Redleski v. Plumley et al

Filing 173

MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING PART REPORT AND RECOMMENDATION DKT. NO. 144 : The Court ADOPTS in part and REJECTS in part the R&R (Dkt. No. 144 ); GRANTS in part and DENIES in part the defendants motion for summary judgment (Dkt. No. 132 ); and DISMISSES WITH PREJUDICE Redleskis claims arising prior to July 25, 2011. Signed by Senior Judge Irene M. Keeley on 6/13/18. (Attachments: # 1 Certified Mail Return Receipt)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DOUGLAS ANDREW REDLESKI,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV89
(Judge Keeley)

DAVID PROCTOR
and TRISTAN TENNEY,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING PART REPORT AND RECOMMENDATION [DKT. NO. 144]
I. PROCEDURAL BACKGROUND
On May 21, 2015, the pro se plaintiff, Douglas Andrew Redleski
(“Redleski”), filed a state civil rights complaint pursuant to 42
U.S.C. § 1983, naming as defendants the following individuals:
Warden Marvin C. Plumley (“Plumley”); Debbie Hissom, RN, BSM
(“Hissom”); David Proctor, Practicing Physician (“Dr. Proctor”);
and Tristen Tenney, RN, HSA (“Tenney”) (Dkt. No. 1). Redleski
contends that the defendants denied him proper medical care for his
diabetes, in violation of the Eighth Amendment, during his time at
Huttonsville Correctional Center (“HCC”) (Dkt. No. 1).
Redleski alleges particularly that the defendants, among other
things, failed to order him a diabetic diet or necessary snacks,
test his glucose levels at the appropriate time and frequency,
consult him before changing his insulin levels, or provide him with
education or a dietician to assist with managing his diet. Id. at
8-17. He claims that this treatment demonstrates a “likelihood of

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future injury,” and seeks $1,000 per day and injunctive relief
regarding future care. Id. at 18.
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred
the case to the Honorable Michael J. Aloi, United States Magistrate
Judge, for initial screening and a Report and Recommendation
(“R&R”). Thereafter, Plumley and Hissom moved to dismiss for
failure to state a claim (Dkt. No. 25), and Dr. Proctor and Tenney
moved to dismiss for insufficient service (Dkt. No. 30). After
receiving an R&R on the motions from Magistrate Judge Aloi (Dkt.
No. 52), the Court granted Plumley and Hissom’s motion to dismiss,
but converted Dr. Proctor and Tenney’s motion to dismiss to a
motion to quash and granted it (Dkt. No. 54).
Dr. Proctor and Tenney then waived service (Dkt. Nos. 58; 59),
and, on May 9, 2016, filed a motion to dismiss for failure to state
a claim (Dkt. No. 61). In support, the defendants argued that
Redleski

has

already

“had

his

day

in

[c]ourt”

because

he

adjudicated a related petition for habeas corpus in the Circuit
Court of Randolph County, West Virginia (Dkt. No. 62 at 2). They
further argued that Tenney should be dismissed for lack of personal
involvement, and that Redleski’s complaint generally fails to state
a claim for deliberate indifference. Id. at 3-10.

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On February 14, 2017, Magistrate Judge Aloi entered an R&R
recommending that the Court deny Dr. Proctor and Tenney’s motion to
dismiss (Dkt. No. 72). He concluded that much of the complained of
conduct occurred after Redleski’s state court action and is not
precluded by Redleski’s prior habeas proceeding. Id. at 10. In
addition, Magistrate Judge Aloi reasoned that Redleski’s complaint
stated a claim for deliberate indifference against both Dr. Proctor
and Tenney. Id. at 14. Because no party objected, the Court adopted
the R&R on March 6, 2017, and recommitted the case to Magistrate
Judge Aloi for entry of a schedule (Dkt. No. 75). Thereafter, the
case referral was reassigned to the Honorable James E. Seibert,
United States Magistrate Judge.
Now pending is the motion for summary judgment filed by Dr.
Proctor and Tenney (Dkt. No. 132). On April 23, 2018, Magistrate
Judge Seibert recommended that the Court deny the defendants’
motion (Dkt. No. 144), concluding that disputes of material fact
preclude summary judgment as to whether either Dr. Proctor or
Tenney was deliberately indifferent. Id. at 15-16. Dr. Proctor and
Tenney objected to this recommendation, contending, among others,
that Tenney “was not responsible for the plaintiff’s medical care
and had no authority to make decisions regarding the plaintiff’s

