failed to
establish that a duty was breached or that any current injury
to his knee was proximately caused by any act or omission of
Roseboro notice was issued and, in response, the
plaintiff filed a motion for summary judgment. In his motion,
the plaintiff argues that he has established the four
required elements of a negligence claim. First, the plaintiff
contends that the defendant had a duty to provide him with
24-hour emergency care. Second, he argues that the defendant
breached that duty by (1) not having an adequate health care
official to evaluate such a serious injury; (2) having him
housed on the top bunk when there were specific instructions
from prison doctors to house him on a bottom bunk; and (3)
transferring him to another facility after there were
doctor's orders in place to have a second surgery. Third,
the plaintiff argues that the causation was prison officials
neglecting to follow doctor's orders in housing him on
the bottom bunk. Fourth, the plaintiff contends that the
damages are his damaged right meniscus and additional pain
and/or damage to his right knee.
magistrate judge then entered a report and recommendation
recommending that this Court dismiss the plaintiff's
claim. The magistrate judge advised the parties that,
pursuant to 28 U.S.C. § 636(b)(1)(C), any party may file
written objections to his proposed findings and
recommendations within 14 days after being served a copy of
the report and recommendation. Neither party filed any
objections to the report and recommendation. For the reasons
set forth below, this Court affirms and adopts the magistrate
judge's report and recommendation in its entirety.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because the plaintiff did not file any objections to the
report and recommendation, the magistrate judge's
findings and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
FTCA “permits the United States to be held liable in
tort in the same respect as a private person would be liable
under the law of the place where the act occurred.”
Medina v. United States, 259 F.3d 220, 223 (4th Cir.
2001). Thus, because the alleged negligent acts occurred in
West Virginia, the substantive law of West Virginia governs
prove a medical negligence claim in West Virginia, the
plaintiff must establish that:
(a) the health care provider failed to exercise that degree
of care, skill, and learning required or expected of a
reasonable, prudent health care provider in the profession or
class to which the health care provider ...