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Bailey v. Saad

United States District Court, N.D. West Virginia

January 23, 2019


          Bailey Judge



         Plaintiff 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[1] 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.

         Contentions of the Parties

         A. 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 anguish.

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

         In 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 qualified immunity.

         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, 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.

         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. 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 ...

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