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treatment” (Dkt. No. 153 at 2). The defendants also renewed their
“argument that claims arising prior to May 27, 2013, are barred by
the statute of limitations.” Id.
II. STANDARD OF REVIEW
When considering a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636(b)(1), the Court must review de novo those portions to
which objection is timely made. Otherwise, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the [parties do] not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D.W.Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
III. DISCUSSION
A.

Deliberate Indifference
Redleski’s

allegation

that

indifferent

to

remaining
Dr.
his

claims

Proctor
diabetes

in

and

this

case

Tenney

mellitus.

The

center

were

on

his

deliberately

Eighth

Amendment

prohibits the infliction of “cruel and unusual punishments.” U.S.
Const. amend. VIII. In the context of medical treatment, such

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punishment occurs when a prison official exhibits “deliberate
indifference to serious medical needs of [a] prisoner[].” Estelle
v. Gamble, 429 U.S. 97, 104 (1976). “A deliberate indifference
claim

consists

of

two

components,

objective

and

subjective.”

Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).
1.
Under

The Objective Prong
the

first

prong,

an

inmate

must

complain

of

a

deprivation “sufficiently serious” to be deemed “extreme” because
it poses “a serious or significant physical or emotional injury
resulting from the challenged conditions” or “a substantial risk of
such serious harm resulting from . . . exposure to the challenged
conditions.” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.
2003). In medical needs cases, “[o]bjectively, the inmate’s medical
condition must be ‘serious’ - ‘one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor’s attention.’” Jackson, 775 F.3d at 178 (quoting Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008)).
The defendants do not dispute that Redleski’s diabetes is a
serious medical need (Dkt. No. 133 at 16), nor could they. Scinto
v. Stansberry, 841 F.3d 219, 228 (4th Cir. 2016). Moreover, the

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defendants admit that Redleski’s average blood glucose levels were
higher than normal while he was being treated by Dr. Proctor (Dkt.
No. 132-1 at 2-3). Viewing these facts in the light most favorable
to Redleski, there is a genuine dispute of material fact as to
whether elevated glucose levels are themselves a serious injury or
create a substantial risk of such injury. See Scinto, 841 F.3d at
228-29. Therefore, for the purpose of the defendants’ motion for
summary judgment, Redleski has satisfied the objective prong.
2.

The Subjective Prong

The second prong requires a plaintiff to prove that an
official “had actual subjective knowledge of both the inmate’s
serious medical condition and the excessive risk posed by the
official’s action or inaction.” Jackson, 775 F.3d at 178. In other
words, “the plaintiff must show that the official was ‘aware of
facts from which the inference could be drawn that a substantial
risk of harm exist[ed], and . . . dr[ew] th[at] inference.’”
Scinto, 841 F.3d at 225 (quoting

Farmer v. Brennan, 511 U.S. 825,

837 (1994)) (alteration and emphasis in original). “Under this
standard, mere ‘[d]isagreements between an inmate and a physician
over the inmate’s proper medical care’ are not actionable absent

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exceptional circumstances.” Id. (quoting Wright v. Collins, 766
F.2d 841, 849 (4th Cir. 1985)).
The subjective requirement can be met “through direct evidence
of a prison official's actual knowledge or circumstantial evidence
tending to establish such knowledge, including evidence ‘that a
prison official knew of a substantial risk from the very fact that
the risk was obvious.’” Id. at 226 (quoting Makdessi v. Fields, 789
F.3d 126, 133 (4th Cir. 2015)). In addition,
[a] plaintiff also makes out a prima facie case of
deliberate indifference when he demonstrates “that a
substantial risk of [serious harm] was longstanding,
pervasive, well-documented, or expressly noted by prison
officials in the past, and the circumstances suggest that
the defendant-official . . . had been exposed to
information concerning the risk and thus must have known
about it . . . .” Similarly, a prison official's
“[f]ailure to respond to an inmate's known medical needs
raises an inference [of] deliberate indifference to those
needs.” However, even officials who acted with deliberate
indifference may be “free from liability if they
responded reasonably to the risk.”
Id. (alterations in original) (internal citation omitted).
a.

