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Pearson v. Panaguiton

United States District Court, S.D. West Virginia, Bluefield

April 27, 2018

CHRISTIAN PEARSON, Plaintiff,
v.
ELIZABETH PANAGUITON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         Pursuant to the Fourth Circuit Court of Appeals' mandate, (ECF No. 71), this court reviews plaintiff's objections to the magistrate judge's Proposed Findings and Recommendation to the extent that plaintiff seeks relief from the United States under the Federal Tort Claims Act, (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq.

         I. BACKGROUND

         A. Procedural Background

         On June 8, 2015, the plaintiff filed his complaint alleging defendants negligently diagnosed and provided insufficient medical treatment for a severe ankle injury he suffered while playing basketball in prison on May 29, 2013. ECF No. 2. Plaintiff sued six (6) prison officials from FCI McDowell and two (2) prison officials from FCI Gilmer, alleging their treatment constituted a violation of the FTCA. Id.[1]

         Magistrate Judge Aboulhosn, pursuant to 28 U.S.C. § 636(b), submitted his Proposed Findings and Recommendation (“PF&R”) on July 26, 2016. ECF No. 44. The PF&R recommended that this court grant defendants' motions to dismiss, (ECF Nos. 23, 35), and dismiss plaintiff's Complaint. Id. After a motion for an extension of time was granted, (ECF No. 46), the defendant timely filed objections to the PF&R. ECF No. 48.

         On September 27, 2016, after reviewing plaintiff's objections, the record, and the PF&R, this court adopted the findings and conclusions of Magistrate Judge Aboulhosn, granted defendants' motions to dismiss, and dismissed plaintiff's complaint. ECF Nos. 50-51.

         Plaintiff timely appealed this court's opinion to the Fourth Circuit Court of Appeals. On October 18, 2017, the Fourth Circuit affirmed in part and vacated in part the holding of this court. See ECF No. 68. Specifically, the Fourth Circuit affirmed this court's opinion with the exception of our dismissal of plaintiff's FTCA claim against the government. Id. To this extent, the case has been remanded for further proceedings.

         B. The PF&R's Findings Related to Plaintiff's FTCA Claim

         Magistrate Judge Aboulhosn concluded that plaintiff's FTCA claim failed to satisfy West Virginia's procedural pre-suit notification hurdles that are generally required to comply with the West Virginia Medical Professional Liability Act, W.Va. Code § 55-7B-1 et seq. (“MPLA”), before filing a negligence claim against health care providers. See ECF No. 44, at pp. 45-46. The PF&R states that plaintiff admits he did not comply with these requirements. Id. Instead, plaintiff alleged that he should not have to comply with these requirements because he (1) filed a Standard Form 95, [2] and (2) fulfilled all of the Bureau of Prisons' requirements to properly exhaust his claim.

         The magistrate judge held that neither argument conforms to the narrow exception provided in West Virginia Code § 55-7B-6(c), which allows claimants to bypass the pre-suit notification process if their claim is based upon a well-established legal theory of liability. Id. In contrast, the PF&R stated that Pearson's claim alleges that defendants' “medical testing and treatment . . . fell below the applicable standard of care” and that defendants “misread the results of his x-ray.” ECF No. 44, at p.49. Accordingly, the nature of Pearson's claim is complex and not based upon a well-established legal theory of liability. Id.

         C. Plaintiff's Objections to the PF&R Related to His FTCA Claim Against the Government

         Plaintiff's objections do not allege his suit conformed to the pre-suit notification requirements of the MPLA, but rather that an exception should be made due to his lack of knowledge of the MPLA's requirements. ECF No. 48 at pp. 16-18. First, Pearson alleges that the Bureau of Prisons' grievance procedure “does not warn of certain prerequisite state rules” such as the MPLA's pre-suit certificate of merit requirement. See id. at 16. Therefore, because Pearson was only aware of the steps necessary to exhaust his claim before the Bureau of Prisons, the MPLA requirements need not be met. See id. at 17. Second, Pearson alleges that he was never given a chance to cure his deficiency in failing to comply with the MPLA's pre-suit requirements, even though plaintiff admits that he is unable to “afford a competent expert in order to meritoriously advance his MPLA claims.” Id.

         II. ...


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