Kinser v. Pszcolkowski et al

Filing 79

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Defendants' 34 , 49 , and 59 Motions to Dismiss are GRANTED; Plaintiff's 75 Objections are OVERRULED; Magistrate Seibert's 73 Report and Recom mendation is ADOPTED; Plaintiff's Amended Complaint is DISMISSED WITH PREJUDICE and this case is STRICKEN from the active docket. The Clerk is DIRECTED to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/10/17. (Attachments: # 1 Certified Mail Return Receipt)(copy Plaintiff)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SHAWN TIMOTHY KINSER,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV8
(Judge Keeley)

KAREN PSZCZOLKOWSKI, Warden;
JOANIE HILL, Associate Warden of
Operations; AMANDA SABTINO, Wexford
Health Sources, Inc. Nurse; KRISTI
MUSILLI, Nurse Practitioner; SHERRI
JOHNSON, M.D.; THOMAS SCHMITT,
M.D.; JAMIE LEE, Medical Administrator;
KELLY STRICKLAND, Aramark Supervisor;
JIM RUBENSTEIN, Commissioner of
West Virginia Division of Corrections;
and JOSEPH THORNTON, Cabinet Secretary
of Department of Military Affairs and
Public Safety,
DEFENDANTS.
MEMORANDUM OPINION AND ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [DKT. NO. 73]
Pending before the Court is the Report and Recommendation
(“R&R”) of the Honorable James E. Seibert, United States Magistrate
Judge, recommending that the Court grant the defendants’ pending
motions to dismiss the amended complaint filed by the plaintiff,
Shawn Timothy Kinser (“Kinser”). For the reasons that follow, the
Court ADOPTS the R&R in its entirety (dkt. no. 73), OVERRULES
Kinser’s objections (dkt. no. 75), GRANTS the defendants’ motions
to dismiss (dkt. nos. 34, 49, and 59), and DISMISSES Kinser’s
amended complaint WITH PREJUDICE.

KINSER V. PSZCZOLKOWSKI, ET AL.

1:16CV8

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
I. BACKGROUND
Magistrate Judge Seibert’s R&R provides an exhaustive and
detailed account of both the factual and procedural history of this
case. Consequently, the Court need not repeat that background here
and will focus instead on Kinser’s objections to the findings in
the R&R.
II. STANDARD OF REVIEW
A.

Review of the R&R
“The Court will review de novo any portions of the magistrate

judge’s Report and Recommendation to which a specific objection is
made . . . and 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)).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. As true, 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)).
Further, failure to raise “any specific error of the magistrate’s

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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
review” waives the claimants right to a de novo review. Id. (citing
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). Likewise,
“general and conclusory” objections to the magistrate’s R&R do not
warrant a de novo review by the District Court. Id. (citing
Howard’s Yellow Cabs, 987 F.Supp. at 474); see also Green v.
Rubenstein, 644 F.Supp.2d 723 (S.D.W.Va. 2009). Indeed, failure to
file specific objections waives appellate review of both factual
and legal questions. See United States v. Schronce, 727 F.2d 91, 94
& n. 4 (4th Cir. 1984); see also Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991).
B.

Motion to Dismiss
In reviewing the sufficiency of a complaint, a district 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)).
However,

while

a

complaint

does

not

need

detailed

factual

allegations, a plaintiff’s obligation to provide the grounds of his
entitlement

to

relief

requires

more

than

mere

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). Indeed, courts “are not bound to accept as true a legal

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KINSER V. PSZCZOLKOWSKI, ET AL.

1:16CV8

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
conclusion couched as a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). In considering whether the facts alleged are
sufficient, “a complaint must contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Anderson, 508 F.3d
at 188 (quoting Twombly, 550 U.S. at 547).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of

a

complaint;

importantly,

it

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). “But in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are alleged in
the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6),” so long as “all facts necessary to the
affirmative

defense

‘clearly

appear[]

on

the

face

of

the

complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).
Ordinarily, a court may not consider any documents that are
outside of the complaint, or not expressly incorporated therein,
unless the motion is converted into one for summary judgment.
Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267
F.3d 30 (1st Cir. 2001)(cited with approval in Witthohn v. Federal
4

KINSER V. PSZCZOLKOWSKI, ET AL.

1:16CV8

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
Ins. Co., 164 Fed. Appx. 395 (4th Cir. 2006) (unpublished)). There
are, however, exceptions to that rule. Specifically, a court may
consider official public records, “documents incorporated into the
complaint by reference, and matters of which the court may take
judicial notice,” or sources “whose accuracy cannot reasonably be
questioned.” Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462 (4th
Cir. 2011).
III. DISCUSSION
Kinser raises three objections to the R&R. He first objects
that the R&R mistakenly concluded that he failed to exhaust his
administrative remedies as to the actions allegedly taken by
defendant Kelly Strickland (“Strickland”). Next, Kinser objects to
Magistrate Judge Seibert’s determination that his soy allergy was
self-diagnosed. In his third and final objection, he argues that
the R&R's conclusion that there was no supervisory liability in
this case was mistaken because defendants Joanie Hill, Karen
Pszczolkowski,

and

Jim

Rubenstein

(collectively

“Correctional

Defendants”) “failed to act when the law required them to.” For the
reasons

that

follow,

the

Court

OVERRULES

each

of

objections.
A.