Dr. Proctor

The defendants did not object to the conclusion in the R&R
that disputes of material fact preclude summary judgment regarding
Dr. Proctor’s liability (Dkt. No. 144 at 15-16). Having reviewed

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the record, the Court finds no clear error in Magistrate Judge
Aloi’s conclusion. Diamond, 416 F.3d at 315.
As Redleski’s treating physician, there is no dispute that Dr.
Proctor was aware of Redleski’s diabetic condition. The medical
records filed in this case indicate that Redleski’s condition was
“longstanding, pervasive, well-documented, and expressly noted” by
Dr. Proctor. Scinto, 841 F.3d at 226, 229. Despite knowing that his
glucose levels were poorly controlled, Redleski contends that Dr.
Proctor failed to see him monthly, to counsel him regarding diet,
and to monitor his commissary purchases as required by his own
Chronic Care Clinic guidelines. Moreover, Redleski contends that
the defendants denied him insulin by failing to provide the
appropriate amount and type of insulin to cover every 24 hour
period (Dkt. No. 138 at 6).1 These allegations support a reasonable
inference

that

Dr.

Proctor

was

deliberately

indifferent

to

Redleski’s serious medical need, and that he responded unreasonably
to associated risks. Scinto, 841 F.3d at 229.

1

“There is no requirement . . . that a plaintiff alleging
deliberate indifference present expert testimony to support his
allegations of serious injury or substantial risk of serious
injury. Rather, the Federal Rules of Evidence apply . . . .”
Scinto, 841 F.3d at 230.
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b.

RN Tenney

The defendants contend that Tenney cannot be liable for
deliberate indifference because he “was not responsible for the
plaintiff’s medical care and had no authority to make decisions
regarding the plaintiff’s treatment,” including the provision of
insulin (Dkt. No. 153 at 2). As Magistrate Judge Aloi’s reasoning
makes clear, however, there are disputes of material fact regarding
whether Tenney was deliberately indifferent.
Significantly,

prison

officials

may

be

deliberately

indifferent if they fail to provide a proper diabetic diet. In
Scinto v. Stansberry, the diabetic plaintiff alleged that he was
served “meals high in sugar and accompanied by a sugary drink”
while in the special housing unit. 841 F.3d at 232. Although the
Fourth Circuit acknowledged that the duty to provide inmates with
adequate food “includes an obligation to provide a medically
appropriate

diet

when

necessary,”

it

found

the

plaintiff’s

allegations insufficient to survive summary judgment:
Plaintiff has not offered evidence that there was no
combination of foods in each meal that would have
provided him with adequate sustenance without causing
adverse medical consequences, instead asserting only
that the meals were high in sugar and accompanied by a
sugary drink. Plaintiff also does not contradict prison
officials’ claims that he was educated on how to eat the

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available meals . . . in a way that would not exacerbate
his diabetic condition.
Id. at 234.
Here, grievances directed to Tenney from Redleski regarding
Dr. Proctor’s medical care establish that Tenney knew of both
Redleski’s diabetes and his need for a special diet (Dkt. No. 138-1
at 20). Redleski claims that, although the defendants at times
ordered a “Diabetic 2800 Calories” diet, they failed to educate him
regarding an appropriate diet (Dkt. No. 138 at 5-6). In fact, when
Redleski asked for more information on when he had been educated
“on how to eat as a diabetic should,” Tenney responded, “[s]urely
you’re not implying that after years and years of being a diabetic
you don’t know what to eat” (Dkt. No. 138-1 at 20).2 As outlined in
the R&R, the defendants have not offered any evidence regarding who
was responsible for providing such education (Dkt. No. 144 at 16).
Therefore, there are disputes of material fact regarding whether
Tenney failed to provide Redleski with “instruction on how to eat
the available meals.” Scinto, 841 F.3d at 234.

