Brock v. Doe #1 et al

Filing 140

ORDER ADOPTING THE REPORT AND RECOMMENDATION, dismissing defendant John Doe #2 without prejudice, denying 94 Motion to Impeach and Exclude; denying 94 Motion to Strike ; granting 102 Motion to Dismiss for Failure to State a Claim; granting 109 Motion to Dismiss; denying 116 Motion to Dismiss; denying 134 Motion to Stay, Signed by Honorable Mary G Lewis on February 22, 2013.(kbos) Modified on 2/22/2013 (kbos).

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
Carl Blake Brock, #08560-003
Plaintiff,
vs.
Marshall Shearer, Correctional Officer; John
Doe # 2, Correctional Officer; Jason Elliot,
Correctional Officer; Donald Petroslp, SIS
Lieutenant; Brett Friend, Registered Nurse; M.
Aaumah,Mid-level Practitioner; Corbin,
Physicians Assistant; Catherine Bowman,
Radiology Tech; Jorge S. Vasquez, Medical
Doctor; Brian Yung, Medical Doctor; Alison
Wilson; Medical Doctor; Hector Lopez, Medical
Doctor; Valerie Smith, Physicians Assistant;
Donardo Fonte, Physicians Assistant; Arunava
Saha, Mid-level Practitioner; Lorenzo Guevara,
Asst. Health Serv. Adm.; L. Fuertes-Rosario,
Health Serv. Admin.; W. E. Mackelburg,
Admin. Rem Cord; Penny Rice, Secretary; and
R. A. Blocker, Clinical Director,
Defendants.
__________________________________

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Civil Action No.: 3:10-2821-MGL

ORDER AND OPINION

Pro se Plaintiff Carl Blake Brock (“Plaintiff”) filed this action against Defendants on
November 16, 2010, pursuant to 42 U.S.C. § 1983 concerning incidents which occurred while he
was housed at the United States Penitentiary Hazleton (“USP-Hazleton”) in Bruceton Mills,
West Virginia, and at the Federal Correctional Institution in Edgefield, South Carolina (“FCIEdgefield”). Plaintiff is currently housed at FCI-Edgefield. Plaintiff brought this action against
several defendants who are Bureau of Prisons (“BOP”) employees and several other defendants
who are employees of the United States Public Health Service (“USPHS”), the West Virginia
University Hospital (“WVUH”), or not employed by BOP.
FACTUAL AND PROCEDURAL BACKGROUND
1

The Report and Recommendation sets forth in detail the relevant facts and standards of
law and the Court incorporates them and summarizes below in relevant part. Plaintiff filed this
action on November 16, 2010 (ECF No. 1), and amended his complaint on January 5, 2012,
incorporating his original complaint and identifying defendants originally designated as John
Does #1, #3, and #4, asserting additional bases for jurisdiction and otherwise clarifying his
claims. (ECF No. 100.)
On May 6, 2011, Defendants Alison Wilson and Brian Yung moved for Judgment on the
Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF No. 34.) Plaintiff
filed a response on May 25, 2011. (ECF No. 42.) On July 1, 2011, Defendants and federal
employees Brett Friend, Michael Azumah, Patricia Corbin, Jorge S. Vasquez, Hector Lopez,
Valerie Smith, Donardo Fonte, Arunava Saha, Lorenzo Guevara, Luisa Fuertes-Rosario, William
Mackelburg, Penny Rice and Rex Blocker filed a motion to dismiss. (ECF No. 45.) Plaintiff
filed a response to this motion to dismiss on July 22, 2011, and a Supplement on July 26, 2011.
(ECF Nos. 55 and 66.) Defendants Marshall Shearer (John Doe #1); Jason Elliot (John Doe #3)
and Donald Petrisko (John Doe #4) filed a motion to dismiss on October 7, 2011. (ECF No. 89.)
Plaintiff filed his response to this motion on October 21, 2011. (ECF No. 95).

