United States District Court, N.D. West Virginia
(Judge
Keeley)
REPORT AND RECOMMENDATION
MICHAEL J. ALOI, UNITED STATES MAGISTRATE JUDGE.
I.
Procedural History
On
November 21, 2016, the pro se Plaintiff, an inmate
incarcerated at Huttonsville Correctional Center
(“HCC”) in Huttonsville, West Virginia, initiated
this case by filing a civil rights complaint against the
above-named defendants pursuant to 42 U.S.C. § 1983,
alleging deliberate indifference to serious medical needs and
medical negligence, arising out of an August 10, 2016 fall
occurred while he was incarcerated at the North Central
Regional Jail (“NCRJ”). ECF No. 1. Plaintiff also
filed a Motion for Leave to Proceed in Forma
Pauperis (“IFP”) with supporting documents.
ECF Nos. 2, 3, & 4. By entered on September 22, 2014,
Plaintiff's IFP motion was granted, and he was directed
to pay an initial partial filing fee (“IPFF”).
ECF No. 6. On December 5, 2016, he paid the IPFF. ECF No. 9.
On
March 2, 2017, Magistrate Judge James E. Seibert conducted a
preliminary review of the complaint; determined that summary
dismissal was not appropriate, and entered an Order to
Answer. ECF No. 10. In that Order, because Plaintiff had
attempted to name unknown “nurse staff” and
“correctional officers” as defendants, Plaintiff
was given an addition thirty days in which to identify these
John/Jane Doe defendants. Id. Summonses were issued
for each named defendant. Id. On March 24, 2017,
Plaintiff filed a combined motion for an extension of time in
which to identify the John and Jane Doe defendants; a motion
for leave to file discovery; and a motion for appointed
counsel. ECF No. 17. On April 3, 2017, the Defendant NCRJ and
the Administrator of the NCRJ filed a Motion to Dismiss with
a memorandum in support. ECF Nos. 18 & 19. The same day,
Defendant Dr. Andrea Huffman filed a Motion to Dismiss and
Alternative Motion for Summary Judgment with a memorandum in
support, attaching certain excerpts from Plaintiff's
medical records. ECF No. 20.
By
Order entered April 5, 2017, Plaintiff's motion for an
extension of time in which to identify the John and Jane Doe
defendants was granted, his motion for discovery was denied
without prejudice as premature; and his motion for appointed
counsel was denied. ECF No. 21. By separate Order, the Clerk
was directed to seal the medical records produced by
Defendant Huffman. ECF No. 22. Because Plaintiff is
proceeding pro se, the Court issued a
Roseboro Notice on April 5, 2017. ECF No. 23. On
April 11, 2017, Plaintiff filed a response in opposition to
Defendants NCRJ and its Administrator, styled as
“Answer to Motion to Dismiss and Memorandum of Law in
Support Thereof.” ECF No. 27. On April 14, 2017,
Plaintiff filed another response in opposition, this one
directed at Defendant Huffman and likewise styled as
“Answer to Motion to Dismiss and Memorandum of Law in
Support Thereof.” ECF No. 28. On April 24, 2017,
Defendants NCRJ and Administrator of NCRJ filed a reply
memorandum, attaching as an exhibit a copy of an April 12,
2017 pleading from Plaintiff, titled “Response to
Motion to Dismiss on Behalf of Defendants North Central
Regional Jail and Administrator at North Central Regional
Jail.”[1] ECF No. 29; see also ECF No. 29
at 7 - 11. On May 1, 2017, Defendant Dr. Huffman filed a
reply memorandum. ECF No. 30. By Order entered January 17,
2018, the Clerk was directed to docket Plaintiff's April
12, 2017 “Response to Motion to Dismiss on Behalf of
Defendants North Central Regional Jail and Administrator at
North Central Regional Jail” separately, to clarify the
docket. ECF No. 32. Thereafter, the Plaintiff's
“Response to Motion to Dismiss on Behalf of Defendants
North Central Regional Jail and Administrator at North
Central Regional Jail” was docketed separately as ECF
No. 33.
Accordingly,
this matter is now ripe for a report and recommendation
pursuant to LR PL P 2.
II.
Contentions of the Parties
A.
The Complaint
In the
complaint, the Plaintiff raises medical malpractice and
deliberate indifference to serious medical needs claims
against the Defendants, arising out of an incident that
occurred on August 10, 2016 when he fell down the stairs at
the NCRJ. ECF No. 1 at 7 - 9. Plaintiff contends he hit his
head, was knocked unconscious for “30 or more seconds,
” but was never assessed for a concussion or head
trauma; hurt his neck, back, hip, leg and knee [id.
at 9], but was made to get up and walk anyway, before any
x-rays were taken to ensure he had not suffered a serious
injury, and he was never taken to an outside hospital for
evaluation. Id. He also contends that the
correctional officers picked him up roughly, causing undue
pain [id. at 9]; and the nurse in charge failed to
direct that a neck brace or backboard be used when moving
him. Id. at 7.
