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Brown v. United States Department of Justice

United States District Court, N.D. West Virginia

March 18, 2019

UNITED STATES DEPARTMENT OF JUSTICE; MARK S. INCH, Director, Bureau of Prisons; RUBY MEMORIAL HOSPITAL; MOHAMAD SALKINI; BARBARA VON BLANCKENSEE, former Warden, FCI Morgantown; JOHN F. CARAWAY, Regional Director, BOP South Central Regional Office; RENEE CROGAN, Retired Assistant Health Services Administrator, FCI Morgantown; TIMOTHY TOMPKINS, Case Management Coordinator, FCI Morgantown; KENNETH MONTGOMERY, Lieutenant, FCI Morgantown; and BRIAN PLAVI, Correctional Counselor, FCI Morgantown, Defendants.



         Pending before the Court is the Report and Recommendation by United States Magistrate Judge Michael J. Aloi recommending dismissal of the complaint filed by the pro se plaintiff Roderick Brown (“Brown”). Following a careful review, for the reasons that follow, the Court ADOPTS the R&R (Dkt. No. 60), OVERRULES Brown's objections (Dkt. No. 63), and DISMISSES the complaint WITH PREJUDICE (Dkt. No. 1).

         I. BACKGROUND[1]

         Brown, a former federal inmate at Federal Correctional Institution Morgantown (“FCI-Morgantown”), was released from federal custody on July 31, 2017 (Dkt. No. 43-1 at ¶ 6). On August 17, 2017, he initiated this Bivens[2] action against the defendants, the United States Department of Justice (“DOJ”), Ruby Memorial Hospital (“Ruby Memorial”), Dr. Mohamad Salkini (“Dr. Salkini”), and Bureau of Prisons (“BOP”) employees Mark S. Inch, Barbara Van Blanckensee, John F. Caraway, Renee Crogan, Timothy Tompkins, Kenneth Montgomery, and Brian Plavi (collectively, “the Federal Defendants”) (Dkt. No. 1).

         Brown's complaint asserts five claims. Generally, he alleges that the defendants denied him adequate medical care, engaged in “systemic racism [sic] treatment and racial bias” in mental health care, committed medical malpractice, discriminated and retaliated against him, and “violated [his] rights of freedom of speech and [to be free from] cruel and unusual punishment.” Id. at 7-9. Brown's complaint includes no further detail or factual support for his allegations. Id. Although the complaint references a “Memorandum in Support” for the alleged facts in support of his claims, no such memorandum of law was filed with his complaint. See id. at 13-15. Nevertheless, Brown asserts that he suffers from depression, physical scars, and has been left impotent as the result of the defendants' alleged actions. Id. at 9. For relief, he seeks a hearing, a jury trial, and unspecified damages “sought in the complaint.” Id. at 15.

         Pursuant to 28 U.S.C. § 636 and this Court's local rules of prisoner litigation, the Court referred the case to Magistrate Judge Aloi for initial review and a Report and Recommendation (“R&R”). Thereafter, Dr. Salkini and Ruby Memorial moved to dismiss Brown's complaint, arguing that he failed to comply with the mandatory pre-suit filing requirements set forth in the West Virginia Medical Professional Liability Act (Dkt. Nos. 12, 23). Dr. Salkini also argues that Brown fails to state a claim for medical malpractice (Dkt. No. 12). In addition, Ruby Memorial argues that, as a private corporation not acting under the color of federal law, it is not subject to Bivens liability, and that Brown fails to state a claim for deliberate indifference to his serious medical needs (Dkt. No. 23).

         The Federal Defendants similarly moved to dismiss the complaint for failure to state a claim, arguing that Brown fails to sufficiently allege personal involvement by any individual federal defendant, as required to state a claim for Bivens liability (Dkt. No. 43-1). In support of their motion, the Federal Defendants attached a signed declaration and certain BOP records. See Dkt. Nos. 43-2, 43-3.

         Fed. R. Civ. P. 12(d) provides:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

         The Court thus has discretion to consider extra-pleading material if it wishes to treat a Rule 12(b)(6) motion as one for summary judgment. McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th Cir. 2010) (Gregory, J., concurring) (citing 5C Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1371 (3d ed. 2010)). Therefore, based on the materials presented, Magistrate Judge Aloi recommended converting the Federal Defendants' motion to dismiss to one for summary judgment (Dkt. No. 60 at 18).

         In response to Dr. Salkini's motion to dismiss, Brown asserted, for the first time, the factual bases in support of his claims against Dr. Salkini and the other named defendants. Generally, a court is limited to the allegations set forth in the complaint when deciding a motion to dismiss under Rule 12(b)(6). See Kennedy v. Chase Manhattan Bank, 369 F.3d 833, 839 (5th Cir. 2004); Agnew v. NCAA, 683 F.3d 328, 348 (7th Cir. 2012). However, because Brown is an unskilled pro se litigant, whose pleadings are entitled to a liberal construction, Magistrate Judge Aloi construed Brown's response in opposition to Dr. Salkini's motion to dismiss, with its affidavits, medical records, and other attached documents (“Response in Opposition”) (Dkt. No. 31), as not only his response in opposition, but also a memorandum in support of his complaint (Dkt. No. 60 at 18).

         After full briefing, Magistrate Judge Aloi entered an R&R recommending that the Court grant Dr. Salkini and Ruby Memorial's motions to dismiss, grant the Federal Defendants' motion for summary judgment, and dismiss Brown's complaint with prejudice (Dkt. No. 60). Thereafter, Brown filed objections to the R&R (Dkt. No. 63), to which Dr. Salkini and Ruby Memorial responded (Dkt. Nos. 64, 65). Brown then filed a reply to the defendants' responses (Dkt. No. 66). Accordingly, this case is ripe for decision.


         A. Pro Se Pleadings

         The Court must liberally construe pro se pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). While the plaintiff's allegations are assumed to be true, Erickson v. Pardus, 551 U.S. 89, 93 (2007), this Court may not ignore a clear failure in the pleading to allege facts that set forth a claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). This Court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff's legal arguments for him, id., or “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         B. Motion to Dismiss

         Fed. R. Civ. P. 12(b)(6) allows a defendant to move for dismissal on the grounds that a complaint does not “state a claim upon which relief can be granted.” When reviewing a complaint, the Court “must accept as true all of the factual allegations contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson, 551 U.S. at 94). “While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted).

         A court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “[A] complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.'” Anderson, 508 F.3d at 188 n.7 (quoting Twombly, 550 U.S. at 547). “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, 556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve contests surrounding the 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).

         C. Motion for Summary Judgment

         Summary judgment is appropriate only “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). When ruling on a motion for summary judgment, the Court reviews all the evidence in the light most favorable to the nonmoving party. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990). The Court must avoid weighing the evidence or determining its 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, 249 (1986).

         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 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made the necessary showing, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256 (internal citation omitted). The “mere existence of a scintilla of evidence” favoring the non-moving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248-52.

         D. Report ...

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