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Craig v. Weaver

United States District Court, N.D. West Virginia

May 21, 2018

JAMAL CRAIG, Plaintiff,
v.
MICHAEL WEAVER; EDDIE ANDERSON; and T. SAVIDGE, Defendants.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.

         Procedural History

         Plaintiff 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.

         Contentions of the Parties

         A. Complaint

         In his 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 FCI Gilmer.

         B. Motion to Dismiss or, in the Alternative, for Summary Judgment

         In 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.

         C. Plaintiff's Response to the Motion

         In his 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.”[1] 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.

         Standard of Review

         A. Motion to Dismiss

         “A 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.

         The 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. Id.

         Plaintiff 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).

         B. Motion for Summary Judgment

         Pursuant 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).

         In 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.

         Analysis

         A. Failure to Exhaust Administrative Remedies

         Under 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).

         The 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.[2] 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).

         The 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 ...


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