United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.
initiated this action on November 30, 2015, by filing a
complaint pursuant to Bivens v. Six Unknown Named Agents
of the Bureau of Narcotics, 403 U.S. 388 (1971), a case
in which the Supreme Court created a counterpart to 42 U.S.C.
§ 1983 and authorized suits against federal employees in
their individual capacities. ECF No. 1. On December 1, 2015,
Plaintiff was granted leave to proceed in forma
pauperis [ECF No. 6], and on December 28, 2015, he paid
the required initial partial filing fee. ECF No. 10. On
November 28, 2016, Plaintiff was directed to re-file his
complaint on the court approved form in conformity with the
Local Rules of Prisoner Litigation. ECF No. 22. On December
12, 2016, Plaintiff complied with that [ECF No. 26], and on
March 13, 2017, an Order to Answer was entered. ECF No. 27.
After multiple extensions of time were granted, Defendants
filed a Motion to Dismiss, or alternatively, for Summary
Judgment on August 31, 2017. ECF No. 48. A Roseboro Notice
was issued on September 5, 2017 [ECF No. 53], and on October
6, 2017, Plaintiff filed a response. ECF No. 60. This case is
before the undersigned for a Report and Recommendation on
Defendants' dispositive motions.
of the Parties
complaint, Plaintiff alleges that on May 20, 2014, he fell
from his upper bunk at FCI Gilmer. Plaintiff further alleges
than an x-ray taken the next day revealed a fracture of his
collarbone. Plaintiff maintains that a contract orthopedist
determined that he would need surgery within two weeks.
However, Plaintiff also maintains that he was not examined by
the orthopedist until July 7, 2014. Plaintiff alleges that by
then, the fracture had begun healing on its own. Plaintiff
continues his complaint by noting that at the time he filed
his court approved complaint in 2016, he still had not been
provided the recommended surgery, and he continues to suffer
severe pain because his collarbone has “self
-healed” incorrectly. Plaintiff alleges that as a
result of Defendants' deliberate indifference, he has
been rendered incapable of performing certain tasks and
anything requiring physical exertion is impossible. For
relief, he seek punitive, exemplary and compensatory damages
in the amount of $2, 000, 000 as well as injunctive relief to
include retraining of all medical staff involved and a
prohibition against the Bureau of Prisons returning him to
Motion to Dismiss or, in the Alternative, for Summary
their motion to dismiss or, in the alternative for summary
judgment, Defendants allege that the complaint is
procedurally barred because Plaintiff has failed to exhaust
all available administrative remedies. In the alternative,
Defendants allege the complaint is without merit because
Plaintiff has failed to show that Defendants have violated
the Eighth Amendment to the United States Constitution. Also
in the alternative, Defendants allege that the complaint
fails to present any cognizable constitutional violation, and
therefore, they are immune from Bivens liability.
Finally, Defendants maintain that Plaintiff's request for
injunctive relief is not cognizable in the context of a
Bivens law suit, nor has he established that he is
entitled to injunctive relief.
Plaintiff's Response to the Motion
response to Defendants' motion, Plaintiff contends he
fully exhausted his administrative grievances prior to filing
this action. More specifically, Plaintiff maintains that the
affidavit attached to his complaint establishes that he
completed the grievance process when he filed his BP-11 in a
timely manner, and after receiving no response within 60
days, he was permitted to consider the grievance denied.
Therefore, Plaintiff argues that his case is not subject to
dismissal for failure to exhaust administrative grievances.
Plaintiff also argues that Defendant Weaver was aware from
prior falls that the institution was not safe, yet failed to
correct the deficiencies which resulted in his fall and
injury. In addition, Plaintiff contends that he has shown how
each Defendant is personally responsible for his fall and the
failure to render adequate medical care. He also maintains
that re ipsa loquitur applies in this matter because
“[i]t is common knowledge, by any layman as well as by
medical professional, that surgery following a broken
collarbone is standard procedure.” ECF No. 60 at 10.
In summary, Plaintiff asserts that there are material issues
of fact that are in dispute, and therefore, Defendants'
Motion to Dismiss cannot withstand scrutiny. Furthermore,
Plaintiff maintains that the Motion for Summary Judgment does
not fit well because there has been no discovery yet.
Motion to Dismiss
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citing
5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In considering a
motion to dismiss for failure to state a claim, a
plaintiff's well-pleaded allegations are taken as true
and the complaint is viewed in the light most favorable to
the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir.1993); See Also Martin at 952.
Federal Rules of Civil Procedure “require only ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief,' in order to ‘give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have
cited the “rule that a complaint should not be
dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of [a] claim which would entitle him to
relief.” Conley at 45-46. In Twombly,
the United States Supreme Court noted that a complaint need
not assert “detailed factual allegations, ” but
must contain more than labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly at 554-55. Therefore, in
order for a complaint to survive dismissal for failure to
state a claim, the plaintiff must “allege facts
sufficient to state all the elements of [his or] her
claim.” Bass v. E.I. DuPont de Nemours
& Co., 324 F.3d 761, 765 (4th Cir.2003). In so
doing, the complaint must meet a “plausibility”
standard, instituted by the Supreme Court in Ashcroft v.