On that same

day, Plaintiff filed a Motion to Impeach and Exclude, and Motion to Strike. (ECF No. 94.)
After Plaintiff filed his amended complaint, Defendants Yung and Wilson filed a Motion to
Dismiss which incorporated their earlier filed motion. (ECF No. 102.) Plaintiff filed a response
on January 31, 2012. (ECF No. 110.)

On February 1, 2012, the federal defendants Marshall

Shearer (John Doe #1); Jason Elliot, (John Doe #3) and Donald Petrisko (John Doe #4), Brett
Friend, Michael Azumah, Patricia Corbin, Jorge S. Vasquez, Hector Lopez, Valerie Smith,
Donardo Fonte, Arunava Saha, Lorenzo Guevara, Luisa Fuertes-Rosario, William Mackelburg,
Penny Rice and Rex Blocker filed a Motion to Dismiss Plaintiff’s Amended Complaint which
incorporated their earlier (ECF No. 45 and 89) motions. (ECF No. 109.) Plaintiff filed a
2

response on February 8, 2012. (ECF No. 115.) Defendant Catherine Bowman filed a Motion to
Dismiss Plaintiff’s Amended Complaint on February 17, 2012. (ECF No. 116.) Plaintiff filed a
response in opposition to the Motion to Dismiss on February 28, 2012. (ECF No. 121.)
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter
was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. On
July 25, 2012, Magistrate Judge McCrorey issued a Report and Recommendation recommending
that Defendant John Doe #2 be dismissed without prejudice. The Magistrate Judge further
recommended that the motion to dismiss of Defendants Yung and Wilson (ECF No. 102) be
granted; the motion to dismiss of Defendants Shearer (John Doe #1); Elliot (John Doe #3);
Peitrisko (John Doe #4), Friend, Azumah, Corbin, Vasquez, Lopez, Smith, Fonte, Saha, FuertesRosario, Mackelburg, Rice, and Blocker (ECF No. 109) be granted; and the motion to dismiss of
Defendant Bowman (ECF No. 116) be denied. The Magistrate Judge also recommended that
Plaintiff’s motion to impeach, exclude, and strike (ECF No. 94) be denied. Plaintiff filed
objections to the Report and Recommendation on August 6, 2012. (ECF No. 133.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28
U.S.C. § 636(b)(1). The Court may also receive further evidence or recommit the matter to the
Magistrate Judge with instructions.

Id.

The Court is charged with making a de novo

determination of those portions of the Report and Recommendation to which specific objections
are made. After conducting a de novo review of the Plaintiff’s objections, and considering the
record, applicable law, and the Report and Recommendation of the Magistrate Judge, the Court

3

finds the Magistrate Judge’s recommendation to be proper and adopts the Magistrate Judge’s
Report and Recommendation.
REPORT AND RECOMMENDATION AND RESPONSES
The Magistrate Judge set forth a detailed listing of facts which were construed in the light
most favorable to Plaintiff based on the allegations made in Plaintiff’s complaint. (ECF No. 132
at 4-8.) He then fully set forth the applicable standards of review for construing the complaints
filed by pro se litigants and for the consideration of a motion to dismiss. (ECF No. 132 at 8-9.)
The Magistrate Judge then discussed the allegations of Plaintiff’s complaint, surmising that
Plaintiff appears to allege that Defendants violated his constitutional rights by failing to protect
him from an attack by another inmate, failing to provide him with proper medical care, placing
him in unsterile living conditions at USP-Hazleton instead of allowing him to remain at WVUH,
and failing to properly process his grievances. (ECF No. 132 at 9.) As noted above, Defendants
moved to dismiss for various grounds which were considered fully by the Magistrate Judge.
This Court groups the Defendants’ arguments as follows for the purposes of this analysis:
1) Defendants Yung and Wilson (“WVUH Defendants”) seek dismissal of Plaintiff’s
claims against them because they are not subject to personal jurisdiction by this court, Plaintiff’s
claims are barred by the applicable statute of limitations, Plaintiff fails to state a claim because
they have not acted under the color of state law and Plaintiff’s allegations do not state a claim for
a deprivation of a federal right;
2) Defendant employees of the United States Public Health Service Valarie Smith,
Physician’s Assistant and Patricia Corbin, Physician’s Assistant (“USPHS Defendants”) and
Defendants Shearer (John Doe # 1); Elliot (John Doe # 3); Peitrisko (John Doe # 4); Friend;
Azumah; Vasquez; Lopez; Fonte; Saha; Guevara; Fuertes-Rosario; Mackelburg; Rice; and
Blocker (“BOP Defendants”) seek dismissal of Plaintiff’s claims because they contend that the
Court does not have subject matter jurisdiction over the Defendants in their official capacities;
4

