Moore v. Shaw
Filing
39
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: Adopting 37 Report and Recommendations re 1 Complaint, filed by Roger Moore, Granting 32 MOTION to Dismiss and MOTION for Summary Judgment filed by Lt. Shaw. Complaint is Dismissed with Prejudice. Signed by Senior Judge Frederick P. Stamp, Jr on 3/20/15. (copy to Plaintiff by cert. mail)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROGER MOORE,
Plaintiff,
v.
Civil Action No. 5:13CV130
(STAMP)
LT. SHAW,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
I.
Background
The pro se1 plaintiff, while incarcerated at FCI Morgantown,
filed this civil action under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
The plaintiff
alleges a violation of his Eighth Amendment rights. In particular,
the plaintiff claims that the defendant acted with deliberate
indifference to his medical need.
The plaintiff states that he
suffered a seizure at 3:00 a.m., and that the defendant appeared
approximately 20 to 30 minutes later.
When the defendant arrived,
the plaintiff claims that other inmates witnessed the defendant
shine a light in his eyes and call his name, rather than attempt to
revive him.
He further claims that the other assisting officers
“did nothing.” The plaintiff also argues that such situations have
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
occurred before.
For relief, the plaintiff seeks $200,000.00 for
his injuries and $800,000.00 for punitive damages.
Later,
the
defendant
filed
alternatively, for summary judgment.
a
motion
to
ECF No. 32.
dismiss,
or
In that motion,
the defendant asserts three arguments, which are: (1) the plaintiff
failed to establish his deliberate indifference claim; (2) that the
defendant is entitled to qualified immunity; and (3) that the
plaintiff failed to exhaust his administrative remedies.
plaintiff filed a response in opposition.
response,
he
contradicts
argues
the
that
his
defendant’s
version
version,
ECF No. 36.
of
the
which
facts
states
The
In that
directly
that
the
plaintiff was on the floor without injury. As proof, the plaintiff
provides the unsworn statement of an inmate who allegedly witnessed
the events.
not
Further, the plaintiff argues that the defendant is
entitled
exhausted
exhaustion,
to
his
he
qualified
administrate
attached
immunity,
and
remedies.
two
copies
that
In
of
the
support
what
are
plaintiff
of
that
allegedly
administrative remedies.
Following the above filings, United States Magistrate Judge
John S. Kaull entered his report and recommendation.
ECF No. 37.
In it, he recommends that the defendant’s motion for summary
judgment be granted and that the plaintiff’s complaint be dismissed
with prejudice.
First, the magistrate judge found that the
plaintiff failed to exhaust his administrative remedies.
2
In
particular, the magistrate judge found that the administrative
remedies that the plaintiff provided in his response were actually
informal
resolutions
rather
than
formal
requests/complaints.
Therefore, they failed to show up under the complaint database, and
more importantly they fail to count as a proper exhaustion.
See
Johnson v. Taylor, 2009 WL 691207, at *3, n.8 (W.D. Va. Mar. 16,
2009). Second, the magistrate judge found that even if he exhausted
his administrative remedies, the plaintiff failed to establish his
deliberate indifference claim. Specifically, the magistrate judge
determined that the defendant relied upon the reports of the
medical staff, which indicated that the plaintiff was medically
stable.
Furthermore, the magistrate judge also noted that the
plaintiff relies on unsworn statements by other inmates, which are
inadmissible for summary judgment purposes. For those reasons, the
magistrate judge recommends that the defendant’s motion be granted,
and that the plaintiff’s complaint be dismissed with prejudice.
The
plaintiff
did
not
file
objections
to
the
report
and
recommendation.
II.
Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
of
the
magistrate
recommendation to which objection is timely made.
judge’s
Because no
objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
3
28
U.S.C. § 636(b)(1)(A).
As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
III.
A.
Discussion
Failure to Exhaust Administrative Remedies
As provided earlier, the defendant argues that the plaintiff
has failed to exhaust his administrative remedies.
In response,
the plaintiff argues that he did exhaust such remedies, pointing to
two copies of alleged remedies he filed.
ECF No. 36 Ex. 2.
The
plaintiff also insinuates in his complaint that exhausting his
administrative remedies would prove futile.
ECF No. 1.
Whether a federal prisoner sues under Bivens or § 1983, he or
she “must first exhaust inmate grievance procedures just as state
prisoners
must
exhaust
instituting a § 1983 suit.”
(2002).
administrative
processes
prior
to
Porter v. Nussle, 534 U.S. 516, 524
Regarding that exhaustion, it must be properly exhausted.
Woodford v. Ngo, 548 U.S. 81, 93-94 (2006).
The facts of this case show that the plaintiff has not
complied with the exhaustion requirement.
As the magistrate
correctly points out, the plaintiff provided alleged grievances he
claims to have filed.
ECF No. 36.
4
Those alleged grievances,
however, do not pertain to the claims of this civil action.
Rather, the claims asserted in those grievances relate to requests
for transfers to other institutions so that the plaintiff could be
closer to home.
In addition, the magistrate judge correctly
identified the process used when reviewing grievances.
28 C.F.R.
§§ 542.10-15; see Johnson, 2009 WL 691207, at *3, n.8.
Instead of
filing grievances, it appears that the plaintiff filed “informal
resolutions,” which are not the same as a grievance.
the
record
shows
that
administrative remedies.
the
plaintiff
did
not
Therefore,
exhaust
his
To the extent that the plaintiff argues
that it would have been futile to exhaust those remedies, that
argument is equally without merit.
