Stout v. Meletis et al

Filing 59

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/23/12. Copy sent: Yes(tdai, )

IN THE UNITED
FOR THE

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Richmond Division

ROBERT BENJAMIN STOUT,

Plaintiff,
v.

Civil Action No.

COLONEL MELETIS,

3:09CV538

et al.,

Defendants.

MEMORANDUM OPINION

Robert
and

in

forma

U.S.C.
makes

Benjamin

Stout,

pauperis,

§ 1983.

filed

Proceeding on

seven separate claims

related
pursuant

to

his

to

Memorandum

28

type

should

Court

also

not

1

U.S.C.

Order,

Court

a

this

action

After

Stout

that

to

an

and

initial

1915A,

For

to

42

Stout

the

screening
Court,

show

good

cause

1 through

6 as

untimely.

Claim

7

of

the

following

reasons,

I.

be

responded.

se

pursuant

the

STANDARD

why

by
the
The

Particularized

Complaint was before the Court for initial screening.
not

pro

for denial of adequate medical care

Claims

Stout

proceeding

a Particularized Complaint,

§§ 1915(e)(2)

dismiss

inmate

civil

diabetes.

directed

informed

former

Stout's

Stout has
claims

will

OF REVIEW

("PLRA")

this

DISMISSED.

Pursuant

to the

Court must dismiss

Prison Litigation Reform Act

any action filed by a prisoner if the Court

determines

the action

(1)

a

on

relief

claim

which

§ 1915(e)(2);

includes

see

claims

28

"is

frivolous"

may

be

§

upon

(2)

1915A.

U.S.C.

based

or

'Man

"fails to state

granted."
.The

28

U.S.C.

first

indisputably

standard

meritless

legal

theory,'" or claims where the xx>factual contentions are clearly
baseless.'"

Clay

v.

Yates,

1992)

(quoting Neitzke

v.

These

standards

the

permit

809

F.

Williams,

Court

Supp.
490

to

417,

U.S.

sua

427

319,

sponte

(E.D.

327

Va.

(1989)).

dismiss

claims

that are clearly barred by the relevant statute of limitations.
See Eriline Co.

2006);

Nasim

(4th Cir.

S.A.

v.

v.

Johnson,

Warden,

1995).

The

Md.

440

House

motion

sufficiency

contests

to

of

a

dismiss

the

Arthur R.

952

facts,

Miller,

(4th Cir.
Federal

P.

Rule

the

655-57

64

the

955

standard

12(b)(6).

does

of

a

tests

not

the

resolve

claim,

Republican Party of N.C.
1992)

951,

familiar

it

merits

(4th Cir.

F.3d

12(b) (6)

importantly,

applicability of defenses."
980 F.2d 943,

Corr.,

R. Civ.

under

complaint;

surrounding

of

second standard is

for a motion to dismiss under Fed.
"A

F.3d 648,

or

the

v. Martin,

(citing 5A Charles A. Wright &

Practice and Procedure § 1356

(1990)).

In considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true and the
complaint
plaintiff.
Cir.

1993);

is

viewed

in

Mylan Labs.,
see

also

the

Inc.

Martin,

light

most

v. Matkari,
980

F.2d

at

favorable

7 F.3d 1130,
952.

This

to

the

1134

(4th

principle

applies

only

to

factual

considering

a

motion

identifying

pleadings

conclusions,

are

Ashcroft v.

Iqbal,

The

to

dismiss

that,

not

Federal

allegations,

129 S. Ct.

of

can

because

entitled

Rules

however,

to

1937,

Civil

and
to

choose

they

the

are

"a

begin

no

more

assumption

1950

court

of

by
than

truth."

(2009).

Procedure

"require [ ] only

*a

short and plain statement of the claim showing that the pleader

is

entitled

to

relief,'

notice of what the
rests.'"

