Charles O'Neil v. Marty Anderson

Filing 920100329

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6834

CHARLES EDWARD O'NEIL, Plaintiff ­ Appellant, v. MARTY ANDERSON; DOMINIC MCLAIN; KENNETH KAISER; SCOTTY ROSE; SHEILA TAYLOR; K. ROSE; RICHARD RUSSELL; SUE ENGELS; DR. N. REHBERG; JERRI KIRKLAND; DR. SYED RASHEED, individually and in their Official Capacities, Defendants ­ Appellees.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cv-00358)

Submitted:

March 11, 2010

Decided:

March 29, 2010

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Vacated and remanded in part; affirmed in part by unpublished per curiam opinion.

Charles Edward O'Neil, Appellant Pro Se. Kelly Rixner Curry, Assistant United States Attorney, Charleston, West Virginia; Erin R. Brewster, THE FOSTER LAW FIRM, Charleston, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Charles Edward O'Neil, a federal prisoner housed at FCI Beckley ("the prison"), appeals the district court's order dismissing his civil rights action, filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in which O'Neil alleged that, on three separate

occasions, the United States, sixteen physicians and members of the prison's medical staff (collectively, the "Federal

Defendants"), and Dr. Syed Rasheed, a physician contracted to treat O'Neil, were deliberately indifferent to his serious

medical condition, in violation of the Eighth Amendment. The first instance of deliberate indifference

allegedly occurred on February 15, 2002, upon O'Neil's arrival at the prison. medical staff by According to O'Neil's complaint, the prison's failed a to arrange for emergency or treatment or

examination

suitable

cardiologist

endocrinologist,

despite objective knowledge of O'Neil's medical condition and O'Neil's complaints regarding his health (hereinafter "failure to provide emergency treatment claim"). O'Neil alleged that his condition worsened to the

extent that he was hospitalized on April 12, 2002.

O'Neil was

transferred to a different hospital for further testing, where he remained until with April 25, 2002. O'Neil alleged he was to

discharged

specific

follow-up 2

instructions

relevant

further testing and treatment, and that prison officials failed to follow those instructions. deliberate indifference claim This gave rise to O'Neil's second (hereinafter "first failure to

provide follow-up treatment claim"). O'Neil was hospitalized again on July 23, 2004. Upon

his release three days later, O'Neil again received detailed discharge instructions pertaining to medications, follow-up

testing, and treatment.

The prison officials' alleged failure

to comply with these instructions formed the basis for O'Neil's third and final Bivens claim (hereinafter "second failure to provide follow-up treatment claim"). O'Neil also relied on these facts to support a

negligence claim against the United States, filed pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),

2671-2680 (2006). Upon conducting 28 U.S.C. § 1915A (2006) review, the magistrate judge recommended dismissing the complaint for

failure to state a claim.

The magistrate judge first found the

FTCA claim failed because O'Neil did not comply with W. Va. Code Ann. § 55-7B-6(b) (LexisNexis 2008), which requires that, prior to filing a medical malpractice claim, the plaintiff must submit

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a screening certificate of merit ("screening certificate"). 1 magistrate claims, judge further the recommended could dismissing not "be read the to

The

Bivens allege

because

complaint

indifference to [O'Neil's] serious medical needs." In his objections, O'Neil argued he was excepted from the screening certificate requirement. § 55-7B-6(c) (LexisNexis Supp. 2008). See W. Va. Code Ann. O'Neil also objected to

the recommendation pertaining to the Bivens claims, asserting his complaint adequately pled deliberate indifference. In its opinion and order, the district court overruled O'Neil's objection to the FTCA claim. However, the district

court sustained O'Neil's objection to the recommended dismissal of his Eighth to Amendment Bivens claims. for Thus, further the case was

returned

the

magistrate

judge

proceedings.

O'Neil subsequently moved the court to reconsider its dismissal of the FTCA claim, reiterating his position that he was excepted from the screening certificate requirement.

