Jacobs v. Wilson et al

Filing 52

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Plaintiff's 50 and 51 Objections are overruled; Magistrate Kaull's 47 Report and Recommendation is adopted; Wilson's 33 Motion to Dismiss, o r in the alternative, Motion for Summary Judgment is granted; Plaintiff's 1 Complaint is dismissed with prejudice; and the Clerk shall remove this case from its active docket and enter a separate judgment order. Written notice of appeal must be received within 30 days from the date of entry of the Judgment Order. Signed by District Judge Irene M. Keeley on 12/9/13. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd) Modified relationship on 12/9/2013 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTINA JACOBS,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:12CV131
(Judge Keeley)

ALICIA WILSON,1
Defendants.

MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [Dkt. No. 47]
Pending before the Court is the magistrate judge’s Report and
Recommendation, (dkt. no. 47), concerning the defendant, Alicia
Wilson’s, (“Wilson”) motion to dismiss, or in the alternative,
motion for summary judgment (dkt. no. 12).

For the reasons that

follow, the Court ADOPTS the Report and Recommendation.
I. Introduction
On August 21, 2012, the pro se plaintiff, Christina Jacobs
(“Jacobs”), an inmate formerly incarcerated at SFF Hazelton,2 filed
a Civil Rights Complaint Form. Dkt. No. 1. Later, on September 18,
2012, she refiled her complaint on a court-approved Bivens form.

1

The plaintiff also names the United States as a defendant.
However, as recognized in the Order to Answer, (dkt. no. 22), the
United States is not a proper defendant in a Bivens action.
2

The allegations raised in plaintiff’s complaint took place at
SFF Hazelton. However, plaintiff has since been transferred to CI
WASECA.

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1:12CV131

MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
Dkt. No. 8.

On September 24, 2012, the Court granted Jacobs leave

to proceed in forma pauperis. Dkt. No. 13.
Wilson filed a motion to dismiss, or in the alternative, for
summary judgment, on March 26, 2013.

Dkt. No. 33.

On April 2,

2013, Wilson filed a memorandum in support of her motion.
The Court referred Wilson’s motion to United States Magistrate
Judge

John

S.

Kaull

for

initial

screening

and

a

Recommendation (“R&R”) in accordance with LR PL P 2.

Report

and

Judge Kaull

issued an R&R on the motion on August 16, 2013. In the R&R, he
recommended that Wilson’s motion be granted, since Jacobs had
failed to exhaust her administrative remedies, and because she did
not adequately state a claim under either the Eighth Amendment or
the Federal Tort Claims Act (“FTCA”).

Dkt. No. 47.

Jacobs filed objections to the R&R on September 12, 2013,
(dkt. nos. 50 & 51), contending that the magistrate judge had
concluded inaccurately that dismissal was proper because Jacobs had
failed

to

exhaust

her

administrative

remedies

and

failed

to

properly state a claim under the Eighth Amendment for ineffective
medical assistance.

After conducting a de novo review of the

portions of the R&R to which Jacobs objects, the Court concludes
that her objections are without merit.

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1:12CV131

MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
II. Facts
Jacobs alleges that she injured her right leg while performing
step aerobics in May of 2010. Dkt. No. 8 at 9. She was seen for
treatment of her injury by Wilson, a physician’s assistant, on June
24, 2010 at SFF Hazelton.

Id.

Wilson performed an examination on Jacobs’ right leg that
included palpitation. Id. After completing her examination, Wilson
concluded that Jacobs’ injury was likely tendinitis, and she
prescribed indomethacin, an anti-inflammatory drug.

Id.

Jacobs continued to experience pain in her right leg, even
after taking the prescribed medication.

On July 8, 2010, she was

transferred from SFF Hazelton to FPC Marianna, where

she received

further treatment for her leg injury. The doctors at FPC Marianna
performed x-rays and determined that Jacobs had a stress fracture
in her right leg.

Jacobs alleges that she has and continues to

suffer pain due to this injury and the inadequate treatment she
received from Wilson.
Jacobs seeks to bring two actions stemming from her alleged
injuries and inadequate treatment–a Bivens action against Wilson
and a FTCA suit against the United States.

Dkt. No. 46 at 1.

She

seeks $810,000 in compensatory damages, $75,000 in nominal damages

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
and $75,000 in punitive damages, as well as reasonable fees and
costs.
III. Standard of Review
A. Motion to Dismiss
Federal

Rule

of

Civil

Procedure

12(b)(6)

provides

for

dismissal of a case when a complaint fails to state a claim upon
which relief can be granted.