(second alteration

41,

47

with

complaints

"formulaic

Id.

at

allege

Corp.

in

(1957)).

recitation

of

only

the

cannot

facts

sufficient

"to

reasonable

misconduct
Corp.,

the

defendant

its

Id.

fair

id.

"A claim has
content

inference

550 U.S.

that

Iqbal,
at

of

a

a

right

556).

555

(2007)

Gibson,

355

this

standard

or

a

of

action."

plaintiff

relief

a

above

must

the

stating a claim that

570,

rather

than

merely

facial plausibility when the

that

the

129

at

v.

cause

to

(citation omitted),

factual

544,

conclusions"

and

Instead,

raise

face,"

alleged."

U.S.

satisfy

"labels

omitted).

on

550

elements

(citations

"plausible

xgive

(quoting Conley

555

plaintiff pleads

Atl.

to

Twombly,

Plaintiffs

containing

"conceivable."

the

v.

original)

speculative level," id.

is

order

. . . claim is and the grounds upon which it

Bell Atl.

U.S.

in

allows

defendant

S.

Ct.

Therefore,

at

the
is

court
liable

1949

to
for

(citing

draw
the

Bell

in order for a claim or

complaint to survive dismissal for failure to state a claim,

the

plaintiff

must

"allege

elements of

[his or]

&

F.3d

Co.,

324

Microsoft

United States,

it

the

Gordon
does

v.

not

Cir.

193,

213

281

Court

as

to

E.I.

2003)
(4th

(citing

the

F.2d

all

the

Dickson

v.

Iodice

v.

pro

se

2002);

2002)).

liberally

574

state

DuPont de Nemours

Cir.

(4th Cir.

Leeke,

act

Bass v.

(4th

F.3d

while

complaints,
1978),

309

765

289 F.3d 270,

Lastly,

sufficient

her claim."

761,

Corp.,

facts

construes

1147,

inmate's

1151

advocate,

(4th
sua

Cir.

sponte

developing statutory and constitutional claims the inmate failed
to

clearly

Carroll,

raise

107

concurring);
(4th Cir.

on

face

241,

F.3d

the

243

Beaudett

v.

his

(4th

City of

complaint.
Cir.

See

1997)

Hampton,

775

Brock

(Luttig,

F.2d

1274,

v.
J.,

1278

1985) .

II.

A.

of

STATUTE OF LIMITATIONS

Statute of Limitations for §

1983 Actions

Because there is no explicit statute of limitations for 42
U.S.C.

§

1983

statute

of

Warden,

Md.

actions,

limitations

House

of

(citing

Wilson

v.

Virginia

applies

a

the

courts

borrow

the

relevant

from

Corr.,

64

Garcia,
two-year

471

claims.

See

Code

Ann.

Hence,

Stout

required to have

951,

U.S.

statute

injury

was

Va.

F.3d

personal

state.

955

261,

of

§

the

his

Cir.

266-69

8.01-243(A)

filed

Nasim

(4th

limitations

injury

to

1995)

(1985)).
personal

(West

original

v.

2011).

complaint

within
claim

two

years

accrues

injury,
when

from

when

when

the

or

she

inquiry'

as

to

No. 3:08cvl38,

*is

put

whether

2009

WL

(omission in original)

underlying

plaintiff

United States v.

he

the

becomes

Kubrick,
on

a

aware

444 U.S.

notice

claim

2424084,

claim

to

exists."

at

*4

his

123
make

Va.

or

her

or

reasonable

v.
6,

Aug.

Sisk,
2009)

64 F.3d at 955).

filed his original complaint on June 22, 2009.1

"A

(1979),

Almond

(E.D.

(quoting Nasim,

of

Ill,

...

accrued.

Stout

Thus, Stout is

barred from bringing any claim which accrued prior to Thursday,
June 21,

B.

2007.

