Redleski v. Plumley et al

Filing 75

ORDER adopting Report and Recommendations 72 : The Court ADOPTS the R&R in itsentirety 72 , DENIES Proctor and Tenneys motion to dismiss 61 , and RECOMMITS this case to Magistrate Judge Aloi, who is DIRECTED to enter a scheduling order on discover y and dispositive motions. Pursuant to 28 U.S.C. § 636, he is further authorized to consider the record and enter rulings orrecommendations as appropriate. Signed by District Judge Irene M. Keeley on 3/6/17. (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, Practicing Physician;
and TRISTEN TENNEY, RN, HSA,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 72]
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 (“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 to the United States
Constitution, during his time at Huttonsville Correctional Center
(Dkt. No. 1).
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 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.

REDLESKI V. PROCTOR, ET AL.

1:15CV89

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 72]
No. 52), the Court granted Plumley and Hissom’s motion to dismiss,
but converted Proctor and Tenney’s motion to dismiss to a motion to
quash, which it also granted (Dkt. No. 54).
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 argue 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 argue 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.
On February 14, 2017, Magistrate Judge Aloi entered an R&R
recommending that the Court deny 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.1 Id. at 10. In

1

Proctor and Tenney argued to Magistrate Judge Aloi that, at the very
least, the Court should dismiss all claims predating the state-court
judgment (Dkt. No. 62 at 3). Magistrate Judge Aloi noted that recovery
for actions prior to July 25, 2011, the date the first judgment was
entered, is likely barred by claim preclusion (Dkt. No. 72 at 10). He did
not, however, recommend that all such claims be dismissed at this stage.
Indeed, the application of claim preclusion depends, in part, on whether
“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.” Blake v. Charleston Area
Med. Ctr., Inc., 498 S.E.2d 41, 49 (W. Va. 1997). Although the defendants

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REDLESKI V. PROCTOR, ET AL.

1:15CV89

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 72]
addition, Magistrate Judge Aloi reasoned that Redleski’s complaint
stated a claim for deliberate indifference against both Proctor and
Tenney. Id. at 14. The R&R also advised the parties of their right
to file objections to its recommendations within 14 days of
receiving the R&R, and it specifically warned them that failure to
object would result in the waiver of any appellate rights they
might otherwise have. Id. at 15.
The failure to object to an R&R not only waives appellate
rights, but also relieves the Court of any obligation to conduct a
de novo review of the issues presented.

See Thomas v. Arn, 474

U.S. 140, 148-53 (1985); Wells v. Shriners Hosp., 109 F.3d 198,
199-200

(4th

Cir.

1997).

The

defendants

have

not

filed

any

objections, and although Redleski received the R&R on February 16,
2017, he too has not filed any objections. Instead, Redleski filed
a motion for the appointment of counsel to help him present his
“colorable claim” (Dkt. No. 74).
Finding no clear error, the Court ADOPTS the R&R in its
entirety (Dkt. No. 72), DENIES Proctor and Tenney’s motion to
dismiss (Dkt. No. 61), and RECOMMITS this case to Magistrate Judge

filed a copy of Redleski’s state-court petition, they did not move to
file the attached “medical test results and other medical information”
under seal, instead opting to omit them (Dkt. No. 62 at 2). Without all
of the available information, the Court is simply unable at this stage
to make a conclusive determination regarding the preclusion of claims
that accrued prior to July 25, 2011.

3

REDLESKI V. PROCTOR, ET AL.

1:15CV89

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 72]
Aloi, who is DIRECTED to enter a scheduling order on discovery and
dispositive motions. Pursuant to 28 U.S.C. § 636, he is further
authorized

to

consider

the

record

and

enter

rulings

or

recommendations as appropriate.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this order
to counsel of record and to the pro se plaintiff, certified mail,
return receipt requested.
Dated:

March 6, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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