Baughman, Jr. v. Rubenstein et al

Filing 60

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 58 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: the defendants 48 motion to dismiss or, in the alternative, for summary judgment is GRANTED; the 1 plaintiffs complaint is DENIED WITH PREJU DICE with respect to all claims against defendants Rubenstein and Mirandy, DENIED WITH PREJUDICE with respect to the claim that defendant Bills failed to present the plaintiff before the Parole Board in a timely manner, and DENIED WITHOUT PREJUDICE with respect to the claim that defendant Bills failed to correct information on the Parole Board for failure to exhaust administrative remedies. Further, it is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 2/23/2017. (copy to counsel via CM/ECF; copy to Pro Se Plaintiff via CM,rrr) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PHILIP ANDREW BAUGHMAN, JR.,
Plaintiff,
v.

Civil Action No. 5:15CV47
(STAMP)

JAMES RUBENSTEIN,
Commissioner of Corrections,
PAT MIRANDY, Warden,
JOYCE BILLS, IPO,
in their professional and
individual capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The pro se1 plaintiff instituted this civil action pursuant to
42 U.S.C. § 1983.

ECF No. 1.

The plaintiff was incarcerated at

St. Marys Correctional Center (“SMCC”) at the time he filed his
complaint but discharged his sentence on February 17, 2016. In his
complaint, the plaintiff alleges that the defendants violated his
civil rights with respect to his parole consideration. On March 4,
2016, the magistrate judge determined that summary dismissal was
not appropriate and entered an order to answer.

On April 4, 2016,

the defendants filed a motion to dismiss or, in the alternative,
motion for summary judgment.
1

ECF No. 48.

The magistrate judge

“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).

issued a Roseboro notice on April 5, 2016, and, to date, the
plaintiff has not responded to the defendants’ motion.
The plaintiff, a convicted sex offender, was an inmate at SMCC
between August 15, 2014, and February 17, 2016.

Because he was a

convicted sex offender, he was required to have a psychological
evaluation

before

provider,

PsiMed

consideration

for

Corrections,

LLC

parole.

A

(“PsiMed”),

third-party

conducts

the

psychological evaluations and services for inmates in facilities
operated by the West Virginia Division of Corrections (“WVDC”).
When the plaintiff arrived at SMCC in August 2014, the Parole Board
placed

him

on

the

list

for

parole

consideration,

and

the

institutional parole officer, defendant Joyce Bills (“Bills”),
advised

PsiMed

that

the

plaintiff

required

a

psychological

evaluation.
The necessary test was administered and scored on September
25, 2014, and sent to a PsiMed psychologist, Aimee Meadows, on that
same day.

On October 14, 2014, defendant Bills again emailed Ms.

Meadows requesting that the plaintiff receive a psychological
evaluation.

Defendant Bills also sent Ms. Meadows a follow-up

email on October 23, 2014.

On November 5, 2014, defendant Bills

sent a third email to Ms. Meadows and copied Ashley Spruce, a
PsiMed psychologist at Mount Olive Correctional Center (“MOCC”), on
that email.

The third email noted that the plaintiff had been

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referred for a psychological evaluation in September and that the
evaluation had still not been completed.
On November 14, 2014, Dana McVey from the West Virginia State
Parole Board emailed Ms. Meadows and defendant Bills about the
status of the plaintiff’s psychological evaluation.
apparently due to a staff shortage at PsiMed.

The delay was

Specifically, Ms.

Meadows had left her employment with PsiMed, and Ms. Spruce was
covering

psychological

evaluations

for

both

SMCC

and

MOCC.

Defendant Bills informed Ms. Spruce that the plaintiff could be put
on the parole hearing list for January 2015, and Ms. Spruce
responded that the plaintiff’s evaluation would be done for the
January 2015 parole hearing.
Ms. Spruce forwarded the plaintiff’s psychological evaluation
to the Parole Board on January 5, 2015, and informed defendant
Bills of that action on January 27, 2015.

The Parole Board saw the

plaintiff for a hearing in February 2015 and denied parole to the
plaintiff because of his prior unsatisfactory supervision history.
The Parole Board scheduled the plaintiff for reconsideration in
February 2016.

However, the plaintiff’s sentence expired and he

was discharged from his term of imprisonment on February 17, 2016.
The plaintiff alleges that each defendant violated his civil
rights with respect to his parole consideration.

As to the

Commissioner

Rubenstein

of

Corrections,

defendant

James

(“Rubenstein”), the plaintiff alleges that defendant Rubenstein

3

failed to instruct and direct his subordinates in the proper
process of preparing the plaintiff to go before the Parole Board,
thus denying the plaintiff proper parole consideration.

