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Billups v. Western Regional Jail

United States District Court, S.D. West Virginia, Huntington Division

May 24, 2018

MICHAEL SHAWN BILLUPS, Plaintiff,
v.
WESTERN REGIONAL JAIL, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the issue as to whether Plaintiff has failed to prosecute this civil action. For the reasons explained below, the undersigned respectfully recommends that the District Court dismiss this action without prejudice and deny Defendants Carr and Nurse Suzie's pending “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” (Document No. 16), Defendant Western Regional Jail's pending “Motion to Dismiss” (Document No. 21) and Defendant Baldera's pending “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” (Document No. 28) as moot.

         PROCEDURE AND FACTS

         On August 10, 2017, Plaintiff, acting pro se, filed his Motion to Proceed Without Prepayment of Fees and Complaint claiming entitlement to relief pursuant to Title 42 U.S.C. § 1983.[1] (Document Nos. 1 and 2.) In his Complaint, Plaintiff named the following as Defendants: (1) Western Regional Jail [“WRJ”]; and (2) Medical Staff. (Document No. 2.) Plaintiff appears to allege that Defendants acted with negligence and violated his constitutional rights under the Eighth Amendment by failing to provide him with appropriate and necessary medical care. (Id.) Specifically, Plaintiff alleges that he has had “a very bad ear infection now for over a month, [he] can't hear out of [his] left ear hardly, and [he has] a tumor on the left side of [his] back.” (Id., p. 4.) Plaintiff acknowledges that he has been evaluated by a doctor, who determined that Plaintiff had an ear infection and a lymphoma tumor on his back. (Id.) Plaintiff further acknowledges that the doctor prescribed ear drops to treat his ear infection. (Id.) Plaintiff, however, complains that more than three weeks has passed and no ear drops have been provided to Plaintiff. (Id.) Next, Plaintiff complains that the doctor stated “he can't do anything about the tumor on [Plaintiff's] back at the regional.” (Id.) Plaintiff alleges that he informed the doctor that the tumor was “growing and hurting” and requested that an x-ray, MRI, or CT scan be conducted. (Id.) Plaintiff complains that the doctor denied his request stating that “it would not do any good.” (Id.) Plaintiff states that he is concerned the tumor could be cancerous. (Id.) As relief, Plaintiff requests monetary damages, medical treatment, and immediate transfer from the Western Regional Jail. (Id.)

         By Memorandum Opinion and Order entered on August 10, 2017, United States Magistrate Judge Cheryl A. Eifert granted Plaintiff's Application to Proceed Without Prepayment of Fees and Costs, directed the Clerk to issue a summons for each Defendant, and directed the United States Marshals Service to serve the Summons and a copy of Plaintiff's Complaint upon each Defendant. (Document No. 4.) Judge Eifert further advised Plaintiff that to state a cause of action for money damages under Section 1983, Plaintiff must show that a “person” was acting under color of state law and deprived Plaintiff of federally protected civil rights, privileges, or immunities. (Id.) Therefore, Judge Eifert directed Plaintiff to amend his complaint if he was claiming that a “person” violation his constitutional rights. (Id.)

         On August 24, 2017, Plaintiff filed his Amended Complaint. (Document No. 7.) As Defendants, Plaintiff named the following: (1) Western Regional Jail and Medical Staff; (2) Correctional Officer Wade; (3) Medical Supervisor Michelle Carr; (4) Nurse Suzie; and (5) Doctor John Doe. (Id.) First, Plaintiff alleges that he evaluated by Doctor John Doe for an ear infection and ear drops were prescribed for treatment. (Id.) Plaintiff alleges that Nurse Suzie was in charging of getting the prescription filled, but Plaintiff checked the status twice a day for well over a month and Nurse Suzie advised that she would “check on it.” (Id.) Plaintiff states that he file a grievance with Michelle Carr, who responded that she would reorder the medication. (Id.) Despite the foregoing, Plaintiff states that he never received the medication and he is “sure” has “ear damage in [his] left ear.” (Id.) Next, Plaintiff alleges that Doctor John Doe diagnosed him with lymphoma on his back. (Id.) Plaintiff states that he explained to Doctor John Doe that the tumor started out small and now is the size of a baseball. (Id.) Plaintiff complains that even though he requested an appointment with an “outside hospital to make sure it isn't cancer, ” Doctor John Doe informed Plaintiff that such would “take a very long time.” (Id.) Plaintiff further complains that Doctor John Doe has failed to order an MRI or other test to “find out if it is cancer or not.” (Id.) Third, Plaintiff alleges that Officer Wade failed to respond to his “call button” after lockdown on August 3, 2017. (Id.) Plaintiff alleges that he pressed the “call button” to request medical attention due to pain from the tumor on his back. (Id.) Plaintiff, however, alleges that Officer Wade never responded to the “call button.” (Id.) As relief, Plaintiff request his transfer from WRJ and “whatever compensation for the pain and suffering the court deems appropriate.” (Id.)

