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Lowe v. Johnson

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

February 14, 2019

KEITH W.R. LOWE, Plaintiff,
DR. SHERRY JOHNSON, et al., Defendants.



         Plaintiff, an inmate at the Mount Olive Correctional Complex (“MOCC”), brings this action pursuant to 42 U.S.C. § 1983 against Dr. Sherri Johnson, James Rubenstein, former Commissioner of the West Virginia Division of Corrections, and David Ballard, former Warden of MOCC. (ECF No. 19). Before the Court are Ballard and Rubenstein's Motion to Dismiss, (ECF No. 64), and Dr. Johnson's Motion to Dismiss, (ECF No. 71).

         By Standing Order filed in this case on April 13, 2017, this action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a recommendation for disposition (“PF&R”). (ECF No. 3.) Magistrate Judge Tinsley entered his PF&R on November 21, 2018, recommending that the Court deny the two motions to dismiss and re-refer this matter for further proceedings. (ECF No. 79.) Defendants filed timely objections to the PF&R. (ECF Nos. 80, 81.) For the reasons discussed herein, the Court SUSTAINS the objections, (ECF Nos. 80, 81), and DECLINES to adopt the PF&R, (ECF No. 79). The Court further GRANTS the defendants' motions, (ECF Nos. 64, 71), and DISMISSES Plaintiff's Amended Complaint, (ECF No. 19).

         I. BACKGROUND

         Plaintiff has been diagnosed with epilepsy and suffers from seizures as a result thereof. (ECF No. 19 at 10 ¶ 15.) He is provided healthcare from Dr. Johnson through MOCC and was prescribed Dilantin three times a day for his condition. (Id. at 11 ¶ 17.) On April 2, 2015, Dr. Johnson terminated Plaintiff's Dilantin prescription, (id. at ¶ 21), and prescribed him an alternative anti-seizure medication approximately three weeks later, (id. at 16 ¶ 48).

         In the interim, Plaintiff had a seizure on April 6, 2015 and again on April 11, 2015. (Id. at 12, 13 ¶¶ 26, 33.) Plaintiff notified Ballard and Rubenstein in writing of the discontinuation of his medication and his subsequent seizures. (Id. at 11, 12 ¶¶ 23, 29.) He also filed a grievance on April 21, 2015, seeking a Dilantin prescription. (Id. at 14 ¶ 37). Plaintiff alleges that the seizures, which caused him to urinate, defecate, vomit, and sustain a head injury, (id. at 12, 13 ¶¶ 26, 33), could have been prevented had he received the alternative medication sooner or had his Dilantin prescription continued.

         The sole remaining claim in this action is Count I of the Amended Complaint, alleging that Dr. Johnson, Ballard, and Rubenstein were deliberately indifferent to Plaintiff's serious medical need in violation of the Eighth and Fourteenth Amendments to the United States Constitution.[1]Plaintiff alleges that Dr. Johnson violated his rights by stopping his seizure medication “without any warning or without even speaking to Plaintiff” and continuing to deny him medication “even after knowing that Plaintiff had several seizures . . . .” (Id. at ¶ 45.) Plaintiff also alleges that Ballard and Rubenstein violated his rights by failing to respond to Plaintiff's requests for medication. (Id. at 17 ¶ 51.)


         Pursuant to Federal Rule of Civil Procedure 72(b)(3), this Court “must determine de nova any part of the magistrate judge's disposition that has been properly objected to.” The Court is not required to review, under a de nova or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de nova review. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de nova review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the Magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). When reviewing the portions of the PF&R de nova, the Court will consider the fact that Plaintiff is acting pro se, and his filings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

         A motion to dismiss for failure to state a claim upon which relief may be granted tests the legal sufficiency of a civil complaint. Fed.R.Civ.P. 12(b)(6). A plaintiff must allege sufficient facts, which, if proven, would entitle him to relief under a cognizable legal claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). A case should be dismissed if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.

         In applying this standard, a court must utilize a two-pronged approach. First, it must separate the legal conclusions in the complaint from the factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Second, assuming the truth of only the factual allegations, the court must determine whether the plaintiff's complaint permits a reasonable inference that “the defendant is liable for the misconduct alleged.” Id. Well-pleaded factual allegations are required; labels, conclusions, and a “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth' and are insufficient to state a claim.” (quoting Iqbal, 556 U.S. at 679)). A plaintiff's “[flactual allegations must be enough to raise a right to relief above the speculative level, ” thereby “nudg[ing] [the] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570.

         Attached to the Amended Complaint are various documents relating to the efforts Plaintiff made to receive medical treatment. (ECF Nos. 19-1-10.) In addition, Plaintiff's response re-addresses allegations raised in his Amended Complaint and is supported by documents attached thereto. (ECF Nos. 76-1-4.) While, generally, matters outside of the pleading may not be considered on a motion to dismiss, a court may consider the factual allegations in the complaint and any exhibits attached thereto that are authentic and integral to the complaint. See Blakenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006). These exhibits, therefore, will be considered for purposes of determining the sufficiency of the Amended Complaint. Fed.R.Civ.P. l0(c).


         The Eighth Amendment to the United States Constitution prohibits prison officials from inflicting “cruel and unusual punishments” by acting with deliberate indifference to a prisoner's serious medical needs. U.S. Const. amend. VIII; Estelle, 429 U.S. at 104. A medical needs case contains both an objective and subjective component. Farmer v. Brennan, 511 U.S. 825 (1994). To satisfy the objective component, an inmate must demonstrate that his medical condition is “objectively ‘sufficiently serious.'” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). A serious medical condition is one that has either “been diagnosed by a physician as mandating ...

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