2

Elsewhere, Tenney instructs Redleski that Dr. Proctor has
documented diet counseling with Redleski in chronic care clinic for
years (Dkt. No. 1-2 at 45).
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B.

The Statute of Limitations and Preclusion
The defendants also object that the R&R does not address their

“argument that claims arising prior to May 27, 2013, are barred by
the statute of limitations” (Dkt. No. 153 at 2). Although the
defendants’ reliance on the statute of limitations is misguided,
some of Redleski’s claims are precluded.
Section 1983 provides a federal cause of action, but it looks
to state law to establish the statute of limitations. Wallace v.
Kato, 549 U.S. 384, 387 (2007). Under West Virginia Code § 55-2-12,
the period to bring a claim for personal injury is two years. “The
applicable statute of limitations begins to run once a claim
accrues, and federal law controls that determination.” A Society
Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011)
(citing Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). “A civil
rights claim accrues when the plaintiff knows or has reason to know
of the injury which is the basis of the action.” Id. (internal
quotation omitted). This occurs “when the plaintiff possesses
sufficient facts about the harm done to him that reasonable inquiry
will reveal his cause of action.” Nasim v. Warden, Md. House of
Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc).

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In addition, “when a harm has occurred more than once in a
continuing series of acts or omissions, a plaintiff under certain
circumstances may allege a ‘continuing violation’ for which the
statute of limitations runs anew with each violation.” DePaola v.
Clark, 884 F.3d 481, 486 (4th Cir. 2018). “[A] prisoner may allege
a continuing violation under Section 1983 by identifying a series
of acts or omissions that demonstrate deliberate indifference to a
serious, ongoing medical need.” Id. at 487. In such a case, the
statute of limitations does not begin to run until the plaintiff is
provided adequate treatment, and the claim may “extend back to the
time at which the prison officials first learned of the serious
medical need and unreasonably failed to act.” Id. “Accordingly, to
assert a Section 1983 claim for deliberate indifference under the
‘continuing violation’ doctrine, a plaintiff must (1) identify a
series

of

acts

or

omissions

that

demonstrate

deliberate

indifference to his serious medical need(s); and (2) place one or
more of these acts or omissions within the applicable statute of
limitations for personal injury.” Id.
Here, Redleski’s allegations satisfy the continuing violation
doctrine, as he claims that the defendants have engaged in the same
indifferent conduct since his arrival at HCC in 2009 (Dkt. No. 138

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at 5). Medical records in this case establish that Redleski’s
glucose levels have been high during most of his time at HCC,
including the two-year statutory period beginning in 2013 (Dkt. No.
140-1). Because Redleski has raised disputes of material fact
regarding whether the defendants were deliberately indifferent to
his diabetes, and, in particular, to his high glucose levels,
during that time, the statute of limitations will “extend back to
the time at which the prison officials first learned of the serious
medical need and unreasonably failed to act.” Depaola, 884 F.3d at
487.
Nonetheless, the defendants have also argued that Redleski’s
claims are barred by res judicata or collateral estoppel (Dkt. Nos.
6 at 1-3; 133 at 20-21). On February 22, 2011, Redleski filed a
petition for writ of habeas corpus in the Circuit Court of Randolph
County, West Virginia, alleging that Dr. Proctor and Tenney had
been deliberately indifferent to his serious medical needs during
his tenure at HCC (Dkt. No. 61-2 at 2). He claimed that “[t]his
lack of treatment include[d] but [was] not limited to; properly
prescribed and adjustments of insulin amounts, proper diabetic
diet, and proper follow-up after diabetic hemoglobin A1C tests are
done, along with adjustments of insulin and diet” (Dkt. No. 61-1 at

