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Langley v. Huntington Police Dept.

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

January 9, 2018

JAMES ALBERT LANGLEY, Plaintiff,
v.
HUNTINGTON POLICE DEPT, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn, United States Magistrate Judge.

         Pending before the Court are the following: (1) Defendants PrimeCare Medical, Inc. and Nurse Jalayna Leonburg's “Motion to Dismiss Complaint and Alternative Motion for Summary Judgment” (Document No. 29), filed on August 9, 2017; (2) Defendants PrimeCare Medical, Inc., Nurse Jalayna Leonburg, and Jennifer Hatfield's “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” (Document No. 64), filed on September 25, 2017; (3) Plaintiff's “Motion for Summary Judgment” (Document No. 76), filed on September 27, 2017; (4) Defendant West Virginia Department of Corrections' “Motion to Dismiss” (Document No. 91), filed on October 17, 2017; (5) Defendant David Ballard's “Motion to Dismiss for Failure to Serve” (Document No. 92), filed on October 17, 2017; (6) Defendants Dr. Charles Lye, Donna Warden, Wexford Health Sources Inc.'s “Motion to Dismiss” (Document No. 95), filed on October 19, 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 Nos. 33, 66, 98.) Plaintiff has filed a Response to all of the above Motions. (Document Nos. 45, 85, 99, 139, 140.) Defendants Hatfield, Leonburg, PrimeCare, Dr. Lye, Warden, and Wexford Health have filed Replies (Document Nos. 90 and 115) and Plaintiff filed his Surreply (Document No. 100). Having examined the record and considered the applicable law, the undersigned has concluded as follows:

(1) PrimeCare Defendants' “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” (Document No. 64) should be granted;
(2) PrimeCare Defendants' “Motion to Dismiss Complaint and Alternative Motion for Summary Judgment” (Document No. 29) should be denied as moot;
(3) Plaintiff's “Motion for Summary Judgment” (Document No. 76) should be denied;
(4) Defendant West Virginia Department of Corrections' “Motion to Dismiss” (Document No. 91) should be granted;
(5) Defendant Ballard's “Motion to Dismiss for Failure to Serve” (Document No. 92) should be denied as moot; and
(6) Defendants Dr. Charles Lye, Donna Warden, Wexford Health Sources Inc.'s “Motion to Dismiss” (Document No. 95) should be denied.

         PROCEDURAL BACKGROUND

         On July 3, 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) “Huntington WV Police Department (HPD) (Arresting Officer);” (2) “Western Regional Jail (WRJ) (C.O. Michael York);” (3) Prime Care Medical Inc. (Nurse Jolaina);” (4) “Wexford Health Sources Inc. (Dr. Charles Lye);” and (5) “W.V. Department of Corrections (Commissioner Jim Rubenstein).” (Document No. 2, p. 2.) Plaintiff alleges 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.) Plaintiff alleges that on July 11, 2015, he was involved in a car accident where his car crashed into a building at a speed of 45 mph. (Id., p. 7.) Plaintiff claims that when he exited the vehicle, he was attacked by a K-9 Unit dog. (Id.) Plaintiff acknowledges that he was “listed as an escapee from work release” at the time of the accident. (Id.) Plaintiff complains that he requested transportation to the hospital, but his request was denied by the arresting officer due to Plaintiff's escape status. (Id.) Plaintiff, however, states that his passenger was transported to the hospital. (Id.) Plaintiff states that he was transported HPD's headquarters, and then to the Western Regional Jail where he was placed in the booking area. (Id., p. 8.) Plaintiff contends that when his name was called the next day (July 12, 2015), he “could not physically get off the floor.” (Id.) Plaintiff claims that C.O. York and Nurse Jalayna “had to pick me up and move me to H-2 holding cell by myself in front of their desk.” (Id., p. 9.) Plaintiff alleges that he again requested to be transported to the hospital, but “was told no because I was listed as an excapee.” (Id.) Plaintiff contends that Nurse Jalayna, who is employed by PrimeCare Medical, gave him “a superficial intake physical” and stated that his dog bite wounds were only scratches. (Id.) Plaintiff asserts that Nurse Jalayna refused to send Plaintiff to the hospital for x-rays because she had ordered a “mobile x-ray lab to come to the facility.” (Id., pp. 9 - 10.) Plaintiff states that the “mobile x-ray lab” never showed. (Id.) Plaintiff claims that he was held in the H-2 holding until the evening of July 12, 2015, when he was “medically cleared” by Nurse Jalayna to go to general population without any x-rays being performed by the mobile x-ray. (Id., p. 10.) Plaintiff asserts that C.O. York escorted him to Section F-5 of general population. (Id., p. 9.) Plaintiff claims that he was “severely injured and C.O. York observed this and did nothing to intervene.” (Id.) Plaintiff further alleges that “even a lay person could see I was physically hurt.” (Id.)

