Givens v. Williams et al

Filing 59

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 51 AND GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS 35 . The Court GRANTS 56 Motion to clarify the record. The Court DISMISSES WITH PREJUDICE the claims ag ainst defendants Warden Williams, Dr. Mace-Leibson, NP Nolte, and Director Eichenlaub, including those regarding TB screening, exposure, and treatment, and the denial of Givens's administrative remedies. The Court GRANTS Givens's mo tion to amend his complaint by adding Dr. Anderson as a defendant, and DIRECTS him to file an amended complaint regarding Dr. Anderson and RN Hall by Monday, May 15, 2017. The Court RECOMMITS this case to Magistrate Judge Aloi, who is authorize d to consider the record and enter rulings or recommendations as appropriate. Signed by District Judge Irene M. Keeley on 3/29/2017. (kd)(Copy pro se party/cmrrr) (Additional attachment(s) added on 3/29/2017: # 1 Certified Mail Return Receipt) (kd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELVIN GIVENS,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV111
(Judge Keeley)

C. WILLIAMS; C. EICHENLAUB;
ELLEN MACE-LEIBSON; JAMES
NOLTE; and JOSHUA HALL,
Defendants.
ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
On July 2, 2015, the plaintiff, Melvin Givens (“Givens”),
filed this Bivens1 action against the defendants, Warden Charles
Williams

(“Warden

Williams”),

C.

Eichenlaub

(“Director

Eichenlaub”), Ellen Mace-Leibson, M.D. (“Dr. Mace-Leibson”), James
Nolte, Nurse Practitioner (“NP Nolte”), and Joshua Hall, RN (“RN
Hall”) (Dkt. No. 1). His complaint alleges that the defendants
exhibited deliberate indifference to his medical needs by exposing
him to tuberculosis (“TB”) and prolonging treatment for his “eye
condition.” Id. at 7-9.
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 review. On June 7, 2016, the defendants filed a

1

In Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), the Supreme Court permitted suit
against federal employees in their individual capacity, creating a
counterpart to suit under 42 U.S.C. § 1983.

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
motion to dismiss or, in the alternative, for summary judgment
(Dkt. No. 35). After full briefing, Magistrate Judge Aloi entered
a Report and Recommendation (“R&R”) recommending that the Court
grant in part and deny in part the motion (Dkt. No. 51).
In

support

of

their

motion,

the

defendants

attached

declarations, administrative grievances, and medical records (Dkt.
No. 36). Fed. R. Civ. P. 12(d) provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given
a reasonable opportunity to present all the material that
is pertinent to the motion.
The Court thus has discretion to consider extra-pleading material
if it wishes to treat a Rule 12(b)(6) motion as one for summary
judgment. McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th Cir. 2010)
(Gregory, J., concurring) (citing 5C Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1371 (3d ed. 2010)).
In this case, the defendants have only submitted medical
records through November 30, 2010, despite the fact that Givens’s
complaint and administrative grievances clearly implicate actions
occurring

through

2013

(Dkt.

Nos.

36-3

at

43;

36-1

at

19).

Therefore, based on such an incomplete record, the Court will not
convert the defendants’ motion to dismiss to one for summary
2

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
judgment. Further, following a careful review, the Court GRANTS in
part and DENIES in part the defendants’ motion to dismiss (Dkt. No.
36).
I. BACKGROUND
A.

Factual Background
The Court takes its recitation of the facts from Givens’s

complaint and administrative grievances, and construes those facts
in the light most favorable to Givens. See De’Lonta v. Johnson, 708
F.3d 520, 524 (4th Cir. 2013).2
Givens transferred to Federal Correctional Institute, Gilmer
(“FCI

Gilmer”)

from

United

States

Penitentiary

Big

Sandy

in

February 2009 (Dkt. No. 1 at 7-8). Since he was transferring from

2

Prior to bringing a Bivens action challenging conditions of
confinement, an inmate must exhaust his available administrative
remedies. 42 U.S.C. § 1997e(a); Hill v. Haynes, 380 F. App’x 268,
269 (4th Cir. 2010) (unpublished decision). Moreover, the statute
of limitations is tolled during pursuit of the “mandatory
exhaustion process.” See Young v. Thompson, No. 2:10cv66, 2011 WL
3297493, at *4 (N.D.W. Va. July 29, 2011). Unfortunately, Givens
did not attach his administrative grievances to the complaint as
required by the court-approved Bivens form. Even after being
directed to file his grievances (Dkt. No. 8), Givens filed only
parts of grievances relevant to his claims (Dkt. No. 10). The
defendants, however, attached a complete set of grievances to their
motion to dismiss, and the Court is entitled to consider them
without converting the motion to one for summary judgment because
“they are integral to the complaint and authentic.” Philips v. Pitt
Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
3

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
another Bureau of Prisons (“BOP”) facility, medical staff at FCI
Gilmer did not screen him for tuberculosis (“TB”) immediately upon
his

arrival.