the USPHS Defendants are entitled to absolute immunity and the other individual BOP
Defendants entitled to qualified immunity; the applicable statute of limitations mandates
dismissal of the West Virginia claims; Plaintiff failed to exhaust the available administrative
remedies; and the pleadings do not comply with Rule 8 of the Federal Rules of Civil Procedure;
3) Defendants Shearer, Elliot, Peitrisko, Friend, Azumah, Corbin, and Vasquez (“USPHazleton Defendants”) seek dismissal of Plaintiff’s claims because they are not subject to
personal jurisdiction by the court, in addition to the arguments raised by the BOP Defendants as
set forth above.
4) Defendant Bowman argues that her motion to dismiss should be granted claiming: this
Court lacks subject matter jurisdiction over her; the alleged negligence does not rise to the level
of an Eighth Amendment violation; and Plaintiff has not complied with the requirements of the
Federal Tort Claims Act.
ANALYSIS OF PLAINTIFF’S OBJECTIONS
1. Subject Matter Jurisdiction/Sovereign Immunity
The Magistrate Judge found that claims against the BOP/USPHS Defendants in their
official capacities to the extent Plaintiff is seeking monetary damages, are barred by the doctrine
of sovereign immunity. (ECF No. 132 at 12.) The Court finds no error in this analysis. Further,
Plaintiff has clearly indicated his agreement with the Magistrate Judge on this point and has
stated that “Plaintiff agrees that the Court would lack subject matter jurisdiction to hear any
claims against the Federal defendants in their ‘official’ capacities.” (ECF No. 133 at 2.) He has
further claimed that he has not sued or made claims against the BOP/USPHS defendants in their
official capacities, but instead “only sued these defendants for acts that they took as individuals”
which rise to the level of constitutional violations. (ECF No. 133 at 2; ECF No. 98 at 3.) Thus,
the Court need not address this issue further in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.2005) (stating that “in the absence
5

of a timely filed objection, a district court need not conduct a de novo review, but instead must
only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”) (citation omitted).
2. Personal Jurisdiction
Next, the Magistrate Judge analyzed arguments raised by the WVUH Defendants Yung
and Wilson as well as West Virginia BOP/USPHS Defendants Shearer, Elliot, Peitrisko, Friend,
Azumah, Corbin, and Vasquez that this Court lacks personal jurisdiction over them. (ECF No.
132 at 12.) The Magistrate Judge fully addressed the personal jurisdiction question in his Report
and Recommendation and set forth the proper analysis applicable to nonresidents of South
Carolina. (ECF No. 132 at 13-14.) The Magistrate Judge noted that Plaintiff failed to allege any
facts in his complaint or amendment to his complaint to support personal jurisdiction in
accordance with the South Carolina long arm statute and consistent with constitutional due
process. See Ellicott Mach. Corp. v. John Holland Party Ltd., 995 F.2d 474, 477 (4th Cir.1993);
Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir. 1985). The Magistrate Judge
therefore concluded that Plaintiff had failed to ultimately prove grounds for jurisdiction by a
preponderance of the evidence after personal jurisdiction was challenged by the Defendants.
(ECF No. 132 at 12.) This Court agrees and also notes that Plaintiff has not filed any specific
objection to the Magistrate Judge’s personal jurisdiction analysis and instead states that a
transfer of this case would serve the interest of justice. (ECF No. 133 at 22.) In his Report and
Recommendation, the Magistrate Judge found that to the extent Plaintiff is requesting that the
West Virginia Defendants be severed from this matter and the action transferred, such action by
the Court would not serve the interest of justice because the action was time-barred at the time it

