Jones v. United States et al

Filing 190

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFFS MOTION FOR RECONSIDERATION [DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE: The Court GRANTS-IN-PART and DENIES-IN-PART Jones motion for relief from judgment (Dkt. No. 175 ); GRANTS Jones motions for leave to supplement his Rule 60(b) motion (Dkt. Nos. 177 ; 178 ); DENIES as MOOT Jones motion for leave to supplement newly discovered evidence (Dkt. No . 184 ); VACATES-IN-PART its earlier Order insofar as it dismissed Jones FTCA claim (Dkt. No. 149 ) and REOPENS the case; GRANTS Jones LEAVE to secure and file a medical screeningcertificate of merit with the Court within ninety (90) days followin g entry of this Order; and REFERS this case to Magistrate Judge Trumble for furtherproceedings consistent with this Opinion, and also DIRECTS him to consider Jones motions for appointed counsel (Dkt. Nos. 176 ; 178 ). Signed by Senior Judge Irene M. Keeley on 5/16/18. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL ANTHONY JONES,
Plaintiff,
v.

Civil Action No. 1:15cv50
(Judge Keeley)

UNITED STATES, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149]1 AND REOPENING THE CASE
I. BACKGROUND
On March 20, 2015, the pro se plaintiff, Michael Anthony Jones
(“Jones”), filed a civil rights complaint against a number of
defendants concerning his medical care at U.S.P. Hazelton (Dkt. No.
1-1). Jones brought his initial complaint against the defendants in
their individual capacities pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971) (Dkt. No. 11).
The Court referred the matter to the Honorable Robert W.
Trumble, United States Magistrate Judge, for initial screening and
a Report and Recommendation (“R&R”). By order entered on July 20,
2015, Magistrate Judge Trumble notified Jones that “a Bivens

1

This Memorandum Opinion and Order vacates in part the
Court’s Order Adopting Report and Recommendation (Dkt. No. 149),
only insofar as it dismissed the plaintiff’s FTCA claim. The
Court’s ruling on Jones’ Bivens claims remains unaffected.
1

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
complaint and a FTCA complaint are two separate causes of action,”
and that, to the extent Jones was attempting to raise a claim under
the Federal Tort Claims Act, “he must file a form complaint and
[]incur a separate filing fee” (Dkt. No. 35 at 1). On October 1,
2015, Jones

filed

an

additional

complaint

in

this

same

case

asserting an FTCA claim against the United States of America (Dkt.
No. 62).
On November 17, 2016, Magistrate Judge Trumble issued an R&R,
which concluded that Jones failed to state a valid Bivens claim and
also failed to file a screening certificate of merit pursuant to
West Virginia Code § 55–7B–6(c), a necessary prerequisite to filing
his FTCA claim (Dkt. No. 138). After finding no clear error, the
Court adopted the R&R in its entirety (Dkt. No. 149) and denied
Jones’ motion for summary judgment (Dkt. No. 114). It also granted
the defendants’ motion to dismiss (Dkt. No. 92), dismissed Jones’
Bivens claim with prejudice, and dismissed his FTCA claim without
prejudice (Dkt. No. 132).
Jones appealed the Court’s dismissal of his complaint to the
United States Court of Appeals for the Fourth Circuit (Dkt. Nos.
156; 164), which on August 1, 2017, dismissed the appeal for lack

2

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
of jurisdiction (Dkt. No. 170). Now pending is Jones’ self-styled
“Motion for Relief (Fed. R. Civ. P. 60(b)(1)-(3))” (Dkt. No. 175).
II. APPLICABLE LAW
Jones seeks relief pursuant to Federal Rule of Civil Procedure
60(b), which allows the Court to “relieve a party . . . from a
final judgment, order, or proceeding” for:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1)-(6). A movant under Rule 60(b) must “have
a meritorious claim or defense and the opposing party must not be
unfairly prejudiced by having the judgment set aside.” Aikens v.
Ingram, 652 F.3d 496, 501 (4th Cir. 2011).
A Rule 60(b) motion may also be construed as a motion for
reconsideration. “[T]he purpose of a motion for reconsideration is
to correct manifest errors of law or fact or to present newly
discovered evidence. . . . Where evidence is not newly discovered,
3

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
a party may not submit that evidence in support of a motion for
reconsideration.” Harsco Corp. v. Zlotnicki, 779 F.2d 907, 909 (3d
Cir. 1985), cert. denied, 476 U.S. 1171 (1986). “[A] motion to
reconsider

is

appropriate

where

the

court

has

obviously

misapprehended a party's position or the facts or applicable law,
or where the party produces new evidence that could not have been
obtained

through

the

exercise

of

due

diligence.”