On

May

28,

2009,

after

complaining

of

light-

headedness, Givens was diagnosed with hypertension (Dkt. No. 36-1
at 23). Then, seven months after arriving at FCI Gilmer, in
September 2009, Givens tested positive for TB exposure via a
purified protein derivative (“PPD”) test (Dkt. No. 1 at 9). Prior
to arriving at FCI Gilmer, Givens had never before tested positive
for TB, and alleges that another inmate at FCI Gilmer had to have
exposed him to the disease (Dkt. No. 36-1 at 13, 20).
As a result of the positive PPD test, FCI Gilmer placed Givens
in a special housing unit (“SHU”) isolation cell in December 2009
and “prescribed ‘Rifampin’ to counter the [TB].” FCI Gilmer removed
Givens from isolation on January 9, 2010, but he continued taking
medication to treat his TB until April 10, 2010. Id. at 20.
While taking Rifampin in early 2010, Givens expressed concern
to Eddie Anderson, DO, an optometrist at FCI Gilmer, that the
medication

was

causing

“adverse

eye

problems.”

Dr.

Anderson

nevertheless instructed Givens to continue taking the medication.
Id. Thereafter, Givens visited the West Virginia University (“WVU”)
Eye Institute in Morgantown, West Virginia, where he was examined

4

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
by ophthalmology consultants on April 7 and August 23, 2010. Id. at
12. During this same time frame, an unnamed doctor recommended eye
surgery to Givens; Givens’s grievances do not make clear whether
this surgery was recommended by ophthalmologists at WVU or other
doctors. In September 2010, the BOP approved Givens for eye
surgery. In August 2011, however, Givens discovered that he was no
longer scheduled for surgery, despite the fact that he “needed the
surgery right away,” and his “eyesight [was] getting progressively
worse.” Id. at 12-13.
Thereafter, on October 31 and November 21, 2011, an unnamed
optometrist

and

unnamed

mid-level

practitioner

at

FCI

Gilmer

evaluated Givens and requested an ophthalmology consultation. Id.
at 14. Givens was seen by an ophthalmologist at WVU on January 18,
2012, and underwent a retinal attachment on his right eye on
February 27, 2012. He then received post-operative evaluations on
March

7

and

May

2,

2012.

Id.

at

16,

19.

Following

another

evaluation at WVU, Givens underwent further unspecified eye surgery
there on November 17, 2013, and was seen for a post-operative visit
on December 9, 2013. Id. at 26.

5

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
B.

Procedural Background
Givens’s complaint asserts five claims. In his first and

second claims, Givens alleges that, when he arrived at FCI Gilmer
on

February

27,

2009,

he

should

have

been

screened

for

TB

immediately, rather than seven months later when staff discovered
he had been exposed to the disease (Dkt. No. 1 at 8-9).3 Givens
attributes this failure to test to Warden Williams and Dr. MaceLeibson, the Clinical Director at FCI Gilmer. In his third and
fourth claims, Givens alleges that Dr. Anderson and RN Hall, both
members of the medical staff at FCI Gilmer, wrongfully “prolonged
his treatment,” “which caused him to suffer a detached retina,
resulting in permanent vision loss.” Id. at 8. Finally, in his
fifth claim, Givens alleges that Director Eichenlaub knew his
rights were being violated, but still denied his administrative
grievances when he appealed to the BOP Mid-Atlantic Regional

3

Givens later clarified that the defendants’ failure to
screen him upon intake is not the gravamen of his complaint.
Rather, his intent was “to point out . . . that at that time Health
Services here at Gilmer were in the practice of not initially
screening inmates for infectious or communicable diseases, and that
this failure to separate prisoner’s [sic] with contagious diseases
from others was a ‘proximate cause’ of his sustained injury” (Dkt.
No. 45 at 9). It thus appears that Givens takes issue with FCI
Gilmer’s failure to diagnose the inmate who exposed him to TB. Id.
at 10.
6

