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Sullivan v. King

United States District Court, S.D. West Virginia, Huntington Division

January 8, 2018

CHARLES SULLIVAN, Plaintiff,
v.
TIMOTHY KING, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge.

         Pending before the Court are the following: (1) Defendant PrimeCare Medical's “Motion to Dismiss Complaint and Alternative Motion for Summary Judgment” (Document No. 15), filed on June 7, 2017; and (2) Defendants Western Regional Jail and Timothy King's “Motion to Dismiss” (Document No. 17), filed on June 7, 2017. The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4th Cir. 1975), that Plaintiff had the right to file a response to Defendants' Motions and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by the Defendants in moving to dismiss. (Document No. 19.) Plaintiff has failed to file a Response to either of the above Motions. Having examined the record and considered the applicable law, the undersigned has concluded that Defendants' above Motions should be granted.

         PROCEDURAL BACKGROUND

         On April 14, 2017, Plaintiff, acting pro se, filed his Motion to Proceed Without Prepayment of Fees and Complaint claiming entitlement to relief pursuant to Title 42 U.S.C. § 1983.[1] (Document Nos. 1 and 2.) In his Complaint, Plaintiff names the following as Defendants: (1) Timothy King, Administrator of the Western Regional Jail; (2) Unknown Medical Corp; and (3) Unknown Doctors and Nurses. (Document No. 2.) Plaintiff appears to allege that Defendants acted with negligence and violated his constitutional rights under the Eighth Amendment by failing to provide him with appropriate and necessary medical care. (Id.) Specifically, Plaintiff alleges that he was processed into the Western Regional Jail on February 4, 2017. (Id., p. 5.) Plaintiff states that he “could walk fine” even though his left side was partially paralyzed. (Id.) Plaintiff alleges that on or about February 10, 2017, he developed a “blood infection in the main artery of [his] right leg.” (Id.) Plaintiff claims that the infection spread from his groin to the bottom of his foot. (Id.) Plaintiff acknowledges that he was given antibiotics for seven days. (Id.) Plaintiff, however, complains that by the time he was given antibiotics, “the infection had lodged in [his] knee.” (Id.) Plaintiff asserts that he has been “released from any medical care except Ibuprofen” and placed in general population. (Id., p. 6.) Plaintiff claims that he is unable to walk and “needs to see an outside doctor.” (Id.) As relief, Plaintiff request monetary damages and immediate treatment. (Id.)

         By Order entered on April 16, 2015, United States Magistrate Judge Cheryl A. Eifert granted Plaintiff's Motion to Proceed Without Prepayment of Fees, directed the Clerk to issue a summons for Timothy King and PrimeCare Medical Inc., and directed the United States Marshals Service to serve the Summons and a copy of Plaintiff's Complaint upon each Defendant. (Document No. 4.) On May 30, 2017, the above civil action was transferred from Judge Eifert to the undersigned for total pretrial management and submission of proposed findings of fact and recommendations for disposition. (Document No. 12.)

         On June 7, 2017, Defendant PrimeCare Medical filed its “Motion to Dismiss Complaint and Alternative Motion for Summary Judgment” and Memorandum in Support. (Document Nos. 15 and 16.) Defendant PrimeCare argues that Plaintiff's claims should be dismissed based on the following: (1) Plaintiff failed to exhaust his administrative remedies (Document No. 16, pp. 3 - 6.); (2) “Plaintiff's claims neither plead nor meet the legal threshold for a viable Eighth Amendment claim” (Id., pp. 6 - 9.); (3) “Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit requirements of the MPLA” (Id., pp. 9 - 11.); and (4) PrimeCare is entitled to good faith qualified immunity” (Id., pp. 11 - 13.).

         Also on June 7, 2017, Defendants Western Regional Jail [“WRJ”] and King filed their “Motion to Dismiss” and Memorandum in Support (Document Nos. 17 and 18.) Defendants WRJ and King [“State Defendants”] argue that Plaintiff's claims should be dismissed based on the following: (1) The Eleventh Amendment bars Plaintiff claims (Document No. 18, pp. 3 - 6.); (2) Plaintiff's Complaint fails to state a constitutional claim (Id., pp. 6 - 8.); and (3) Plaintiff failed to exhaust his administrative remedies (Id., pp. 8 - 9.).

         Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on June 8, 2017, advising him of the right to file a response to the Defendants' Motions. (Document No. 19.) After being granted two extensions of time, Plaintiff has failed to file a Response to Defendants' above Motions. (Document Nos. 22 and 25.)

         By Order entered on December 8, 2017, the undersigned directed Defendants pursuant to Rule 56(e) to file documentation in support of certain assertions of fact. (Document No. 28.) Specifically, the undersigned determined that Defendant PrimeCare had failed to file documentation supporting their assertion that an orthopedic consult was approved on April 13, 2017, and that medical staff scheduled Plaintiff an appointment with Marshall Orthopedics. (Id.) The undersigned further notified Plaintiff that, to the extent he wished to dispute PrimeCare's assertions of fact regarding his medical treatment, Plaintiff could file documentation or an affidavit disputing such on or before December 29, 2017. (Id.)

         On December 12, 2017, Defendant PrimeCare filed its Supplemental Documentation in support of the Motion for Summary Judgment. (Document No. 29.) As Exhibits, PrimeCare attached a copy of Plaintiff's medical records from Marshall Health. (Document No. 29-1.) Plaintiff failed to file a Response to the foregoing.

         THE STANDARD

         Motion to Dismiss

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 554, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.” Id. at 556 U.S. at 679, 129 S.Ct. at 1950. The “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1959. Although factual allegations must be accepted as true for purposes of a motion to dismiss, this principle does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         This Court is required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal construction, however, “does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the “courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).

         Summary Judgment

         Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 -87, 106 S.Ct.1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying facts in the light most favorable to the non-moving party. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. Summary judgment is required when a party fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual issues proving other elements of the claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. Generally speaking, therefore, summary judgment will be granted unless a reasonable jury could return a ...


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