Walker v. USP Warden et al

Filing 43

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 38 , GRANTING PLAINTIFFS MOTION TO AMEND DKT. NO. 33 , AND DENYING AS MOOT DEFENDANTS MOTION TO DISMISS DKT. NO. 24 . It is so ORDERED the Court ADOPTS the R&R Dkt. No. 38 ; OVERRULES Walkers objections Dkt. No. 40 ; GRANTS Walkers motion to amend Dkt. No. 33 ; DENIES AS MOOT OBrien, Mims, and Noltes motion to dismiss Dkt. No. 24 ; Alternatively, GRANTS OBrien, Mims, and Noltes motion and DISMISSES WITH PREJ UDICE all claims against these defendants Dkt. No. 24 ; DISMISSES WITH PREJUDICE all claims against Fitzhugh, Bushman, and Rebault; and DENIES AS MOOT Walkers motions to appoint counsel Dkt. Nos. 33 ; 41 . Clerk is directed to enter a separat e judgment order, and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 2/15/2017. (copy counsel of record via CM/ECF, copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 2/15/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
STEVEN SYLVESTER WALKER, JR.,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV213
(Judge Keeley)

TERRY O’BRIEN, Warden U.S.P. Hazelton;
MATTHEW BUSHMAN; GREGORY MIMS;
HOWARD FITZHUGH; JAMES NOLTE; and
JUSTIN REBAULT,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
On November 16, 2015, the plaintiff, Steven Sylvester Walker,
Jr. (“Walker”), filed this Bivens1 action naming as defendants
Warden

Terry

O’Brien

(“O’Brien”)2

and

the

following

“medical

staff”: Matthew Bushman (“Bushman”), Gregory Mims (“Mims”), Howard
Fitzhugh (“Fitzhugh”), Justin Rebault (“Rebault”), and James Nolte
(“Nolte”) (Dkt. No. 1). Pursuant to 28 U.S.C. § 636 and LR PL P 2,
the Court referred the case to the Honorable James E. Seibert,
United States Magistrate Judge, for a Report and Recommendation
(“R&R”). Now pending before the Court is Magistrate Judge Seibert’s
R&R, which recommends that the Court dismiss Walker’s complaint

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.
2

The complaint named only “U.S.P. Warden,” but the docket was
changed to identify O’Brien (Dkt. No. 38 at 25).

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
with prejudice (Dkt. No. 38). Walker has filed timely objections
(Dkt. No. 40), and the matter is ripe for review. After carefully
considering the R&R, for the reasons that follow, the Court ADOPTS
the R&R (Dkt. No. 38).
I. BACKGROUND
Walker alleges that, while incarcerated at U.S.P. Hazelton in
Bruceton Mills, West Virginia, the defendants purposefully and
deliberately failed to provide him with adequate medical care (Dkt.
No.

1-1

at

3).

Although

previously

diagnosed

with

Hodgkin’s

Lymphoma, a form of cancer, Walker had been in remission since
2009. Unfortunately, his cancer recurred in 2014. Id. at 5. Walker
alleges that, despite his medical history, the defendants failed to
properly test or diagnose him, and erroneously treated him for
asthma.3 Walker claims that, as a consequence, he suffered serious
physical

and

mental

injuries,

including

constant

pain

and

depression (Dkt. No. 1 at 10). He further claims that his injuries
resulted from the deliberate indifference of the defendants in
violation of the Eighth Amendment, as well as negligence and
malpractice. Id. For relief, he seeks $5,000,000 in damages and an

3

The R&R contains a detailed account of Walker’s factual
allegations (Dkt. No. 38 at 3-6).
2

