Russell v. Anderson et al

Filing 59

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING 53 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING 39 DEFENDANTS' MOTION TO DISMISS, DENYING AS MOOT 51 PLAINTIFF'S MOTION FOR APPOINTED COUNSEL AND OVERRULING 58 PLAIN TIFF'S OBJECTIONS. Should the plaintiff choose to appeal, he is ADVISED that he must file a notice of appeal within 60 days after the date of the entry of this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/21/2017. (copy to Pro Se Plaintiff via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 3/21/2017: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID LEE RUSSELL,
Plaintiff,
v.

Civil Action No. 5:15CV39
(STAMP)

EDDIE ANDERSON, D.O.,
REBECCA GROVE, R.N., AHSA,
and MS. I. BRANNON,
Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION TO DISMISS,
DENYING AS MOOT PLAINTIFF’S MOTION FOR APPOINTED COUNSEL
AND OVERRULING PLAINTIFF’S OBJECTIONS
The pro se plaintiff filed this civil action asserting claims
under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971).

The case was referred to United States Magistrate Judge

Michael John Aloi.

The defendants filed a motion to dismiss or,

alternatively, for summary judgment.

Magistrate Judge Aloi issued

a report recommending that the defendants’ motion be granted.

The

plaintiff filed timely objections to the report and recommendation.
I.

Background

The plaintiff, David Lee Russell (“Russell”), alleges that he
was subjected to cruel and unusual punishment at the federal
correctional institution in Gilmer, West Virginia, (“FCI Gilmer”)
because medical staff was deliberately indifferent to his medical
needs in treating his hypertension. Russell alleges that he sought

treatment from the defendants for symptoms of hypertension and that
the defendants refused to perform proper medical procedures to
stabilize his condition, resulting in hospitalization, a diagnosis
of

malignant

hypertension

substantial weight loss.

and

transient

ischemic

attack,

and

Specifically, on August 8, 2013, Russell

reported to the Health Services Clinic (“the clinic”) at FCI
Gilmore.

Russell presented with an elevated blood pressure,

dizziness, nausea, and other symptoms of severe hypertension.

He

was seen by Rebecca Grove (“Grove”), a Health Systems Specialist at
FCI Gilmer, and Eddie Anderson, M.D. (“Dr. Anderson”).

Russell

told them that he had not taken his prescribed hypertension
medication that morning.

Grove and Dr. Anderson examined Russell,

noting his high blood pressure and instructed him to return to the
housing unit and to take his medication and to return to the clinic
if

his

symptoms

worsened.

Russell

asked

Izetta

Brannon

(“Brannon”), a Health Information Technician, for a wheelchair to
return to the housing unit. Brannon allegedly refused, then, after
speaking with Grove, she provided Russell transportation back to
the housing unit.
Russell returned to the clinic that afternoon with the same
symptoms and stated that he took his medication after returning to
his cell that morning.
His

blood

pressure

He was examined by Christina Gherke, PA-C.

continued

to

increase,

and

he

was

given

clonidine to stabilize his blood pressure and was taken to the

2

emergency room at Stonewall Jackson Memorial Hospital. The doctors
at the hospital examined him fully and diagnosed him with essential
poorly controlled hypertension, vertigo, hiccoughs, constipation,
and apparent hypothyroidism.
The

magistrate

judge

Russell was then discharged.
concluded

that

Grove

has

absolute

immunity from Bivens suits and that Russell’s allegations do not
constitute a claim for a violation of his Eight Amendment rights.
Russell filed timely objections to the report and recommendation.
Russell also previously filed a motion for appointed counsel, which
the magistrate judge recommends denying as moot.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.

Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
To survive a motion to dismiss under Rule 12(b)(6), “a
[pleading] must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

3

This plausibility

standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff is plausibly
entitled to relief.

Francis v. Giacomelli, 588 F.3d 186, 193 (4th

Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

“The plausibility standard is

not a probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Hall v.

