United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT, UNITED STATES MAGISTRATE JUDGE
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.
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
case is before the undersigned for a Report and Recommendation
on Defendants' dispositive motions.
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.
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. ECF No. 51-1.
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, 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. 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 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.
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.
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 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.
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 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
Contentions of the Parties
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.
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. 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. Finally, Plaintiff asks to be
reimbursed for all filing fees and costs incurred during
Motion to Dismiss by Jim Rubenstein, Karen Pszczolkowski,
Evelyn Seifert, David Ballard, Katherine Dillion and Debbie
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.
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.
Motion for Summary Judgment by Emil Damef, Kim Lauder,
Patricia Peshko, Dr. Rashid, Naomi Roberts
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.
Motion to Dismiss for Failure to State a Claim by Anna
Kinkaid, Sandra May and Dr. Subash
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
Motion to Dismiss by Cecelia Janiszewski, R.N. and Jerry
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
Standard of Review
Motion to Dismiss
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.
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.
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).
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).
Motion for Summary Judgment
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 ...