United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [ECF NO. 57], OVERRULING PLAINTIFF'S
OBJECTIONS [ECF NO. 64], DENYING MOTION FOR DISCOVERY [ECF
NO. 49], AND GRANTING MOTION TO DISMISS [ECF NO. 42]
S. KLEEH UNITED STATES DISTRICT JUDGE
before the Court is a Report and Recommendation
(“R&R”) by United States Magistrate Judge
Michael J. Aloi. In the R&R, Judge Aloi recommends that
the Court grant the Defendants' Motion to Dismiss, deny
the Plaintiff's Motion for Discovery, and deny and
dismiss the Plaintiff's Complaint. For the reasons
discussed below, the Court adopts the R&R.
Plaintiff, Linwood Lamont Jones (“Plaintiff”),
was incarcerated at the Federal Correctional Institution
Gilmer (“FCI Gilmer”) in West Virginia from
August 28, 2009, to May 5, 2015, at which time he was
transferred to the Federal Medical Center Lexington
(“FMC Lexington”) in Kentucky. ECF No. 43-1 at 1.
He originally brought this Bivens action against
six defendants at FCI Gilmer. The Court dismissed three
defendants in an earlier ruling, and only three defendants
remain: Dr. E. Anderson (“Anderson”), PA C.
Gherke (“Gherke”), and Mr. M. Weaver
(“Weaver”) (together, “Defendants”).
ECF No. 34. He brings five causes of action: (1)
“[d]enial and delay of meidcal [sic] care in the most
effective manner”; (2) negligence; (3) malpractice; (4)
deliberate indifference to his serious medical needs; and (5)
”wanton infliction of crel [sic] and unusual
punishment.” ECF No. 1 at 7- 14. He alleges violations
of his rights under 5th, 8th, and 14th Amendments to the
United States Constitution. Id. at 12.
claims that he suffers from spinal stenosis, and because of a
misdiagnosis, he did not receive an emergency surgery when he
needed it. Id. at 14. Now he is paralyzed and
suffers from atrophy and neuropathy. Id. Plaintiff
requests the following relief: a jury trial on punitive
damages; $1, 000, 000.00 per defendant for exemplary and
compensatory damages; retraining of all involved staff; and
an investigation into the medical care at the Bureau of
R&R includes a very detailed summary of the
“Factual History” in this case, which the Court,
for the sake of brevity, incorporates by reference. ECF No.
57 at 3-20. Defendants filed the pending Motion to Dismiss on
May 7, 2018. ECF No. 42. Plaintiff filed a Response and,
within that Response, a Motion for Discovery. ECF No. 49.
Judge Aloi entered his R&R on March 12, 2019, and
Plaintiff's objections were filed on May 14, 2019. ECF
Nos. 57, 64.
STANDARD OF REVIEW
reviewing a magistrate judge's R&R, the Court must
review de novo only the portions to which an
objection has been timely made. 28 U.S.C. §
636(b)(1)(C). Otherwise, “the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the [parties do] not object.”
Dellarcirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions
of a recommendation to which no objection has been made
unless they are clearly erroneous. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
the R&R stated that parties had 14 days to object to it.
ECF No. 57 at 39. Plaintiff received the R&R on April 1,
2019. ECF No. 60. After the Court granted an extension for
Plaintiff to file objections, he did so on May 14, 2019. ECF
No. 64. Specifically, Plaintiff objected to Judge Aloi's
findings regarding Plaintiff's failure to exhaust
administrative remedies; the applicability of the statute of
limitations; and the dismissal of claims against Weaver. He
also objected to a number of instances in which Judge Aloi
allegedly made findings without citing to the record.
Accordingly, the Court will conduct a de novo review
of the Motion to Dismiss. Plaintiff's Complaint will be
liberally construed because he is proceeding pro se.
See Estelle v. Gamble, 429 U.S. 97 (1976).
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure allows a
defendant to move for dismissal upon the ground that a
complaint does not “state a claim upon which relief can
be granted.” In ruling on a motion to dismiss, a 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 v. Pardus, 551 U.S. 89, 94 (2007)). 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).
should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Plausibility exists
“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 942,
952 (4th Cir. 1992). “[T]he Court may consider
documents attached to the Complaint, as well as those
attached to the motion to dismiss, ‘so long as they are
integral to the complaint and authentic.'”
Richardson v. Williams, No. 3:14-cv-129, 2015 WL
3937004, at *3 (N.D. W.Va. June 26, 2015) (quoting
Sec'y of State for Defence v. Trimble Navigation
Ltd., 484 F.3d 700, 705 (4th Cir. 2007),
aff'd, 627 Fed.Appx. 279 (4th Cir. 2016)).
judgment is appropriate “if there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(c). The movant
“bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The nonmoving party must “make a sufficient showing on
an essential element of her case with respect to which he has
the burden of proof.” Id. at 322. Summary
judgment is proper “[w]here the record taken as a ...