Brantner v. North Central Regional Jail

          (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.

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