United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION PROCEDURAL HISTORY
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
initiated this action on March 13, 2018, by filing a Petition
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241. ECF No. 1. However, because he was raising claims
regarding his medical care, he was sent a Notice of Deficient
Pleading [ECF No.2] which advised him that he must complete
and file a Bivens complaint. On April 23, 2018, the
Plaintiff filed his court-approved Bivens complaint
together with a Motion for Leave to Proceed in forma
pauperis (“IFP”) and ledger sheets. ECF Nos.
5-7. On April 24, 2018, the Plaintiff paid the $400 filing
fee. ECF No. 9. Accordingly, on April 30, 2018, the
Plaintiff's IFP motion was denied as moot. ECF No. 11.
Upon review of a supplement filed on April 27, 2018, which
included an indication that he had filed an administrative
tort claim with the Bureau of Prisons (“BOP”),
which was denied on October 23, 2017, it appeared that the
Plaintiff might be attempting to pursue a complaint pursuant
to the Federal Tort Claims Act in addition to his
Bivens complaint. Therefore, on April 30, 2018, the
Plaintiff was sent a Notice advising him of the potential
consequences of pursuing both with an election form to
indicate his intent. ECF No. 13. On May 9, 2018, the
Plaintiff filed the election form indicating that he wished
to pursue only a claim pursuant to Bivens. ECF No.
15. On May 10, 2018, former Magistrate Judge James E. Seibert
entered an Order advising the Plaintiff of the requirements
of Rule 4m of the Federal Rules of Civil Procedure and
directing the Clerk of Court to forward to the Plaintiff 60
day summonses for the individual defendants and the United
States Attorney as well as Attorney General of the United
States. ECF No. 16. On August 3, 2018, the Defendants filed a
Motion to Dismiss or, in the alterative, Motion for Summary
Judgment. ECF No. 28. A Roseboro Notice was issued on August
8, 2018. ECF No. 32. To date, the Petitioner has not
responded. This case is before the undersigned for a Report
and Recommendation on Defendants' dispositive motions.
of the Parties
Complaint In his complaint, the Plaintiff alleges
that he was subjected to cruel and unusual punishment in
violation of the Eighth Amendment. More specifically, he
alleges that in January of 2016, he began to suffer from
hemorrhoids and an anal fissure. He further alleges that
although an outside physician recommended surgery to correct
his condition, a request to approve surgery was denied when
the Mid-Atlantic Regional Office determined that surgery was
not necessary and recommended conservative alternative
treatment. For relief, the Plaintiff seeks an order directing
the Defendants to schedule and pay for the corrective surgery
and award him $500, 000 for medical malpractice, $500, 000
for intentional emotional distress and $500, 000 for mental
Motion to Dismiss or, in the Alternative, for Summary
their motion to dismiss or, in the alternative for summary
judgment, the Defendants maintain that the complaint should
be dismissed for improper service of process because the
Plaintiff failed to serve any of the individually named
defendants with the complaint. In addition, the Defendants
argue that the Plaintiff's claims should be dismissed
because he cannot establish an Eighth Amendment violation.
Finally, the Defendants contend that they are entitled to
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, 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” to meet the
plausibility standard and survive dismissal for failure to
state a claim. Id.
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. ZenithRadio 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 ...