Plaintiff
appears to maintain that he has exhausted his administrative
remedies with regard to these claims. Id. at 5.
Attached to his complaint are an undated hand-written letter
from him to the West Virginia Regional Jail Authority
(“WVRJA”) and the NCRJ [ECF No. 1-1 at 1]; a
September 15, 2016 hand-written letter from him to the NCRJ
administrator [id. at 2]; an undated handwritten
letter from him to the WVRJA and the NCRJ [id. at
3]; an August 25, 2016 hand-written letter from him addressed
to “to whom it may concern” [id. at 4];
an October 14, 2016 hand-written, notarized letter from him
to “Administrator” [id. at 5]; an
October 28, 2016 hand-written letter addressed to
“Administration” [id. at 6]; a November
1, 2016 hand-written letter from him to the Administrator of
the NCRJ. Id. at 7 - 8. All of the letters are on
lined paper; they outline his claims, complaints, and related
issues, and generally indicate his intent to file suit. His
final attached letter, addressed to “Administrator,
” argues that because he was moved and made to stand
before being assessed after the injury, if his injuries had
been more severe “the result . . . would have been
possible . . . [paralyzation], further injury to hip and leg,
blood clot in head, broken neck, and even Death [sic].”
ECF No. 1-1 at 8.
Plaintiff
contends his injuries were that “when CO's [sic]
picked me up I feel [I] injured my hip even more as well as
my back. My knee was twisted the way I was picked up and my
neck was twisted as well.” Id. at 10.
As
relief, Plaintiff seeks Twenty-Five Million Dollars ($25,
000, 000.00) for himself; Five Million ($5, 000, 000.00) for
each of his three children, and an additional Ten Million
Dollars ($10, 000, 000.00) for himself for pain and undue
stress. Id.
B.
Defendants NCRJ and Administrator of NCRJ's Motion to
Dismiss
Defendants
NCRJ and its Administrator contend that Plaintiff's
complaint should be dismissed because 1) it is barred by
their immunity under the Eleventh Amendment; 2) Plaintiff
cannot state a claim against them under § 1983 because
he has not stated a violation of his constitutional rights;
and 3) because Plaintiff has failed to exhaust his
administrative remedies. ECF No. 18.
C.
Defendant Dr. Andrea Huffman's Motion to Dismiss and
Alternative Motion for Summary Judgment
Dr.
Huffman (“Huffman”) argues that the complaint
should be dismissed or summary judgement granted in her favor
because 1) Plaintiff has failed to comply with the Notice of
Claim and Screening Certificate of Merit requirements of the
West Virginia Medical Professional Liability Act
(“MPLA”) and 2) Plaintiff's claims do not
meet the legal threshold for a viable claim under either the
Eighth or Fourteenth Amendment of the United States
Constitution. ECF No. 20 at 1 - 2. In support of her
arguments, she attaches two pages of Plaintiff's medical
records. ECF No. 20-2 and ECF No. 20-3.
D.
Plaintiff's Response to Defendants NCRJ and
Administrator of NCRJ's Motion to Dismiss, styled as
“Answer to Motion to Dismiss and Memorandum of Law in
Support Thereof”
In an
unsigned response that appears to be a partial draft (of the
same document also filed as “Answer to Motion to
Dismiss and Memorandum of Law in Support Thereof” to
Defendant Huffman and docketed there as ECF No. 28, perhaps
filed by Plaintiff in error)[2] Plaintiff reiterates the factual
details of his claims and attempts to refute Defendant
Huffman's arguments on the same. ECF No. 27. As his
response to “Issue 1, ” he argues that he has
stated a cognizable claim under Rule 12(b) and Rule 56.
Id. at 1. He contends that he has a “permanent
hip injury that is debilitating and disabling.”
Id. Further, he contends that regarding the
Defendant's allegation of lack of proper MPLA notice, the
administrative grievances he filed in August and November
2016 should be sufficient notice to serve as a warning of the
impending suit. Id. He challenges factual errors and
inaccuracies in the medical records attached to Dr.
Huffman's memorandum in support of her dispositive
motion, arguing that these inaccuracies will be disproven by
discovery. Id. at 1 - 4. He provides no rebuttal to
any the arguments made in Defendants NCRJ and its
Administrator's motion to dismiss, nor does he attempt to
refute their allegations regarding his failure to
administratively exhaust his claims.
E.
