Sine v. Eastern Regional Jail et al

Filing 26

REPORT AND RECOMMENDATIONS: Recommendation that the 1 Complaint filed by Matthew Sine be dismissed with prejudice. Objections to R&R due by 5/26/2009. (certified mail 7009 0080 0001 9669 7561) Signed by Magistrate Judge James E. Seibert on 5/11/09. (jss)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA MATTHEW SINE, Plaintiff, v. CIVIL ACTION NO. 2:08cv67 (Judge Maxwell)

EASTERN REGIONAL JAIL, PRIMECARE, Inc., Dr. HAHN, Primecare, Inc., ADMINISTRATOR RUDLOFF Defendants. REPORT AND RECOMMENDATION The plaintiff initiated this matter by filing a complaint on May 21, 2008, together with a Motion for Leave to Proceed without Prepayment of Fees. Following a deficiency notice and an order to show cause, the plaintiff submitted a Prisoner Trust Account Report on September 2, 2008. On September 3, 2009, he was granted leave to proceed in forma pauperis. On September 29, 2008, the plaintiff paid the required initial partial filing fee. This matter is before the undersigned for an initial review and report and recommendation pursuant to LR PL P 83.01 and 28 U.S.C. §1915(e) and 1915A. I. THE COMPLAINT The plaintiff , who was an inmate in the custody of the West Virginia Regional Jail Authority, filed this complaint outlining events that transpired at the Eastern Regional Jail, which he appears to allege constitute medical malpractice and negligence. The substance of the plaintiff's complaint is that he was punched my another inmate the Eastern regional Jail and knocked unconscious for three to five minutes. He alleges that when he regained consciousness, the same inmate struck him in the back of the neck and rendered him unconscious for another two minutes. Upon calling correctional officers, he was transported to medical then an outside

emergency room. The plaintiff alleges that his injuries included a crushed eye socket, collapsed nasals, and a pinched nerve in his face. The plaintiff maintains that he was told that ne needed surgery on his face on Monday, but because Monday was a holiday, he was told to come back on Tuesday. The plaintiff maintains that he was returned to the jail, where nothing was done even close to immediately. The plaintiff then mentions two doctors, Fergle and Sabado, but does not make it clear whether they are private physicians or doctors employed by the regional jail. The plaintiff concludes his complaint by alleging that he is now in the custody of the Division of Corrections and must start all over again in seeking medical care. He maintains he still has fuzzy vision and severe pain. As relief, the plaintiff "want[s] the courts to grant [him] pain and suffering, negligence, medical malpractice, and breach of security this all being of compensation with punitive damages and court cost and to hold the regional jail and staff responsible for what happened to [him] and make sure [he] [has] protection from further abuse." II. STANDARD OF REVIEW Because plaintiff is a prisoner seeking redress from a governmental entity or employee, the Court must review the complaint to determine whether is it frivolous or malicious. Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. Complaints which are frivolous or malicious, must be dismissed. 28 U.S.C. 1915(e). A complaint is frivolous if it is without arguable merit either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325. However, the Court must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint filed in forma pauperis which fails to state a claim under

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Fed. R. Civ. P. 12(b)(6) is not automatically frivolous. See Neitzke at 328. Frivolity dismissals should only be ordered when the legal theories are "indisputably meritless," Id. at 327. III. ANALYSIS A. Medical Negligence

To establish a medical negligence claim in West Virginia, the plaintiff must prove: (a) the health care provider failed to exercise that degree of care, skill, and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and (b) such failure was a proximate cause of the injury or death. W.Va. Code § 55-7B-3. When a medical negligence claim involves an assessment of whether or not the plaintiff was properly diagnosed and treated and/or whether the health care provider was the proximate cause of the plaintiff's injuries, expert testimony is required. Banfi v. American Hospital for Rehabilitation, 529 S.E.2d 600, 605-606 (2000). Additionally, under West Virginia law, certain requirements must be met before a health care provider may be sued. W.Va. Code §55-7B-6. This section provides in pertinent part:

§ 55-7B-6. Prerequisites for filing an action against a health care provider; procedures; sanctions (a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section. (b) At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert's familiarity with 3

the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of rule 15 of the rules of civil procedure. This Court previously held that compliance with W.Va. Code §55-7B-6 is mandatory prior to filing suit in federal court. See Stanley v. United States, 321 F.Supp.2d 805, 806-807 (N.D.W.Va. 2 0 0 4 ) .1 With regard to the appropriate standard of care, plaintiff has completely failed to sustain his burden of proof. Plaintiff does not assert, much less establish, the standard of care for the diagnosis or treatment of the facial injuries he claims he received.2 Under the circumstances of this case, plaintiff would be required to produce the medical opinion of a qualified health care provider in order to raise any genuine issue of material fact with respect to the defendants' breach of the duty of care. Moreover, there is nothing in the complaint which reveals that the plaintiff has met the requirements of W.Va. Code §55-7B-6. Accordingly, even if this court has supplemental

jurisdiction over the plaintiff's state law claims for medical malpractice, summary dismissal is appropriate.

