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Harding v. Rubenstein

United States District Court, N.D. West Virginia

February 1, 2018

SMITTY HARDING, Plaintiff,
v.
JIM RUBENSTEIN, Commissioner of Corrections; KAREN PSZCZOLKOWSKI, Warden, Northern Correctional Facility; CECELIA JANISZEWSKI, Medical Administrator, Northern Correctional Facility; EVELYN SEIFERT, Warden Northern Correctional Facility; JERRY HAHN, M.D., Wexford, Northern Correctional Facility; ALL WEXFORD EMPLOYEES, JOHN and JANE DOE at Northern Correctional Facility from December 1, 2014 to April 30, 2016; DR. EMIL DAMEF, Regional Medical Director at Wexford; DAVID BALLARD, Warden Mt. Olive Correctional Center; ANNA KINCAID, Medical Administrator, Mt. Olive Correctional Complex; PATRICIA PESHKO, Wexford, Mt. Olive Correctional Complex; SANDRA MAY, P.A., Wexford, Mt. Olive Correctional Complex; DR. SUBASH GAJENDRAGADKAR, Wexford, Mt. Olive Correctional Complex; NAOMI ROBERTS, H.S.A., Wexford, Mt. Olive Correctional Complex; KATHY DILLON, A.S.A to Warden Ballard and Grievance Coordinator at Mt. Olive Correctional Complex; RICHARD POLLACK, M.D., Wexford, Mt. Olive Correctional Complex; All WEXFORD EMPLOYEES, JOHN and JANE Doe, at Mt. Olive Correctional Complex from December 1, 2014 to April 30, 2016; ALL PRIME CARE MEDICAL INC. EMPLOYEES, JOHN and JANE DOE, at Northern Correctional Facility from December 1, 2014 to April 30, 2016; DEBBIE HISSOM, Healthcare Director, W.Va. Division of Corrections, Defendants.

          Keeley, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT, UNITED STATES MAGISTRATE JUDGE

         I. Procedural History

         Smitty Harding (“Plaintiff”), an inmate currently incarcerated at St. Marys Correctional Center (“SMCC”) in St. Marys, West Virginia, initiated this pro se case on August 19, 2016, by filing a civil rights complaint pursuant to 42 U.S.C. §1983 against the above-named defendants. ECF No.1. On August 22, 2016, Plaintiff was granted leave to proceed in forma pauperis. ECF No. 8. On October 3, 2016, he paid his required initial partial filing fee. ECF No. 15. On March 3, 2016, United States Magistrate Judge Michael J. Aloi conducted a preliminary review of the complaint and determined that summary dismissal was not appropriate. ECF No. 26 at 2. Accordingly, an to Answer was entered and summonses were issued for the named Defendants other than the John and Jane Does.

         On April 7, 2017, David Ballard, Kathy Dillon, Debbie Hissom, Karen Pszczolkowski, Jim Rubenstein, and Evelyn Seifert filed a Motion to Dismiss for Failure to State a Claim. ECF No. 31. Because Plaintiff is proceeding pro se, the Court issued a Roseboro Notice on April 10, 2017. ECF No. 33. On April 13, 2017, Emil Damef, Kim Lauder, Patricia Peshko, Rashid and Naomi Roberts filed a Motion for Summary Judgment. ECF No. 36. On April 13, 2017, Emil Damef, Subash Gajendragadkar, Anna Kinkaid, Kim Lauder, Sandra May, Patricia Peshko, Dr. Rashid and Naomi Roberts filed a Motion to Dismiss for Failure to State a Claim. ECF No. 38. A Roseboro Notice was issued on April 17, 2017. On May 15, 2017, Jerry Hahn and Cecelia Janiszewski filed a Motion to Dismiss for Failure to State a Claim. ECF No. 50. A Roseboro Notice was issued on May 16, 2017. ECF No. 52. On April 21, 2017, Plaintiff filed his Response to the Motion to Dismiss filed by Rubenstein, Pszczolkowski, Seifert, Ballard, Dillon and Hissom. ECF No. 43. He has not filed any response to the Motions filed by the other Defendants.

         This case is before the undersigned[1] for a Report and Recommendation on Defendants' dispositive motions.

         II. Relevant Facts[2]

         Plaintiff is 67 years old and is serving a sentence imposed by the Circuit Court of Raleigh County on December 22, 1987. He entered into the custody of the West Virginia Division of Corrections (“WVDOC”) on January 28, 1988. See the offender search application at wvdoc.com. From April 10, 2014, through July 8, 2015, he was housed at the Northern Correctional Facility (“NCF”). From July 8, 2015, through April 29, 2016, he was housed at Mount Olive Correctional Center (“MOCC”). Since April 29, 2016, he has been housed at SMCC.[3]

         Plaintiff is a diabetic as noted in his complaint and in medical records attached to the Memorandum of Law in support of the motion to dismiss filed by Defendants Cecelia Janiszewski and Jerry Hahn. ECF No. 51-1, 51-2. He suffers from peripheral neuropathy.[4] ECF No. 51-1.