Kinser Failed to Exhaust his Administrative Remedies

5

Kinser’s

KINSER V. PSZCZOLKOWSKI, ET AL.

1:16CV8

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
The

R&R

concluded

that

Kinser

failed

to

exhaust

his

administrative remedies as to his claim against Strickland. It
noted that Kinser “never filed any grievance naming her or alleging
any action or inaction on her part,” nor had he “alleged that any
action or inaction on Strickland’s part was to blame.”
Kinser’s objection is largely a tutorial on the grievance
system utilized by the West Virginia Department of Corrections
(“WVDOC”), together with his own notions about its inadequacy. Dkt.
No. 75 at 2-7. Nonetheless, he cannot and does not dispute the
conclusion in the R&R that he failed to name Strickland in any of
his grievances, and never alleged that any of her actions or
inactions were to blame for his injuries. Kinser maintains that he
could not have possibly named her in his grievance dated August 25,
2015, because it was only on September 15, 2015, after speaking
with “NP Kristi,” that he became aware that it was actually
Strickland who had altered his food trays.” Id. at 5; see also Dkt.
No. 27 at 10.
Blaming what he deems to be a faulty grievance system, Kisner
claims that once his original grievance was filed he could not
amend it to add Strickland’s name and alleged actions, nor could he
alter the grievance upon appeal to the next level within the WVDOC.
See Dkt. No. 75 at 3, 5. He presupposes that, had he filed another
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
grievance covering the same events that took place on August 25,
2015, it would have been denied as repetitive. Id. at 5.
This argument lacks merit. Even assuming his claims are true,
nothing prevented Kisner from filing a new grievance on any of the
dates on which he contends he was denied his soy-free food tray,
including multiple dates subsequent to identifying Strickland as
the person who allegedly altered those food trays. This is further
evidenced by the undisputed fact that, on October 11, 2015, nearly
a month after learning about Strickland and her role, Kinser filed
a grievance containing complaints virtually identical to those in
his August 25, 2015, grievance, none of which mention Strickland.
Dkt. No. 27-2 at 2-3.1
Thus, despite multiple opportunities, Kinser failed to exhaust
his administrative remedies as to Strickland because he never named
her in any of his grievances. The law is clear that such exhaustion
is a prerequisite to filing suit. 42 U.S.C. § 1997(e)(a); see also
Porter

v.

Nussle,

534

U.S.

516,

524

(2002)

(noting

that

§

1997(e)(2)’s exhaustion requirement is mandatory and “applies to
all inmate suits about prison life, whether they involve general

1

Notably, Kinser attached to his grievance a tightly
condensed, full page hand written letter detailing his complaints,
yet nowhere does it so much as mention Strickland.
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KINSER V. PSZCZOLKOWSKI, ET AL.

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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
circumstances or particular episodes”). Finally, any argument
regarding the futility exception to the exhaustion requirement was
clearly addressed in the R&R, which concluded that none of the
facts Kisner presented excused his failure to exhaust. See Dkt. No.
73 at 40-41 (collecting cases establishing reasons supporting
futility exception and finding that none apply here). Kinser’s
objection adds nothing that would alter the R&R’s sound reasoning
on this issue. Accordingly, the Court concludes that Kinser failed
to

exhaust

OVERRULES
B.

his

administrative

remedies

as

to

Strickland

and

his objection.

Kinser’s Soy Allergy was Self-Diagnosed
Kinser next objects to Magistrate Seibert’s finding that his

soy allergy was self diagnosed. The R&R explained that, in order to
sustain a claim under the Eighth Amendment for ineffective medical
care, Kinser is required to establish that the defendants acted
with deliberate indifference to his serious medical needs. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). A serious medical condition is
defined as “one that has been diagnosed by a physician as mandating
treatment or that is so obvious that even a lay person would
recognize

the

need

for

a

doctor’s

attention.”

Gaudreault

v.

Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990)

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KINSER V. PSZCZOLKOWSKI, ET AL.

1:16CV8

MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
(emphasis added) (citing Monmouth Cty. Correctional Institutional
Inmates v. Lanzaro, 834 F.2d 326, 347 (3rd Cir. 1987)).
After

reviewing

the

amended

complaint

and

the

attached

records, Magistrate Judge Seibert concluded that Kinser had not
received

the

necessary

diagnosis

from

a

physician

mandating

treatment, but instead had self diagnosed his allergy to soy. The
R&R specifically noted that the entirety of Kisner's self diagnosis
was

based

on

a

suggestion

by

an

unnamed,

and

presumptively

untrained, fellow inmate, together with Kinser’s own untrained
observations.2 Based on this, the R&R concluded that Kinser could
not

establish

his

Eighth

Amendment

claim

of

deliberate

indifference.
Kinser

has

offered

no

evidence

to

contradict

Magistrate

Seibert’s characterization that his soy allergy is self diagnosed.
There is no allegation that he was seen and diagnosed by a doctor,
let alone an allergist. Nor does Kisner allege that he has ever
been tested in any way regarding his alleged allergy to soy. The