In Stanley, the plaintiff brought suit against the United States alleging that the United States, acting through its employee healthcare providers, was negligent and deviated from the "standards of medical care" causing him injury. Plaintiff offers no pleadings, affidavits, or declarations from any medical professional that establishes the applicable community standards for the diagnosis or treatment of a crushed eye socket, collapsed nasals, or a pinched facial nerve.
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B. 42 U.S.C. § 1983 Although not specifically articulated, a liberal reading of the plaintiff's complaint indicates that he may be attempting to state a claim under 42 U.S.C. § 1983 which provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Therefore, in order to state a claim under 42 U.S.C. § 1983, the plaintiff must demonstrate that a person acting under color of state law deprived him of the rights guaranteed by the Constitution or federal laws. Rendall-Baker v. Kohn, 547 U.S. 830, 838 (1982). 1. Eastern Regional Jail and Primecare, Inc. The Eastern Regional Jail and Primecare, Inc. are not proper defendants because neither is a person subject to suit under 42 U.S.C. § 1983. See Preval v. Reno, 203 F.3d 821 (4th Cir. 2000) (unpublished) ("[T]he Piedmont Regional Jail is not a `person,' and therefore not amendable to suit under 42 U.S.C. § 1983); and Brooks v. Pembroke City Jail, 722 F.Supp. 1294, 1301 (E.D.N.C. 1989) ("Claims under § 1983 are directed at `persons' and the jail is not a person amenable to suit.").
Accordingly, the plaintiff's claims against the jail and Primecare, Inc. should be dismissed with

prejudice. 2. Dr. Hahn
The Eighth Amendment protects prisoners from punishments which "`involve the unnecessary

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and wanton infliction of pain' or are grossly disproportionate to the severity of the crime." Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citations omitted). These principles apply to the conditions of a prisoner's confinement and require that the conditions within a prison comport with "contemporary standard[s] of decency" to provide inmates with "the minimal civilized measure of life's necessities." Id. at 347; see also Farmer v. Brennan, 511 U.S. 825, 832 (1994) (explaining that both the treatment of prisoners and the conditions of their confinement are subject to scrutiny under the Eighth Amendment). Therefore, while "`the Constitution does not mandate comfortable prisons,"' it also "does not permit inhumane one." Id. (quoting Rhodes, 452 U.S. at 349). To state a claim under the Eighth Amendment, plaintiff must show that defendants acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A cognizable claim under the Eighth Amendment is not raised when the allegations reflect a mere disagreement between the inmate and a physician over the inmate=s proper medical care, unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). To succeed on an Eighth Amendment Acruel and unusual punishment@ claim, a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was Asufficiently serious,@ and (2) that subjectively the prison official acted with a Asufficiently culpable state of mind.@ Wilson v. Seiter, 501 U.S. 294, 298 (1991). When dealing with claims of inadequate medical attention, the objective component is satisfied by a serious medical condition. A medical condition is "serious" if "it is diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would recognize the necessity for a doctor's attention." Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir.1990), cert. denied, 500 U.S. 956 (1991); Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3rd

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Cir.1987) cert. denied, 486 U.S. 1006 (1988).3 A medical condition is also serious if a delay in treatment causes a life-long handicap or permanent loss. Monmouth 834 F.2d at 347. Thus, while failure to provide recommended elective knee surgery does not violate the Eighth Amendment, Green v. Manning, 692 F.Supp. 283 (S.D. Ala.1987), failure to perform elective surgery on an inmate serving a life sentence would result in permanent denial of medical treatment and would render the inmate's condition irreparable, thus violating the Eighth Amendment. Derrickson v. Keve, 390 F.Supp. 905,907 (D.Del.1975). Further, prison officials must provide reasonably prompt access to elective surgery. West v. Keve, 541 F. Supp. 534 (D. Del. 1982) (Court found that unreasonable delay occurred when surgery was recommended in October 1974 but did not occur until March 11, 1996.) The subjective component of a Acruel and unusual punishment@ claim is satisfied by showing deliberate indifference by prison officials. Wilson, 501 U.S. at 303. A[D]eliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.@ Farmer v. Brennan, 511 U.S. 825, 835 (1994). Basically, a prison official Amust both be 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, 511 U.S. at 837. A prison official is not liable if he Aknew the underlying facts but believed (albeit

