United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
60], OVERRULING PLAINTIFF'S OBJECTIONS [DKT. NO. 63], AND
DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
M. KEELEY UNITED STATES DISTRICT JUDGE.
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.
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 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).
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.
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).
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.
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.
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
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).
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
STANDARDS OF REVIEW
Pro Se Pleadings
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).
Motion to Dismiss
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).
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).
Motion for Summary Judgment
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).
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