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
order directing the Bureau of Prisons (“BOP”) to provide additional
training to its medical staff. Id.
After Magistrate Judge Seibert granted Walker’s request to
proceed in forma pauperis (Dkt. No. 11), summonses were issued to
the defendants on February 9, 2016, at the location identified in
Walker’s complaint (Dkt. No. 16). O’Brien, Mims, and Nolte were
served shortly thereafter (Dkt. No. 21), but the summonses directed
to Bushman, Fitzhugh, and Rebault were returned unexecuted on April
7, 2016. The BOP refused to accept service on their behalf because,
as it advised the United States Marshals Service (“USMS”), these
defendants were “never employed by BOP” (Dkt. No. 22).
On April 14, 2016, Walker moved the Court to order service on
the remaining defendants through a subcontractor or third party
(Dkt. No. 27). In response, the BOP made a special appearance to
inform the Court that the unserved defendants were contracted by
the BOP through “Staff Care Inc.” for portions of the time at issue
(Dkt. No. 28).
Magistrate Judge Seibert denied Walker’s motion on April 18,
2016, noting that, under 28 U.S.C. § 1915, he is entitled only to
service by the USMS and that the Court is not responsible for

3

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
locating the defendants.4 Although the 120-day service period had
expired, Magistrate Judge Seibert gave Walker an opportunity to
provide updated addresses within 21 days but warned him that
failure to do so could result in dismissal of Rebault, Bushman, and
Fitzhugh (Dkt. No. 30). Walker never provided updated addresses for
those defendants, and, to date, they have not been served with
summonses.
O’Brien, Mims, and Nolte, on the other hand, filed a timely
motion to dismiss on April 14, 2016 (Dkt. No. 24). In place of
filing a response, Walker moved to amend his complaint pursuant to
Fed. R. Civ. P. 15(a) (Dkt. No. 33). In his motion, he acknowledged
that the defendants had pointed out certain defects that might
jeopardize his complaint, and asked the Court to remove O’Brien,
Nolte, and Mims as defendants. Id. at 1.
In an R&R filed on August 25, 2016, Magistrate Judge Seibert
recommended that the Court dismiss Walker’s complaint (Dkt. No. 38
at 25). First, he reasoned that Walker’s allegations against
O’Brien were not specific enough to subject O’Brien to supervisory
liability under the Eighth Amendment, and that the sole remedy for

4

Indeed, it is the in forma pauperis plaintiff’s
“responsibility to provide proper addresses for service.” Lee v.
Armontrout, 991 F.2d 487, 489 (8th Cir. 1993).
4

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
the injuries allegedly inflicted by Mims and Nolte, who are Public
Health Officers, lies in the Federal Tort Claims Act (“FTCA”). Id.
Noting that Walker had asked the Court to remove them from the
complaint, Magistrate Judge Seibert recommended that O’Brien,
Nolte, and Mims be dismissed with prejudice for failure to state a
claim. Id. at 12-15.
Next, Magistrate Judge Seibert noted that defendants Bushman,
Fitzhugh, and Rebault had never been served because Walker had
failed

to

provide

proper

addresses.

Id.

at

16-17.

Although

recognizing that these defendants usually would be subject to
dismissal without prejudice for failure to timely serve, Magistrate
Judge Seibert recommended that they be dismissed with prejudice
because Walker’s complaint had failed to state a claim against
them. Id. at 17.5 Notably, Walker made no mention of Fitzhugh in
his complaint except to name him as a defendant. Id. Further, he
failed to state a deliberate indifference claim against Rebault and
Bushman.

Id.

at

22-23.

Rather

than

allege

the

subjective

indifference required to state a claim for deliberate indifference

5

When a plaintiff proceeds in forma pauperis, 28 U.S.C. §
1915(e) allows the Court to dismiss the case sua sponte when it
perceives that the action “fails to state a claim upon which relief
may be granted [or] seeks monetary relief against a defendant who
is immune from such relief.”
5

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
under the Eighth Amendment, Magistrate Judge Seibert concluded that
Walker merely disagreed with the diagnoses and treatments he had
received. Id. at 22. Finally, to the extent Walker sought to bring
claims for medical malpractice, Magistrate Judge Seibert concluded
that he had wholly failed to allege the applicable standard of care
or to comply with the pre-suit requirements of W. Va. Code § 55-7B6, governing actions against health care providers. Id. at 23-24.
II. STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R, the Court need 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). On the other hand, “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).
Much like pro se pleadings, Estelle v. Gamble, 429 U.S. 97,
106 (1976), pro se objections should be “accorded leniency” and
6

