United States District Court, S.D. West Virginia, Charleston Division
KEITH W.R. LOWE, Plaintiff,
DR. SHERRY JOHNSON, et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE
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).
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).
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).
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.
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.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.)
STANDARD OF REVIEW
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).
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.
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.
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).
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 ...