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
Office, thus depriving him of due process. Givens seeks $2,000,000
in damages from each defendant. Id. at 9.
The defendants’ motion to dismiss Givens’s complaint (Dkt. No.
35) argues that Givens’s claims, which reach back to 2009, are
barred by the statute of limitations, and also fail to state a
claim for deliberate indifference against any of them (Dkt. No. 36
at 10-18, 21-22). In addition, the defendants contend that NP Nolte
is entitled to absolute immunity pursuant to 42 U.S.C. § 233(a), as
he is an officer of the Public Health Service. Id. at 24-25.
On January 24, 2017, Magistrate Judge Aloi filed an R&R
recommending that the defendants’ motion be granted in part and
denied in part (Dkt. No. 51). Thereafter, Dr. Mace-Leibson filed
objections to the R&R (Dkt. No. 55), RN Hall moved to clarify the
record (Dkt. No. 56), and Givens filed an “Objection and Amendment
to Report and Recommendation” (Dkt. No. 58).
II. STANDARDS OF REVIEW
A.

Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A pro se complaint is subject to dismissal,
however, if the Court cannot reasonably read the pleadings to state

7

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
a valid claim on which the plaintiff could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the plaintiff’s legal arguments for him, nor should it
“conjure up questions never squarely presented.” Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B.

Motion to Dismiss
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for

dismissal on the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing a complaint, the
Court “must accept as true all of the factual allegations contained
in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). “While a complaint . . . does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of
his

‘entitle[ment]

to

relief’

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citation omitted).
A court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286 (1986). “[A] complaint must contain ‘enough facts to state a

8

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 n.7 (quoting Twombly, 550 U.S. at 547). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A motion to dismiss “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992).
C.

Report and Recommendation
When reviewing a magistrate judge’s R&R made pursuant to 28

U.S.C. § 636, the Court must review de novo only the portions of
the

R&R

to

which

an

objection

is

timely

made.

28

U.S.C.

§

636(b)(1)(C). Otherwise, “the Court may adopt, without explanation,
any of the magistrate judge’s recommendations to which the prisoner
does 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

those

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).

9

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
III. DISCUSSION
The allegations in Givens’s complaint and administrative
grievances implicate conduct from 2009 through 2013. On careful
review, it is clear that Givens’s claims against Warden Williams,
Dr. Mace-Leibson, and Director Eichenlaub are time-barred under the
statute of limitations, and that NP Nolte is entitled to immunity
as a Public Health Officer. Nonetheless, Givens’s allegations
against Dr. Anderson and RN Hall are not clearly time-barred, and
state a plausible claim for deliberate indifference.
A.

Statute of Limitations
The defendants argue that Givens knew of his claim that the

defendants had failed to screen him for TB upon his arrival at FCI
Gilmer by at least October 2009 (Dkt. No. 36 at 10). In addition,
they contend that “any claim alleging a delay in eye surgery which
was ultimately performed in February 2012, expired under the
statute of limitations in February 2014.” Id. at 12 n.3. Givens
argues that he could not have known of his claim until after he
completed the grievance process, or, alternatively, that he was
subjected to a “continuous violation” by the defendants (Dkt. No.
45 at 6-7).

10

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
The Court looks to state law to determine the statute of
limitations applicable in a Bivens action. Reinbold v. Evers, 187
F.3d 348, 359 n.10 (4th Cir. 1999). In West Virginia, actions for
personal injury must be brought “within two years next after the
right to bring the same shall have accrued.” W. Va. Code § 55-2-12.
“Under federal law a cause of action accrues 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). In
other words, “a federal cause of action accrues upon inquiry
notice.” Id.
“[A] motion to dismiss filed under Federal Rule of [Civil]
Procedure 12(b)(6) . . . generally cannot reach the merits of an
affirmative defense, such as the defense that the plaintiff’s claim
is time-barred,” except “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are alleged in
the complaint.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007). A motion to dismiss is thus the proper avenue for
raising the statute of limitations only if “all facts necessary to
the affirmative defense ‘clearly appear[] on the face of the

11

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
complaint.’” Id. (quoting Richmond, Fredericksburg & Potomac R.R.
v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)).
Here,

Givens

filed

suit

on

July

2,

2015

(Dkt.