Prudential

Securities, Inc. v. LaPlant, 151 F.R.D. 678, 679 (D.Kan. 1993). A
general principle

applied

in

the

Rule 60(b)

context

is

that

“disposition of a motion under Fed. R. Civ. P. 60(b) is within the
sound discretion of the district court.” Evans v. United Life &
Acc. Ins. Co., 871 F.2d 466, 472 (4th Cir. 1989) (citing Universal
Film Exchanges, Inc. v. Lust, 479 F.2d 573, 576 (4th Cir. 1973).
IV. DISCUSSION
Although Jones cites generally to subsections (1) through (3)
as the bases on which the Court should grant relief under Rule
60(b), he fails to explain how any of these provisions relate to
the Court’s prior order dismissing his case. Rather, Jones argues
that he is entitled to relief because he “was not appointed counsel
for the purpose of obtaining the necessary expert health care

4

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
professional certification required” to pursue his FTCA claim, and
because the Court “did not take into consideration [his] inability
to make properly researched responses” about that claim, due to his
incarceration at U.S.P. Hazelton. Id. at 2. Jones further argues
that the Court improperly dismissed his claim under the Americans
with

Disabilities

Act

(“ADA”),

because

“the

defendant

never

responded to [it] and thus conceded the issue in [Jones’] favor.”
Id. Given the grounds on which Jones requests relief, the Court
construes his Rule 60(b) motion as a motion for reconsideration.
A.

FTCA Claim
The FTCA allows a plaintiff to recover damages from the United

States “for personal injuries sustained during confinement in a
federal prison,

by

reason

of

the

negligence

of

a

government

employee.” United States v. Muniz, 374 U.S. 150 (1963). It does not
create a new cause of action, but merely “permits the United States
to be held liable in tort in the same respect as a private person
would be liable under the law of the place where the act occurred.”
Edina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). Relevant
here

is

West

Virginia’s

Medical

Professional

Liability

Act

(“MPLA”), W. Va. Code § 55-7B-1, et seq., which describes a cause

5

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
of action for professional medical negligence.
Section 55-7B-6(b) of the MPLA requires that, before filing an
action against a health care provider, the plaintiff must serve a
notice of claim and a screening certificate of merit. W. Va. Code
§ 55-7B-6(b) (“Prerequisites for filing an action against a health
care

provider”).

While

compliance

with

the

MPLA’s

pre-filing

requirement is mandatory prior to filing suit in federal court,
Stanley v. United States, 321 F.Supp.2d 805, 806-07 (N.D.W.Va.
2004), § 55-7B-6(c) provides the following exception:
[I]f a claimant or his or her counsel, believes that no
screening certificate of merit is necessary because the
cause of action is based upon a well-established legal
theory of liability which does not require expert
testimony supporting a breach of the applicable standard
of care, the claimant or his or her counsel, shall file
a statement specifically setting forth the basis of the
alleged liability of the health care provider in lieu of
a screening certificate of merit.
W. Va. Code § 55-7B-6(c).
Here, Jones concedes that he failed to serve a screening
certificate of merit prior to filing his FTCA claim (Dkt. Nos. 175
at 2; 175-1 at 2-3). Further, for the reasons discussed in the R&R
and adopted by the Court, namely, that expert testimony would be
required to resolve his medical negligence claim, Jones was not

6

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
excused from filing a certificate of merit under subsection (c).
(Dkt. Nos. 138 at 19-20; 149 at 2-3). See W. Va. Code § 55-7B-6(c);
see also Giambalvo v. United States, 2012 WL 984277 (N.D.W.Va. Mar.
22,

2012).

Thus,

Jones

failed

to

comply

with

the

pre-suit

requirements of the MPLA.
In most circumstances, a plaintiff’s “[f]ailure to serve a
screening certificate of merit in accordance with § 55-7B-6 . . .
calls for dismissal.” Lancaster v. USP Hazelton, 2017 WL 3448187,
*4 (N.D.W.Va. Aug. 11, 2017). There are limited circumstances,
however, in which a plaintiff may be given an opportunity to
rectify his noncompliance. See Giambalvo, 2012 WL 984277, at *5-6
(citing Westmoreland v. Vaidya, 664 S.E.2d 90, 96-97 (W. Va. 2008)
(per curiam)). In Westmoreland, the Supreme Court of Appeals of
West Virginia determined that a pro se plaintiff who failed to file
a

certificate

of

merit

but

“demonstrated

a

good

faith

and

reasonable effort to further the statutory purposes” of § 55-7B-6
should have been permitted a reasonable period of time to provide
a certificate before dismissal. 664 S.E.2d at 96-97.
Westmoreland observed that “a principal consideration before
a