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
“construed to raise the strongest arguments that they suggest.”
DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y.
2009) (internal quotation omitted). Vague objections to an R&R,
however, distract a district court from “focusing on disputed
issues” and defeat the purpose of an initial screening by the
magistrate judge. McPherson v. Astrue, 605 F. Supp. 2d 744, 749
(S.D.W. Va. 2009) (citing Howard’s Yellow Cabs, Inc. v. United
States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)). Failure to raise
specific errors waives the claimant’s right to a de novo review
because “general and conclusory” objections do not warrant such
review. Id. (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see also Green
v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009).
III. APPLICABLE LAW
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
7

the

defendants

exhibited

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
“deliberate indifference” to it. Estelle, 429 U.S. at 104. The
first prong is objective, Brice v. Va. Beach Correctional Ctr., 58
F.3d 101, 104 (4th Cir. 1995), and requires a demonstration that
the plaintiff has “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).
To establish the second prong, the prisoner must show that the
defendant, “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.
Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.” 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,

8

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
837 (1994). This requires a showing that the defendant had “actual
knowledge

of

the

risk

of

harm”

and

that

“his

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); see also Jackson v. Lightsey, 775 F.3d 170, 174
(4th Cir. 2014) (reasoning that, although a screening doctor’s
“treatment

may

have

been

mistaken,

even

gravely

so,”

the

plaintiff’s claim was “essentially a disagreement between an inmate
and a physician over the inmate’s proper medical care,” which does
not amount to deliberate indifference).
IV. DISCUSSION
Walker

filed

eight

objections

to

the

findings

and

recommendations in the R&R (Dkt. No. 40). As an initial matter,
several of his objections evince a fundamental misunderstanding of
the proceedings. Walker objects that the R&R “mischaracteriz[ed]
his claims as mere alegations [sic] when they are actual facts.”
Id. at 1. Moreover, he argues that the Court should deny summary
judgment because there are “genuine issues and material facts to
support his claims.” Id. at 2.
A review of the R&R establishes that Magistrate Judge Seibert
properly articulated and applied the applicable standard of review.

9

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
Although the R&R included both the motion to dismiss and summary
judgment standards (Dkt. No. 38 at 6-9), each of Magistrate Judge
Seibert’s recommendations is based on Walker’s failure to state a
claim against the defendants. Id. at 14-15, 17, 22-23. Indeed,
analysis of whether a claim has been stated “does not resolve
contests surrounding the facts [or] the merits of a claim,” and
factual disputes are thus immaterial. Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). Magistrate Judge Seibert
correctly

“accept[ed]

as

true

all

of

[Walker’s]

factual

allegations,” but he was under no obligation to reference them as
“actual facts.” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
Walker also generally asks the Court to reject the R&R, “allow
[him] to move forward in this matter, . . . and proceed to the next
step in the process” (Dkt. No. 40 at 3). The mere request that a
court reach a particular outcome does not trigger de novo review.
McPherson, 605 F. Supp. 2d at 749.
Walker’s
specifically

remaining
focus

on

objections,

portions

of

on

the

Magistrate

other
Judge

hand,

do

Seibert’s

conclusion that Walker’s complaint failed to state a claim against
O’Brien, Mims, Nolte, Bushman, and Rebault, and require de novo

10

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
review. 28 U.S.C. § 636(b)(1)(C). After reviewing those portions of
the R&R to which Walker has specifically objected, for the reasons
that follow, the Court OVERRULES these objections (Dkt. No. 40) and
ADOPTS the R&R (Dkt. No. 38).
A.