6

was filed.1 This Court agrees and the absence of a specific objection, the Court need not address
the point in detail and finds no error in the Magistrate Judge’s analysis.
3. Statute of Limitations
The Magistrate Judge then addressed the WVUH Defendants (Yung and Wilson), as well
the West Virginia BOP/USPHS Defendants (Shearer, Elliot, Peitrisko, Friend, Azumah, Corbin,
and Vasquez) contention that Plaintiff’s claims are barred by the applicable West Virginia twoyear statute of limitations. (ECF No. 132 at 14-16.) The Magistrate Judge noted that Plaintiff
does not appear to dispute that the two-year West Virginia statute of limitations applies, but
instead argues that the causes of action did not accrue until March 2010 because that is when he
discovered he had an actual injury after viewing an x-ray that revealed fluid in his lung and/or
pleural thickening. (ECF No. 132 at 16.)

Based on the allegations of the complaint, the

Magistrate Judge concluded that West Virginia is the “relevant state” where the alleged actions
occurred and that West Virginia’s statute of limitations should apply. (ECF No. 132 at 15.)
While Plaintiff filed an objection to the Magistrate Judge’s findings concerning the
statute of limitations, he initially stated his agreement with the conclusions that the West
Virginia statute of limitations applies to the West Virginia claims and appears to agree that the
question of “when” a civil rights action accrues is a question of federal law. (ECF No. 133 at 3.)
Despite acknowledgment that federal law governs the question of when a civil rights action
accrues, Plaintiff reiterates previously made arguments suggesting that under West Virginia law,
accrual begins not when the wrong was inflicted, but when the person knows of the injury and its
cause. (ECF No. 133 at 3.) To eliminate any confusion on the intricate intersection between
federal and state law on the point, the Court will quickly discuss the appropriate analysis.
1

On May 6, 2011, Plaintiff filed a response to the answer filed by Defendants Wilson and
Yung appearing to request that this court transfer this action. The motion was denied without
prejudice as premature and does not appear to have been renewed. (ECF No. 119 at 3; ECF No.
123.)
7

National Advertising Company v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991), cited in
Plaintiff’s brief indicates in relevant part: “[t]he selection of the appropriate statutory limitations
period is only the first step in the analysis.” Nat’l Advertising Co. v. City of Raleigh, 947 F.2d
1158, 1162 (4th Cir. 1991). After determining the statutory limitations period for a § 1983
action, the next question is determining when the plaintiff’s cause of action accrued. Id.
Determining the date upon which a § 1983 claim accrues is a matter of federal law.2 Albright v.
Oliver, 510 U.S. 266, 280 n. 6 (1994). Plaintiff would try to impose a “discovery rule” approach
based on West Virginia law at this juncture in arguing that he “did not ‘discover’ that the wrong
done had caused an actual permanent ‘injury’ until March 2010.” (ECF No. 133 at 4.) He goes
on to state that the “actual ‘injury’ discovery is the ‘basis’ of the action” and therefore argues
that his claims did not accrue until March 2010 “discovery” date. (ECF No. 133 at 4.) The
federal law, however, would hold that “the time of accrual is when plaintiff knows or has reason
to know of the injury which is the basis of the action.” Nat’l Advertising Co., 947 F.2d at 1162
(internal citations omitted). In other words, “for purposes of a § 1983 claim, a cause of action
accrues either when the plaintiff has knowledge of his claim or when he is put on notice-e.g., by
the knowledge of the fact of injury and who caused it-to make reasonable inquiry and that
inquiry would reveal the existence of a colorable claim.” Nasim v. Warden, Md. House of Corr.,
64 F.3d 951, 955 (4th Cir. 1995); see also United States v. Kubrick, 444 U.S. 111, 122-24
(1979)(“A plaintiff such as Kubrick, armed with the facts about the harm done to him, can
protect himself by seeking advice in the medical and legal community. To excuse him from
promptly doing so by postponing the accrual of his claim would undermine the purpose of the
limitations statute, which is to require the reasonably diligent presentation of tort claims against
2