Timeliness of Claims 1 through 6

In Claims 1 through 6, Stout asserts that Defendants denied

him adequate medical care by refusing him an insulin injection
for his

claim).
dates

type 1 diabetes

(Particularized Compl.
range

Stout's

on six specific dates

cause

from

December

of action

19,

(Docket No.
2006

accrued as

of

to
the

58)

(one for each

4-8.)2

February
date

These

16,

of each

2007.
claim.

1 This is the date that Stout signed the original complaint
and, presumably, handed it to prison officials for mailing.
See
Houston v. Lack,

2

Because

487 U.S.

Stout

Particularized Complaint,

266,

did

276 (1988).

not

number

the

pages

of

citations to this document will

his
refer

to the page numbers assigned by the CM/ECF system.

3 Stout's Particularized Complaint,

as well as his earlier

submissions
(see,
e.g.,
Am.
Comp.
(Docket
No.
20)
4-9) ,
indicates that, on each of the six specific dates in question,
he personally requested insulin injections.
Thus, Stout became

The latest of these dates,

857

days

(two

years,

February 16, 2007

six

days)

filing of the original complaint on June 22,

2009.

because

which

these

claims

four months,

are

based

on

and

(Claim 6), occurred

incidents

prior

to

the

Accordingly,
occurred

more

than two years before Stout filed his initial complaint in this
Court, Claims 1 through 6 will be dismissed.

III.

DENIAL OF ADEQUATE MEDICAL CARE

Stout alleges that,

Fonah

on

"negligently gave

amount

of

insulin

(Particularized
[Stout]

an

inaccurate
blood

due

to

dose

for

a

blood

failure

Based

of

on

to

great

and/or

type

sugar

one

"Ms.

Fonah

gave

that

was

calibrate

further

mental

excessive
diabetes."

reading

properly

Stout

[him]

Defendant Kadiatu

^overdose'

disease

(Id.)

"caused

2009,

Specifically,

[Fonah's]

(Id.)

an

9.)

monitor."

actions

anguish."

[Stout]

[Stout's]

Compl.

insulin

glucose

Fonah's

for

January 15,

the

states

that

and

emotional

the

foregoing,

Stout

makes

provided

inadequate

medical

the

care

following claims:

Claim 7(a)

Fonah

to Stout in violation of his Eighth4 and
Fourteenth5 Amendment rights.
aware of the denial of medical care
dates.
See Kubrick, 444 U.S. at 123.
accrued on these dates.

Almond,

as of the six specific
Accordingly, his claims

2009 WL 2424084 at *4.

4 "Excessive bail shall not be required, nor excessive fines
imposed,
Const,

nor

amend.

cruel
VIII.

and

unusual

punishments

inflicted."

U.S.

Claim 7 (b)

Fonah

committed

the

common

law

tort

of

negligence.
(Id.

at 9,
A.

13.)
Deliberate

To make

out

Indifference

Standard

an Eighth Amendment6

allege facts that indicate

(1)

subjectively

the

Asufficiently

culpable

145 F.3d 164,

167

U.S.

294,

must

allege

of

was

298

extreme

discomfort'"

(4th Cir.

(1991)).

facts

and

that

of

officials

mind.'"

1998)

Under

that

^sufficiently serious,'

prison

state

the

objective

that

amounted

to

"*part

Johnson

of

the

the

v.

n.3

Hudson

v.

F.2d

McMillian,

1375,
503

1380
U.S.

1,

9

than

the

Cir.

inmate

"^routine

that

criminal

Strickler

1993)

(1992)).

501

complained

society.'"

(4th

a

Seiter,

the

penalty

against

989

prong,

(2)

Quinones,

deprivation

more

offenders pay for their offenses
Waters,

v.

and

with

acted

(quoting Wilson v.

suggest

is

an inmate must

that objectively the deprivation

suffered or harm inflicted "was

that

claim,

"In

(quoting
order

to

5 "No State shall . . . deprive any person of life, liberty,
or

property

amend.

XIV,

without

due

process

of

law

.

.

.

."

U.S.

Const,

§ 1.