No.

1).

Therefore, unless equitable tolling applies, he can only assert
causes of action that accrued on or after July 2, 2013. See W. Va.
Code § 55-2-12. “[T]he question presented in this case is whether
the . . . complaint sets forth on its face the facts necessary to
conclude that [Givens’s] claims are barred by the statute of
limitations.” Goodman, 494 F.3d at 464. With the exception of his
allegations that Dr. Anderson and RN Hall prolonged treatment for
his eye condition, Givens’s claims are clearly barred by the
statute of limitations.
1.

TB Screening and Exposure

In his first and second claims, Givens alleges that Warden
Williams and Dr. Mace-Leibson violated his Eighth Amendment rights
when they failed to administer a PPD test upon his arrival at FCI
Gilmer in February 2009 (Dkt. No. 1 at 8-9). Givens later clarified
that this failure represents a generally insufficient TB screening
procedure at FCI Gilmer, which resulted in his exposure to TB and
ultimately led to his detached retina and permanent vision loss
(Dkt. No. 45 at 9-10). In his administrative grievance, Givens

12

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
alleged that he learned in December 2009 that his PPD test in
October had been positive for TB exposure, and consequently he was
placed in isolation (Dkt. No. 36-1 at 20).
From these allegations, it is clear that, at least as of
December 2009, Givens knew or should have known that (1) he had not
been screened for TB when he arrived at FCI Gilmer in February
2009, and (2) he had tested positive for TB exposure in October
2009. Givens thus “knew of his [TB exposure] and who caused it”
prior to 2010. See Nasim, 64 F.3d at 956. Although it was incumbent
upon him to file suit on any causes of action related to TB
screening and exposure prior to 2012, see W. Va. Code § 55-2-12, he
delayed filing any action until July 2, 2015 (Dkt. No. 1).
Under the facts alleged, the two-year limitations period
clearly ran before Givens filed any administrative grievances, thus
eliminating any possibility that he is entitled to equitable
tolling of these claims. Young, No. 2:10cv66, 2011 WL 3297493, at
*4. Therefore, Givens’s claims that Warden Williams and Dr. MaceLeibson failed to screen him for TB in 2009 are barred by the
statute of limitations.4

4

Even if the claim against Warden Williams were considered
timely, liability in a Bivens action must be based on personal
involvement, rather than respondeat superior. See Trulock v. Freeh,
13

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
In

his

brief,

Givens

argued

that

Dr.

Mace-Leibson

unnecessarily prescribed a multi-drug treatment regimen, including
Rifampin, for his TB that caused his vision problems (Dkt. Nos. 361 at 20; 45 at 16-17, 19). Even if Givens had included this
allegation in his complaint, it is plainly barred by the statute of
limitations. Givens’s grievances establish that, during his TB
medication regimen, which began in December 2009 and ended on April
10, 2010, Givens expressed concerns to Dr. Anderson that the
prescribed medication was affecting his vision (Dkt. No. 10-1 at
10). Thus, Givens knew or should have known of any claims related
to Rifampin’s effect on his vision no later than April 10, 2010.
Even assuming that Givens’s retinal detachment was caused by
Dr. Mace-Leibson’s treatment decisions, it would be merely an

275 F.3d 391, 402 (4th Cir. 2001). Givens has failed to allege any
action or inaction by Warden Williams. Instead, he seeks to hold
Warden Williams liable for failures that, as he broadly
characterizes, are attributable to “medical care staff” (Dkt. No.
1 at 7-8). This is insufficient to state a claim for deliberate
indifference against a supervisory official. See Miltier v. Beorn,
896 F.2d 848, 854 (4th Cir. 1990), overruled on other grounds
Farmer v. Brennan, 511 U.S. 828 (1994) (“[L]iability on the part of
the supervisory defendants requires a showing that: (1) the
supervisory defendants failed to provide an inmate with needed
medical care; (2) that the supervisory defendants deliberately
interfered with the prison doctors’ performance; or (3) that the
supervisory defendants tacitly authorized or were indifferent to
the prison physicians’ constitutional violations.”).
14

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
ongoing ill-effect of the original violation about which Givens was
already aware, and therefore would not toll the running of the
statute of limitations. See A Society Without a Name v. Virginia,
655 F.3d 342, 348 (4th Cir. 2011) (“[C]ontinuing ill effects of an
original

violation

.