         By Order entered on August 25, 2017, Judge Eifert directed the Clerk to issue a summons for Correctional Officer Wade, Medical Supervisor Michelle Carr, and Head Nurse Suzie and directed the United States Marshals Service to serve the Summons and a copy of Plaintiff's Complaint and Amended Complaint upon each Defendant. (Document No. 8.)

         On September 21, 2017, Defendants Carr and “Nurse Suzie” filed their “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” and Memorandum in Support. (Document Nos. 16 and 17.) Defendants Carr and Suzie argue that Plaintiff's claims should be dismissed based on the following: (1) “Plaintiff's claims should be dismissed for failure to state a claim upon which relief can be granted” (Document No. 17, pp. 3 - 4.); (2) Plaintiff failed to exhaust his administrative remedies (Id., pp. 4 - 7.); (3) “Plaintiff's claims do not meet the legal threshold for a viable Eighth Amendment claim” (Id., pp. 7 - 9.); and (4) “Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit requirements of the MPLA” (Id., pp. 9 - 11.). As Exhibits, Defendants attach a copy of the following: (1) A copy of Plaintiff's pertinent medical records (Document Nos. 16-1, 16-2, and 16-3.); (2) A copy of the Affidavit of Krista Vallandingham (Document No. 16-4.); and (3) A copy of Plaintiff's grievance (Document No. 16-5.).

         On September 22, 2017, the above civil action was transferred from Judge Eifert to the undersigned for total pretrial management and submission of proposed findings of fact and recommendations for disposition. (Document No. 18.) Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on September 25, 2017, advising him of the right to file a response to Defendants Carr and Suzie's “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment.” (Document No. 20.) By Order entered on September 22, 2017, the undersigned noted that following a review of Defendants Carr and Suzie's “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment, ” Memorandum in Support, and attached Exhibits, it appeared that Dr. Alfred Baldera may be the identity of “Doctor John Doe.” (Document No. 19.) The undersigned, therefore, directed Plaintiff to review the above documents and notify the Court as to whether Dr. Alfred Baldera was the identity of “Doctor John Doe.” (Id.)

         On September 29, 2017, Defendant WRJ filed its “Motion to Dismiss” and Memorandum in Support. (Document Nos. 21 and 22.) Defendant WRJ argues that Plaintiff's claims should be dismissed as an improper party. (Id.) Specifically, Defendant WRJ explains that it is not a municipality or political subdivision, and is not listed or otherwise identified as a business organization or any other organization with the West Virginia Secretary of State.” (Id.) Defendant WRJ, therefore, requests Plaintiff's claims be dismissed. (Id.) Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), was issued to Plaintiff on October 3, 2017, advising him of the right to file a response to Defendant WRJ's Motion to Dismiss. (Document No. 24.)

         Also on September 29, 2017, Plaintiff notified the Court by letter, in pertinent part, as follows:

Since this case has started they have took me to an outside hospital for my back. I am willing to drop the case against all defendants in exchange to move me out of Western Regional to another Regional or DOC facility that is the only relief I ask from this case. If the defendants or WRJ can't agree to this relief, then I shall proceed. Yes, the Doctor John Doe is Dr. Alfred Baldera1 and I never refused treatment for my ears.

(Document No. 23.) By Order entered on October 23, 2017, the undersigned substituted Dr. Alfred Baldera for “Doctor John Doe” directed the service of process upon Defendant Baldera. (Document No. 25.)

         On November 3, 2017, Defendant Baldera filed his “Motion to Dismiss Amended Complaint and Alternative Motion for Summary Judgment” and Memorandum in Support. (Document Nos. 28 and 29.) Defendant Baldera argues that Plaintiff's claims should be dismissed based on the following: (1) Plaintiff's claims fail to state a claim upon which relief can be granted (Document No. 29, pp. 3 - 4.); (2) Plaintiff failed to exhaust his administrative remedies (Id., pp. 4 - 7.); (3) Plaintiff's claims do not meet the legal threshold for a viable Eighth Amendment claim (Id., pp. 7 - 9.); and (4) Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit requirements of the MPLA (Id., pp. 9 - 11.) As Exhibits, Defendant Baldera attaches the following: (1) A copy of Plaintiff's pertinent medical records (Document Nos. 28-1, 28-2, and 28-3.); (2) A copy of the Affidavit of Krista Vallandingham (Document No. 28-4.); and (3) A copy of ...


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