         Plaintiff alleges that he was transported to Mount Olive Correctional Complex (“MOCC”) on July 13, 2015, where his medical care was provided by Wexford Health Sources, Inc. (Id., p. 10.) Plaintiff alleges that a nurse conducted his intake screening, where pictures were taken of his “head trauma, bumps, knots, scrapes, and a dog bite puncture wound to my left buttock.” (Id.) Plaintiff claims that he informed the intake nurse of his automobile accident and she placed Plaintiff on the list to be evaluated by Dr. Charles Lye. (Id.) Plaintiff contends that from July 13, 2015 through November 1, 2015, he filed 13 sick call requests complaining of “loss of motor skills in hands, severe muscle cramps in back, loss of breath, fever, not being able to breathe, and telling the provider I was in a serious car wreck that I needed to go to an outside doctor for an MRI or CT scan.” (Id., pp. 10 - 11.) Despite advising medical staff that “something was affecting [him] severely, Plaintiff alleges that Dr. Lye only performed a “few superficial examination” and “mainly just protocoled Motrin and stated [Plaintiff] was ok.” (Id., p. 10.) Plaintiff acknowledges that Dr. Lye ordered an x-ray on September 24, 2015, but complains that the x-ray was delayed. (Id.) Plaintiff further states that no antibiotics were provided from July 13, 2015 through October 20, 2015. (Id.) Plaintiff states that on October 6 and 7, 2015, Correctional Officers and Nurses Michelle and April had to come into his cell five times to help Plaintiff get out of bed and two times to help him out of the floor. (Id., p. 12.) Plaintiff claims that Dr. Lye was on the premises on October 7, 2015, but refused to see Plaintiff until the next day. (Id.) Plaintiff states that on October 8, 2015, Dr. Lye performed an one minute examination and declared Plaintiff to be “physically fit.” (Id., p. 13.) Plaintiff states that the x-ray ordered on September 24, 2015, was finally performed on October 21, 2015. (Id., p. 10.) Plaintiff states that “upon completion of said chest x-ray, [he] was immediately transferred from segregation to MOCC infirmary and started on antibiotics.” (Id.) Plaintiff alleges that the radiologist report from CAMC Memorial Hospital dated October 21, 2015, recommended that Plaintiff be transported to the hospital for a CT scan. (Id., pp. 11 - 12.) Plaintiff states that Dr. Lye and Wexford Health Sources ignored this recommendation “to save as much money as possible” and “to cover the blatant medical neglect that had allowed [Plaintiff] to become so sick.” (Id., p. 13.) Plaintiff claims that he was kept in the MOCC infirmary “being pumped full of excessive doses of antibiotics and steroids for 10 more days until . . . staff was unable to get an EKG reading and had [Plaintiff] transferred to CAMC Memorial Hospital on November 1, 2015.” (Id., p. 12.) Plaintiff contends that a CT scan was immediately conducted upon his arrival at CAMC and Plaintiff was rushed into surgery to have a complete thoracotomy of his left lung. (Id.) Plaintiff states that he “had double pneumonia so bad that it had collapsed [his] left lung, ate through the lung into [his] back and caused [his] body to go into sepsis.” (Id.) Plaintiff claims that three liters of infection was drained from his lungs over a five hour period. (Id.) Plaintiff states he was placed in the surgical intensive care unit for 18 days. (Id., p. 13.) Due to the foregoing, Plaintiff alleges that he has lost partial use of his left lung, nerve damage to his complete left side, and his diaphragm is disconnected from his lung. (Id., p. 12.) Plaintiff further states that his kidneys were damages by the “high doses of antibiotics and steroids” that were administrated from October 21, 2015 through November 1, 2015. (Id., p. 13.) Plaintiff, therefore, states that he is partially disabled and permanently disfigured. (Id.)