A Bivens claim (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971)) is analogous to a claim brought against state officials under 42 U.S.C. § 1983.
Therefore, case law involving § 1983 claims is applicable in Bivens actions, and vice versa. See
Harlow v. Fitzgerald, 457 U.S. 800, 814–20, n. 30 (1982); see also Farmer v. Brennan, 511 U.S.
825, 839 (1994).
8

the Government”). A federal cause of action accrues upon inquiry notice. Nasim, 64 F.3d at 955
(analyzing when a cause of action accrued in a lawsuit brought by a prisoner alleging that the
defendants deliberately exposed him to asbestos during the time he was incarcerated.)
Plaintiff alleged that WVUH treating doctor Alison Wilson diagnosed him with
pneumonia in July 2008 and that he was discharged by Defendant Yung shortly after his
diagnosis. (ECF No. 1, ¶ 45-46). He complains that Defendants Wilson and Yung refused to
continue treating him despite his frail condition, pneumonia and fever. (ECF No. 1, ¶ 45-51.)
Plaintiff specifically alleges that Wilson and Yung acted with deliberate indifference by
“willfully disregard[ing] his condition due to his status” and discharging him back to an
environment that they knew posed a substantial risk of harm to Plaintiff in his weak and frail
condition.

(ECF No. 1, ¶¶ 51-52.)

Plaintiff further alleges that when Wilson and Yung

discharged him they caused Plaintiff actual injury, unnecessary and wanton infliction of pain,
and emotional distress. (ECF No. 1, ¶ 51-52.) Thus, the complaint itself reveals that as early as
July 2008, Plaintiff had sufficient knowledge of a July 2008 injury by the alleged perpetrators,
and was therefore placed on inquiry notice. Thus, Plaintiff’s cause of action against Defendants
Wilson and Yung accrued on July 4, 2008, when he was discharged from the hospital. Plaintiff
did not file his action in this Court until November 16, 2010.

Plaintiff’s action against

Defendants Wilson and Yung is therefore barred by the applicable two-year statute of
limitations.
Plaintiff devotes several paragraphs to discussing the allegedly deficient medical care he
received from the West Virginia BOP/USPHS Defendants (Shearer, Elliot, Peitrisko, Friend,
Azumah, Corbin, and Vasquez) after he returned to USP-Hazleton after the nine-day
hospitalization at WVUH following the incident at USP-Hazleton on June 25, 2008. (ECF No. 1,
¶¶ 21-131.) As the Magistrate Judge noted, Plaintiff asserted claims against the West Virginia
BOP/USPHS Defendants for alleged wrongs taking place between June 25 and August 25, 2008.
9

