United States District Court, N.D. West Virginia, Elkins
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
27, 2015, Donald Estepp (“Plaintiff”), a state
prisoner, filed the instant pro se Complaint under 42 U.S.C.
§ 1983, asserting various claims against the above named
defendants in their individual and personal capacities.
Because Plaintiff's Complaint fails to state a claim upon
which relief can be granted, the undersigned recommends that
Plaintiff's Complaint be dismissed with prejudice.
construed, Plaintiff's Complaint sets forth two allegations:
First, Plaintiff claims that Sgt. McKeen (“Defendant
McKeen”) and CO II Hummel (“Defendant
Hummel”) violated Plaintiff's Eighth Amendment
rights by delaying Plaintiff's treatment for a serious
medical condition. Complaint, ECF No. 1 at 7-8. Second,
Plaintiff claims that Warden Karen Psycolkowski (“the
Warden”) violated Plaintiff's Eighth Amendment
rights by negligently and intelligently understaffing the
Northern Correctional Facility, which caused the delay in
Plaintiff's medical treatment. Id. at 8. Because
of this delay, Plaintiff claims he has suffered severe pain,
blood loss, physical disability, and physical and emotional
scars. Id. at 9. He has also endured several medical
procedures and treatments and must take long-term medication.
Id. In relief, Plaintiff requests proper medical
attention, medical expenses, attorneys' fees, and
monetary and punitive damages. Id.
undersigned addresses each claim, in turn, below.
28 U.S.C. § 1915A, courts are required to review
“a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.” 28 U.S.C. §
1915A(a). When conducting said review, the court “must
identify ‘cognizable claims or dismiss the complaint,
or any portion [thereof, that] is frivolous, malicious, or
fails to state a claim upon which relief may be
granted.'” McLean v. United States, 566
F.3d 391, 394 (4th Cir. 2009) (alteration in original)
(quoting 28 U.S.C. § 1915A(b)(1)); see also Brown v.
Brock, 632 Fed. App'x 744, 746 (4th Cir. 2015)
(“[A] prisoner's complaint seeking redress from the
Government that is frivolous, malicious, or fails to state a
claim may be dismissed sua sponte.”).
complaint is frivolous if it “lacks an arguable basis
either in law or fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). “Even when a complaint is not
frivolous, however, it is subject to dismissal under §
1915A when it fails to state a claim upon which relief can be
granted.” Massey v. Wriston, No.
2:13-cv-08842, 2016 WL 5172811, at *3 (S.D. W.Va. Sept. 21,
2016); see also 28 U.S.C. § 1915A(b)(1).
“In making this determination, courts employ the same
standard that is used when reviewing a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.” Massey v. Wriston, 2016 WL
5172811, at *3 (citing De'lonta v. Johnson, 708
F.3d 520, 524 (4th Cir. 2013); Richards v. Jones, 31
F.Supp.3d 630, 633 (D. Del. 2014)). Therefore,
“[d]ismissal is proper only if the plaintiff has failed
to ‘present factual allegations that state a claim to
relief that is plausible on its face.'” Jehovah
v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (quoting
Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir.
plausibility standard requires only that the complaint's
factual allegations ‘be enough to raise a right to
relief above the speculative level.'” Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.
2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “Where, as here, a pro se complaint
raises civil rights issues, liberal construction of the
pleadings is ‘particularly appropriate.'”
Massey v. Wriston, 2016 WL 5172811, at *3 (quoting
Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009)).
Plaintiff is a prisoner seeking redress from an officer or
employee of a governmental entity, the Court must review the
Complaint to determine whether it is frivolous, malicious, or
fails to state a claim upon which relief can be granted. 28
U.S.C. § 1915A. For the reasons that follow, the
undersigned concludes that Plaintiff's Complaint does not
plausibly claim that his constitutional rights were violated
and should be dismissed.
Plaintiff's Complaint Fails to State a Claim Upon Which
Relief Can be Granted
Defendant McKeen ...