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Blanchard v. United States

United States District Court, N.D. West Virginia

December 15, 2017

RAY BLANCHARD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          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 SUMMARY JUDGMENT.

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

         I. Background

         The pro se[1] 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.

         Pursuant 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.

         The 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 the defendant.

         A Roseboro[2] 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.

         The 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.

         II. Applicable Law

         Under 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. § 636(b)(1)(A).

         III. Discussion

         The 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 this case.

         To 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 ...

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