United States District Court, S.D. West Virginia, Bluefield
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge.
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.
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.
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.
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.
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.
The PF&R's Findings Related to Plaintiff's FTCA
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) fulfilled all of the Bureau of Prisons' requirements
to properly exhaust his claim.
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.
Plaintiff's Objections to the PF&R Related to His
FTCA Claim Against the Government
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.