He detailed the various examinations and treatment he received from the several West Virginia
BOP/USPHS Defendants and outlined his estimation of his medical condition. (ECF No. 1, ¶¶
21-114.) Plaintiff provided no specific allegations of any incidents occurring after August 25,
2008. Plaintiff was certainly aware of the allegedly deficient medical care at the time it was
rendered, i.e., July and August 2008, and provided detailed discussion on the purported deficient
treatment. (ECF No. 1, ¶¶ 20-131). This Court therefore agrees with the Magistrate Judge’s
finding that the statute of limitations expired for the claims stated in his complaint at the latest
on August 25, 2010, two years after the last enumerated event.
Plaintiff tries to avoid the statute of limitations problem by arguing that he did not
discover that “the alleged harm” had caused a permanent injury until March 2010 when he saw
an x-ray of his lung with his own eyes. (ECF No. 133 at 4; ECF No. 1, ¶ 141.) He then argues
that his claims, therefore, did not accrue until he made the discovery of the permanent injury.
Accrual of a claim, however, does not “‘await awareness by the plaintiff that his injury was
negligently inflicted.’” Nasim, 64 F.3d at 955 (citing U.S. v. Kubrick, 444 U.S. 111, 123
(1979)(“We thus cannot hold that Congress intended that ‘accrual’ of a claim must await
awareness by the plaintiff that his injury was negligently inflicted.”)) Additionally, the accrual
date does not change to a later date on the basis of Plaintiff’s argument that he subsequently
discovered that his injury is permanent or more severe than he originally thought. Albertson v.
T.J. Stevenson & Co., 749 F.2d 223, 232–33 (5th Cir.1984) (holding that the plaintiff’s claims
were time-barred when he suffered a headache, nausea, and blackouts immediately after being
exposed to a toxin, but did not file suit until well after the statute of limitations had expired and
he learned he had sustained additional, much more serious injuries). “[I]t is the defendant’s
actions, not the resulting injury, which are the focus of an Eighth Amendment claim.” See
Russell v. Carroll, No. Civ-09-435, 2012 WL 719760, *4 (E.D. Okla. 2012).

Plaintiff’s

objections are not supported by the applicable law and do not change the unavoidable result that
10

Plaintiff’s claims against WVUH Defendants Wilson and Yung as well as the West Virginia
BOP/USPHS Defendants (Shearer, Elliot, Peitrisko, Friend, Azumah, Corbin, and Vasquez) are
barred by the statute of limitations and subject to dismissal on that ground. Any attempt by
Plaintiff to push the accrual date of his Eighth Amendment Claims beyond August 2008 fails.
4. Exhaustion of Remedies
Next, Plaintiff addresses exhaustion of administrative remedies as part of his filed
objections. (ECF No. 133 at 6.) The Magistrate Judge fully addressed the issue of whether
Plaintiff exhausted his available administrative remedies.

(ECF No. 132 at 16-22.)

The

Magistrate Judge concluded that Plaintiff’s claims against the West Virginia Defendants
(Wilson, Yung, Shearer, Elliot, Petrisko, Friend, Azumah, Corbin, and Vasquez) should not be
dismissed for failure to exhaust (but be dismissed for lack of personal jurisdiction and being
barred by the applicable statute of limitations). (ECF No. 132 at 19.) Plaintiff had no objection
to the Magistrate Judge’s finding regarding Plaintiff’s failure to exhaust his West Virginia
claims and the Court finds no error.

(ECF No. 133 at 6.)

The Magistrate Judge also

recommended that the claims against the Federal Defendants in South Carolina (Lopez, Smith,
Fonte, Saha, Guevara, Fuertes-Rosario, Mackelburg, Rice, and Blocker) be dismissed because
Plaintiff failed to exhaust his available administrative remedies as to his claims against these
Defendants prior to filing this action. (ECF No. 132 at 19-20.) In reaching his conclusions and
setting forth his recommendation, the Magistrate Judge acknowledged Plaintiff’s argument that
his failure to exhaust his administrative remedies should be excused because Defendant
Mackelburg improperly rejected a grievance instead of recusing himself based on being named
as a party to the grievance. (ECF No. 132 at 19-20.) The Magistrate Judge fully addressed this
argument in his Report and Recommendation and concluded that Plaintiff did not follow BOP
regulations in submitting his grievance and also failed to resubmit his grievance when given the
opportunity. (ECF No. 132 at 20.) The Magistrate Judge reviewed the evidence presented by
11

the parties on this question and concluded that to the extent Plaintiff claims that resubmitting or
appealing the grievances would have been futile, this would not excuse his failure to exhaust.
(ECF No. 132 at 21.)
Plaintiff objects to the Magistrate Judge’s findings concerning the claims against the
Federal Defendants in South Carolina (Lopez, Smith, Fonte, Saha, Guevara, Fuertes-Rosario,
Mackelburg, Rice, and Blocker) and claims that there is a “genuine issue of material fact as to
whether prison staff at F.C.I. Edgefield took actions such that Plaintiff’s remedies there were
made unavailable.” (ECF No. 133 at 6.) Plaintiff’s objection concerning administrative remedies
restates his previous arguments which were carefully and completely addressed by the
Magistrate Judge. (ECF No. 132 at 16-22.) Having reviewed Plaintiff’s objection, this Court is
unable to find any issue that would call into question the Magistrate Judge’s analysis, legal
conclusion and recommended disposition.