         Plaintiff alleges that he filed five grievances from July 13, 2015 through November 1, 2015, complaining of inadequate medical care and all grievances were denied. (Id., p. 10.) Plaintiff states that Commissioner Jim Rubenstein “rubber stamped” all grievances denied without conducting “any real investigation.” (Id.) Plaintiff alleges that Commissioner Rubenstein's failure to investigate resulted in the violation of Plaintiff's Eighth Amendment rights. (Id.) As relief, Plaintiff requests “monetary compensation for his physical suffering and mental anguish, ” punitive damages, ” and “injunctive relief.” (Id., p. 12.) As an Exhibit, Plaintiff attaches a copy of a newspaper article regarding his automobile accident. (Id., p. 20 - 21.)

         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 the defendants, and directed the United States Marshals Service to serve the Summons and a copy of Plaintiff's Complaint upon each Defendant. (Document No. 10.) On August 1, 2017, Plaintiff filed a Motion to Compel requesting that the Court direct the Huntington Police Department to identify the name of the arresting officer. (Document Nos. 23.) By Order entered on August 7, 2017, Judge Eifert granted Plaintiff's Motion and ordered the Huntington Police Department to provide Plaintiff with the name of the arresting officer. (Document No. 25.) On August 7, 2017, Plaintiff filed a “Motion to Amend” requesting that the Court allow him amend this Complaint to allege that he filed seven grievance, instead of five grievance, as alleged in his original Complaint. (Document No. 28.) Additionally, Plaintiff attached the following Exhibits in Support of his Complaint: (1) A copy of a grievance dated August 1, 2015, requesting appropriate medical care for his back and neck injuries (Document No. 28, pp. 1 - 2.); (2) A copy of a grievance dated August 22, 2015, requesting appropriate medical care for his back and neck injuries (Id., pp. 3 - 4.); (3) A copy of a grievance dated September 14, 2015, requesting a jacket and a thermal top (Id., p. 5.); (4) A copy of a grievance dated September 28, 2015, requesting proper medical treatment for his back and neck injuries by a doctor other than Dr. Lye (Id., pp. 6 - 7.); (5) A copy of a grievance dated October 1, 2015, requesting proper medical treatment by Wexford Health or to be referred to an outside specialist concerning his back and neck injuries (Id., pp. 8 - 9.); (6) A copy of a grievance dated October 13, 2015, requesting to be taken to an outside specialist for evaluation of Plaintiff spinal injury and nerve damage (Id., pp. 10 - 11.); and (7) A copy of a grievance dated October 19, 2015, requesting a plastic chair to “help my back heal.” (Id., pp. 12 - 13.)

         On August 9, 2017, Defendants PrimeCare Medical and Nurse Jalayna Leonburg filed their “Motion to Dismiss Complaint and Alternative Motion for Summary Judgment.” (Document No. 29.) Specifically, Defendants argue that Plaintiff's Complaint should be dismissed based on the following: (1) “Plaintiff's allegations regarding his medical treatment do not meet the legal threshold for a viable civil rights claim under the 8th Amendment;” (2) “Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit requirements of the MPLA;” (3) “PrimeCare Medical of West Virginia, Inc. and Nurse Jalayna Leonburg are entitled to good faith qualified immunity;” (4) “PrimeCare Medical of West Virginia, Inc. is not a ‘person' subject to suit until 42 U.S.C. § 1983.” (Id.) In support, Defendants attach a copy of Plaintiff's medical records. (Document No. 29-1.) Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on August 10, 2017, advising him of the right to file a response to the Defendants' Motions.[2] (Document No. 33.) On August 14, 2017, Plaintiff filed a copy of pertinent medical records as an Exhibit to his Complaint. (Document Nos. 37 and 37-1.) On August 21, 2017, Plaintiff filed his Response in Opposition to PrimeCare and Nurse Leonburg's “Motion to Dismiss Complaint and Alternative Motion for Summary Judgment.” (Document No. 45.)