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5). After reviewing the records of Redleski’s blood sugar tests and
insulin injections, the state court concluded that he merely
disagreed with his course of treatment and had been adequately
treated (Dkt. No. 61-2 at 2).
Because the defendants rely on a decision issued by a West
Virginia

court,

the

Court

must

apply

West

Virginia’s

“legal

principles concerning res judicata.” Brooks v. Arthur, 626 F.3d
194, 200 (4th Cir. 2010) (Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 293 (2005)). In West Virginia, a claim is
barred by res judicata if three elements are satisfied:
First, there must have been a final adjudication on the
merits in the prior action by a court having jurisdiction
of the proceedings. Second, the two actions must involve
either the same parties or persons in privity with those
same parties. Third, the cause of action identified for
resolution in the subsequent proceeding either must be
identical to the cause of action determined in the prior
action or must be such that it could have been resolved,
had it been presented, in the prior action.
Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 498 S.E.2d 41
(W. Va. 1997). “‘[A] cause of action’ is the fact or facts which
establish or give rise to a right of action, the existence of which
affords a party a right to judicial relief.” Id. at 48 (quoting
White v. SWCC, 262 S.E.2d 752, 756 (W. Va. 1980)). “[R]es judicata
may operate to bar a subsequent proceeding even if the precise cause
of

action

involved

was

not

actually

14

litigated

in

the

former

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proceeding

so

long

as

the

claim

could

have

been

raised

and

determined.” Id. at 49.
In this regard, “it is imperative that the party bringing the
subsequent lawsuit was, during the prior action, able to foresee the
consequences of his/her failure to raise the subsequently raised
issue in the prior action.” Id. West Virginia uses the “sameevidence” approach to assess whether two claims are identical under
res judicata. “The test to determine if the issue or cause of action
involved in the two suits is identical is to inquire whether the
same evidence would support both actions or issues.” Syl. Pt. 4,
Slider v. State Farm Mut. Auto. Ins. Co., 557 S.E.2d 883 (W. Va.
2001)

(distinguishing

the

“transaction-focused

test”

of

the

Restatement (Second) of Judgments).

“[T]he facts which establish or give rise to [Redleski’s]
right of action” are the same in this case as they were in his
state case. Blake, 498 S.E.2d at 48. Both cases involve the
defendants’

alleged

failure

to

monitor

and

adjust

Redleski’s

insulin treatment and diabetic diet. Simply put, “the same evidence
would support both actions.” Slider, 557 S.E.2d 883, Syl. Pt. 4.
Therefore, res judicata bars Redleski’s claims that arise prior to
entry of judgment in the state court action on July 25, 2011.

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Nonetheless, contrary to the defendants’ arguments, collateral
estoppel does not bar the entirety of Redleski’s claim. Unlike res
judicata, which focuses on causes of action, “[c]ollateral estoppel
is designed to foreclose relitigation of issues in a second suit
which have actually been litigated in the earlier suit even though
there may be a difference in the cause of action between the
parties of the first and second suit.” Conley, 301 S.E.2d 216, Syl.
Pt. 2. Collateral estoppel applies if four conditions are met:
(1) The issue previously decided is identical to the one
presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the
party against whom the doctrine is invoked was a party or
in privity with a party to a prior action; and (4) the
party against whom the doctrine is raised had a full and
fair opportunity to litigate the issue in the prior
action.
Syl. Pt. 1, State v. Miller, 459 S.E.2d 114 (W. Va. 1995).
Although the defendants contend “that the issues raised by Mr.
Redleski in his 2011 filing are exactly the same as the issues in
the case at bar” (Dkt. No. 133 at 20), there can be no doubt that
the state court’s decision did not address Redleski’s claims
concerning conduct that took place from 2011 to the present. Issues
cannot be identical for purposes of collateral estoppel when “the
second action involves different facts.” Holloman v. Nationwide
Mut. Ins. Co., 617 S.E.2d 816, 821 (W. Va. 2005) (discussing
Miller, 459 S.E.2d 114). Therefore, because this case involves
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different facts, collateral estoppel does not bar litigation of
issues arising after the state court decision in 2011.
IV. CONCLUSION
For the reasons discussed, the Court:
1)

ADOPTS in part and REJECTS in part the R&R (Dkt. No.
144);

2)

GRANTS in part and DENIES in part the defendants’ motion
for summary judgment (Dkt. No. 132); and

3)

DISMISSES WITH PREJUDICE Redleski’s claims arising prior
to July 25, 2011.

It is so ORDERED.
The Court

DIRECTS

the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record and to the pro se
plaintiff, certified mail and return receipt requested.
Dated: June 13, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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