United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
Standing Order, this action was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of findings
and recommendations regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B). Magistrate Judge VanDervort
submitted to the court his Proposed Findings and
Recommendations ("PF&R) on January 26, 2017, in
which he recommended that the court grant defendants'
motion to dismiss. Plaintiff filed objections to that
PF&R. By Memorandum Opinion and Order entered on July 21,
2017, the court sustained plaintiff's objections insofar
as she argued that the court should order service by the U.S.
Marshal and asked for further consideration of her claims
against Gee and Stultz. To that end, the court ordered the
matter recommitted to Magistrate Judge Aboulhosn for
consideration of those two issues. Plaintiff's objections
were overruled in all other respects and defendants'
motion to dismiss was granted in part and denied in part.
Judge Aboulhosn submitted his second PF&R to the court on
July 31, 2017, in which he recommended that the court grant
defendants' motion to dismiss in all remaining aspects.
Plaintiff filed objections on August 15, 2017,  and defendants
responded to those objections on August 22, 2017.
accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days plus three mailing
days in which to file any objections to Magistrate Judge
Aboulhosn's Findings and Recommendations. The failure of
any party to file such objections within the time allowed
constitutes a waiver of such party's right to a de
novo review by this court. Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989). It is worth noting that this
court need not conduct a de novo review when a party
“makes general and conclusory objections that do not
direct the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). With respect
to plaintiff's objections, where appropriate, the court
has conducted a de novo review.
complaint arises out of defendants' part in submitting a
certain document, an OIC-WC-1, to the West Virginia
Workers' Compensation Bureau. According to plaintiff, she
became suicidal and, on or about March 27, 2015, she was
admitted to the Princeton Community Hospital, Behavioral
Health Pavilion (“BHP”), for approximately seven
days. See ECF No. 2 at p.2. While a patient,
plaintiff was under the care of Anita Waid. See Id.
Upon admission to the BHP, plaintiff alleges that she filled
out an OIC-WCI for Worker's Compensation. Thereafter, on
or about April 3, 2015, Jenny Stultz, a receptionist, brought
plaintiff a second OIC-WCI, explaining that the first one was
destroyed because it had been signed by Anita Waid who would
not be working there much longer. See id. at p.3.
According to plaintiff, Stultz told her that Dr. Kerry Musick
needed to be the one to sign the form. See id.
Stultz allegedly also told Perkins “so you're going
to sue your Employer.” Id. The second form was
signed by Dr. Musick who, according to plaintiff, never
examined or treated her. See id.
alleges that the second OCI-WCI and her discharge summary
were “replete with false and misleading
assertions.” that caused her claim for workers'
compensation benefits to be denied. Id. After
plaintiff complained, on or about October 19, 2015, Dr.
Musick submitted an addendum to the discharge summary
retracting the assertions that plaintiff had tested positive
for cocaine on a drug screen and that she had admitted to
cocaine use approximately one week prior to admission.
See id. at p.4. On or about March 2016, Dr. Jeffrey
T. Gee, the medical director at BHP, issued another addendum
which, in essence, stated that the discharge summary
overstated her issues with alcohol abuse. See ECF
as defendants in this lawsuit are: Princeton Community
Hospital, Behavioral Health Pavillion, Dr. Musick, Anita
Waid, Dr. Gee, and Jenny Stultz. Plaintiff asserted the
following claims or causes of actions against defendants:
1. Violation of her civil rights under the Eighth Amendment
to the U.S. Constitution, having been subjected to cruel and
2. Violation of her civil rights to due process and equal
protection under the Fourteenth Amendment;
3. Libel, slander, and defamation of character;
4. Intentional infliction of emotional distress;
5. Medical malpractice;
7. Deliberate indifference to her serious ...