Defendants O’Brien, Mims, and Nolte
After O’Brien, Mims, and Nolte filed their motion to dismiss

on April 14, 2016 (Dkt. No. 24), Walker moved to amend his
complaint pursuant to Fed. R. Civ. P. 15(a) to remove them as
defendants (Dkt. No. 33). The R&R recommended that the Court grant
the motion to amend and also grant the motion to dismiss for
failure to state a claim (Dkt. No. 38 at 25). Walker objected to
the conclusion in the R&R that his complaint failed to state a
claim against O’Brien, Mims, and Nolte (Dkt. No. 40 at 1-2).
1.

Motion to Amend

The threshold question is whether Walker timely filed his
motion to amend. The defendants moved to dismiss on April 14, 2016,
and Fed. R. Civ. P. 15(a)(1) permits Walker to amend as a matter of
course within “21 days after service of a motion under Rule 12(b).”
Here, Walker signed his motion to amend on May 2, 2016, and it
appears that he mailed it on May 5, 2016, even though the Court did
not receive and file it until May 9, 2016 (Dkt. No. 33). However,
11

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
“a pro se litigant’s legal papers are considered filed upon
‘delivery to prison authorities, not receipt by the clerk.’” United
States v. McNeill, 523 Fed. App’x 979, 981 (4th Cir. 2013) (quoting
Houston v. Lack, 487 U.S. 266, 275 (1988)).
Even assuming Walker received service of the defendants’
motion to dismiss on the date that it was filed (April 14, 2016),
and did not deliver his motion to amend to prison officials until
the day it was mailed (May 5, 2016), the motion is nonetheless
deemed filed within the 21-day period during which Walker was
permitted to amend his complaint as a matter of course under Fed.
R. Civ. P. 15(a). Therefore, the Court construes the motion to
amend as an amendment of right and GRANTS the motion to remove
O’Brien, Mims, and Nolte as defendants in this case (Dkt. No. 33).
The Court DENIES AS MOOT their motion to dismiss (Dkt. No. 24), and
also overrules Walker’s objections related to this issue.
2.

Motion to Dismiss

Nonetheless, had Walker’s amendment of right not been timely,
the Court would have granted the motion to dismiss. In the R&R,
Magistrate Judge Seibert concluded that Walker had not alleged
facts sufficient to support O’Brien’s personal involvement in or
supervisory liability for the alleged violations of Walker’s rights
12

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
(Dkt. No. 38 at 13-14). In addition, he recommended that Mims and
Nolte, who are Public Health Officers, be dismissed as “immune from
liability in a Bivens action.” Id. at 14-15. Walker objected that
the Court should focus on what O’Brien “did not do,” and he argued
that the United States may still be liable for the actions taken by
Mims and Nolte (Dkt. No. 40 at 1-2).
Upon de novo review of those portions of the R&R, however, the
Court agrees with Magistrate Judge Seibert’s reasoning, which fully
addressed

the

issues

that

Walker

raised

in

his

objections.

Therefore, in the alternative, for the reasons stated more fully in
the R&R, the Court GRANTS O’Brien, Mims, and Nolte’s motion to
dismiss (Dkt. No. 24).
B.

Defendants Bushman and Rebault
As noted above, although Bushman and Rebault were never served

with summonses, Magistrate Judge Seibert recommended that Walker’s
claims against them be dismissed with prejudice because, even had
they been served, the complaint failed to state a claim against
them (Dkt. No. 38 at 18). Following de novo review, the Court
agrees with the Magistrate Judge’s recommendation.

13

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
1.

Deliberate Indifference

Walker argues that he “established his Eighth Amendment claim
by showing how government officials [sic] deliberate indifference
deprived him of his medical needs” and “significantly affected” him
(Dkt. No. 40 at 2). He further asserts that Bushman and Rebault’s
deliberate indifference is not negated by the fact that he received
“some care” for his condition. Id. In support of his argument,
Walker attached portions of his medical records (Dkt. No. 40-2).
As Magistrate Judge Seibert concluded, however, Walker’s
allegations simply do not state a claim for deliberate indifference
(Dkt. No. 38 at 21-23). Assuming recurrence of Walker’s Hodgkin’s
Lymphoma created an objectively “serious medical need,” Iko, 535
F.3d at 241, he failed to allege that the defendants had “actual
subjective knowledge of both [his] serious medical condition and
the excessive risk posed by [their] action or inaction.” Jackson,
775