         On August 15, 2017, Plaintiff filed a Motion to Amend Complaint. (Document No. 40.) Specifically, Plaintiff stated that he wished to amend as to the “naming and separating of all Defendants.” (Id.) By Order entered on August 16, 2017, the undersigned granted Plaintiff's Motion to Amend and directed Plaintiff to file his Amended Complaint. (Document No. 43.) On September 11, 2017, Plaintiff filed his Amended Complaint. (Document No. 50.) Plaintiff names the following as Defendants: (1) Huntington Police Department (“HPD”); (2) the Arresting Officer; (3) PrimeCare Medical, Inc.; (4) Jalayna Leonburg; (5) Michael York; (6) Jennifer Hatfield; (7) Dr. Charles Lye; (8) Donna Warden; (9) Warden David Ballard; (10) West Virginia Department of Corrections (“WVDOC”); (11) Jim Rubenstein; and (12) Wexford Health Sources, Inc. (Id.) Plaintiff states that he is suing all Defendants in their official and individual capacities. (Id., p. 9.) First, Plaintiff states that “this Complaint is not a medical malpractice lawsuit, which requires the plaintiff to give (30) thirty days notice before filing the lawsuit.” (Id., p. 1.) Plaintiff, however, alleges that Defendants violated his Eighth Amendment rights by failing to provide necessary and appropriate medical care. (Id.) As to the arresting officer (now identified as Alex Marshall), Plaintiff alleges that Defendant Marshall violated his constitutional right by acting with deliberate indifference to his need for medical care. (Id., p. 2.) Plaintiff alleges that he was involved in a high-speed car crash and then subdued by a K-9. (Id.) Plaintiff states that Defendant Marshall refused his request for transportation to the hospital despite his obvious injuries. (Id.) Plaintiff states that he was transported from the scene of the accident to HPD's headquarters, where the Shift Commander and other officers refused to have Plaintiff transported to the hospital for evaluation and treatment. (Id., p. 3.) Plaintiff alleges that HPD is liable because it either allowed officers to violate policy or failed to properly train officers. (Id.)

         As to PrimeCare Medical, Jalayna Leonburg, Jennifer Hatfield, and C.O. Michael York, Plaintiff alleges that the foregoing defendants acted with deliberate indifference to his medical needs during his detention at the Western Regional Jail (“WRJ”). (Id.) Plaintiff alleges that arrived at WRJ at approximately 12:00 a.m. on July 12, 2015. (Id.) Plaintiff states that Defendants Hatfield and Leonburg performed Plaintiff's intake physical. (Id.) Plaintiff claims that he advised Defendants Hatfield and Leonburg of his high-speed crash and showing them the K-9 puncture wounds and other injuries to his body. (Id.) Plaintiff states that he requested transportation to the hospital for an MRI or CT scan, but Defendants Hatfield and Leonburg denied the request due to status as being an “escape risk.” (Id.) Plaintiff states that Defendant Leonburg advised him that a mobile x-ray had been ordered and Plaintiff was placed in a holding cell. (Id.) Plaintiff alleges that he went to sleep while in the holding cell and when he woke up he was unable to get off the floor due to his injuries. (Id.) Plaintiff claims that Defendant York and Leonburg had to “physically pick [him] up off the floor and then move [him] to holding cell 2, a single cell for observation.” (Id., pp. 3 - 4.) Plaintiff alleges he was held in the single holding cell until the evening hours, when he was medically cleared for placement in general population by either Defendant Hatfield or Leonburg. (Id., p. 4.) Plaintiff complains that he was medically cleared despite the fact that his x-ray was never conducted. (Id.) Plaintiff asserts that Defendant York escorted him to general population despite his awareness of Plaintiff's injuries. (Id.) Plaintiff alleges that his injuries were obvious to even a layperson. (Id.) As to PrimeCare, Plaintiff alleges that PrimeCare violated its policy by failing to take Plaintiff to an outside physician for treatment of his physical injury and failing to properly train its employee. (Id.)