In some cases, “exhaustion is
not required where no genuine opportunity for adequate relief
exists, irreparable injury will result if the complaining party is
compelled to pursue administrative remedies, or an administrative
appeal would be futile.”
Winck v. England, 327 F.3d 1296, 1304
(11th Cir. 2003) (internal punctuation and citation omitted).
Further, “exceptions to the exhaustion requirement apply only in
extraordinary circumstances, [] and [the plaintiff] bears the
burden of demonstrating the futility of administrative review.”
Fuller
v.
Rich,
11
F.3d
61,
62
punctuation and citations omitted).
Court
of
Appeals
for
the
Fourth
(5th
Cir.
1994)
(internal
Moreover, the United States
Circuit
has
stated
that
“[e]xhaustion of administrative remedies is mandatory, even where
5
the inmate claims that exhaustion would be futile.”
Reynolds v.
Doe, 431 F. App’x 221, 222 (4th Cir. 2011) (citing Booth v.
Churner, 532 U.S. 731, 741 n.6 (2001)).
In this case, the
plaintiff has provided no evidence as to how exhausting his
remedies would have been futile.
Exhaustion is a mandatory
requirement that, as the magistrate judge correctly determined, the
plaintiff did not satisfy.
Accordingly, the magistrate judge’s
findings are upheld.
B.
Failure to Establish Deliberate Indifference
Even if the plaintiff did exhaust his administrative remedies,
the plaintiff still fails to prove his deliberate indifference
claim.
In order to state a claim under the Eight Amendment for
ineffective medical assistance, a plaintiff must show that the
defendant acted with deliberate indifference to his serious medical
needs.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
condition is serious in two circumstances.
A medical
First, a serious
medical condition exists when a physician has diagnosed that
condition as mandating treatment, or the condition is so obvious
that even a lay person would recognize the need for medical care.
Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st
Cir. 1990), cert. denied, 500 U.S. 956 (1991).
Second, a medical
condition is serious if a delay in treatment causes a lifelong
handicap or permanent loss. Monmouth County Corr. Inst. Inmates v.
6
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S.
1006 (1988).
Moreover, to succeed on an Eighth Amendment “cruel and unusual
punishment” claim, a prisoner must prove the following elements:
(1)
the
deprivation
of
a
basic
human
need
was
objectively
“sufficiently serious” and (2) the prison official subjectively
acted with a “sufficiently culpable state of mind.”
Wilson v.
Seiter, 501 U.S. 294, 298 (1991). This second subjective component
is
satisfied
indifference.
when
the
prison
Id. at 303.
official
acts
with
deliberate
In Miltier v. Beorn, 896 F.2d 848, 851
(4th Cir. 1990), the United States Court of Appeals for the Fourth
Circuit held that “[t]o establish that a health care provider’s
actions constitute deliberate indifference to a serious medical
need, the treatment must be so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.”
After reviewing the record, this Court “is not left with the
definite and firm conviction” that the magistrate judge made errors
concerning the plaintiff’s deliberate indifference claim.
Non-
medical personnel, like the defendant, may rely on the opinion of
medical staff about proper medical care for inmates.
F.2d at 855.
sworn
and
Miltier, 896
In his dispositive motion, the defendant provides a
signed
affidavit,
in
which
he
indicates
that
the
physician assistant at the scene “instructed the Plaintiff to
7
report to Health Services at 6 a.m. the following morning.”
No. 33 Ex. 1.
ECF
The defendant also indicates that the plaintiff did
not request immediate medical attention after being seen by the
physician
assistant
and
thus,
emergency medical personnel.
argument,
the
affidavit
of
Morgantown.
defendant
James
Id. Ex. 2.
Id.
also
Thomas,
the
defendant
not
summon
In further support of his
provides
the
did
the
Health
signed
and
Administrator
sworn
of
FCI
In that affidavit, Mr. Thomas discusses
the plaintiff’s past treatments, and that physical examinations of
the plaintiff showed no need for emergency medical care.
Based on
the evidence, it appears that the defendant relied on the physician
assistant’s medical opinion.
Because he relied on that opinion,
the
he
defendant
asserts
that
did
not
act
with
deliberate
indifference by refraining from requesting emergency care for the
plaintiff.
In
an
attempt
to
refute
the
defendant’s
argument,
plaintiff proffers unsworn statement by a fellow inmate.
36.
the
ECF No.
In that statement, inmate William Campshure discusses the
plaintiff’s seizure and that the responding personnel did not
properly attend to his medical needs.
That statement, however,
proves insufficient so as to refute the defendant’s evidence.
As
the magistrate judge correctly pointed out, unsworn statements
alone generally are not admissible on summary judgment as to
contradicting sworn affidavits and declarations. Edens v. Kennedy,
8
112 F. App’x 870, 877 (4th Cir. 2004).
inadmissibility,
Mr.
Campshure’s
Notwithstanding that
statement
itself
sufficiently contradict the defendant’s evidence.
does
not
Based on the
record before this Court, the facts show that the defendant did not
act with deliberate indifference to the plaintiff’s medical need.
Accordingly, the findings of the magistrate judge are upheld.
IV.
Conclusion
For the foregoing reasons, the report and recommendation of
the magistrate judge is AFFIRMED AND ADOPTED.
Accordingly, the
defendant’s motion to dismiss or motion for summary judgment (ECF
No. 32) is GRANTED, and the plaintiff’s complaint (ECF No. 1) is
DISMISSED WITH PREJUDICE.
Finally, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
9
DATED:
March 20, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
10
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