As the magistrate judge correctly explained, the FTCA does not create an independent legal remedy against the United States. Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009). Instead, it merely renders the United States amenable to suit under applicable state law, just as a non-federal entity would be. 28 U.S.C. §§ 1346(b)(1), 2674; Unus, 565 F.3d at 117. Accordingly, limitations on tort claims in West Virginia, such as the requirement that a screening certificate be obtained as a prerequisite for filing a medical malpractice action, W. Va. Code Ann. § 55-7B-6(b), apply to O'Neil's FTCA claim.

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Defendant Rasheed filed a motion to dismiss, citing this court's decision in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), to support his contention that Bivens should not be

extended to reach him, an independent contractor for the prison, against whom a state court remedy was available. The Federal Defendants also filed a Fed. R. Civ. P. 12(b)(6) were motion to dismiss, West asserting Virginia's O'Neil's two-year Bivens claims of

filed

outside

statute

limitations for personal injury actions. suggested time-lines for the accrual

The Federal Defendants and expiration of the

statute of limitations applicable to each of the Bivens claims. Although O'Neil did not challenge the Federal

Defendants' time-lines, he presented two arguments to extend the various limitations periods. First, O'Neil asserted that the

"continuous treatment rule" extended the statute of limitations applicable to the failure to provide emergency treatment claim. O'Neil next argued the statute of limitations applicable to both failure to provide follow-up treatment claims should be tolled due to his mental incapacitation during the relevant time

periods. Va. Code

More particularly, O'Neil argued that, pursuant to W. Ann. § 55-2-15 (LexisNexis 2008), 2 the limitations

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In full, W. Va. Code Ann. § 55-2-15 provides:

(Continued) 5

period should be tolled from June 27, 2005, until June 4, 2007. O'Neil submitted an affidavit addressing his mental health

status and medical records, to which he attached treatment notes from the mental health practitioners who treated him between August 24, 2005, and February 1, 2007. The magistrate judge completed a second report, in

which he recommended denying O'Neil's motion for reconsideration of the dismissal of his FTCA claim. recommended finding the granting Defendant of a The magistrate judge next motion remedy to (a dismiss, medical against to the

Rasheed's state

availability action under

court

negligence extending

West to

Virginia Rasheed.

law) With

weighed regard

Bivens

liability

timeliness of the Bivens claims, the magistrate judge rejected the continuous date treatment the doctrine to as a basis to extend the

accrual claim.

of

failure

provide

emergency

treatment

Further, acknowledging O'Neil's allegations of mental

If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight of this article, except that it shall in no case be brought after twenty years from the time when the right accrues.

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disability, the magistrate judge found "that being treated by a psychologist does not render Plaintiff under a mental

disability," and thus recommended rejecting the proffered basis for tolling the limitations periods of the failure to provide follow-up treatment claims. recommended accepting the Accordingly, the magistrate judge time-lines asserted by the Federal

Defendants and dismissing based on the statute of limitations. O'Neil recommendation. timely In its objected opinion, to the magistrate court judge's first

the

district

overruled O'Neil's objection to the recommended denial of his motion for reconsideration of the FTCA claim, finding the

objection was insufficiently specific.

The district court next

reviewed the mental competency claim de novo, and found that, "though Plaintiff is documented as having a history of mental illness during [the relevant] time, there is insufficient

evidence that Plaintiff's condition ever rose to the level of insanity for purposes of [West Virginia's] savings clause."

Finally, the district court found O'Neil had a viable state law claim for medical negligence against Rasheed, the availability of which counseled against allowing O'Neil to pursue a Bivens claim against him. The district court thus denied O'Neil's to motion for and

reconsideration,

granted

Defendants'

motions

dismiss,

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dismissed

O'Neil's

complaint

with

prejudice.

O'Neil

timely

noted this appeal. In his informal brief on appeal, O'Neil asserts that the district court erred in (1) dismissing his Bivens claim

against Rasheed; (2) rejecting O'Neil's contention that he was excepted from filing a screening certificate; and (3) declining to toll the statute of limitations relevant to his failure to provide follow-up treatment claims due to his mental

incompetence.

