United States District Court, S.D. West Virginia, Charleston
SHAWN P. WINFREE, Plaintiff,
SOUTH CENTRAL REGIONAL JAIL, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY UNITED STATES MAGISTRATE JUDGE
matter is assigned to the Honorable Thomas E. Johnston, Chief
United States District Judge. Pursuant to a Standing Order
(ECF No. 4), this matter was referred to the undersigned
United States Magistrate Judge for submission of proposed
findings and a recommendation for disposition, pursuant to 28
U.S.C. § 636(b)(1)(B). Pending before the court are the
following motions: a Motion to Dismiss filed by defendants
Roop and the South Central Regional Jail (hereinafter
“the Regional Jail Defendants”) (ECF No. 16); a
Motion to Dismiss filed by defendants PrimeCare Medical, Inc.
and Nurse Shawanna (hereinafter “the PrimeCare
Defendants”); and a Motion to Dismiss for Failure to
Prosecute filed by the Regional Jail Defendants (ECF No. 22),
in which the PrimeCare Defendants have moved to join (ECF No.
14, 2016, the plaintiff filed a Complaint (ECF No. 2),
alleging that Officer Roop, a correctional officer at the
South Central Regional Jail (“SCRJ”), and Nurse
Shawanna, an employee of PrimeCare Medical, Inc., the
contracted medical provider at the SCRJ, shared his medical
information with other inmates on his section, after he was
falsely diagnosed with Hepatitis B. (ECF No. 2 at 4-5).
Specifically, the plaintiff alleges that, on June 9, 2016, he
was moved to a lockdown section of the SCRJ per PrimeCare
Medical Inc.'s directive. While housed in the lockdown
section, he asked Officer Roop why he had been placed there,
and Roop allegedly stated that it was because he had tested
positive for Hepatitis B. (Id.) This disclosure was
allegedly overheard by, or made to, an inmate in a nearby
cell, and such disclosure was allegedly repeated by Nurse
Shawanna (who, according to her Motion to Dismiss, is
Shawanna Bradshaw) while she was dispensing medication in
that section. (Id. at 5). The plaintiff further
alleges that these disclosures caused him “issues with
every inmate in the section.” (Id. at 4). The
Complaint seeks the following relief:
I'm asking for compensation for pain & suffering,
mental anguish, deplumation [sic; defamation] of character,
slander. Because I had gotten into fights cause of what these
staff caused me and now have to be housed in a PC section
where I'm in a cell 23 hours a day. And my hippa [sic;
HIPAA] law rights was violated. When I had sent grievances to
the medical administrator and she told me she'd be down
to the section to speak with me over this matter and never
did. And when I had medical have bloodwork and labs re-drawn
they came back negative and the chronic care doctor said I
never had it to begin with and he wasn't the one that
posted the note saying I did or ever had it. So that's
medical mile practice [sic; malpractice] on PrimeCare Medical
staff and for all of the issues they caused me!
(Id. at 5-6).
to the docket sheet, the plaintiff was subsequently
transferred to the Western Regional Jail (“WRJ”).
On April 4, 2017, the undersigned entered an Order granting
the plaintiff's Application to Proceed Without Prepayment
of Fees and Costs and directed that service of process be
attempted on the defendants by certified mail, return receipt
requested, with delivery restricted to the addressee. (ECF
No. 10). However, all of the summonses were signed for by a
“Billy Hinamon.” (ECF Nos. 12-15). On April 21,
2017, the Regional Jail Defendants filed their initial Motion
to Dismiss (ECF No. 16) and a Memorandum of Law in support
thereof (ECF No. 17). On May 1, 2017, the PrimeCare
Defendants filed their initial Motion to Dismiss (ECF No. 19)
and Memorandum of Law in support thereof (ECF No. 20).
noted on the docket sheet, however, on April 27, 2017, the
copy of the undersigned's April 4, 2017 Order that had
been mailed to the plaintiff at the WRJ was returned as
undeliverable, stating “no longer in this
facility.” (ECF No. 18). A search of the inmate
locators on the websites of the West Virginia Regional Jail
and Correctional Facilities Authority and the West Virginia
Division of Corrections was also fruitless, indicating that
the plaintiff was not in the custody of either state agency.
Furthermore, the plaintiff has not provided updated contact
information to the court and defendants as required by Local
Rule 83.3 of the Local Rules of Civil Procedure for the
United States District Court for the Southern District of
West Virginia. Thus, his whereabouts are unknown.
November 14, 2017, the Regional Jail Defendants filed a
second Motion to Dismiss (ECF No. 22) and Memorandum of Law
(ECF No. 23), requesting that the presiding District Judge
dismiss this civil action, pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure, for failure to prosecute
this matter. On November 15, 2017, the PrimeCare Defendants
filed a Motion for Joinder in the Regional Jail
Defendants' Motion to Dismiss for Failure to Prosecute
(ECF No. 24).
This matter should be dismissed for failure to
41(b) of the Federal Rules of Civil Procedure provides for
the dismissal of an action for the plaintiff's failure to
prosecute or to comply with the court's rules or orders.
See Link v. Wabash R. Co., 370 U.S. 626, 629 (1962)
(“The authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure
to prosecute cannot seriously be doubted.”); see
also McCargo v. Hedrick, 545 F.2d 393 (4th
Cir. 1976). However, in determining whether such a harsh
sanction is appropriate, the court must balance the following
factors: (1) the degree of personal responsibility on the
part of the plaintiff; (2) the amount of prejudice to the
defendant caused by the delay in prosecution; (3) the
presence or absence of a history of plaintiff deliberately
proceeding in a dilatory fashion; and (4) the effectiveness
of sanctions less drastic than dismissal. Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978).
the plaintiff's responsibility to notify the court of his
release from custody and to provide updated contact
information, which he failed to do, and he has not
communicated in any way concerning this case for over a year.
Thus, it appears that the plaintiff no longer wishes to
pursue this matter and he is wholly responsible for the
inability of this matter to progress. Additionally, because
the court and the parties have no way of locating the
plaintiff, the defendants are greatly prejudiced in their
ability to defend this matter. Thus, dismissal appears to be
the only appropriate sanction.
the undersigned proposes that the presiding District Judge
FIND that the plaintiff has wholly ...