United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
is a motion to dismiss, filed on March 27, 2018 by Drs. Lye
and Garcia, and a motion to dismiss or in the alternative for
summary judgment, filed on March 27, 2018 by Nate Kendrick.
Defendants David Ballard and Dave Gordan moved to join
defendant Kendrick's motion on April 23, 2018. On April
25, 2018, plaintiff filed a motion to deny the motions to
complaint, the plaintiff alleges that he suffered a neck and
back injury from a hit-and-run car accident involving an
inmate work crew van in which he was a passenger. (Compl. at
4). Plaintiff asserts claims against C.O. Dave Gordon, who
was driving the van, Lt. Nate Kendrick, the shift commander
who assisted at the accident scene, Drs. Lye and Garcia, who
handled plaintiff's medical treatment related to the
accident, and Warden David Ballard. Id. The
plaintiff asserts that his constitutional rights were
violated by the prison employees' negligence regarding
the accident and by the doctors' refusal of proper
medical treatment. Id. at 4-7. Plaintiff seeks
nominal, compensatory and punitive damages. Id. at
5. Defendants move to dismiss the complaint on the basis that
the plaintiff has not exhausted his administrative remedies.
(ECF #s 19, 21, 31). Drs. Lye and Garcia also move to dismiss
on the basis that the plaintiff has failed to state a claim
upon which relief can be granted. (ECF # 19).
action was previously referred to the Honorable Cheryl A.
Eifert, United States Magistrate Judge, for submission to the
court of her Proposed Findings and Recommendations
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On June 15, 2018, the magistrate
judge entered her PF&R recommending that the motions to
dismiss and the motion to join the motion to dismiss be
granted and that the complaint be dismissed without prejudice
as to defendants Gordon, Kendrick and Ballard, and with
prejudice as to defendants Drs. Lye and Garcia. The plaintiff
filed objections to the PF&R on July 2, 2018. (ECF # 37).
Defendants Ballard, Gordon and Kendrick filed a response to
the objections on July 11, 2018, (ECF #38), and defendants
Drs. Garcia and Lye filed a response on July 17, 2018. (ECF
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
plaintiff's first objection is that the magistrate judge
incorrectly decided the exhaustion issue. (ECF No. 37, at 1).
Specifically, the plaintiff points to four grievances, Nos.
17-MDC-B-193, 17-MDC-B-194, 16-MDC-Q-522, and 16-MDC-B-91,
which he believes were properly exhausted under both the
federal and the West Virginia Prison Litigation Reform Acts,
42 U.S.C. § 1997e(a) and W.Va. Code § 25-1A-2a(i)).
Id. The court agrees with the magistrate judge's
conclusion on this matter. In finding that the plaintiff did
not exhaust his administrative remedies for his claims, the
magistrate judge properly presented the relevant law and
prison grievance procedure. (ECF # 36 at 6-10). Upon the
filing of a grievance, if the Unit Manager rejects it for not
being properly submitted, denies it or fails to respond
within five days, the inmate may appeal to the
Warden/Administrator, and then, within five days of the
Warden/Administrator's response, or if the
Warden/Administrator fails to respond, the inmate may appeal
to the West Virginia Division of Corrections Commissioner.
See ECF # 21-1, State of West Virginia Division of
Corrections Policy Directive 335.00 at 6-7 (setting forth
inmate grievance procedure). Notably, “[a] rejected
grievance does not exhaust the grievance process or that step
of the process.” Id. at 9.
magistrate judge correctly found that the grievances were not
exhausted as to defendants Ballard, Kendrick and Gordon
because only one grievance, No. 16-MDC-C-130, which refers to
Gordon, relates to them and it was rejected for being
unsigned by the plaintiff. (ECF # 36 at 11-13). It was not
appealed to the Commissioner or refiled to comply with the
magistrate judge correctly found that the plaintiff had not
exhausted his administrative remedies as to Drs. Garcia and
Lye because the plaintiff did not proffer evidence showing
that there were no available administrative remedies for
grievance No. 16-MDC-B-91 that was filed over ten months
after the accident, and the remaining grievances either did
not pertain to the medical care at issue in the complaint or
were rejected for not following the grievance procedure.
Id. at 13-17.
plaintiff's remaining objections relay general
disagreement with the magistrate judge's decision
regarding the Eighth Amendment claim alleging failure to
provide proper medical care. The magistrate judge correctly
disposed of this claim as the plaintiff did not allege
sufficient facts establishing an Eighth Amendment claim. See
Id. at 17-23. The complaint does not show that any
delay in medical treatment exacerbated an injury,
unnecessarily prolonged pain, or constituted deliberate
indifference by the doctors. While the plaintiff may disagree
with the course of treatment, there is no indication that the
course of treatment chosen by the doctors constituted a
court thus finds that the magistrate judge's PF&R
adequately addressed and correctly resolved all issues
presented in the defendants' motions to dismiss.
court, accordingly, ORDERS as follows:
1. That the plaintiff's objections to the PF&R be,
and they hereby are, overruled.
2. That the magistrate judge's Proposed Findings and
Recommendations be, and they hereby are, adopted and
incorporated in full.
3. That the two pending motions to dismiss and the motion to
join the Kendrick motion to dismiss be, and they ...