Plaintiff's “Response to Motion to Dismiss on
Behalf of Defendants North Central Regional Jail and
Administrator at North Central Regional
Jail”[3]
In this
response in opposition, Plaintiff reiterates his arguments
and attempts to refute the Defendants' on the same. In
opposition to the Defendants' Eleventh Amendment immunity
argument, he contends that he is suing the Administrator of
the NCRJ in his individual capacity. ECF No. 33 at 7 - 8. He
contends that he has stated a claim under § 1983, and
that he will be able to prove his claims through discovery.
Id. at 8 - 9. Finally, he argues that he filed such
remedies as were available to him at the NCRJ. Id.
at 9.
F.
Plaintiff's Response to Defendant Dr. Andrea
Huffman's Motion to Dismiss and Alternative Motion for
Summary Judgment, styled as “Answer to Motion to
Dismiss and Memorandum of Law in Support
Thereof”
The
first three and one quarter pages of Plaintiff's response
are identical in every respect to Plaintiff's purported
response to Defendants NCRJ and Administrator of NCRJ's
Motion to Dismiss; thereafter, Plaintiff adds a page and a
half of argument regarding motions to dismiss, then contends
that he has stated “sufficient facts to survive a
Motion to Dismiss[.]” ECF No. 28 at 4 - 5. Finally, he
argues that “[r]egardless of the lack of evidence of
paralysis or other permanent injury beyond the hip disability
the plaintiff claims that the negligence and deliberate
indifference of the defendant is a continuing problem for the
inmates under the care of the defendant and to the
State[.]” Id. at 5.
F.
Defendants NCRJ and Administrator of NCRJ's
Reply
Defendants
NCRJ and Administrator's reply first notes that Plaintiff
has filed “multiple responsive pleadings” and
that Plaintiff's “Answer to Motion to Dismiss and
Memorandum of Law in Support Thereof” “deals with
the subject matter of Defendants North Central Regional Jail
and Administrator at North Central Regional Jail's Motion
to Dismiss [sic].” See ECF No. 29 at 1. Next,
they contend that in Plaintiff's response to Defendant
Huffman's dispositive motion, the “first three
pages of the [Plaintiff's] brief addressed Defendants
North Central Regional Jail and Administrator at North
Central Regional Jail [sic], while the remainder of brief was
directed toward Defendant Dr. Huffman's Motion to
Dismiss.” Id. at 1 -2. Further, they state
that “Plaintiff served a Response to Motion to Dismiss
on Behalf of Defendants North Central Regional Jail and
Administrator at North Central Regional Jail via regular U.S.
mail on April 17, 2017” and note that it is attached to
their reply. Id. at 2.
Defendants
note that Plaintiff's response in opposition [now
docketed as ECF No. 33] makes contradictory arguments
regarding the NCRJ Administrator's “personal[] . .
. decision not to send [him] to an outside” hospital,
while also admitting that the Administrator “may or may
not be a valid subject of this lawsuit, ” because as a
pro se filer, Plaintiff was “not sure.”
See ECF No. 29 at 2. They argue that because
Plaintiff has not proven any personal involvement by the
Administrator, nor any causal connection to his alleged
injuries, Plaintiff has not stated a cognizable claim against
the Administrator, because respondeat superior
cannot form the basis of a § 1983 claim. Id. at
2 - 3. Next, Defendants note that Plaintiff has not stated a
cognizable claim of deliberate indifference on the part of
the Defendants because any alleged failure by the
Administrator to act did not result in any potentially
serious injury to Plaintiff. Id. at 3 - 4. Finally,
they reiterate their argument that Plaintiff failed to
exhaust his administrative remedies. Id. at 4 - 5.
G.
Defendant Dr. Andrea Huffman's Reply
Defendant
Huffman reiterates her request for the complaint to be
dismissed or summary judgment entered in her favor,
contending that in Plaintiff's response in opposition,
Plaintiff “has completely changed the factual
allegations of his Complaint and . . . [now] argue][s] that
the medical records submitted in support of Dr. Huffman's
Motion for Summary Judgment were fabricated.” ECF No.
30 at 1. She further notes that Plaintiff now claims for the
first time that he has a permanent, debilitating and
disabling hip injury that was caused by Defendants'
negligence and deliberate indifference, arguing that it is
incredible that Plaintiff's complaint would seek damages
of Forty Million Dollars while omitting any reference to an
actual injury. Id. at 2. Further, she argues,
assuming arguendo that Plaintiff does have an actual
debilitating, disabling permanent hip injury, he still cannot
prove deliberate indifference, given that he was examined,
treated, and received x-rays the day he was injured.
Id. Finally, she notes that Plaintiff's pro
se status does not excuse him from the MPLA's
requirement of a Screening Certificate of Merit. Id.