         In the first grievance attached to his complaint, he provides more information regarding the history of his injury and his treatment at NCF and MOCC. The first grievance is dated July 13, 2016, and was prepared at SMCC, a little more than two months after he was transferred from MOCC to SMCC. ECF No. 1-1. Plaintiff indicates that on December 7, 2014, he went to take a shower, and when he got in the shower and sat in the metal chair for the handicapped[5], it flipped up in the air and came down on his right big toe. He indicates that the medical care he received was only cream and a band-aid. He further indicates that he was supposed to receive this treatment twice a day, every day until healed, but he only received medical care once a day, every other day. He also indicates that this treatment went on like that with all the medical staff employed at NCF, until April 7, 2015, when he was sent to see a foot specialist named Dr. Le[6]. Plaintiff indicates that Dr. Le told him he was going to try to save his foot, but he was going to lose his big toe. He indicates that he was sent to Ohio Valley Medical Center, where he was administered numerous tests. He maintains that he was told that his right big toe would have to be amputated because it was filled with gangrene from a lack of treatment. Plaintiff also indicates that he was told by a different foot specialist, Dr. Joseph Goodwin, that he wanted to try him on a Ryback Machine[7] to remove the infection from the rest of his foot. He indicates he was sent to MOCC and admitted to the medical ward and was to receive two treatments a day until the infection was gone. However, after two weeks of treatment, Plaintiff complains that employees working for Wexford discontinued his treatments due to lack of funds and the cost of treatment. He was then sent to the hospital to undergo surgery on his right foot due to gangrene. He indicates that in July of 2015, he lost the other four toes on his right foot. He remained in the hospital, and shortly thereafter, his right leg was amputated from the knee down. He indicates that he was kept in the hospital until August of 2015. ECF No. 1-1 at 2.

         The medical records supplied by Defendants Cecelia Janiszewski, R.N. and Jerry Hahn, M.D., in support of their Motion to Dismiss, establish that Plaintiff was first seen for his toe injury on January 20, 2015, when a mid-level practitioner was called to an interview room to evaluate his injured toe. The toe was edematous. The skin surrounding the nailbed was white and macerated. The top side of the toe had a 1” circular ulcer with a dark center. Plaintiff was assessed to have a diabetic ulcer status post trauma. He was given a tetanus shot, Augmentin 875 twice daily for ten days, and the wound was to be dressed twice daily with Bactrim. ECF No. 51-1. Plaintiff was seen by Dr. Le, a podiatrist, on January 31, 2015, at NCF. ECF No. 51-2 at 13. On March 4, 2015, a wound culture report was faxed to Dr. Le for review. The report was discussed with Dr. Le and antibiotics were changed to Cipro 500 mg, twice daily for two weeks for appropriate coverage of a new diagnosis of MRSA. ECF No. 51-2 at 7. On March 10, 2016, Plaintiff was transported to Ohio Valley Medical Center for a Doppler test, and the results were faxed to Dr. Le. Id. On March 12, 2015, after reviewing the results, Dr. Le recommended that Plaintiff see a vascular surgeon. A consult request was completed and submitted. ECF No. 51-2 at 6. On March 19, 2015, medical staff at NCF called the Office of Dr. Khoury, a vascular surgeon, to make an appointment and noted that they were waiting for an answer. Id.

         On March 19, 2015, Plaintiff was brought to medical for a dressing change to his right great toe. The bandage that was removed was saturated in yellowish green drainage with a foul odor. The nail bed was loose and yellow/green in color. Plaintiff assessed his pain as 10/10 on pain scale and described it as a constant throbbing. Dr. Le was called, and he indicated that he would be in that night to take off the toenail. Id. However, later that day, Dr. Le called to say he had the flu and would be in on Saturday[8] at 9:00 a.m. Id. On March 23, 2015, Plaintiff was brought to medical for a dressing change to the right great toe. The medical notes indicate that no toenail was present.51-2 at 5. However, there is no indication from the records whether if fell off spontaneously, or whether Dr. Le had removed it. On April 3, 2015, Plaintiff was seen by Dr. Khoury, who recommended that he have an arterlogram. ECF No. 51-2 at 3.

         On April 3, 2015, Plaintiff was brought to medical for a dressing change. The medical note indicates that the old dressing had yellow, brownish drainage with a foul odor present. There was an open ulcer under the toe which was black. The toe itself was yellow and mushy. It was warm and red to the touch. ECF No. 51-2 at 2. On April 4, 2015, the dressing to the right great toe was changed. Plaintiff's toe and foot were noted to be swollen. The toe was red and necrotic with a very foul odor and a small amount of yellow bloody drainage. Id. On April 5, 2015, the dressing was changed to his right great toe. It was again noted to be necrotic with a foul odor. The base of his right foot was red, swollen and hot to touch. The old dressing was removed and contained moderate amount of brownish drainage. Plaintiff stated the pain was unbearable and also stated that he had not eaten in three days. He was offered pain medication as ordered. However, he continued to refuse all medications. Id. On April 10, 2015, the medical notes indicate that Plaintiff arrived back to the facility, status post amputation to his right great toe. Plaintiff denied any pain or discomfort at the time. The dressing on his right foot remained dry and intact. The dressing was to be changed once a day and had been changed earlier that day. Id. The medical notes indicate that Plaintiff remained in the medical unit until at least the following day. Id. The final medical note[9] attached to Defendants' Memorandum is dated April 13, 2015 and indicates that the dressing to his right great toe was changed, and he denied any pain or discomfort. Id.