court

reviewing

a

claim

of

insufficiency

7

in

a

notice

or

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
certificate should be whether a party challenging or defending the
sufficiency of a notice and certificate has demonstrated a good
faith and reasonable effort to further the statutory purposes.” Id.
at 96. “Finding it significant that the plaintiff had proceeded in
a good faith belief that he could litigate his case under the
exception contained in subsection 6(c), Westmoreland concluded that
the plaintiff's failure to file a certificate of merit was a
procedural error, and that he should be afforded a reasonable
amount of time to fulfill the statutory pre-suit requirements prior
to dismissal of his case.” Giambalvo, 2012 WL 984277, at *5
(finding a good faith effort where pro se plaintiff filed a
document labeled “In Lieu of Medical Screening of Certificate” and
believed that his claim did not require an expert opinion under the
subsection (c) exception).
Like the plaintiff in Westmoreland, Jones is “pro se, relied
in good faith on the applicability of W. Va. Code § 55–7B–6(c), and
was provided no pre-suit objection and opportunity to correct his
misplaced reliance on subsection (c).” Cline v. Kresa-Reahl,728
S.E.2d 87, 97 (W. Va. 2012) (discussing Westmoreland); see also
Giambalvo 2012 WL 984277, at *6. In response to the defendants’

8

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
motion to dismiss his FTCA claim, Jones, an inmate proceeding pro
se, specifically cited subsection (c) as the ground excusing his
failure to file a certificate of merit (Dkt. No. 112 at 3). In
doing

so,

he

also

referenced

the

Magistrate

Judge’s

“Order

Regarding Potential FTCA Complaint,” which he contends “exempted”
him from the filing requirement “pursuant [to] W. Va Code 55-7B6(c).” Id. As evidenced by his response, Jones clearly believed,
albeit erroneously, that a certificate of merit was not required
because his claim entitled him to rely on the pre-filing exception
in subsection (c).
Therefore, after carefully examining Jones’ motion and the
record, the Court concludes that he should be afforded a reasonable
opportunity to comply with the pre-suit requirements of § 55-7B-6.
Accordingly, because it erred in failing to afford Jones’ such an
opportunity, the Court VACATES its earlier Order dismissing his
FTCA claim, and grants him leave to secure and file a screening
certificate of merit.
B.

Bivens Claims
Jones also contends that the Court erred by dismissing his

third Bivens claim, which alleged that “Defendants: 1). United
9

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
States and 2). BOP Agency” violated the ADA by failing “to issue
and provide requested tests and studies to specialist[s] for proper
treatment,” and by failing to provide “alternate adequate medical
care . . . as ‘reasonable accommodations’ for nearly (15) months”
(Dkt. No. 11 at 23-24). Jones argues that these defendants “never
responded to” his ADA claim and, therefore, “conceded the issue” in
his favor (Dkt. Nos. 175 at 2; 175-2 at 5).
Jones’ contention is without merit. First, his assertion that
the defendants “never responded to” his claim is wholly inaccurate.
In

point

of

fact,

in

their

motion

to

dismiss,

or

in

the

alternative, motion for summary judgment, the defendants advanced
numerous arguments as to why Jones’ Bivens claims were subject to
dismissal (Dkt. No. 92-1 at 6-13). Further, because a cause of
action

is

available

only

against

federal

officers

in

their

individual capacities, and not the federal agency that employs the
persons acting under federal law, Jones’ Bivens claim against the
United States and the BOP necessarily fails. See FDIC v. Meyer, 510
U.S. 471, 484-86 (1994) (holding that a Bivens action cannot be
brought against a federal agency); see also Randall v. United
States, 95 F.3d 339, 345 (4th Cir. 1996) (“Any remedy under Bivens

10

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
is

against

federal

officials

individually,

not

the

federal

government.”).
IV. CONCLUSION
In conclusion, for the reasons discussed, the Court:
•

GRANTS-IN-PART

and

DENIES-IN-PART

Jones’

motion

for

relief from judgment (Dkt. No. 175);
•

GRANTS Jones’ motions for leave to supplement his Rule
60(b) motion (Dkt. Nos. 177; 178);

•

DENIES as MOOT Jones’ motion for leave to supplement
newly discovered evidence (Dkt. No. 184);

•

VACATES-IN-PART its earlier Order insofar as it dismissed
Jones’ FTCA claim (Dkt. No. 149) and REOPENS the case;

•

GRANTS Jones LEAVE to secure and file a medical screening
certificate of merit with the Court within ninety (90)
days following entry of this Order; and

•

REFERS this case to Magistrate Judge Trumble for further
proceedings

consistent

with

this

Opinion,

and

also

DIRECTS him to consider Jones’ motions for appointed
counsel (Dkt. Nos. 176; 178).

11

JONES V. UNITED STATES, ET AL.

1:15CV50

MEMORANDUM OPINION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART PLAINTIFF’S MOTION FOR RECONSIDERATION
[DKT. NO. 175], AND VACATING-IN-PART ORDER ADOPTING REPORT
AND RECOMMENDATION [DKT. NO. 149] AND REOPENING THE CASE
It is so ORDERED.
The Court DIRECTS the Clerk to provide a copy of this Order to
counsel of record and to the pro se plaintiff, certified mail and
return receipt requested.
DATED: May 16, 2018.

/s/Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

12