         Plaintiff alleges that on July 13, 2015, he was transferred from WRJ to MOCC where his medical care was provided by Wexford Health Sources and Dr. Lye. (Id., pp. 4 - 5.) Plaintiff states that upon his intake at MOCC, Plaintiff advised medical staff of his high-speed car crash and his injuries. (Id., p. 5.) Plaintiff states that photos were taken of his injuries and he was placed on the list to see Dr. Lye. (Id.) Despite the filing of 13 sick call slips and seven grievance requesting medical treatment, Plaintiff alleges that Dr. Lye only performed “superficial examinations” and determined Plaintiff to be in “good health.” (Id.) Plaintiff states that medical staff “would only protocol Motrin.” (Id.) Plaintiff acknowledges that Dr. Lye ordered an x-ray on September 24, 2015, but complains that the x-ray was delayed until October 21, 2015. (Id.) Plaintiff states that on October 6 and 7, 2015, correctional officers and nurses had to come into his cell five times to help Plaintiff get out of bed and two times to help him out of the floor. (Id.) Plaintiff claims that Dr. Lye was on the premises on October 7, 2015 and was notified by nurses that Plaintiff was “really bad, ” but Dr. Lye refused to see Plaintiff until the next day. (Id.) Plaintiff alleges that he was briefly examined by Dr. Lye on October 8, 2015, and Dr. Lye determined him to be in good health. (Id., p. 7.) Plaintiff states that the x-ray ordered on September 24, 2015, was finally performed on October 21, 2015. (Id., p. 6.) Plaintiff states that upon completion of the chest x-ray, Plaintiff was immediately transferred from segregation to the MOCC infirmary and started on antibiotics. (Id.) Plaintiff alleges that the radiologist's report from CAMC Memorial Hospital dated October 21, 2015, recommended that Plaintiff be transported to the hospital for a CT scan. (Id.) Plaintiff states that Dr. Lye and Wexford Health Sources ignored this recommendation due to their policy of “sav[ing] money” and to cover up the lack of medical treatment. (Id.) Plaintiff claims that he was kept in the MOCC infirmary “for 10 more days being pumped full of liquid antibiotics and steroids at such a high dose that it hurt my kidneys.” (Id.) Plaintiff states that he was transferred to CAMC Memorial Hospital on November 1, 2015, because Nurses Gordon and Tabitha “could not get an EKG reading.” (Id.) Plaintiff contends that a CT scan was immediately conducted upon his arrival at CAMC and Plaintiff was rushed into surgery to have a complete thoracotomy of his left lung. (Id.) Plaintiff states that he “had double pneumonia so bad that it had collapsed [his] left lung, ate through the lung into [his] back and caused [his] body to go into sepsis.” (Id.) Plaintiff claims that three liters of infection was drained from his lungs over a five-hour period. (Id., p. 7.) Plaintiff states he was placed in the surgical intensive care unit for 18 days. (Id.) Due to the foregoing, Plaintiff alleges that he has lost partial use of his left lung, nerve damage to his complete left side, and his diaphragm is disconnected from his lung. (Id.)

         Plaintiff alleges that Warden David Ballard, RN Donna Warden, Former Commissioner Jim Rubenstein, and the WVDOC violation his Eighth Amendment rights because they were aware that he was receiving inadequate medical care and failed to taken any action. (Id., p. 8.) Plaintiff states that he filed seven grievances complaining that he was receiving inappropriate medical care. (Id.) Plaintiff states that all of his grievance were denied by Defendant Donna Warden and Warden Ballard despite his continued complaint that he was not receiving appropriate medical care. (Id.) Plaintiff alleges that Defendant Commissioner Jim Rubenstein denied his grievance without even “look[ing] into the problem.” (Id.) Finally, Plaintiff claims that WVDOC “should have a failsafe to prevent such action as this.” (Id., p. 9.)

         On September 25, 2017, Defendants PrimeCare, Leonburg, and Hatfield filed their “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” and a Memorandum in Support. (Document Nos. 64 and 65.) Specifically, Defendants argue that Plaintiff's Complaint should be dismissed based on the following: (1) “Plaintiff's allegations regarding his medical treatment do not meet the legal threshold for a viable civil rights claim under the 8th Amendment;” (2) “Plaintiff's claims must be dismissed because he failed to exhaust his administrative remedies;” (3) “Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit requirements of the MPLA;” (4) “The Defendants are entitled to good faith qualified immunity;” and (5) “PrimeCare Medical of West Virginia, Inc. is not a ‘person' subject to suit until 42 U.S.C. § 1983.” (Id.) In support, Defendants attach the following: (1) A copy of Plaintiff's medical records from PrimeCare (Document No. 64-1.); and (2) A copy of Plaintiff's medical records from Wexford Health (Document No. 64-2.).

         Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on September 26, 2017, advising him of the right to file a response to the Defendants' Motions. (Document No. 66.) On September 27, 2017, Plaintiff filed his Motion for Summary Judgment. (Document No. 76.) On September 29, 2017, Plaintiff filed additional Exhibits in Support of his Complaint. (Document No. 80.) Specifically, Plaintiff attached a copy of the following: (1) A copy of Plaintiff's “Inmate Medical Services Request” dated July 20, 2015, requesting medical treatment for his severe headaches, lower back pain, neck pain, and numbness in fingers (Id., p. 1.); (2) A copy of Plaintiff's “Inmate Medical Services Request” dated July 30, 2015, requesting medical treatment for his back and neck pain (Id., p. 2.); (3) A copy of Plaintiff's “Inmate Medical Services Request” dated August 3, 2015, complaining of lower abdominal pain and stating that he was recently involved in a car crash (Id., p. 3.); (4) A copy of Plaintiff's “Inmate Medical Services Request” dated August 15, 2015, complaining that he was not receiving his chronic care medications (Flomax, blood pressure medication, Prilosec, Motrin) (Id., p. 4.); (5) A copy of Plaintiff's “Inmate Medical Services Request” dated August 22, 2015, complaining that he was losing motor skills in his right hand due to nerve damages caused by the car crash (Id., p. 5.); (6) A copy of Plaintiff's “Inmate Medical Services Request” dated August 26, 2015, complaining of the loss of motor skills in his right hand due to nerve damages and requesting medical treatment (Id., p. 6.); (7) A copy of Plaintiff's “Inmate Medical Services Request” dated August 27, 2015, complaining of the loss of motor skills in his right hand due to nerve damages and requesting medical treatment (Id., p. 7.); (8) A copy of Plaintiff's “Inmate Medical Services Request” dated September 17, 2015, requesting the results of his neck x-ray (Id., p. 8.); (9) A copy of Plaintiff's “Inmate Medical Services Request” dated September 28, 2015, stating he had been diagnosed with spinal deterioration and complaining of the loss of motor skills in his right hand (Id., p. 9.); (10) A copy of Plaintiff's “Inmate Medical Services Request” dated October 1, 2015, requesting Motrin (Id., p. 10.); (11) A copy of Plaintiff's “Inmate Medical Services Request” dated October 9, 2015, requesting to know Dr. Lye's treatment plan because during the examination Dr. Lye “listened to my back and chest with his stethoscope” and then “said he's done” (Id., p. 11.); (12) A copy of Plaintiff's “Inmate Medical Services Request” dated October 11, 2015, complaining of “shortness of breath from the muscle spasms” and “blood in my mucus when I blow my nose” (Id., p. 12.); (13) A copy of Plaintiff's “Inmate Medical Services Request” dated October 13, 2015, request that Dr. Lye extend his prescriptions for Flexibill and Motrin and noting that he was still having back spasms (Id., p. 13.); (14) A copy of Plaintiff's “Inmate Medical Services Request” dated October 18, 2015, requesting antibiotics because he was “extremely congested” (Id., p. 14.); and (15) A copy of Plaintiff's “Inmate Medical Services Request” dated October 19, 2015, complaining of a sinus infection and chest congestion (Id., p. 15.).

         On October 3, 2017, Plaintiff filed his Response in Opposition to Defendants PrimeCare, Leonburg, and Hatfield's “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment.” (Document No. 85.) On October 12, 2017, Plaintiff filed additional Exhibits in Support of his Complaint: (1) A copy of a grievance dated August 1, 2015, requesting appropriate medical care for his back and neck injuries (Document No. 89, pp. 1 - 2.); (2) A copy of a grievance dated August 22, 2015, requesting appropriate medical care for his back and neck injuries (Id., pp. 3 - 4.); (3) A copy of a grievance dated September 14, 2015, requesting a jacket and a thermal top (Id., p. 5.); (4) A copy of a grievance dated September 28, 2015, requesting proper medical treatment for his back and neck injuries by a doctor other than Dr. Lye (Id., pp. 6 - 7.); (5) A copy of a grievance dated October 1, 2015, requesting proper medical treatment by Wexford Health or to be referred to an outside specialist concerning his back and neck injuries (Id., pp. 8 - 9.); (6) A copy of a grievance dated October 13, 2015, requesting to be taken to an outside specialist for evaluation of Plaintiff spinal injury and nerve damage (Id., pp. 10 - 11.); and (7) A copy of a grievance dated October 19, 2015, requesting a plastic chair to “help my back heal.” (Id., pp. 12 - 13.) On October 13, 2017, Defendants PrimeCare, Leonburg, and Hatfield filed their Reply to Plaintiff's Response in Opposition. (Document No. 90.)