F.3d

at

opportunity

178.
to

be

He

never

seen

by

alleged
a

that

medical

he

was

provider,

denied
or

that

the
the

defendants knew that his Hodgkin’s Lymphoma had recurred but
nevertheless delayed appropriate treatment. See Johnson v. Fields,

14

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
616 Fed. App’x 599, 601 (4th Cir. 2015); Webb v. Hamidullah, 281
Fed. App’x 159, 166-67 (4th Cir. 2008).6
Although Walker disagrees with the manner in which he was
treated, such an allegation “fall[s] short of showing deliberate
indifference.” Jackson, 775 F.3d at 178. He alleges that medical
staff, cognizant of his history, improperly decided that his
symptoms did not warrant a PET scan, diagnosed him with asthma, and
prescribed a number of medications to address his complaints. In
alleging a claim of deliberate indifference to medical needs,
however, “it is not enough that an official should have known of a
risk.” Id. Even assuming that medical staff exhibited negligence by
not taking additional action regarding Walker’s complaints, such
failure

does

not

satisfy

the

subjective

prong

of

deliberate

indifference. Id.; see also Bridges v. Keller, 59 Fed. App’x 786
(4th Cir. 2013) (“That [prison officials] ultimately failed to
correctly diagnose his injury does not render their responses
deliberately indifferent.”). Therefore, the Court agrees with

6

Indeed, the medical records that Walker attached with his
objections, which were not available to Magistrate Judge Seibert,
support the conclusion that he was consistently seen by medical
staff and treated for his symptoms (Dkt. No. 40-2).
15

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
Magistrate Judge Seibert’s conclusion that Walker has failed to
state a claim for deliberate indifference.
2.

Medical Malpractice

Walker also asserts that any failures identified in his
medical malpractice claim result from his lack of legal knowledge
and demonstrate “that he is in need of counsel to assist him” (Dkt.
No. 40 at 2-3). Walker, however, is not entitled to the assistance
of counsel in this case, see 19 U.S.C. § 1915(e)(1), nor should
counsel be appointed absent exceptional circumstances. See Cook v.
Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
Here,

Walker’s

lack

of

counsel

does

not

excuse

the

shortcomings of his complaint. As Magistrate Judge Seibert noted in
the R&R, the pre-filing requirements of W. Va. Code § 55-7B-6,
which governs medical malpractice cases in West Virginia, apply
with equal force to suits brought in federal court. Stanley v.
United States, 321 F. Supp. 2d 805 (N.D.W. Va. 2004). It is beyond
debate that Walker has not met those requirements, and that
Magistrate Judge Seibert properly concluded that Walker’s medical
malpractice claims should be dismissed.

16

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
V. CONCLUSION
In addition to de novo review regarding Walker’s specific
objections, the Court has reviewed the entire R&R for clear error
and has found none. Therefore, it:
1)

ADOPTS the R&R (Dkt. No. 38);

2)

OVERRULES Walker’s objections (Dkt. No. 40);

3)

GRANTS Walker’s motion to amend (Dkt. No. 33);

4)

DENIES AS MOOT O’Brien, Mims, and Nolte’s motion to
dismiss (Dkt. No. 24);

5)

Alternatively, GRANTS O’Brien, Mims, and Nolte’s motion
and DISMISSES WITH PREJUDICE all claims against these
defendants (Dkt. No. 24);

6)

DISMISSES WITH PREJUDICE all claims against Fitzhugh,
Bushman, and Rebault; and

7)

DENIES AS MOOT Walker’s motions to appoint counsel (Dkt.
Nos. 33; 41).

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail,

17

WALKER V. O’BRIEN, ET AL.

1:15CV213

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 38], GRANTING
PLAINTIFF’S MOTION TO AMEND [DKT. NO. 33], AND DENYING
AS MOOT DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 24]
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED:

February 15, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

18