In fact, Plaintiff does not assert any specific

allegations of error in the Report and Recommendation, and instead simply restates his previous
arguments which were considered and rejected by the Magistrate Judge. The Magistrate Judge
concluded that Plaintiff did not comply with the mandatory exhaustion requirements prior to
filing this action and this Court agrees. “[A] prisoner does not exhaust all available remedies
simply by failing to follow the required steps so that remedies that once were available to him no
longer are.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
5. Absolute Immunity
Plaintiff also appears to object to the Magistrate Judge’s absolute immunity analysis and
the conclusion that the Defendants Smith and Corbin are entitled to absolute immunity under the
terms of the Public Health Service Act. (ECF No. 132 at 23.) In doing so, Plaintiff reiterates
arguments previously made and considered by the Magistrate Judge concerning the parameters
of absolute immunity under the terms of the Public Health Service Act, 42 U.S.C. § 233(a).
While Plaintiff cites Hui v. Castaneda, 130 S.Ct. 1845 (2010) in his objections in arguing that
12

Bivens is the appropriate remedy in his suit for claims against Defendants in their individual
capacities, he ignores the portion of the Supreme Court’s opinion which specifically states that
“even in circumstances in which a Bivens remedy is generally available, an action under Bivens
will be defeated if the defendant is immune from suit.” Hui, 130 S.Ct. at 1852. In Hui, the
Supreme Court noted that there are two separate inquiries involved in determining whether a
Bivens action may proceed against a federal agent: 1) whether the agent is amenable to suit and
2) whether a damages remedy is available for a particular constitutional violation absent
authorization by Congress. Hui, 130 S.Ct. at 1852. The Hui Court also specifically noted that
the Public Health Service Act, 42 U.S.C. § 233 “plainly indicates that it precludes a Bivens
action against petitioners for the harm alleged in this case,” in that its very language makes the
Federal Tort Claims Act (“FTCA”) the exclusive remedy for legal actions against members of
the Public Health Service for harms allegedly arising out of the performance of medical
functions related to their employment. Id. Defendants have represented that Defendants Smith
and Corbin were members of the USPHS at the time of the alleged incident and Plaintiff does
not dispute this. Notwithstanding Plaintiff’s objections and Plaintiff’s attempts to characterize
his suit against those Defendants as one for actions taken outside of the scope of their
employment, it is clear from Plaintiff’s complaint that Plaintiff has sued Corbin and Smith, both
USPHS employees, for alleged injuries resulting from the performance of medical functions
pertinent to their positions and within the scope of their employment as medical providers at
USP-Hazleton and FCI-Edgefield. (ECF Nos. 1 &100.) Thus, these Defendants are immune
from personal liability in this case. The Court therefore overrules this objection and the claims
against the individual Defendants Corbin and Smith are precluded and subject to dismissal.
Even if these Defendants were not entitled to absolute immunity, which they are, Plaintiff’s
claims would be subject to dismissal due to lack of personal jurisdiction and failure to exhaust as
analyzed above and in the Magistrate Judge’s Report and Recommendation.
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6. State Actor
The Magistrate Judge concluded that Plaintiff’s claims against Defendants Yung and
Wilson brought pursuant to 42 U.S.C. § 1983 or Bivens are also subject to dismissal because
Plaintiff has failed to show that these Defendants were acting under the color of law when they
were providing treatment to Plaintiff at WVUH. (ECF No. 132 at 24.) This Court has already
concluded that Plaintiff’s claims against these Defendants should be dismissed because this
Court lacks personal jurisdiction over these Defendants and because Plaintiff’s claims against
them are barred by the applicable limitations. Still, this Court has reviewed and considered
Plaintiff’s objection to the portion of the Report and Recommendation which analyzes whether
Defendants Yung and Wilson were acting as government actors during the time they were
performing the public function of providing medical services to Plaintiff. (ECF No. 133 at 17.)
In particular, Plaintiff’s argument that “there is a genuine issue of material fact as to whether
these Defendants are state actors” was fully considered by the Magistrate Judge and addressed in
his Report and Recommendation. Plaintiff’s argument was soundly rejected and the Court finds
nothing in Plaintiff’s submission to this Court to indicate that the Magistrate Judge erred in his
analysis and findings.
7. Plaintiff’s Motion to Impeach, Exclude, and Strike
Finally, the Court takes up Plaintiff’s Motion to Impeach and Exclude, and Motion to
Strike. (ECF No. 94.) The Magistrate Judge attempted to identify the legal basis for Plaintiff’s
motion and specifically analyzed the requested relief under Federal Rule of Civil Procedure 12(f)
as it appeared that Plaintiff sought to strike the affidavit of Jenifer G. Hollett. (ECF No. 132 at
26.) Plaintiff does not appear to contest the Magistrate Judge’s finding and agreed that his
motion to strike is “likely improper.” (ECF No. 133 at 19.) Plaintiff still maintains, however,
that the Hollett’s declaration and attachments should be impeached or excluded due to bias.
(ECF No. 133 at 19-21.) Plaintiff seems to seek the opportunity to attack Hollett’s credibility
14