I.

Dismissal of Bivens Claim Against Rasheed

This court reviews de novo the grant of a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. Philips v. Pitt County Mem'l Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009). Citing Justice Stevens' dissent in Corr. Servs. Corp. v. Malesko, of 534 a U.S. viable 61 (2001), court O'Neil remedy asserts does not that the

existence

state

preclude

extending a Bivens cause of action to an independent contractor. However, the Malesko Court did not address "whether a Bivens action might lie against a private individual," Malesko, 534 U.S. at 65, and while the dissent suggested this might be the case, Malesko, 534 U.S. at 79 n.6 (Stevens, J., dissenting), the Supreme Court has not further opined on the issue. 8 This court,

however,

has

declined

to

extend

the

Bivens

remedy

to

an

individual private actor, in part because of the availability of a state court remedy. Holly, 434 F.3d at 295-97. Accordingly,

we affirm the district court's order dismissing the Bivens claim against Rasheed. 3

II.

Denial of Motion for Reconsideration of FTCA Claim As described above, the district court found O'Neil

failed

to

specifically

object

to

the

magistrate

judge's

recommendation to deny O'Neil's motion for reconsideration of the district court's order dismissing his FTCA claim. This

failure to object waived appellate review of the dispositive issue. United States v. Midgette, 478 F.3d 616, 621-22 (4th Accordingly, we affirm the district court's order

Cir. 2007).

as to O'Neil's FTCA claim.

Relatedly, O'Neil asserts the district court abused its discretion in denying his motion to appoint counsel to assist in the presentation of this claim. We conclude there was no abuse of discretion because, within this Circuit, the legal landscape surrounding the issue was relatively clear. See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987) (appointing counsel is matter of district court's discretion).

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III. Dismissal of Bivens Claims Against Because of Statute of Limitations

Federal

Defendants

In granting the Federal Defendants' motion to dismiss, the district court rejected O'Neil's contention that the statute of limitations on his failure to provide follow-up treatment claims should be tolled due to periods of mental incapacitation. The district court found that, although O'Neil's evidence

demonstrated a "documented . . . history of mental illness," it was "insufficient" to demonstrate that O'Neil was insane within the meaning of West Virginia's savings clause. O'Neil

challenges this ruling on appeal. After a thorough review of the record, we are

persuaded that O'Neil's evidence regarding his competency during the limitations period relevant to the failure that to provide warranted

follow-up

treatment

claims

raised

concerns

greater scrutiny. to us support of a

On their face, the medical records available legitimate relevant status with concern statute that, of at least during

portions O'Neil's evidence,

the

limitations compromised. O'Neil was a

periods, This pro se

mental coupled

was the

seriously fact that

plaintiff, incarcerated by the very institution that controlled his access to the evidence that may have supported his

assertion, leads us to conclude that the district court should have permitted O'Neil the opportunity to conduct limited

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discovery on the issue and to obtain the records he avers are relevant. Cir. 2005) Compare Douglas v. York County, 433 F.3d 143 (1st (affirming grant of summary judgment to State on

statute of limitations issue after discovery on disputed tolling issue) with Brown v. Parkchester S. Condos., 287 F.3d 58, 60-61 (2d Cir. 2002) (vacating dismissal of Title VII and ADA action and remanding for evidentiary hearing regarding plaintiff's

mental disability that he alleged tolled the filing period). Accordingly, we vacate the district court's order

dismissing the two failure to provide follow-up treatment claims and remand this case to the district court with instructions to appoint counsel to represent O'Neil and to permit discovery on the issue of O'Neil's mental status during the applicable

limitations periods. 4

However, we affirm the district court's

order pertaining to the failure to provide emergency treatment claim, the FTCA claim, and the dismissal of the Eighth Amendment claims against Defendant Rasheed. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED IN PART; AFFIRMED IN PART In view of our disposition, we deny O'Neil's motion for appointment of counsel on appeal.
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