DirectTV, 846 F.3d 757, 765 (4th Cir. 2017). “[C]ourts must accept
as true all of the factual allegations contained in the complaint
and draw all reasonable inferences in favor of the plaintiff.” Id.
“[A]

[pleading]

is

substantial justice.”

to

be

construed

liberally

so

as

to

do

Id. (internal quotation marks omitted).

Further, this Court must liberally construe pro se complaints.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 2007).

However, while the plaintiff’s

allegations are assumed to be true, Erickson, 551 U.S. at 93, this
Court may not ignore a clear failure in the pleading to allege
facts that set forth a claim.

See Weller v. Dep’t of Soc. Servs.,

901 F.2d 387, 390-91 (4th Cir. 1990).

This Court may not rewrite

a complaint to include claims that were never presented, Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the
plaintiff’s legal arguments for him, id., or “conjure up questions
never squarely presented” to the court.

Beaudett v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

4

Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A fact is

“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).

A dispute of material

fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”

Id.

If the

nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

In reviewing the supported

underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.

See

“The burden then shifts to the

nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”

Temkin v. Frederick County Comm’rs, 945

F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his

5

pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Inc., 477 U.S. 242, 256 (1986).

Anderson v. Liberty Lobby,

Moreover, “[t]he nonmoving party

cannot create a genuine issue of material fact through mere
speculation
Othentec

or

Ltd.

the
v.

building

Phelan,

of

526

one

F.3d

inference
135,

(internal quotation marks omitted).

140

upon
(4th

another.”
Cir.

2008)

The nonmoving party must

produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing
it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).
III.
A.

Discussion

Public Health Services Act Immunity
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671-

2680, generally authorizes suits against the United States for
damages

caused

employment.

by

federal

employees

in

the

course

of

their

The Public Health Services Act (“PHSA”), 42 U.S.C.

§ 233(a), provides that the “FTCA remedy against the United States
[is] ‘exclusive of any other civil action or proceeding’ for any
personal injury caused by [a United States Public Health Service]
officer or employee performing a medical or related function ‘while
acting within the scope of his office or employment.’”

Hui v.

Castaneda, 559 U.S. 799, 802 (2010) (quoting 45 U.S.C. § 223(a)).
The Supreme Court has held that § 233(a) expressly precludes a

6

Bivens action brought against Public Health Service officials for
harms arising out of their conduct in performing a medical or
related function while acting within the scope of their office or
employment,

in

effect

providing

immunity to Bivens actions.

such

officials

with

absolute

Id. at 802.

At the time of Russell’s alleged claims, Grove was a Health
Systems Specialist at FCI Gilmer and a Commissioned Officer in the
United States Public Health Service.

ECF No. 40-11.

Russell’s

claims against Grove arise out of her provision of medical care to
him. Thus, under § 223(a) of the PHSA, Grove has absolute immunity
for any Bivens claim Russell may have against her.1
remedy for her alleged actions is under the FTCA.

His sole

Accordingly,

this Court adopts and affirms the magistrate judge’s conclusion as
to this issue.
B.

Deliberate Indifference Claims
The

Eighth

Amendment’s

prohibition

of

cruel

and

unusual

punishments covers “the treatment a prisoner receives in prison and
the conditions under which he is confined,” Helling v. McKinney,
509 U.S. 25, 31 (1993), including the provision of medical care.
Farmer

v.

Brennan,

511

U.S.

825,

832

(1994).

“[A]

prison

official’s ‘deliberate indifference to serious medical needs of

1

This Court notes that the defendants assert that Grove is the
only defendant who was a Commissioned Officer in the United States
Public Health Service at the time of the plaintiff’s allegations
and that Grove is the only defendant entitled to absolute immunity
under the PHSA.
7

prisoners constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment.’”

Scinto v. Stansberry, 841

F.3d 219, 225 (4th Cir. 2016) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)).

To state a claim for an Eighth Amendment

violation, a prisoner must establish that: (1) “the deprivation
alleged [was], objectively, ‘sufficiently serious’” and (2) the
“prison officials acted with a ‘sufficiently culpable state of
mind.’”

