United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
81] AND DISMISSING § 1983 COMPLAINT WITH PREJUDICE [DKT.
M. KEELEY UNITED STATES DISTRICT JUDGE
August 19, 2016, the pro se plaintiff, Smitty
Harding (“Harding”), filed this complaint
pursuant to 42 U.S.C. § 1983, naming numerous defendants
connected to the three West Virginia Department of
Corrections locations at which he has been incarcerated (Dkt.
No. 1). Liberally construed, Harding's complaint alleges
that the defendants were negligent and engaged in medical
malpractice or acted in violation of his Eighth Amendment
rights by failing to timely diagnose or treat an infection in
his right foot. He alleges that such negligence ultimately
resulted in the amputation of his lower leg (Dkt. No. 11).
Pursuant to 28 U.S.C. § 636 and the local rules, the
Court referred the complaint to the Honorable Michael J.
Aloi, United States Magistrate Judge, for initial review.
Jim Rubenstein, Karen Pszczolkowski, Evelyn Seifert, David
Ballard, Katherine Dillon, and Debbie Hissom moved to dismiss
Harding's complaint on April 7, 2017 (Dkt. No. 31). On
April 13, 2017, defendants Emil Damef, Kim Lauder, Patricia
Peshko, Humayum Rashid, Naomi Roberts, Anna Kincaid, Subash
Gajendragadkar, and Sandra May moved to dismiss the complaint
or for summary judgment (Dkt. Nos. 36; 38). Defendants Jerry
Hahn and Cecelia Janiszewski later moved to dismiss the
complaint on May 15, 2017 (Dkt. No. 50). Despite receiving a
Roseboro notice with regard to each motion, Harding
only responded to the motion filed by defendants Jim
Rubenstein, Karen Pszczolkowski, Evelyn Seifert, David
Ballard, Katherine Dillon, and Debbie Hissom (Dkt. No. 43).
September 15, 2017, the case referral was reassigned to the
Honorable James E. Seibert, United States Magistrate Judge.
In a Report and Recommendation (“R&R”)
entered on February 1, 2018, Magistrate Judge Seibert
recommended that the Court grant the defendants' motions
and dismiss Harding's complaint with prejudice (Dkt. No.
81). First, he reasoned that Harding had failed sufficiently
to allege personal involvement on the part of supervisory
defendants Jim Rubenstein, Karen Pszczolkowski, Evelyn
Seifert, David Ballard, Katherin Dillon, and Debbie Hissom.
Id. at 16-20. Second, the R&R concluded that
defendants Emil Damef, Patricia Peshko, Humayum Rashid, Kim
Lauder, Naomi Roberts, and Richard Pollack were not employed
at the facilities in question during the relevant time
period. Id. at 20-22. As to the remaining defendants
- Anna Kinkaid, Sandra May, Subash Gajendragadkar, Cecelia
Janiszewski, and Jerry Hahn - Magistrate Judge Seibert
concluded that Harding's complaint failed to state a
claim for deliberate indifference, and that Harding had not
complied with the pre-suit requirements for bringing a
medical malpractice claim under West Virginia law.
Id. at 22-28.
R&R also informed Harding of his right to file
“written objections identifying those portions of the
recommendation to which objection is made and the basis for
such objections.” Id. at 28-29. It further
warned that the failure to do so may result in waiver of the
right to appeal. Id. at 29. On February 16, 2018,
Harding moved for a 21-day extension in which to file any
objections, citing “the complexity of the issues
involved.” Finding good cause, the Court granted the
motion in part and directed Harding to file any objections by
March 9, 2018 (Dkt. No. 84).
March 12, 2018, the Court received Harding's second
motion for an extension of time to file objections. Harding
contends that further time is necessary due to problems with
the law library at St. Mary's Correctional Center, as
well as “the complexity of the issues involved”
(Dkt. No. 87). Good cause does not support Harding's
second request for an extension. Since he received the
R&R, Harding has filed three motions (Dkt. Nos. 83; 86;
87), but no objections. Further, the Court has already
provided Harding with 28 days from his receipt of the
R&R, twice the amount of time provided for under the
statute. The Court thus DENIES Harding's
second motion for an extension (Dkt. No. 87).
pending is Harding's perfunctory motion to amend his
complaint (Dkt. No. 86). The rules require the Court freely
to give leave to amend “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Although the grant or
denial of a motion to amend is within the discretion of the
Court, Scott v. Family Dollar Stores, Inc., 733 F.3d
105, 121 (4th Cir. 2013), the Fourth Circuit has interpreted
Rule 15(a)(2) to require that “leave to amend a
pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would have
been futile.” Johnson v. Oroweat Foods Co.,
785 F.2d 503, 509 (4th Cir. 1986) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
one-page motion for leave to amend, however, is insufficient
to warrant such an analysis. First, Harding did not attach
“a signed copy of the proposed amended pleading”
as required by the local rules. LR Civ P 15.01. The failure
to comply with this requirement alone justifies denying the
motion. United States ex rel. Rostholder v. Omnicare,
Inc., 745 F.3d 694, 703 (4th Cir. 2014). Moreover,
Harding's motion does not provide any details regarding
the substance of his proposed amendment other than that it
will relate to “Legitimate Claims” and “the
Correction of suing of the proper Defendant's
[sic]” (Dkt. No. 86 at 1). Although the Court must
“freely give leave” to amend, the liberal policy
of amendment simply does not apply to cursory and
“throwaway” requests. See Kuyat v. BioMimetic
Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014).
Therefore, the Court DENIES Harding's
motion to amend his complaint (Dkt. No. 86).
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). On the other hand, “the Court may adopt,
without explanation, any of the magistrate judge's
recommendations to which the prisoner does not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been
made unless they are “clearly erroneous.” See
Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
no party has objected, the Court is under no obligation to
conduct a de novo review of the R&R.
Dellacirprete, 479 F.Supp.2d at 603-04. Upon review
of the R&R and the record for clear error, the Court:
1) ADOPTS the R&R (Dkt. No. 81);
2) GRANTS the motion to dismiss filed by
defendants Jim Rubenstein, Karen Pszczolkowski, Evelyn
Seifert, David Ballard, Katherine Dillon, and Debbie Hissom
(Dkt. No. 31);
3) GRANTS the motion for summary judgment
filed by defendants Emil Damef, Kim Lauder, Patricia Peshko,
Humayum Rashid, and Naomi Roberts (Dkt. No. 36);
4) GRANTS the motion to dismiss filed by
defendants Emil Damef, Anna Kincaid, Patricia Peshko, Humayum
Rashid, Subash Gajendragadkar, Sandra May, Kim Lauder, and