6 "[I]t is now well established that the Eighth Amendment
Aserves as the primary source of substantive protection to
convicted prisoners,'
and the Due Process Clause affords a
prisoner no greater substantive protection ^than does the Cruel
and Unusual Punishments Clause.'"
Williams v. Benjamin, 77 F.3d
756,
312,

768 (4th Cir. 1996)
(quoting Whitley v. Albers, 475 U.S.
327
(1986)).
Thus,
Stout's
Fourteenth
Amendment
due
process claim is subsumed within his Eighth Amendment claim.
Id.
7

demonstrate such an

extreme deprivation,

a prisoner must allege

xa serious or significant physical or emotional injury resulting
from

the

challenged

F.3d

630,

634

(4th

conditions.'"
Cir.

2003)

De'Lonta

(quoting

v.

Angelone,

Strickler,

989

330

F.2d

at

claim for denial

of

1381).

In order to

state an Eighth Amendment

adequate medical care,

"a prisoner must allege acts or omissions

sufficiently

to

harmful

serious

medical

(1976).

"To

constitute

the

excessive

needs."

as

must
to

1990)

be

shock

Cir.

a

v.

so
the

Gamble,

health

grossly

to

care
a

subjective

requires

the

particular

plaintiff

defendant

substantial risk of
Brennan,

prong

511 U.S.

Evans,

U.S.

provider's

incompetent,

conscience

v.

429

serious

or

to

Miltier v. Beorn,

Rogers

indifference

106

actions
need,

inadequate,

or

intolerable

to

be

of

to

a

deliberate

allege

actually

facts

knew

serious harm to his

825,

837

F.2d

97,

medical

896 F.2d 848,

792

to

(1994).

of

1052,

851

(4th

1986)).

The

(citing

that

deliberate

indifference

fundamental fairness."
Cir.

Estelle

establish

deliberate

treatment

evidence

1058

(11th

indifference

claim

that
and

person.

indicate

a

disregarded

a

See Farmer v.

"Deliberate indifference is

a very high standard—a showing of mere negligence will not meet
it."

Grayson v. Peed,

Estelle,

429 U.S.

195 F.3d 692,

at 105-06).

8

695

(4th Cir.

1999)

(citing

[A] prison official cannot be found liable under the
Eighth
Amendment
for
denying
an
inmate
humane
conditions

of

confinement

unless

the

official

knows

of

and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from
which

the

inference

could

be

drawn

risk of serious harm exists,

that

a

substantial

and he must also draw the

inference.

Farmer,

511 U.S.

at 837.

Farmer teaches "that general knowledge

of facts creating a substantial risk of harm is not enough.
prison

official

general

facts

to

also

draw

and

the
145

F.3d at

the

specific

Johnson,

inmate."

837);

must

Rich v.

survive

a

Bruce,

risk
168

129 F.3d 336,

motion

to

inference
of

(citing

340

dismiss,

harm

between

those

confronting

Farmer,

(4th Cir.

the

The

511

U.S.

1997)).

deliberate

the
at

Thus,

indifference

standard requires a plaintiff to assert facts sufficient to form
an

inference

that

"the

official

in

question

subjectively

recognized a substantial risk of harm" and "that the official in
question

subjectively

recognized

that

*inappropriate in light of that risk.'"
Cleveland,

372

F.3d 294,

303

(4th Cir.

his

actions

Parrish ex rel.
2004)

were
Lee v.

(quoting Rich,

129

F.3d at 340 n.2).
B.

In

Deliberate

Claim

support

a

7 (a)

claim

Indifference to Stout's Diabetes

Stout
against

Stout merely states that
calibrate

the

fails

blood

Fonah

to

allege

for

facts

sufficient

deliberate

to

indifference.

Fonah "negligently" failed to properly

sugar

glucose

monitor

before

reading

his

blood

sugar.

Fonah

(Particularized

"owed

[Stout]

a

duty

Compl.

of

9.)

care

.