2

Interestingly, Kinser often requested a “renal diet tray.” Although
a renal diet may be free from processed food and any soy contained
therein, it is not necessarily free of soy on the whole. See, e.g.,
http://www.mayoclinic.org/diseases-conditions/chronic-kidneydisease/expert-answers/renal-diet/faq-20058205 (noting that a renal
diet
may
utilize
soy
as
a
source
of
protein).
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
lone allegation on which he supports his objection is that, upon
his transfer to the Northern Correctional Facility (“NCF”), the
Wexford medical personnel made an “experienced diagnosis . . .
after a proper evaluation.” Dkt. No. 75 at 8.
Notably, Kisner’s amended complaint mentions nothing about a
“proper evaluation.” That factual allegation only appears in his
response to the motion to dismiss and therefore is not properly
before the Court. What his amended complaint does allege is that
the Wexford personnel “were given proper documentation to prove
Plaintiff’s

allergy

to

soy.”

He

cites

as

“supporting

facts”

Exhibits C and D to his amended complaint, which are Wexford’s
medical records from the time he arrived at the NCF. A review of
those medical records, however, does not establish that any form of
medical examination occurred beyond a basic intake evaluation, such
as height, weight, and blood pressure. There is no indication that
this intake evaluation was performed by a physician, that it
entailed any form of allergy evaluation, or that any allergy
testing was performed on Kinser. Indeed, Exhibit C simply notes the
allergies that Kinser reported to the Wexford personnel, and
Exhibit

D

makes

no

mention

of

any

confirming

evaluation

or

examination having been done, or of any prior medical diagnosis by

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KINSER V. PSZCZOLKOWSKI, ET AL.

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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
a physician.3 Finally, Kinser clearly admits in his objections that
he has never been tested for food allergies. See Dkt. No. 75 at 7.
A review of the entirety of the record confirms that there is
no allegation or evidence that Kinser has ever been diagnosed by a
physician as having a soy allergy. Instead, what the record does
establish is that, based solely on a suggestion by another inmate,
Kisner assumed that he did have a soy allergy. He then presented
this “known allergy” as a fact to future medical personnel. The
record establishes, however, that no medical personnel, and more
particularly, no physician, ever independently diagnosed a soy
allergy based on objective testing or examination. Consequently,
the Court OVERRULES this objection.
C.

The Correctional Defendants are not Liable Under § 1983
Kinser’s final objection is to the R&R’s conclusion that the

Correctional Defendants were not liable for his § 1983 claim under
any theory of respondeat superior.4 See Monell v. Dept. of Social
Svcs., 436 U.S. 658 (1978). As the Court has already determined,
3

In point of fact, Kinser’s later grievance, filed on November
10, 2015, seeks a screening for his alleged soy allergy further
belies his contention that there were already medical records
confirming such.
4

Kinser concedes that defendant, Joseph Thornton, should be
dismissed from this action but requests that the remaining
Correctional Defendants remain.
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KINSER V. PSZCZOLKOWSKI, ET AL.

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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
there was no Eighth Amendment deliberate indifference violation
here because no serious medical condition had been diagnosed by a
physician.

Consequently, there can be no supervisory liability.

Nonetheless, Kinser attempts to argue that the Correctional
Defendants were aware of the constitutional violations and failed
to act. His objection, however, is merely a complete reiteration of
the arguments previously presented, which Magistrate Judge Seibert
heard and rejected in the R&R. He fails to point to a specific
error in the magistrate judge’s reasoning, and instead merely
rehashes his allegations in a general and conclusory objection to
the R&R’s overall rejection of his arguments on this issue.5 As
such,

the

Court

need

not

conduct

a

de

novo

review

of

this

objection. See McPherson, 605 F. Supp.2d at 749 (failing to raise
“any

specific

error

of

the

magistrate’s

review”

waives

the

claimant’s right to a de novo review) (citing Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982))). Thus, the Court's review is for
clear error only. Finding none, it OVERRULES Kinser’s objection on
this issue.
IV.CONCLUSION

5

To the extent that Kinser makes any additional allegations in
his objections, which essentially elaborate on the same arguments,
they are not part of his complaint.
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MEMORANDUM OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION [DKT. NO. 73]
Having overruled Kinser’s objections, and after a clear error
review of the remaining portions of the R&R to which he has not
objected, the Court finds that the R&R is thorough, well reasoned,
and free of any clear error. Accordingly, it:
1)

ADOPTS the R&R in its entirety (dkt. no. 73);

2)

OVERRULES Kinser’s objections (dkt. no. 75);

3)

GRANTS the defendants’ motions to dismiss (dkt. nos. 34,
49, and 59); and

4)

DISMISSES the amended complaint WITH PREJUDICE and ORDERS
this case stricken from the Court’s active docket.

It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this order to counsel of record and to the pro se plaintiff,
certified mail, return receipt requested.
DATED: March 10, 2017

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

13