.

.

do

not

constitute

a

continuing

violation.”). Further, even if the statutory period for causes of
action related to Givens’s TB medication regimen did not begin
until Givens stopped taking Rifampin on April 10, 2010, and
remained

equitably

tolled

during

both

of

his

administrative

grievance proceedings - August 23, 2011, to May 31, 2012, and
December 16, 2012, to June 19, 2014 - the time to file suit still
expired in the Fall of 2014, almost one year before Givens filed
his complaint.5
2.

Prolonged Treatment

In his third and fourth claims, Givens alleges that Dr.
Anderson

and

RN

Hall

“prolonged

his

treatment

for

his

eye

condition,” causing him to suffer a detached retina and permanent

5

To the extent Givens seeks leave to amend his complaint with
these and similar allegations against Dr. Mace-Leibson (Dkt. No.
58), any amendment would be futile since such claims are timebarred. Fed. R. Civ. P. 15(a)(2); Ward Elecs. Serv., Inc. v. First
Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
15

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
vision loss (Dkt. No. 1 at 8-9). In his administrative grievances,
Givens complained that he had been taken off the list to receive
eye surgery despite the fact that he “needed the surgery right
away” (Dkt. No. 36-1 at 10). Ultimately, Givens underwent a retinal
attachment on his right eye on February 27, 2012, and an additional
unspecified eye surgery on November 17, 2013. Id. at 16, 26.
The allegations against Dr. Anderson and RN Hall are not a
“relatively rare circumstance” in which the complaint presents
sufficient information to rule on the statute of limitations
defense. Goodman, 494 F.3d at 464. When viewed liberally, Givens’s
complaint alleges “prolonged treatment” and delays in necessary
surgery (Dkt. Nos. 1 at 8-9; 36-1 at 10). As the most recent eye
surgery seems to have occurred on November 17, 2013 (Dkt. No. 36-1
at 26), this treatment falls within the statute of limitations.
The

Court

thus

cannot

conclude

at

this

early

stage

of

the

litigation that Givens’s claim for “prolonged treatment” is timebarred.
3.

Grievance Denials

In his fifth claim, Givens alleges that Director Eichenlaub
violated his due process rights by denying his grievances despite
having knowledge that his rights were being violated (Dkt. No. 1 at

16

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
9). The final administrative response that Director Eichenlaub
provided to Givens’s grievances, however, is dated April 2, 2013
(Dkt. No. 36-1 at 23-24). Therefore, any cause of action Givens may
have had against Director Eichenlaub accrued several months prior
to July 2, 2013, and thus is barred by the statute of limitations.6
B.

Public Health Officer Immunity
The defendants argue that NP Nolte is entitled to absolute

immunity as a Public Health Officer (Dkt. No. 36 at 24). Givens
does not contest this argument.
Under 28 U.S.C. § 1915(e)(2)(B)(iii), the Court may, at any
time, dismiss a case if it “determines that . . . the action . . .
seeks monetary relief against a defendant who is immune from such
relief.” See Smith v. Shelby Cty., Tenn., 3 F. App’x 436, 438 (6th
Cir. 2001) (unpublished decision). A plaintiff may not use a Bivens

6

Notably, Givens’s claim against Director Eichenlaub failed
to allege an actionable constitutional violation. Accord Battle v.
Ledford, No. 7:16cv20, 2017 WL 432822 (W.D. Va. Jan. 30, 2017)
(quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)
(“[R]uling against a prisoner on an administrative complaint does
not cause or contribute to [a constitutional] violation.”));
Freeland v. Ballard, 6 F. Supp. 3d 683, 693 (S.D.W. Va. 2014)
(compiling cases) (“Although the Fourth Circuit has not directly
addressed the issue, courts in other federal circuits have held
that liability may not be imposed simply because a supervisor
denied an administrative grievance or failed to act based upon
information contained in a grievance.”); see also Paige v. Kupec,
No. AW-02-3430, 2003 WL 23274357, at *1 (D. Md. Mar. 31, 2003).
17

