United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
A. EIFERT UNITED STATES MAGISTRATE JUDGE
is Plaintiff's Motion to Amend Complaint. (ECF No. 13).
The defendant has not filed an objection to the Motion;
therefore, it is GRANTED, in part, and
DENIED, in part.
to the complaint are governed by Federal Rule of Civil
Procedure 15. Rule 15(a)(1) addresses amendments as a matter
of course, allowing the plaintiff to amend the complaint
within twenty-one days after serving it on the defendants, or
within twenty-one days after a responsive pleading or motion
to dismiss is filed under Rule 12(b), (e), or (f), whichever
is earlier. F. R. Civ. P. 15(a)(1). In all other cases-such
as the instant case- the plaintiff may only amend the
complaint with the opposing party's written consent, or
with leave of court. Fed.R.Civ.P. 15(a)(2). Here, the
opposing party has neither consented, nor objected;
therefore, an amendment to the complaint requires leave of
court. Rule 15(a)(2) provides guidance to the court when
considering a motion for leave to amend the complaint. Rule
15(a)(2) directs that the court should “freely give
leave” to file an amended complaint “when justice
so requires.” See also Laber v. Harvey, 438
F.3d 404, 426 (4th Cir. 2006) (“This liberal rule gives
effect to the federal policy in favor of resolving cases on
their merits instead of disposing of them on
leave to amend should be denied “only when the
amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or the
amendment would have been futile.” Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). An
amendment is futile “if the proposed amended complaint
fails to satisfy the requirements of the federal
rules.” U.S. ex rel. Wilson v. Kellogg Brown &
Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (quoting
United States ex rel. Fowler v. Caremark RX, LLC,
496 F.3d 730, 740 (7th Cir. 2007) overruled on other
grounds by Glaser v. Wound Care Consultants, Inc., 570
F.3d 907 (7th Cir. 2009)). “In determining whether a
proposed amendment is futile, a court may consider whether
the proposed amendment could withstand a motion to
dismiss.” Middlebrooks v. St. Coletta of Greater
Wash., Inc., No. 1:10CV653, 2010 WL 3522084, at *2 (E.D.
Va. Sept. 1, 2010) (citing Perkins v. United States,
55. F .3d 910, 917 (4th Cir. 1995)) (affirming denial of
plaintiff's motion for leave to amend her complaint as
futile because “the proposed amendments could not
withstand a motion to dismiss.”); also
Johnson, 785 F.2d at 510 (holding that a motion for
leave to amend should be denied “when the proposed
amendment is clearly insufficient or frivolous on its
face.”) (citing Davis v. Piper Aircraft Corp.,
615 F.2d 606, 613 (4th Cir. 1980); Jones v. N.Y. Div. of
Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.
1999) (finding that amendments subject to “immediate
dismissal” for failure to state a claim are
“futile” and should not be allowed).
seeks to add as defendants Brittany Adkins and PrimeCare
Medical. While Plaintiff's complaint contains enough
factual allegations to state a claim against Brittany Adkins,
there are no allegations in the complaint pertaining to
PrimeCare Medical. Consequently, joinder of PrimeCare Medical
could not withstand a motion to dismiss and, as such, is
Plaintiff wishes to file an amended complaint joining
PrimeCare Medical, she must make a second motion for leave to
do so and must provide a proposed amended complaint that
includes factual allegations, which set out the basis of the
claim against PrimeCare Medical. Plaintiff is reminded that
to state a claim under § 1983, she must include factual
allegations demonstrating a violation that rises to the
Eighth Amendment to the United States Constitution requires
the State to provide its prison inmates with basic medical
care. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). A prison official violates this
constitutional guarantee when he responds to a prisoner's
serious medical need with deliberate indifference.
Estelle, 429 U.S. at 104; Farmer v.
Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994). Therefore, to state a cognizable Eighth Amendment
claim, an inmate must meet two prongs, one objective and one
subjective. First, the inmate must demonstrate the existence
of a medical condition or need that is objectively serious.
Estelle, 429 U.S. at 104. Second, the inmate must
show that the official subjectively knew of, but disregarded,
“an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994). A prison official is not liable
under the Eighth Amendment if a reasonable response is made,
“even if the harm ultimately [is] not averted.”
Odom v. South Carolina DOC, 349 F.3d 765, 770 (4th
Cir. 2003) (citing Farmer, 511 U.S. at 844). To
establish that a prison official's actions constitute
deliberate indifference to a serious medical need, “the
treatment must be so grossly incompetent, inadequate or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990). Accordingly, Plaintiff must
set forth facts in his complaint that meet the standard of an
Eighth Amendment violation. A mere difference of opinion
about whether medical care is needed is usually insufficient
to maintain a valid cause of action. Therefore, when and if
Plaintiff amends his complaint to assert an Eighth Amendment
claim, he should bear these standards in mind.
addition to the legal principles set forth above,
Plaintiff's claim is governed by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(e).
The PLRA expressly prohibits the filing of civil actions by
prisoners “confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of
physical injury.” (emphasis added). Although
the PLRA does not define “physical injury” and
the Fourth Circuit has not provided a definition, other
courts have held that the “physical injury”
referenced by the Act need not be significant, but it must be
more than de minimis. See, e.g., Flanory v.
Bonn, 604 F.3d 249, 254 (6th Cir. 2010); Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309,
1312-13 (11th Cir. 2002); Siglar v. Hightower, 112
F.3d 191 (5th Cir. 1997); Zehner v. Trigg, 952
F.Supp. 1318 (S.D. Ind. 1997). In addition, “[a]
plaintiff seeking compensatory damages for emotional distress
cannot rely on conclusory statements that the plaintiff
suffered emotional distress [or] the mere fact that a
constitutional violation occurred, but, rather, the testimony
must establish that the plaintiff suffered demonstrable
emotional distress, which must be sufficiently
articulated.” Knussman v. Maryland, 272 F.3d
625, 640 (4th Cir. 2001), quoting Price v. City of
Charlotte, 93 F.3d 1241, 1254 (4th Cir. 1996) (internal
quotation marks omitted).
summary, to state a viable claim against PrimeCare Medical,
Plaintiff must satisfy the above-described requirements.
Until that time, Plaintiff is not permitted to join PrimeCare
Medical as a defendant.
the defendant, Western Regional Jail and Correctional
Facility, is hereby ORDERED to provide to
the Clerk of Court, Huntington Division, within seven
(7) days of the date of this Order, the last known
residence address of Brittany Adkins, Correctional Officer at
the Western Regional Jail and Correctional Facility, or the
name and address of the individual authorized to accept
service of process on her behalf.
receipt of the address, the Clerk of Court is
ORDERED to issue a summons to the said
defendant, filing on the public docket a redacted version
that does not include her address. The Clerk shall provide
the summons and a copy of the complaint, (ECF Nos. 1, 13), to
the United States Marshals Service, who is
ORDERED to effect service of process on
Brittany Adkins pursuant to Rule 4, Fed. R. Civ. P.
The Marshals Service shall promptly file the return of
service with the Clerk.
Clerk is directed to provide a copy of this Order to
Plaintiff, counsel of record, and the ...