Dismissal under Rule 12(b)(6) is

inappropriate unless it appears beyond doubt that the plaintiff
cannot prove any set of facts to support his or her allegations.
Revene v. Charles County Comm’rs, 882 F.2d 870 (4th Cir. 1989).
Courts, however, are not required to accept conclusory allegations
couched as facts and nothing more when ruling on a motion to
dismiss pursuant to 12(b)(6). A complaint must include “more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do . . . .”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 127 S. Ct.1955, 167 L.Ed.2d 929 (2007).
“Factual allegations must be enough to raise a right to relief
above the speculative level.” Id.
To survive a motion to dismiss a plaintiff must state a
plausible claim in his complaint that is based on cognizant legal
authority and includes more than conclusory or speculative factual

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
allegations. “[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” because courts are not bound to accept
as true a legal conclusion couched as a factual allegation. Id.;
see also Nemet Chevrolet, Ltd. v. Comsumeraffairs.com, Inc., 591
F.3d 250 (4th Cir. 2009). “[D]etermining whether a complaint states
a plausible claim is context-specific, requiring the reviewing
court to draw on its experience and common sense.” Id.
Whether a complaint is legally sufficient is measured by
whether it meets the standards for a pleading stated in the Federal
Rules of Civil Procedure. See Fed.R.Civ. P 8 (providing general
rules of pleading), Fed.R.Civ. P. 9 (providing rules for pleading
special matters), Fed.R.Civ. P. 10 (specifying pleading form),
Fed.R.Civ. P. 11 (requiring the signing of a pleading and stating
its significance), and Fed.R.Civ. P. 12(b)(6) (requiring that a
complaint state a claim upon which relief can be granted.) Francis
v. Giacomelli, 588 F.3d 186 (4th Cir. 2009).
Jacobs is representing herself, which requires the Court to
liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97,

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
97 S.Ct. 285, 50 L.Ed.2d 251(1976); Haines v. Kerner, 404 U.S. 519,
92 S.Ct. 594, 30 L.Ed.2d 652 (1972)(per curiam); Loe v. Armistead,
582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th
Cir. 1978). While pro se pleadings are held to a less stringent
standard than those drafted by attorneys, Haines, 404 U.S. at 520,
even under this less stringent standard, a pro se complaint is
still subject to dismissal. Id. at 520-21. The mandated liberal
construction means only that if the Court can reasonably read the
pleadings to state a valid claim on which the plaintiff could
prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128 (10th
Cir. 1999). A court may not construct the plaintiff’s legal
arguments for her. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993).
Nor should a court “conjure up questions never squarely presented.”
Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985).
Ordinarily, a court may not consider any documents that are
outside of the complaint, or not expressly incorporated therein,
unless the motion is converted into one for summary judgment.
Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267
F.3d 30 (1st Cir. 2001)(cited with approval in Witthohn v. Federal
Ins. Co., 164 Fed. Appx. 395 (4th Cir. 2006) (unpublished)). There
are, however, exceptions to the rule that a court may not consider

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
any documents outside of the complaint. Specifically, a court may
consider official public records, “documents incorporated into the
complaint by reference, and matters of which the court may take
judicial notice,” or sources “whose accuracy cannot reasonably be
questioned.” Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462 (4th
Cir. 2011).
B. Motion for Summary Judgment
A moving party is entitled to summary judgment “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56©). In
applying the standard for summary judgment, the Court must review
all the evidence “in the light most favorable to the nonmoving
party.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The Court must avoid weighing the evidence or determining the truth
and limit its inquiry solely to a determination of whether genuine
issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In Celotex, the Supreme Court held that the moving party bears
the initial burden of informing the Court of the basis for the

7

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
motion and of establishing the nonexistence of genuine issues of
fact. Celotex, 477 U.S. at 323. Once “the moving party has carried
its burden under Rule 56, the opponent must do more than simply
show that there is some metaphysical doubt as to material facts.”
Matsushita, 475 U.S. at 586.

The nonmoving party must present

specific facts showing the existence of a genuine issue for trial.
Id. This means that the party opposing a properly supported motion
for summary judgment may not rest upon mere allegations or denials
of [the] pleading, but ... must set forth specific facts showing
that there is a genuine issue for trial.' Anderson, 477 U.S. at
256.

The “mere existence of a scintilla of evidence” favoring the

nonmoving party will not prevent the entry of summary judgment. Id.
at 248.

Summary judgment is proper only “[w]here the record taken

as a whole could not lead a rational trier of fact to find for the
nonmoving party.”