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
action

if

“defendants

show

that

Congress

has

provided

an

alternative remedy which it explicitly declared to be a substitute
for recovery directly under the Constitution and viewed as equally
effective.” Carlson v. Green, 446 U.S. 14, 18-19 (1980). The sole
remedy for injury inflicted by a Public Health Officer acting
within the scope of his employment is against the United States
under the Federal Tort Claims Act (“FTCA”). 42 U.S.C. § 233(a). In
most cases, Public Health Officer immunity is “established by a
declaration affirming that the defendant was a PHS official during
the relevant time period.” Hui v. Castaneda, 559 U.S. 799, 811
(2010).
Here, when Givens named NP Nolte as a defendant, he made no
specific allegations against him (Dkt. No. 1 at 3). NP Nolte,
nevertheless, submitted a declaration averring that he has been a
commissioned officer in the Public Health Service since October 1,
2006 (Dkt. No. 36-5 at 2). As such, Givens’s sole remedy for any
injuries allegedly inflicted by NP Nolte during the relevant time
would arise, if at all, under the FTCA. 42 U.S.C. § 233(a). NP
Nolte therefore is entitled to immunity from damages in this Bivens
action.

18

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
C.

Deliberate Indifference
In their motion to dismiss, the defendants argue that Givens

merely disagrees with their medical judgments and has failed to
state a claim for deliberate indifference (Dkt. No. 36 at 17-18).
Givens, on the other hand, argues that he has stated such a claim
because the defendants exposed him to TB, misdiagnosed him with TB,
maintained him on medication that harmed him, and delayed surgery
on his eyes (Dkt. No. 45 at 8-18). As previously discussed,
Givens’s claims regarding TB screening, exposure, and treatment are
barred by the statute of limitations. At bottom, the question
presented is whether Givens’s remaining allegations, that Dr.
Anderson

and

RN

Hall

“prolonged

his

treatment

for

his

eye

condition,” state a claim for deliberate indifference under the
Eighth Amendment.
The Eighth Amendment protects prisoners from cruel and unusual
punishment, including “the unnecessary and wanton infliction of
pain.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal
quotation omitted). For a prisoner to successfully allege that he
received medical treatment so deficient that it resulted in an
Eighth Amendment violation, he must establish both that he had a
“serious

medical

need[]”

and

that

19

the

defendants

exhibited

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
“deliberate indifference” to it. Estelle, 429 U.S. at 104. The
Court concludes that, at this early juncture of the case, Givens
has alleged facts sufficient to satisfy both of these critical
elements.
1.

The Objective Prong

The first prong of the analysis is objective, Brice v. Va.
Beach Correctional Ctr., 58 F.3d 101, 104 (4th Cir. 1995), and
requires that the plaintiff demonstrate “a serious medical need
. . . 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.” Iko v. Shreve, 535 F.3d 225,
241 (4th Cir. 2008).
Givens has satisfied this objective prong both with regard to
his unspecified “eye condition,” as well as his detached retina.
First, he has alleged that a physician diagnosed an “eye condition”
requiring treatment; in 2010, a doctor purportedly told him that he
needed to undergo eye surgery right away (Dkt. No. 36-1 at 10).
Second, Givens’s detached retina undoubtedly qualifies as a serious
medical need. See Horne v. Univ. of Tx. Med. Branch, 516 F. App’x
377 (5th Cir. 2013) (unpublished decision); Douglas v. Jin, No. 11-

20

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
0350, 2014 WL 294889, at *1 (W.D. Pa. Jan. 27, 2014); Browning v.
Snead, 886 F. Supp. 547, 552 (S.D.W. Va. 1995).
2.

The Subjective Prong

To establish the subjective prong, Givens must allege that, as
to his medical need, the defendants, “subjectively aware of the
need and its seriousness, nevertheless acted with ‘deliberate
indifference’ to it by declining to secure available medical
attention.”

Brice,

58

F.3d

at

104.

The

standard

“sets

a

particularly high bar to recovery.” Iko, 535 F.3d at 241. “[A]
complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S.
at 106. A defendant must have been “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.” Farmer v. Brennan,
511 U.S. 825, 837 (1994).
This
knowledge

requires
of

the

a

showing

risk

of

that

harm”

the

and

defendant

that

“his

had

“actual

actions

were

insufficient to mitigate the harm to the inmate arising from his
medical needs.” Iko, 535 F.3d at 241 (internal quotation and
emphasis omitted). “[A] significant delay in treatment of a serious