As to the

Warden, defendant Pat Mirandy (“Mirandy”), the plaintiff alleges
that defendant Mirandy usurped the Parole Board and denied him
parole by failing to provide proper instruction on the preparation
of necessary paperwork for the Parole Board to consider him for
parole eligibility.

As to defendant Bills, the plaintiff alleges

that she (1) failed to prepare the proper paperwork for the Parole
Board to consider his parole eligibility and (2) failed to correct
incorrect information and outdated facts in the parole report.
For relief, the plaintiff seeks compensatory and punitive
damages, an immediate parole reconsideration, and termination of
defendant Bills’s employment as the institutional parole officer at
SMCC.

The plaintiff’s request for an immediate parole hearing,

however, is moot because the plaintiff has been released from
custody.
The defendants’ motion to dismiss or, in the alternative,
motion for summary judgment, alleges that the plaintiff’s complaint
fails to state a claim upon which relief may be granted under 42
U.S.C. § 1983.

The defendants’ motion also alleges that the

plaintiff’s claims regarding his parole hearing must be dismissed
because

the

remedies.

plaintiff
The

failed

defendants

to

further

4

exhaust
allege

his
that,

administrative
even

if

the

plaintiff had exhausted his administrative remedies, his complaint
would be moot because he suffered no actual harm.
United States Magistrate Judge Michael John Aloi then entered
a report and recommendation.

ECF No. 58.

In that report and

recommendation, the magistrate judge concluded that, with respect
to defendants Rubenstein and Mirandy, the plaintiff’s complaint
fails to make specific allegations against the two defendants to
indicate

that

either

was

personally

involved

in

violation of the plaintiff’s constitutional rights.

any

alleged

Additionally,

the magistrate judge found that the plaintiff fails to make any
allegations against defendant Rubenstein or defendant Mirandy that
contain the required elements for supervisory liability.

With

respect to defendant Bills, the magistrate judge concluded that the
plaintiff’s first allegation against her fails to state a cause of
action because the delay in the plaintiff’s appearance before the
Parole

Board

is

attributable

to

a

third-party

provider

psychological evaluations, PsiMed, not defendant Bills.
plaintiff’s

second

allegation

against

defendant

of

As to the

Bills,

the

magistrate judge concluded that the plaintiff failed to exhaust his
administrative remedies as to the specific grievance that there was
incorrect information in his parole report.
The plaintiff did not file objections to the report and
recommendation of the magistrate judge.

For the reasons set forth

below, the report and recommendation of the magistrate judge (ECF

5

No. 58) is AFFIRMED and ADOPTED. Therefore, the defendants’ motion
to dismiss or, in the alternative, for summary judgment (ECF No.
48) is GRANTED.

Additionally, the plaintiff’s complaint (ECF No.

1) is DENIED WITH PREJUDICE with respect to all claims against
defendants Rubenstein and Mirandy, DENIED WITH PREJUDICE with
respect to the claim that defendant Bills failed to present the
plaintiff before the Parole Board in a timely manner, and DENIED
WITHOUT PREJUDICE with respect to the claim that defendant Bills
failed to correct information on the Parole Board for failure to
exhaust administrative remedies.
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.”
U.S.C. § 636(b)(1)(A).

28

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).

6

III.

Discussion

After reviewing the complaint and the record, this Court is
not “left with the definite and firm conviction that a mistake has
been committed” by the magistrate judge. United States Gypsum Co.,
333 U.S. at 395.

With respect to the plaintiff’s claims against

defendants Rubenstein and Mirandy, the magistrate judge correctly
noted that liability under 42 U.S.C. § 1983 is “personal, based
upon each defendant’s own constitutional violations.”
Freeh, 275 F.3d 391, 402 (4th Cir. 2001).

Trulock v.

In this case, the

plaintiff’s allegations as to defendants Rubenstein and Mirandy are
not

specific

to

those

defendants.

Rather,

the

plaintiff’s

allegations suggest that he named defendants Rubenstein and Mirandy
in their official or supervisory capacities as Commissioner of the
WVDC and the Warden of SMCC, respectively.

The magistrate judge

also correctly concluded that official capacity claims require the
governmental entity’s policy or custom to have played a part in the
constitutional violation.

See Kentucky v. Graham, 473 U.S. 159,

166 (1985) (citing Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S.
658, 694 (1978)).

Here, the plaintiff does not assert that any

WVDC or SMCC policy or custom played a part in the alleged
violation of his constitutional rights.
Additionally, the magistrate correctly noted that there is no
respondeat superior liability under § 1983.
at 691-92.

See Monell, 436 U.S.

Rather, “liability will lie where it is affirmatively

7

shown that the official charged acted personally in the deprivation
of the plaintiff’s rights.”

