Sellers v. St. Joseph Hospital et al

Filing 26

ORDER ADOPTING IN PART AMENDED REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 05/14/2019. Copy mailed to pro se plaintiff by CMMR. (cwm) (Additional attachment(s) added on 5/14/2019: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
FREDERICK SELLERS,
Plaintiff,
v.

CIVIL ACTION NO.: 3:18-CV-3
(GROH)

ST. JOSEPH HOSPITAL and
SALVATOR LANSANA, MD,
Defendants.
ORDER ADOPTING IN PART AMENDED REPORT AND RECOMMENDATION
Pending before the Court is the Amended Report and Recommendation (“R&R”)
of United States Magistrate Judge Robert W. Trumble. ECF No. 21. Pursuant to this
Court’s Local Rules, this action was referred to Magistrate Judge Trumble for submission
of a proposed R&R. Magistrate Judge Trumble issued his Amended R&R on February
6, 2019. In his R&R, Magistrate Judge Trumble recommends that the Plaintiff’s Complaint
[ECF No. 1] and Amended Complaint [ECF No. 15] be denied and dismissed with
prejudice.
I. BACKGROUND
Upon review of the record, the Court finds that the facts as explained in the R&R
accurately and succinctly describe the circumstances underlying the Plaintiff’s claims.
The Court incorporates those facts herein. However, outlined below are the most relevant
facts of this case.
On January 9, 2018, the Plaintiff filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983. ECF No. 1. In his complaint, the Plaintiff asserted two claims alleging his eighth

amendment rights were violated when he was subjected to an “unnecessary hernia
operation.” ECF No. 1 at 8. On January 25, 2018, Magistrate Judge Trumble issued his
R&R recommending the Plaintiff’s complaint be dismissed without prejudice based on the
Plaintiff’s failure to allege any facts to support his claims. ECF No. 9. On February 8,
2018, the Plaintiff filed a motion to amend his complaint. ECF No. 12. On February 28,
2018, the Court entered an Order declining to adopt the R&R and granting the Plaintiff’s
motion to amend his complaint. ECF No. 13. On March 12, 2018, the Plaintiff filed his
amended complaint. ECF No. 15. In the Plaintiff’s amended complaint, he alleges he
was subjected to an unnecessary hernia operation. He further alleges that another
inmate was supposed to receive the surgery, but he was taken to receive the surgery by
mistake.
II. LEGAL STANDARDS
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review of
the magistrate judge=s findings where objection is made. However, the Court is not
required to review, under a de novo or any other standard, the factual or legal conclusions
of the magistrate judge to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a waiver of de novo review and of a
Plaintiff’s right to appeal this Court’s Order. 28.U.S.C. ' 636(b)(1); Snyder v. Ridenour,
889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).
Moreover, “[w]hen a party does make objections, but these objections are so
general or conclusory that they fail to direct the district court to any specific error by the
magistrate judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp.

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2d 723, 730 (S.D. W. Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982)). “When only a general objection is made to a portion of a magistrate judge’s reportrecommendation, the Court subjects that portion of the report-recommendation to only a
clear error review.”

Williams v. New York State Div. of Parole, No. 9:10-CV-1533

(GTS/DEP), 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012). Courts have also held
that when a party’s objection lacks adequate specificity, the party waives that objection.
See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding that
even though a party filed objections to the magistrate judge’s R&R, they were not specific
enough to preserve the claim for review). Bare statements “devoid of any reference to
specific findings or recommendations . . . and unsupported by legal authority, [are] not
sufficient.” Mario 313 F.3d at 766. Finally, the Fourth Circuit has long held, “[a]bsent
objection, we do not believe that any explanation need be given for adopting [an R&R].”
Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no
explanation whatsoever is required of the district court when adopting an R&R).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus three
days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). Service was accepted by
the pro se Plaintiff on February 11, 2019. ECF No. 22. The Plaintiff filed his objections
on February 27, 2019. ECF No. 23. Accordingly, this Court will review the Plaintiff’s
objections to the R&R de novo. The Court will review the remainder of the R&R for clear
error.
III. DISCUSSION
Magistrate Judge Trumble recommends dismissing the complaint because the
Plaintiff has failed to state a claim upon which relief can be granted.