Stout

.

.

asserts
breached

[and]

that
that

duty by her failure to exercise reasonable care."

(Id.

at

13.)

Stout alleges no facts raising an inference that Fonah knew that
the

monitor

was

not

properly

calibrated.

Moreover,

exist suggesting that Fonah subjectively recognized,
of

the

monitoring,

Parrish,

372

suggest

that

Holland v.

at

*3

(W.D.

at

Fonah

Dir.

River Reg'l

Va.

F.3d

her
Such

303.
acted

actions

allegations

with

Health Servs.,

Va.

Mar.

Jail,

July 10,

that

31,

No.

were

deliberate

No.

2010);

v.

at the time

to

plausibly

indifference.

See

2010 WL 1303417,

Med.

Dep't of Middle

7:06cv00636,

2007 WL 2029304,

Accordingly,

2007).

facts

inappropriate.

fail

7:10CV00086,

Atkins

no

Claim 7(a)

will

at *5

be

(W.D.

dismissed

with prejudice.
C.

Stout's Negligence Claim

In
recited

Claim

7(b),

above,

negligence."

with

law claims.

6396592,

pendent

at

asserts

committed

(Particularized

jurisdiction

jurisdiction,

Stout

pursuant

pursuant
See,

*3

to

e.g.,

(E.D.

have been dismissed,

Dec.

Compl.

to

based

on

§

1367,

2011)

because

her

No.

has

actions

common-law

Generally,

1983

Stolle,

20,

by

13.)

§

U.S.C.

However,

Fonah,

tort

Sawyer v.

Va.

jurisdiction).

28

"a

that

a

court

supplemental

over pendent
2:llcv446,

state

2011 WL

(declining to exercise

Stout's

federal claims

the Court declines to exercise supplemental

10

jurisdiction
City of

Va.

over

his

Danville,

June

3,

No.

state

law

tort

4:10CV00012,

2011).

claim.

See

Thompson

2011 WL 2174536,

Accordingly,

Claim

7(b)

will

at

be

*9

v.

(W.D.

dismissed

without prejudice.

If Stout acts promptly,
Claim 7 (b)
him

in

should not pose a statute of

light

229(E)(1)

this dismissal without prejudice of

of

the

tolling

limitations problem for

provision

found

in

section

8.01-

of the Virginia Code. That statute provides:

[I]f any action is commenced within the prescribed
limitation period and for any cause abates or is
dismissed without determining the merits,
the time
such action is pending shall not be computed as part
of the period within which such action may be brought,
and another action may be brought within the remaining
period.
Va.

Code

Ann.

§

8.01-229 (E) (1)

(West

2011).

This

provision

applies in § 1983 actions.

See Canada v. Ray,

No.

2009 WL

(W.D.

2009);

Tim

2448557,

Cheng-Chien

at *2

(4th

Cir.

at

*3

n.l

Va.

Chang

v.

Burford,

Oct.

9,

1986).

Aug.

No.

10,

85-2224,

Thus,

because

7:08cv00219,

1986
the

see

WL

17844,

statute

limitations has tolled during the pendency of this action,

is

left

with

limited time

to

file

his

negligence

also

claim

of

Stout

(Claim

7(b)) in the state court of proper jurisdiction.

IV.

For

the

foregoing

CONCLUSION

reasons,

will be dismissed with prejudice.

11

Stout's

Claims

Claim 7(b)

1

through

7(a)

will be dismissed

without

prejudice.

Meletis

and Land

action will be

The

Clerk

The
(Docket

Motion
No.

to

34)

Dismiss

will

be

filed by
denied

as

Defendants
moot.

The

dismissed.

is

directed

to

send

a

copy

of

the

Memorandum

Opinion to Stout and counsel of record.

An appropriate Order shall issue.

tef

/s/
Robert E. Payne
Senior United States District Judge

Richmond,

Virginia

Date: ?*Uyi?,^v

12