United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBER'S, UNITED STATES DISTRICT JUDGE.
Marcellus Williams commenced this suit, pro se,
under 42 U.S.C. § 1983, alleging Eighth Amendment
violations. Compl., pp. 4-7, ECF No. 2. The case was
referred to the Honorable Dwane L. Tinsley, Magistrate Judge,
for Proposed Findings and Recommendations
(“PF&R”). Standing Order, p. 2, ECF
No. 3. In his PF&R issued on October 10, 2018, Magistrate
Judge Tinsley recommends this Court grant Defendant
Glover's Motion to Dismiss (ECF No. 53), dismiss all
claims, and remove this case from the Court's docket.
PF&R, p. 8, ECF No. 74.
filed objections to the PF&R pursuant to 28 U.S.C. §
636(b)(1)(C) on October 23, 2018. Pl.'s Objs. to
PF&R, ECF No. 76. As explained below, the Court
DENIES in part and GRANTS in
part Plaintiff's objections, ADOPTS in
part and REJECTS in part Magistrate
Judge Tinsley's PF&R, and DENIES in
part and GRANTS in part Defendant
Glover's Motion to Dismiss.
Complaint, taken as true for the purposes of a motion to
dismiss, alleges the following. Plaintiff arrived at Western
Regional Jail on February 7, 2017. Compl., at 4. He
informed the medical staff there that he was diagnosed with
asthma and had a prescription for an inhaler. Id.
Plaintiff was denied the ability to have an inhaler in the
jail, and instead was instructed to notify jail officers
anytime he had difficulty breathing, including heaviness of
chest and wheezing, and they would bring him to the medical
staff for treatment. Id.
around 2:00 AM on April 7, 2017, Plaintiff began suffering
such symptoms and notified Defendant Officer Glover, who was
in the control tower, that he required his prescribed
treatment. Id. at 7. Officer Glover instructed
Plaintiff to notify Defendant Officer Gabriel, who was roving
around the pod where Plaintiff's cell was, which
Plaintiff then did. Id. Officer Gabriel then
redirected Plaintiff back to Officer Glover. Id.
When Plaintiff asked if the medical staff had been contacted,
he was told “No.” Id.
around 5:00 AM, Officer Gabriel was escorting two inmates to
the medical facility. Id. at 5. As Officer Gabriel
passed by Plaintiff, Plaintiff again requested Officer
Gabriel provide him medical treatment for his asthma, to
which Officer Gabriel looked at Plaintiff, and then left the
area without responding. Id. Officer Gabriel
returned at around 6:00 AM with the two inmates he had been
escorting to the medical facility. Plaintiff again asked both
Officers Glover and Gabriel to be taken to the medical
facility and inquired if the medical staff had been notified
of his previous requests for required treatment. Id.
Plaintiff was told by both officers, separately, they had not
notified the medical staff and he would not be taken because
the area was not cleared as being secure, despite the fact
that Officer Gabriel had just returned from the medical
facility with two inmates. Id. When pressed as to
who would be held accountable for the denial of medical
assistance, Officer Glover told Plaintiff he would be
responsible. Id. Finally, Plaintiff directly
notified medical personnel of his condition, having to bypass
the jail officers as intermediaries, when a nurse was
conducting a pill pass at 8:30 AM, to which she said that he
would be escorted to the medical facility between 9:00 AM and
10:00 AM. Id. Plaintiff was then brought to the
medical facility and treated. Id.
filed the Complaint in this case on March 26, 2018, alleging
violations of his rights under the Eighth Amendment and
requesting damages and injunctive relief. Compl., at
7. The Complaint was amended on July 25, 2018 to include a
specific amount of damages and clarifying his condition
potentially so severe that if his “airways swell[ed]
shut he would die.” Am. to Compl., p. 2, ECF
No. 55. Plaintiff's claims were permitted to proceed, as
this Court found that administrative remedies were
functionally unavailable to him. ECF No. 72. WRJ Officers
Gabriel and Glover are the only remaining defendants in this
action. See ECF Nos. 62, 72. The Court now considers
Magistrate Judge Tinsley's PF&R (ECF No. 74),
Plaintiff's Objections to the PF&R (ECF No. 76), and
Defendant Glover's underlying Motion to Dismiss (ECF No.
STANDARD OF REVIEW
Court conducts a de novo review of those portions of
the magistrate judge's proposed findings and
recommendations to which a party objects. 28 U.S.C. §
636(b)(1)(C). The Court is not required to review, under a
de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendations to which no objections are
made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
must look for “plausibility” in a complaint.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
(2007). This standard requires a plaintiff to set forth the
grounds for an “entitle[ment] to relief” that is
more than mere “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Id. at 555 (internal quotation marks and
citations omitted). Accepting the factual allegations in the
complaint as true (even when doubtful), the allegations
“must be enough to raise a right to relief above the
speculative level . . . .” Id. (citations
does not demand “detailed factual allegations”,
but a mere “unadorned,
the-defendant-unlawfully-harmed-me accusation” is
insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citations omitted).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570). Facial plausibility exists when a claim
contains “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged”, but “[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
a plausible claim is stated in a complaint requires a court
to conduct a context-specific analysis, drawing upon the
court's own judicial experience and common sense.
Id. at 679. “While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations.” Id. However, a
pro se litigant's pleadings are “to be
liberally construed.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks omitted).
defendant responds to a complaint claiming qualified
immunity, such immunity would provide “an immunity from
suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). It is important for
determination of qualified immunity to be resolved “at
the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). The
complaint must sufficiently state a claim that the defendant
violated a “clearly established law”, otherwise
“a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.”
Mitchell, 472 U.S. at 526.
Judge Tinsley's PF&R recommends this Court grant
dismissal of all remaining claims, finding (A) claims against
the Officers in their official capacity are barred by the
Eleventh Amendment and the Will Doctrine, (B) claims
against the Officers in their individual capacity are not
plausible and are protected by qualified immunity, and (C)
Officer Gabriel has not timely ...