The following are examples of what does or does not constitute a serious injury. A rotator cuff injury is not a serious medical condition. Webb v. Prison Health Services, 1997 WL 298403 (D. Kansas 1997). A foot condition involving a fracture fragment, bone cyst and degenerative arthritis is not sufficiently serious. Veloz v. New York, 35 F.Supp.2d 305, 312 (S.D.N.Y. 1999). Conversely, a broken jaw is a serious medical condition. Brice v. Virginia Beach Correctional Center, 58 F. 3d 101 (4th Cir. 1995); a detached retina is a serious medical condition. Browning v. Snead, 886 F. Supp. 547 (S.D. W. Va. 1995). And, arthritis is a serious medical condition because the condition causes chronic pain and affects the prisoner=s daily activities. Finley v. Trent, 955 F. Supp. 642 (N.D. W.Va. 1997).

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unsoundly) that the risk to which the fact gave rise was insubstantial or nonexistent.@ Id. at 844. In the instant case, while the plaintiff may be able to establish that his alleged facial injuries presented a serious medical condition, satisfying the objective component of an Eighth Amendment claim, he cannot satisfy the subjective component of an Eighth Amendment claim, because there is no allegation that Dr. Hahn, or any other individual defendant acted with deliberate indifference. The information supplied by the plaintiff indicates that he was seen immediately by medical personnel at the jail and then transferred to the emergency room at an outside hospital. In addition, the complaint indicates that he was seen by two physicians other than Dr. Hahn. While Dr. Hahn may have been negligent in his treatment of the plaintiff, "deliberate indifference" as required by the Eighth Amendment is a standard higher than simple negligence, and negligence alone is not actionable under § 1983. Thus, ordinary medical malpractice based upon negligence in providing care does not state a claim under the Eighth Amendment. See Estelle, supra at 106. ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). Furthermore, the large majority of cases alleging medical Eighth Amendment violations concern the denial of medical care to a prisoner rather than the provision of substandard care; "no care," rather than "bad care." See e.g,, Holmes v. Sheahan, 930 F.2d 1196 (7th Cir.), cert. denied, 502 U.S. 960 (1991). Here, the plaintiff may have received "bad care," but he did receive care. Therefore, the plaintiff's complaint against Dr. Hahn fails to state an 8th

Amendment claim and should be dismissed on that basis.
4. Administrator Rudloff In order to establish personal liability against a defendant in a § 1983 action, the defendant must be personally involved in the alleged wrong(s); liability cannot be predicated solely under respondeat superior. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977). The plaintiff does not allege any personal involvement with his medical

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care by Administrator Rudloff. Instead, he appears to allege that he is responsible for the jail staff and their actions. When a supervisor is not personally involved in the alleged wrongdoing, he may be liable under § 1983 if the subordinate acted pursuant to an official policy or custom which he is responsible, see Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1113 (4th Cir. 1982); Orum v. Haines, 68 F. Supp.2d 726 (D.D. W.Va. 1999), or the following elements are established: "(1) the

supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a `pervasive and unreasonable risk' of constitutional injury to citizens like the plaintiff; (2) the supervisor's response to that knowledge was so inadequate as to show `deliberate indifference to or tacit authorization of the alleged offensive practices,' and (3) there was an `affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S. 813 (1994). "Establishing a `pervasive' and `unreasonable' risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm or constitutional injury." Id. "A plaintiff may establish deliberate indifference by demonstrating a supervisor's `continued inaction in the face of documented widespread abuses.'" Id. The plaintiff makes no allegations in his complaint which reveals the presence of the required elements for supervisory liability against Administrator Rudloff. Further, the undersigned notes that the Fourth Circuit has held that non-medical personal may rely on the opinion of medical staff regarding the proper treatment of inmates. Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). Thus, Administrator Rudloff could rely on the opinion of Dr. Hahn as to whether the plaintiff needed additional medical care. Consequently, the undersigned finds that the plaintiff has failed to state a 9

claim against Administrator Rudloff, and the complaint against him should be dismissed.
IV. RECOMMENDATION In consideration of the foregoing, it is the undersigned's recommendation that the complaint be DISMISSED WITH PREJUDICE under 28 U.S.C. §§ 1915A and 1915(e) for failure to state a claim.

Any party may file within ten (10) days after being served with a copy of this Recommendation with the Clerk of the Court written objections identifying the portions of the Recommendation to which objections are made, and the basis for such objections. A copy of such objections should also be submitted to the Honorable Robert E. Maxwell, United States District Court. Failure to timely file objections to the Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation Failure to timely file objections to the

Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984).
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to the pro se plaintiff by certified mail, return receipt requested, to his last known address as shown on the docket sheet.

DATED: May 11, 2009 /s/ James E. Seibert JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

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