Matsushita, 475 U.S. at 587.
IV. Analysis

A. Exhaustion of Administrative Remedies
The Prisoner Litigation Reform Act (“PLRA”) provides that “no
action shall be brought with respect to prison conditions under
§

1983

of

this

title,

or

any

other

Federal

law,

by

a

prisoner...until such administrative remedies as are available are

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JACOBS V. WILSON

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
exhausted.” 42 U.S.C. § 1997e(a). “There is no question that
exhaustion is mandatory under the [Prisoner Litigation Reform Act]
and that unexhausted claims cannot be brought in court.” Jones v.
Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see
42 U.S.C. § 1997e(a) (2006) (requiring exhaustion of available
remedies). In order to exhaust, a prisoner must utilize all
available steps of a multi-step grievance process according to
their procedural requirements; exhaustion does not occur if the
prisoner fails to follow these required steps. See 28 C.F.R. §§
542.12 to 542.15 (2012); Moore v. Bennette, 517 F.3d 717, 725 (4th
Cir. 2008).
As the R&R explains in detail, the Bureau of Prison’s (“BOP”)
grievance procedure consists of a four-step administrative process.
First, a prisoner must attempt to reach an informal resolution with
the prison staff.

If the prisoner is unable to reach an informal

resolution, then she must file a written complaint to the prison
warden within 20 calendar days of the date of the occurrence on
which the complaint is based.

If an inmate is not satisfied with

the warden’s response, she may appeal to the regional director of
the BOP within 20 days of receiving the warden’s response.
Finally, the prisoner may then appeal to the Office of General

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
Counsel within 30 days of the date the Regional Director signed the
response.
An inmate will be deemed to have exhausted her administrative
remedies when she has filed her complaint at all four levels. 8
C.F.R. §§ 542.10-542.15.

Here, the record establishes that Jacobs

filed twenty requests for administrative remedies while in the
custody of the BOP, eight of which pertain to the injury at issue
in this case.

Dkt. No. 33-3 at 2.

In the instant case, Jacobs has raised three claims against
Wilson: 1) that she failed to order an x-ray; 2) that she failed to
prescribe effective pain medication; and 3) that she failed to make
a referral to an orthopedic specialist. Notably, none of Jacobs’
grievances within the BOP include an allegation that Wilson failed
to prescribe effective pain medication.

Therefore, this claim has

not been exhausted.
Furthermore, with respect to Jacobs’ claims that Wilson failed
to refer her to an orthopedic specialist and did not order an xray, Jacobs did not specifically identify Wilson or her treatment
at Hazelton in her grievances.

The record indicates that Jacobs

did not begin the administrative remedy process until six months
after

her

treatment

with

Wilson,

10

when

she

had

already

been

JACOBS V. WILSON

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
transferred from SFF Hazelton to FCI Marianna.

Nowhere in Jacobs’

grievances does she state that her alleged medical problems were a
consequence of the care she received from Wilson at SFF Hazelton.
As such, she failed to exhaust her administrative remedies before
bringing this action.
B. Eighth Amendment Claim
Jacobs argues that Magistrate Judge Kaull improperly concluded
that she failed to state a viable Eight Amendment claim.

She

asserts that, contrary to the magistrate judge’s findings, she
adequately established that her injury was “sufficiently serious”
and that Wilson exhibited deliberate indifference while treating
her.

Jacobs’ objections are without merit.
In order to state a viable Eighth Amendment claim for

ineffective medical assistance, a plaintiff must establish that the
defendant acted with deliberate indifference to her serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

Further, to

succeed on an Eighth Amendment “cruel and unusual punishment”
claim, a prisoner must establish that: 1) the deprivation of a
basic human need was “sufficiently serious” and 2) that the
defendant acted with a “sufficiently culpable” state of mind.
Wilson v. Seiter, 501 U.S. 294, 298 (1991).

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
A “sufficiently serious” medical condition is one that has
either been diagnosed by a physician as mandating treatment or so
obvious that even a lay person would understand that medical
attention is necessary.

Gaudreault v. Municipality of Salem,

Mass., 923 F.2d 203, 208 (1st Cir. 1990).

Additionally, a medical

condition is “sufficiently serious” if a delay in treatment has
caused a lifelong handicap or loss.

Monmouth County Corr. Inst.

Inmates v. Lanzaro, 834 F.2d 326, 347, (3rd Cir. 1987).
In

order

to

establish

that

the

defendant

acted

with

a

“sufficiently culpable” state of mind, the plaintiff must show that
the defendant acted with deliberate indifference. Wilson, 501 U.S.
at 303. A finding of deliberate indifference goes beyond a finding
of negligence.