Vinnedge v. Gibbs, 550 F.2d 926, 928

(4th Cir. 1997). A supervisor may, however, be liable under § 1983
even without personal involvement if a subordinate acts pursuant to
an

official

responsible.

policy

or

custom

for

which

the

supervisor

is

See Fisher v. Washington Metro. Area Transit Auth.,

690 F.2d 1133 (4th Cir. 1982).

Similarly, a supervisor may be

liable under § 1983 if
(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).

Here, the magistrate judge correctly concluded that

the plaintiff did not allege any personal involvement on the part
of defendant Rubenstein or defendant Mirandy. The magistrate judge
also correctly concluded that the plaintiff did not make any
allegations that reveal the presence of the required elements for
supervisory liability.

Thus, this Court finds no error in the

magistrate judge’s finding that the plaintiff’s complaint fails to
state a claim against either defendant Rubenstein or defendant
Mirandy.

8

As set forth above, the plaintiff made two allegations against
defendant Bills.

The plaintiff first alleges that defendant Bills

failed to present the plaintiff before the Parole Board in a timely
manner.

The magistrate judge correctly noted that courts apply

tort principles of foreseeability and intervening superseding
causes when determining whether to attach liability for the acts of
a third party under § 1983.

See Evans v. Chalmers, 703 F.3d 636,

647 (4th Cir. 2012). The magistrate judge correctly concluded that
defendant Bills cannot be held responsible for the delay in the
plaintiff’s appearance before the Parole Board because the delay
was not caused or influenced by her.
As explained previously, the WVDC contracts with PsiMed to
provide psychological evaluations, and defendant Bills promptly
forwarded the plaintiff’s information to Ms. Meadows, the PsiMed
psychologist assigned to SMCC. Defendant Bills also followed up on
her request for the plaintiff’s psychological evaluation with
multiple

emails

to

PsiMed

employees.

The

magistrate

judge

correctly concluded that defendant Bills had no other avenue to
obtain the necessary evaluation and that she acted in good faith to
timely obtain the evaluation from PsiMed.

Thus, PsiMed’s failure

to promptly respond to defendant Bills’s repeated requests was the
sole cause of the delay.
The plaintiff’s second allegation is that defendant Bills
failed to correct incorrect information in the Parole Report.

9

Under the Prison Litigation Reform Act (“PLRA”), a prisoner must
exhaust his available administrative remedies before filing an
action under § 1983.

42 U.S.C. § 1997e(a).

The prisoner must

“us[e] all steps that the agency holds out[] and do[] so properly.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006).
The WVDC has established a three-level grievance process for
prisoners to grieve their complaints in an attempt to resolve the
prisoners’ issues.

The Level One involves filing a G-1 Grievance

Form with the Unit Manager.

If the inmate receives no response or

is unsatisfied with the response received at Level One, the inmate
may proceed to Level Two by filing a G-2 Grievance Form with the
warden or administrator.

Finally, the inmate may appeal the Level

Two decision to the Commissioner of the WVDC.
In this case, the plaintiff did file a grievance with his unit
manager on January 15, 2015, regarding the parole review process.
However, that grievance did not raise any allegation that there was
incorrect information in his parole report.

The grievance simply

stated: “Pursuant to the Unit Team Response to 14-SMCC-76-1-164[,]
I was guaranteed I would have my necessary paperwork completed and
I have been denied two parole review opportunities.”
at 2.

ECF No. 18

Defendant Mirandy also filed an affidavit indicating that

“[u]pon a review of [SMCC] files, there are no grievances filed by
Plaintiff regarding denial of parole in February 2015, nor are
there any grievances filed by Plaintiff which allege wrongdoing by

10

Ms. Bills leading to his denial of parole in February 2015.”
49-2 at 2.
defendant

Thus, the plaintiff’s second allegation against

Bills

administrative

ECF

must

be

remedies.

dismissed

for

Accordingly,

failure
the

to

exhaust

report

and

recommendation is AFFIRMED and ADOPTED in its entirety.
IV.

Conclusion

For the reasons set forth above, the report and recommendation
of the magistrate judge is AFFIRMED and ADOPTED.

Accordingly, the

defendants’ motion to dismiss or, in the alternative, for summary
judgment (ECF No. 48) is GRANTED.

Additionally, the plaintiff’s

complaint (ECF No. 1) is DENIED WITH PREJUDICE with respect to all
claims against defendants Rubenstein and Mirandy, DENIED WITH
PREJUDICE with respect to the claim that defendant Bills failed to
present the plaintiff before the Parole Board in a timely manner,
and DENIED WITHOUT PREJUDICE with respect to the claim that
defendant Bills failed to correct information on the Parole Board
for failure to exhaust administrative remedies.

Further, it is

ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
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

11

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 the pro se plaintiff 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.
DATED:

February 23, 2017

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

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