         II. Contentions of the Parties

         A. The Complaint

         Briefly summarized, Plaintiff alleges that he is a diabetic, and between the dates of December 1, 2014, to around April 30, 2016, he was denied proper and adequate medical care which resulted in the amputation of his right leg from the knee down. Plaintiff further alleges that he repeatedly sought medical attention for his foot pain, but the medical staff at the prisons did not timely diagnose or treat the infection. He also alleges that although he was transferred to private hospitals for intravenous antibiotic treatment, the lack of professional medical care delayed effective treatment resulting in gangrene, and the eventual amputation of his lower right leg.

         For relief, Plaintiff requests that the Court award him what damages it feels are due him for the violation of his constitutional rights as well as statutory rights that have resulted in past, present and future pain and suffering. Plaintiff also asks that this action, pursuant to 42 U.S.C. § 1983, be joined with his Federal Tort Claims Act (“FTCA”) to further the availability of damages.[10] Plaintiff also requests that an injunction be issued ordering Wexford Medical Source Inc., or their agents, to fix and/or replace the prosthetic made for his right leg that does not fit properly and immediately arrange for physical therapy or other followup medical treatment with a medical practitioner with expertise in the treatment, restoration and function of a double amputee[11]. Finally, Plaintiff asks to be reimbursed for all filing fees and costs incurred during these proceedings.

         B. Motion to Dismiss by Jim Rubenstein, Karen Pszczolkowski, Evelyn Seifert, David Ballard, Katherine Dillion and Debbie Hissom

         First, these Defendants argue that Evelyn Seifert should be dismissed from this matter because there are no allegations asserted against her in the complaint. With respect to Jim Rubenstein, Karen Pszczolkowski, David Ballard, Katherine Dillion and Debbie Hissom, these Defendants maintain that every single allegation asserted by Plaintiff in his complaint is simply a conclusory legal allegation unsupported by facts. Defendants maintain that Plaintiff fails to identify the dates of his alleged improper care, the specific or general actions by Defendants that give rise to his alleged injury, and/or how any of these Defendants would know that Plaintiff was allegedly not receiving proper care while in the hands of professionals. Accordingly, these Defendants seek dismissal pursuant to Rule 8 of the Federal and West Virginia Rules of Civil Procedure. In the alternative, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure these Defendants move for a more definite statement that specifies the claims he asserts as to each defendant.

         C. Plaintiff's Response

         In response, Plaintiff acknowledges that he made no claims against Evelyn Seifert in the body of the complaint and then notes that the claim he makes against her is willful negligence and deliberate indifference to his serious medical needs through willful disregard. In addition, Plaintiff maintains that while the claims he made throughout his complaint appear identical, the “clarity of the claims will become more sharp throughout the Discovery process.” ECF No. 43 at 1. Finally, Plaintiff contends that the Defendants are attempting to gain discovery without express leave of the court.

         D. Motion for Summary Judgment by Emil Damef, Kim Lauder, Patricia Peshko, Dr. Rashid, Naomi Roberts

         These Defendants move the Court for Summary Judgment in their favor and against Plaintiff because none of them worked at either the Northern Correctional Facility (“NCF”) or Mount Olive Correctional Center (“MOCC”) at any time during the time frame specified by Plaintiff. In addition, these Defendants allege that they were not involved in Plaintiff's medical treatment during the time period alleged in the complaint.

         E. Motion to Dismiss for Failure to State a Claim by Anna Kinkaid, Sandra May and Dr. Subash Gajendragadkar.

         In support of their Motion to Dismiss, these Defendants allege that the Complaint fails to state claim against them upon which relief can be granted because the Complaint contains insufficient factual allegations to support a claim for deliberate indifference, medical malpractice or any other claims of negligence. In addition, these Defendants move the Court to dismiss all claims of medical malpractice asserted by Plaintiff because he failed to comply with the West Virginia Medical Professional Liability Act and to allege the necessary elements of proof as required by West Virginia Code § 55-7B-3.

         F. Motion to Dismiss by Cecelia Janiszewski, R.N. and Jerry Hahn, M.D.

         In support of their Motion to Dismiss, Defendants allege that Plaintiff's Complaint should be dismissed pursuant to Rule 12(b)(c). Defendants also allege that Plaintiff's claim must be dismissed because he failed to exhaust his administrative remedies. In addition, Defendants allege that Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit requirements of the MLPA. Finally, Defendants contend that Plaintiff's claims do not meet the legal threshold for a viable Eight Amendment claim.

         III. Standard of Review

         A. Motion to Dismiss

         Federal Rule of Civil Procedure 12(b)(6) permits 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 (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 (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). See Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009).

         Plaintiff is proceeding pro se and therefore the Court is required to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-1 (1972) (per curiam); Erikson v. Pardus, 551 U.S. 89, 94 (2007); 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). However, 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 ...


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