It requires that the defendant “must both be aware

of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”
Id. at 837.
Furthermore, “to establish that a health care provider’s
actions constitute deliberate indifference to a serious medical
need, the treatment must be so grossly incompetent, inadequate or
excessive as to sock the conscience or to be intolerable to
fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th

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MEMORANDUM OPINION AND ORDER
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Cir. 1990).

A plaintiff can illustrate that she has experienced a

constitutional violation when “government officials show deliberate
indifference to those medical needs which have been diagnosed as
mandating treatment, conditions which obviously require medical
attention, conditions which significantly affect an individual’s
daily life activities, or conditions which cause pain, discomfort
or a threat to good health.” Morales Feliciano v. Calderon Serra,
300 F.Supp. 2d 321, 341 (D.P.R. 2004).
Contrary to her objection, Jacobs has failed to show that
Wilson’s

treatment

of

her

injury

rises

to

the

level

of

a

constitutional violation. First, she has failed to prove that her
injury was “sufficiently serious.” Jacobs had not sought treatment
for her leg injury before visiting Wilson, so she cannot prove that
a prior physician had examined her and determined that her medical
condition was sufficiently serious.

Additionally, her leg injury

does not appear to be one that a lay person would identify as
needing immediate medical attention. Alternatively, Jacobs has not
established that the failure to adequately treat her injury has
resulted in a lifelong handicap or loss.
Jacobs has also not established that Wilson acted with a
“sufficiently culpable” state of mind. Wilson performed a thorough

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
medical

examination

of

Jacobs

before

reaching

conclusion regarding her diagnosis of the problem.

a

reasonable

In no way does

Jacobs allege facts establishing that Wilson’s treatment of her leg
injury was “grossly incompetent, inadequate or excessive as to
shock the conscience or to be intolerable to fundamental fairness.”
Miltier, 896 F.2d at 851.
Further, to the extent that Jacobs may be alleging that
Wilson’s care for her amounted to malpractice, ordinary medical
malpractice does not rise to the level of a valid Eighth Amendment
claim. Estelle, 429 U.S. at 106.

Thus, Jacobs has failed to

sufficiently plead an Eight Amendment claim for inadequate medical
assistance.
C. FTCA Claim
Jacobs does not object to Magistrate Judge Kaull’s findings on
her FTCA claim. After a de novo review, the Court finds that
Magistrate Judge Kaull did not clearly err when he made the
recommendation regarding this claim.
Jacobs failed to bring her FTCA claim before first exhausting
her administrative remedies.

She filed her administrative tort

claim on August 13, 2012 and initiated the instant action on
August 21, 2012.

However, Jacobs’ administrative tort claim was

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
not rejected until March 19, 2013, leading inevitably to the
conclusion that her FTCA claim in this action is untimely.
Additionally, Jacobs has not met the requirements for filing
a claim under the FTCA.

The FTCA permits the United States to be

held liable in tort in the same respect that a private person may
be held liable under the law of the state where the act occurred.
Medina v. United States, 259 F.3d 200, 223 (4th Cir. 2001).

Under

West Virginia law, certain requirements must be met before a health
care provider can be sued. See W.Va. Code § 55-7B-6, which requires
that, at least thirty days prior to filing an action against a
health care provider, that a claimant submit a notice of claim to
each defendant containing a statement of the theories of liability
upon which a cause of action may be based, and a list of all health
care providers and health care facilities to whom notices of claim
are being sent, together with a screening certificate of merit.
Id.

Jacobs has not complied with these provisions.

Thus, the

magistrate judge properly concluded that her attempt to allege an
FTCA claim in this action must be denied.
V. Conclusion
In conclusion, Jacobs’ objections to the R&R are without
merit.

The Court therefore:

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
1.

OVERRULES Jacobs’ objections to the Report &
Recommendation (dkt. nos. 50 & 51);

2.

ADOPTS the Report and Recommendation in its entirety
(dkt. no. 47);

3.

GRANTS Wilson’s motion to dismiss, or in the alternative,
motion for summary judgment (dkt.

no. 33);

4.

DISMISSES WITH PREJUDICE Jacobs’ complaint; and

5.

DIRECTS the Clerk to remove this case from its active
docket.

If Jacobs should desire to appeal the decision of this Court,
written notice of appeal must be received by the Clerk of this
Court within (30) days from the date of the entry on the Judgment
Order, pursuant to Rule 4 of the Federal Rules of Appellate
Procedure.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk to
enter a separate judgment order and to transmit copies of both
orders to counsel of record, all appropriate agencies, and the pro
se plaintiff, certified mail, return receipt requested.
DATED: December 9, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

16