United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATION
J. Aboulhosn United States Magistrate Judge.
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.
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. (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.)
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.)
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.).
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.).
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.)
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.)
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
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.”
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).
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 ...