Id. (alteration in original) (internal quotation marks

omitted) (quoting Farmer, 511 U.S. at 834).
Under the first “objective” prong, an official’s actions are
“sufficiently serious” if the deprivation is “extreme,” “meaning
that it poses a serious or significant physical or emotional injury
resulting from the challenged conditions, or a substantial risk of
such serious harm resulting from . . . exposure to the challenged
conditions.” Id. (internal quotation marks omitted) (alteration in
original). Where the prisoner alleges deprivation of medical care,
the prisoner must establish “a ‘serious’ medical need that has
either been diagnosed by a physician as mandating treatment or
. . . is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.”

Id. (alteration in

original) (internal quotation marks omitted).
Under the second “subjective” prong, prison officials must
have acted with deliberate indifference. Id. “To prove deliberate
indifference, plaintiffs must show that ‘the official kn[ew] of and

8

disregard[ed] an excessive risk to inmate health or safety.’”

Id.

(alterations in original) (quoting Farmer, 511 U.S. at 297).
“[T]he plaintiff must show that the official was ‘aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exist[ed], and . . . dr[ew] th[at] inference.’”

Id.

(alterations and emphasis in original) (quoting Farmer, 511 U.S. at
297).

Where the prisoner alleges deprivation of medical care, the

prisoner must show “the official’s actual subjective knowledge of
both the inmate’s serious medical condition and the excessive risk
posed by the official’s action or inaction.”

Id. at 226 (internal

quotation marks omitted) (brackets omitted).

The prisoner must

prove either that the official had actual knowledge of the medical
condition and risk or that the risk was obvious.
claim

for

deliberate

indifference

requires

Id.
more

Moreover, a
than

mere

negligence, as “deliberate indifference describes a state of mind
more blameworthy than negligence,” Farmer, 511 U.S. at 835, and
“even officials who acted with deliberate indifference may be ‘free
from liability if they responded reasonably to the risk.’” Scinto,
841 F.3d at 226 (quoting Farmer, 511 U.S. at 844).
Russell’s core claim is that the defendants were deliberately
indifferent to his need for medical care relating to his serious
hypertension because they released him after his first visit to the
clinic.

Russell was previously diagnosed with hypertension and

prescribed medication to treat his condition. Russell presented at

9

the clinic with elevated blood pressure, dizziness, nausea, and
other symptoms of severe hypertension.
examined Russell.

Grove and Dr. Anderson

Russell told them that he had not taken his

prescribed hypertension medication that morning, and the defendants
instructed

him

to

return

to

the

housing

unit,

to

medication, and to return if his symptoms worsened.

take

his

He was

provided transportation back to the housing unit. Russell took his
medication, but his symptoms worsened and he returned to the clinic
with further symptoms of severe hypertension, resulting in his
being taken to the hospital.
Grove and Dr. Anderson had actual knowledge of Russell’s
hypertension, of his prescribed treatment, and of his symptoms that
morning.

They

treated

him

in

accordance

with

his

existing

treatment plan by directing him to take his prescribed medication
and to return to the clinic if his symptoms worsened.

At most, the

defendants were negligent in discharging Russell to the housing
unit without further monitoring after ensuring that he took his
medication. However, they were not deliberately indifferent to his
medical needs.

The Eighth Amendment requires reasonable attention

to serious medical needs; it does not require perfect medical care
or ideal treatment.

Scinto, 841 F.3d at 226.

The complaint and

materials presented to this Court clearly show that the defendants
reasonably cared for Russell’s serious medical needs.

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IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation
defendants’

(ECF

motion

No.
to

53)

is

dismiss

ADOPTED

or,

judgment (ECF No. 39) is GRANTED.
appointed

counsel

(ECF

No.

51)

AND

AFFIRMED.

alternatively,

for

The

summary

The plaintiff’s motion for
is

DENIED

AS

MOOT,

and

the

plaintiff’s objections to the report and recommendation (ECF No.
58) are OVERRULED.

It is ORDERED that this civil action be

DISMISSED and STRICKEN from the active docket of this Court.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made or those that this Court
otherwise determined de novo, he is ADVISED that he must file a
notice of appeal with the Clerk of this Court within 60 days after
the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.

11

DATED:

March 21, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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