21

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
medical condition” can violate the Eighth Amendment if it “results
in some substantial harm to the patient.” Webb v. Hamidullah, 281
F. App’x 159, 166-67 (4th Cir. 2008) (unpublished decision) (citing
Estelle, 429 U.S. at 104-05).
Here, Givens’s complaint makes the bare allegation that Dr.
Anderson and RN Hall failed to provide medical care by prolonging
treatment for his “eye condition” (Dkt. No. 1 at 8-9). In his
administrative

grievances,

however,

Givens

provided

further

information, alleging that, although a doctor had informed him that
he needed to undergo eye surgery “right away,” and that the BOP had
approved the surgery, he was removed from the “high priority list”
for surgery (Dkt. No. 36-1 at 10).
Taken in isolation, Givens’s complaint arguably consists of a
mere “formulaic recitation of the elements of a cause of action,”
and fails to allege the subjective intent required to state a claim
of deliberate indifference. Twombly, 550 U.S. at 555. However, when
liberally construed and considered together with the administrative
grievances that are integral to his complaint, a reasonable person
could infer that the defendants were “on notice as to [Givens’s]
medical need but delayed treatment.” Johnson v. Fields, 616 F.
App’x 599, 601 (4th Cir. 2015) (unpublished decision); Brown v.

22

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
N.C. Dep’t of Corrections, 612 F.3d 720, 723 (4th Cir. 2010); see
also Goodman v. Wexford Health Sources, Inc., 435 F. App’x 202, 204
(4th Cir. 2011) (unpublished decision).
In his administrative grievances, Givens complained of a delay
in necessary treatment for his serious medical needs, and his
complaint identifies Dr. Anderson and RN Hall as the parties
responsible for that delay. Thus, viewed liberally, Givens’s pro se
complaint sufficiently alleges a prima facie case of deliberate
indifference. See Johnson, 616 F. App’x at 601 (quoting White by
White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997)) (“A claim of
deliberate indifference . . . implies at a minimum that defendants
were placed on notice of a danger and chose to ignore the danger
notwithstanding the notice.”); Harden v. Green, 27 F. App’x 173,
178

(4th

Cir.

2001)

(unpublished

decision)

(“Deliberate

indifference requires, at minimum, that the defendant thought about
the matter and chose to ignore it.”).
IV. CONCLUSION
Givens’s complaint sufficiently alleges a prima facie claim
for deliberate indifference against Dr. Anderson and RN Hall
regarding the treatment of his “eye condition” and an alleged delay
of necessary surgery resulting in loss of vision. Without further

23

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
medical records, however, the Court cannot address whether these
claims may be time-barred, or whether Givens can prove more than a
mere

disagreement

with

his

health

care

providers

about

his

treatment regimen. See Jackson v. Lightsey, 775 F.3d 170, 174 (4th
Cir. 2014). Therefore, following de novo review, for the reasons
discussed, the Court:
1.

ADOPTS in part and REJECTS in part the R&R (Dkt. No. 51);

2.

SUSTAINS

Dr.

Mace-Leibson’s

objection

regarding

the

statute of limitations (Dkt. No. 55);
3.

GRANTS RN Hall’s motion to clarify the record (Dkt. No.
56);

4.

GRANTS in part and DENIES in part the defendants’ motion
to dismiss (Dkt. No. 35);

5.

DISMISSES WITH PREJUDICE the claims against defendants
Warden Williams, Dr. Mace-Leibson, NP Nolte, and Director
Eichenlaub,

including

those

regarding

TB

screening,

exposure, and treatment, and the denial of Givens’s
administrative remedies;
6.

GRANTS Givens’s motion to amend his complaint by adding
Dr. Anderson as a defendant, and DIRECTS him to file an

24

GIVENS V. WILLIAMS, ET AL.

1:15CV111

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION [DKT. NO. 51] AND GRANTING
IN PART AND DENYING IN PART MOTION TO DISMISS [DKT. NO. 35]
amended complaint regarding Dr. Anderson and RN Hall by
Monday, May 15, 2017 (Dkt. No. 58); and
7.

RECOMMITS this case to Magistrate Judge Aloi, who is
authorized to consider the record and enter rulings or
recommendations as appropriate, including the entry of a
scheduling order on discovery and dispositive motions if
the remaining defendants file an answer in response to
the amended complaint. 28 U.S.C. § 636.

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, by certified mail,
return receipt requested.
DATED: March 29, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

25