III.
Standard of Review
A.
Motion to Dismiss
Federal
Rule of Civil Procedure 12(b)(6) provides for dismissal of a
case when a complaint fails to state a claim upon which
relief can be granted. Dismissal under Rule 12(b)(6) is
inappropriate unless it appears beyond doubt that the
plaintiff cannot prove any set of facts to support his or her
allegations. Revene v. Charles County Comm'rs,
882 F.2d 870 (4th Cir. 1989). Courts, however, are not
required to accept conclusory allegations couched as facts
and nothing more when ruling on a motion to dismiss pursuant
to 12(b)(6). A complaint must include “more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.1955,
167 L.Ed.2d 929 (2007). “Factual allegations must be
enough to raise a right to relief above the speculative
level.” Id.
To
survive a motion to dismiss a plaintiff must state a
plausible claim in his complaint that is based on cognizant
legal authority and includes more than conclusory or
speculative factual allegations. “[O]nly a complaint
that states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” because
courts are not bound to accept as true a legal conclusion
couched as a factual allegation. Id.; see also
Nemet Chevrolet, Ltd. v. Comsumeraffairs.com, Inc., 591
F.3d 250 (4th Cir. 2009). “[D]etermining whether a
complaint states a plausible claim is context-specific,
requiring the reviewing court to draw on its experience and
common sense.” Id.
Whether
a complaint is legally sufficient is measured by whether it
meets the standards for a pleading stated in the Federal
Rules of Civil Procedure. See Fed.R.Civ. P 8
(providing general rules of pleading), Fed.R.Civ. P. 9
(providing rules for pleading special matters), Fed.R.Civ. P.
10 (specifying pleading form), Fed.R.Civ. P. 11 (requiring
the signing of a pleading and stating its significance), and
Fed.R.Civ. P. 12(b)(6) (requiring that a complaint state a
claim upon which relief can be granted.) Francis v.
Giacomelli, 588 F.3d 186 (4th Cir. 2009).
Brantner
is representing himself, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251(1976); Haines
v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972)(per curiam); Loe v. Armistead, 582 F.2d 1291
(4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th
Cir. 1978). While pro se pleadings are held to a
less stringent standard than those drafted by attorneys,
Haines, 404 U.S. at 520, even under this less
stringent standard, a pro se complaint is still
subject to dismissal. Id. at 520-21. The mandated
liberal construction means only that if the Court can
reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so. Barnett v.
Hargett, 174 F.3d 1128 (10th Cir. 1999). A court may not
construct the plaintiff's legal arguments for her.
Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Nor
should a court “conjure up questions never squarely
presented.” Beaudett v. City of Hampton, 775
F.2d 1274 (4th Cir. 1985).
Ordinarily,
a court may not consider any documents that are outside of
the complaint, or not expressly incorporated therein, unless
the motion is converted into one for summary judgment.
Alternative Energy, Inc. v. St. Paul Fire and Marine Ins.
Co., 267 F.3d 30 (1st Cir. 2001)(cited with approval in
Witthohn v. Federal Ins. Co., 164 Fed.Appx. 395 (4th
Cir. 2006) (unpublished)). There are, however, exceptions to
the rule that a court may not consider any documents outside
of the complaint. Specifically, a court may consider official
public records, “documents incorporated into the
complaint by reference, and matters of which the court may
take judicial notice, ” or sources “whose
accuracy cannot reasonably be questioned.” Katyle
v. Penn Nat'l Gaming, Inc., 637 F.3d 462 (4th Cir.
2011).
B.
Motion for Summary Judgment
A
moving party is entitled to summary judgment “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c). In applying the standard
for summary judgment, the Court must review all the evidence
“in the light most favorable to the nonmoving
party.” Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The Court must avoid weighing the
evidence or determining the truth and limit its inquiry
solely to a determination of whether genuine issues of
triable fact exist. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
In
Celotex, the Supreme Court held that the moving
party bears the initial burden of informing the Court of the
basis for the motion and of establishing the nonexistence of
genuine issues of fact. Celotex, 477 U.S. at 323.
Once “the moving party has carried its burden under
Rule 56, the opponent must do more than simply show that
there is some metaphysical doubt as to material facts.”
Matsushita, 475 U.S. at 586. The nonmoving party
must present specific facts showing the existence of a
genuine issue for trial. Id. This means that the
party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials of
[the] pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.'
Anderson, 477 U.S. at 256. The “mere existence
of a scintilla of evidence” favoring the nonmoving
party will not prevent the entry of summary judgment.
Id. at 248. Summary judgment is proper only
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving
party.” Matsushita, 475 U.S. at 587.
IV.
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