based on Federal Rule of Evidence 607 and/or 608. Federal Rules of Evidence 607 and 608 set
forth the permissible methods and uses of character evidence of a witness and are not properly
invoked at this time. Plaintiff has not provided a proper legal basis for impeaching or excluding
the Hollett affidavit. Thus, the Motion is denied in accordance with the recommendation of the
Magistrate Judge.
CONCLUSION
The Court has viewed Plaintiff’s complaint in light of applicable standards and in the
manner most favorable to Plaintiff. The Court has carefully reviewed the record, the Report and
Recommendation and Plaintiff’s Objections and concurs in the recommendation of the
Magistrate Judge.

The Court hereby orders as follows: 1) Defendant John Doe #2 is

DISMISSED from this case WITHOUT PREJUDICE; 2) the motion to dismiss of Defendants
Yung and Wilson (ECF No. 102) is GRANTED; 3) the motion to dismiss of Defendants Shearer
(John Doe #1); Elliot (John Doe #3); Peitrisko (John Doe #4), Friend, Azumah, Corbin,
Vasquez, Lopez, Smith, Fonte, Saha, Fuertes-Rosario, Mackelburg, Rice, and Blocker (ECF No.
109) is GRANTED; 4) the motion to dismiss of Defendant Bowman (ECF No. 116) is
DENIED3; 5) and Plaintiff’s motion to impeach, exclude, and strike (ECF No. 94) is DENIED.
The Court adopts and incorporates the Report and Recommendation by reference into this order.
On August 8, 2012, Plaintiff filed a Motion to Stay Proceedings 90 Days. (ECF No. 134.)
At the time he filed the motion to Stay, Plaintiff had already filed his objections to the Report
and Recommendation. (ECF No. 133) and thus, there was no real cause to stay the case. In any
3

Defendant Bowman has not filed any objection to the Report and Recommendation
recommending that her Motion to Dismiss be denied. The court reviews the Report and
Recommendation only for clear error in the absence of an objection. See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.”) (citation omitted). The Court finds no clear error here.

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event, Plaintiff has had the benefit of the requested relief as 90 days have passed since the filing
of the Motion. The Motion to Stay is therefore DENIED.
IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge

February 22, 2013
Spartanburg, South Carolina

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