Iqbal, where it held that a “claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Thus, a well-pleaded complaint must offer more than “a
sheer possibility that a defendant has acted
unlawfully” in order to meet the plausibility standard
and survive dismissal for failure to state a claim.
is proceeding pro se and therefore the Court is
required to liberally construe his pleadings. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520-1 (1972) (per curiam);
Erikson v. Pardus, 551 U.S. 89, 94 (2007); Loe
v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon
v. Leeke, 574 F.2d 1147 (4th Cir. 1978). While pro
se pleadings are held to a less stringent standard than
those drafted by attorneys, Haines, 404 U.S. at 520,
even under this less stringent standard, a pro se
complaint is still subject to dismissal. Id. at
520-21. The mandated liberal construction means only that if
the Court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999).
However, a court may not construct the plaintiff's legal
arguments for her. Small v. Endicott, 998 F.2d 411
(7th Cir. 1993). Nor should a court “conjure
up questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274 (4th Cir. 1985).
Motion for Summary Judgment
to Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). In applying the standard for
summary judgment, the Court must review all the evidence
“in the light most favorable to the nonmoving
party.” Celotex Corp. V. Catrett, 477 U.S.
317, 322-23 (1986). The court must avoid weighing the
evidence or determining the truth and limit its inquiry
solely to a determination of whether genuine issues of
triable fact exist. Anderson v. liberty lobby, Inc.,
477 U.S. 242, 248 (1986).
Celotex, the Supreme Court held that the moving
party bears the initial burden of informing the Court of the
basis for the motion and of establishing the nonexistence of
genuine issues of fact. Celotex at 323. Once
“the moving party has carried its burden under Rule 56,
the opponent must do more than simply show that there is some
metaphysical doubt as to material facts.”
Matsushita Electric Industrial Co. V. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The nonmoving party
must present specific facts showing the existence of a
genuine issue for trial. Id. This means that the
“party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials of
[the] pleading, but...must set forth specific facts showing
that there is a genuine issue for trial.”
Anderson at 256. The “mere existence of a
scintilla of evidence” favoring the nonmoving party
will not prevent the entry of summary judgment. Id.
at 248. To withstand such a motion, the nonmoving party must
offer evidence from which a “fair-minded jury could
return a verdict for the [party].” Id.
“If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Felty v. Graves-Humphreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987). Such evidence must consist
of facts which are material, meaning that they create fair
doubt rather than encourage mere speculation.
Anderson at 248. Summary judgment is proper only
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving
party.” Matsushita at 587.
Failure to Exhaust Administrative Remedies
the Prison Litigation Reform Act (“PLRA”), a
prisoner bringing an action with respect to prison conditions
under 42 U.S.C. § 1983, or any other federal law, must
first exhaust all available administrative remedies. 42
U.S.C. § 1997(e)(a). Exhaustion as provided in
1997(e)(a) is mandatory. Booth v. Churner, 532 U.S.
731, 741 (2001). A Bivens action, like an action
under 42 U.S.C. § 1983, is subject to the exhaustion of
administrative remedies. Porter v. Nussle, 534 U.S.
516, 524 (2002). The exhaustion of administrative remedies
"applies to all inmate suits about prison life, whether
they involve general circumstances or particular
episodes," and is required even when the relief sought
is not available. Booth at 741. Because exhaustion
is a prerequisite to suit, all available administrative
remedies must be exhausted prior to filing a complaint in
federal court. See Porter, 534 U.S. at 524 (citing
Booth, 532 U.S. at 741) (emphasis added). Moreover
an inmate may procedurally default his claims by failing to
follow the proper procedures. See Woodford v. Ngo,
548 U.S. 81 (2006) (recognizing the PLRA provisions contain a
procedural default component).
Federal Bureau of Prisons (“BOP”) makes available
to its inmates a three level remedy process if informal
resolution fails to achieve sufficient results. See
28 C.F.R. § 542.10, et seq. Within 20 calendar
days of the date of the occurrence on which the complaint is
based, an inmate may file a written complaint with the
institution on the proper form which is known as a BP-9.
See 28 C.F.R. § 542.14. If the inmate is not
satisfied with the institutional Warden's response, he
may appeal to the Regional Director within 20 calendar days
of the Warden's response using a BP-10. See 28
C.F.R. § 542.15(a). Finally, if the prisoner has
received no satisfaction, he may appeal to the Office of
General Counsel by filing a BP-11 form within 30 days of the
date the Regional Director signed the response. An inmate is not
deemed to have exhausted his administrative remedies until he
has filed his complaint at all levels. 28 C.F.R. §
542.10-542.15; Gibbs v. Bureau of Prison Office,
FCI, 986 F.Supp. 941, 943 (D.Md. 1997).
exhibits provided by Defendants, establish that Plaintiff
arrived at FCI Gilmer on November 19, 2013, and remained
incarcerated at that facility until December 1, 2015, when he
was transferred to the Federal Medical Center in Lexington,
Kentucky. (“FMC Lexington”). In addition, the
exhibits establish that Plaintiff filed two grievances
requesting surgery on his clavicle. The first was filed on
June 17, 2014, while Plaintiff was still at FCI Gilmer and
was assigned grievance number 783304-F1. ECF No. 49-1 at 13.
The grievance was denied on July ...