         On October 17, 2017, WVDOC filed its Motion to Dismiss Amended Complaint and Memorandum in Support. (Document Nos. 91 and 93.) Specifically, WVDOC argues that it “is not a ‘person' for purposes of 42 U.S.C. § 1983.” (Id.) Also on October 17, 2017, Defendant David Ballard filed his Motion to Dismiss Amended Complaint and Memorandum in Support. (Document Nos. 92 and 94.) Specifically, Defendant Ballard argues that Plaintiff's Amended Complaint should be dismissed based on insufficient service of process. (Id.)

         On October 19, 2017, Defendants Wexford, Lye, and Warden filed a “Motion to Dismiss” and Memorandum in Support. (Document Nos. 95 and 96.) In support, Defendants argue as follows: (1) “Plaintiff has failed to exhaust his administrative remedies;” (2) “Wexford Health Sources, Inc., is not a person pursuant to 42 U.S.C. § 1983;” (3) “There are not direct claims against Donna Warden, R.N., which would establish a claim of deliberate indifference and that the only claims against Donna Warden are in her role as Health Services Administrator in responding to grievances;” and (4) “The Complaint fails to allege sufficient facts, which if proven, could support a claim for violation of the Plaintiff's Eighth Amendment Rights by virtue of deliberate indifference on the part of said Defendants to any serious medical condition of Plaintiff.” (Id.)

         Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on October 20, 2017, advising him of the right to file a response to the Defendants' above Motions. (Document No. 98.) On October 30, 2017, Plaintiff filed his Response in Opposition to Defendants Wexford, Lye, and Warden's Motion to Dismiss. (Document No. 99.) Also on October 30, 2017, Plaintiff filed his Surreply to Defendants PrimeCare, Leonburg, and Hatfield's Reply. (Document No. 100.) On November 2, 2017, Plaintiff filed a “Motion to Address All Defendants” setting forth facts and Exhibits in opposition to Defendants' Motion to Dismiss. (Document No. 101.) As an Exhibit, Plaintiff attaches the following: (1) A copy of the “Radiology Report” dated October 21, 2015 (Document No. 101-1, p. 1.); and (2) A copy of Plaintiff's Wexford medical records concerning September 21 and 24, 2015 (Id., p. 2.). On November 21, 2017, Defendants Wexford, Lye, and Warden filed their Reply to Plaintiff's Response in Opposition. (Document No. 115.) On December 12, 2017, counsel filed a “Waiver of Service of Summons” on behalf of David Ballard. (Document No. 135.) On December 18, 2017, Plaintiff filed his Responses in Opposition to Defendants WVDOC and Defendant Ballard's Motions to Dismiss. (Document Nos. 139 and 140.)

         On January 2, 2018, Plaintiff filed his “Motion to Answer All Defendants' Motion to Dismiss.”[3] (Document No. 142.) In the foregoing Motion, Plaintiff continues to argue that Defendants' motions to dismiss should be denied. (Id.) Plaintiff argues that Defendants Hatfield and Leonburg “chose to be deliberately indifferent to the Plaintiff's medical needs” by not making a “professional decision and send the Plaintiff to a qualified doctor.” (Id., p. 2.) Plaintiff states that Defendants Warden, Ballard, and Rubenstein “failed to do any sort of investigation into any of the grievances that Plaintiff's filed.” (Id.) Plaintiff claims that Defendant Lye acted with deliberate indifference by ignoring another doctor's recommendation and his own staff's report as contained in Plaintiff's medical records. (Id., p. 3.) Plaintiff states that Defendant Lye “almost killed the Plaintiff by being deliberately indifferent.” (Id.) Plaintiff states that he has attached exhibits demonstrating Defendants' deliberate indifference to his serious medical needs. (Id.) As Exhibits, Plaintiff attaches the following: (1) A copy of Plaintiff's Wexford medical record from his incarceration at MOCC (Document No. 142-1); (2) A copy of Plaintiff's sick-call requests (Document No. 142-2.); (3) An article from Healthline regarding Empyema (Document No. 142-3.); (4) A copy of Plaintiff's medical records from Charleston Area Medical Center (Document No. 142-4.).

         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 verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no facts or inferences which can be drawn from the circumstances will support Plaintiff's claims, summary judgment is appropriate.

         ANALYSIS

         1. PrimeCare Medical, Leonburg, and Hatfield's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment:

         A. Eighth ...


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