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Specifically,

Magistrate Judge Trumble found that the Plaintiff failed to demonstrate or even allege
that either Defendant was a state actor at the time the Plaintiff claims to have had his civil
rights violated. Magistrate Judge Trumble further found the Plaintiff has failed to make
any factual allegations against Defendant St. Jospeh’s Hospital. Moreover, based on
Plaintiff’s allegations, he agreed to have the procedure after conferring with Defendant
Salvator Lansana, M.D. Therefore, “[a]t best, Plaintiff alleges that he was convinced and
persuaded to have a surgery performed upon him.” ECF No. 21.
In the Plaintiff’s objections, he relies on Conner v. Donnelly, 42 F.3d 220 (4th Cir.
1994) to argue that conduct by the Defendants constitutes state action. The Plaintiff
argues that “Salvator Lansana who’s employed by the other Defendant St. Joseph
Hospital are both private entities positioned to serve the public.” ECF No. 23 at 3. The
Plaintiff further asserts that “[b]oth Defendants as private actors serve as a tool to and
essential need to the local community and the surrounding areas.” Id.
The Plaintiff has failed to state a claim against St. Joseph’s Hospital. In a § 1983
suit, a private corporation is not vicariously liable for the acts of its employees unless the
plaintiff can show that the corporation had a policy or custom that the employee acted
pursuant to and that caused deprivation of his rights. McIlwain v. Prince William Hosp.,
774 F. Supp. 986, 990 (E.D. Va. 1991). The Plaintiff has brought this suit against St.
Joseph’s Hospital because that is where Salvator Lansana, M.D. is allegedly employed
and where the surgery took place. The Plaintiff has not set forth any factual allegations
that St. Joseph’s Hospital caused a deprivation of his rights or that Salvator Lansana,
M.D. acted pursuant to a policy or custom of the hospital. Accordingly, the Plaintiff does
not have a § 1983 claim against St. Joseph’s Hospital.

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The Plaintiff has also failed to state a claim against Salvator Lansana, M.D. In
Conner, the Fourth Circuit held that
[e]ven where a physician does not have a contractual relationship with the
state, the physician can treat a prisoner only with the state’s authorization.
If a physician treating a prisoner-whether by contract or by referral-misuses
his power by demonstrating deliberate indifference to the prisoner’s serious
medical needs, the prisoner suffers a deprivation under color of state law.
The source of the deprivation does not change because the physician has
no contractual relationship with the state: the physician acts under color of
state law because the state has incarcerated the prisoner and denied him
the possibility of obtaining adequate medical care on his own.
42 F.3d at 225. Salvator Lansana, M.D. treated the Plaintiff, a prisoner, for a hernia. If
Salvator Lansana, M.D., as the Plaintiff has alleged, abused his power by demonstrating
deliberate indifference to the Plaintiff’s serious medical needs, then the Plaintiff has
suffered deprivation under color of state law.
The Plaintiff essentially alleges that on January 27, 2015, he was mistakenly taken
to St. Joseph’s Hospital to receive a hernia operation. Upon arriving at the hospital, the
Plaintiff was introduced to Salvator Lansana, M.D. The officers who transported the
Plaintiff informed the Doctor that they brought the wrong inmate and the Plaintiff
confirmed. After receiving this information the doctor assessed the Plaintiff’s current
condition. The doctor determined the Plaintiff did have a hernia and after discussing the
procedure with the doctor the Plaintiff consented to the surgery. Regardless of any
erroneous entry made in the Plaintiff’s medical records, the Plaintiff went to St. Joseph’s
Hospital, consulted with Salvator Lansana, M.D. and consented to the surgery. The
Plaintiff has failed to allege facts sufficient to show that Salvator Lansana, M.D.
demonstrated deliberate indifference to his serious medical needs. Accordingly, Plaintiff’s

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objections to the R&R, inasmuch as he objects to his failure to state a claim, are
OVERRULED.
IV. CONCLUSION
Accordingly, upon careful review of the R&R and the Plaintiff’s objections, it is the
opinion of this Court that Magistrate Judge Trumble=s Amended Report and
Recommendation [ECF No. 21] should be, and is hereby, ORDERED ADOPTED IN
PART. The Plaintiff’s complaint [ECF No. 1] and amended complaint [ECF No. 15] are
DENIED and DISMISSED WITH PREJUDICE.

Further, the Plaintiff’s Motion for

Defendants to Respond [ECF No. 20] is DENIED AS MOOT.
This matter is ORDERED STRICKEN from the Court’s active docket. The Clerk
of Court is DIRECTED to mail a copy of this Order to the Plaintiff by certified mail, return
receipt requested, at his last known address as reflected on the docket sheet.
DATED: May 14, 2019

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