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
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