Adkins v. Plumley et al

Filing 30

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 28 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: plaintiffs complaint 1 is hereby DISMISSED WITH PREJUDICE. Further, it is ORDERED that this civil action be DISMISSED and STRICKEN from the ac tive docket of this Court. The plaintiff has failed to object, he has waived his right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 2/10/2017. (copy to Pro Se Plaintiff via CM,rrr) (nmm) (Additional attachment(s) added on 2/10/2017: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON ALLEN ADKINS,
Plaintiff,
v.

Civil Action No. 5:15CV148
(STAMP)

MARVIN PLUMLEY, Warden,
Huttonsville Correctional Center,
LESTER THOMPSON, Unit Manager of B Unit,
Huttonsville Correctional Center,
MIKE SMITH (Lt.), Correctional Officer,
Huttonsville Correctional Center,
JOHN DOE, Dorm Officer,
Huttonsville Correctional Center,
JANE DOE, Medical Staff,
Correctional Medical Staff Department,
Huttonsville Correctional Center
and WEXFORD MEDICAL STAFF,
Medical Staff, Wexford Health,
Huttonsville Correctional Center,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

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

ECF No. 1.

In his complaint,

the plaintiff alleges that he was left in a cell with a dead body
for 40-50 minutes and was forced to clean up the bodily fluids from
that dead body.

Specifically, the plaintiff indicates that he

attempted to gain the attention of the correctional officers for
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).

15-30 minutes after his cellmate died of natural causes on January
3, 2015.

The plaintiff further indicates that, after gaining the

officers’ attention, the officers did not return with medical staff
until after 30 minutes had passed.
The plaintiff then alleges that Lieutenant Mike Smith informed
him that it was the plaintiff’s duty to clean up the bodily fluids
left behind from the corpse.

The plaintiff further alleges that

the dorm officer would not provide him with cleaning supplies and
told him that, if he did not clean up the bodily fluids, he would
be charged with refusing an order and put in the “hole.”

The

plaintiff indicates that he cleaned the floor of the cell as he was
told and then asked the staff what to do with his former cellmate’s
mattress.

The plaintiff alleges that the staff refused to remove

the mattress, which had been exposed to the bodily discharges and
had tears in it, and he was forced to sleep on the lower bunk
beneath his former cellmate’s mattress for two consecutive nights.
The plaintiff indicates that he feared the bodily discharges would
seep through the holes and drip down onto him in the lower bunk.
The

plaintiff

claims

he

was

denied

his

right

to

equal

protection and his due process rights, but does not explain either
of those claims.

The plaintiff also alleges that the defendants

were negligent and inflicted cruel and unusual punishment with
respect to the events of January 3, 2015.

As a result of the

January 3, 2015 events, the plaintiff alleges he has experienced

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mental

distress,

anxiety,

depression,

disorder, and fear of sleeping.

post-traumatic

stress

For relief, the plaintiff seeks

punitive and monetary damages in the amount of $5,000,000.00 as
well as sanctions against all defendants and the payment of his
medical bills for psychological help.
United States Magistrate Judge Robert W. Trumble then entered
a report and recommendation.
recommendation,

the

ECF No. 28.

magistrate

judge

In that report and

recommends

plaintiff’s complaint be dismissed with prejudice.

that

the

The magistrate

judge cited the Prison Litigation Reform Act of 1996 (“PLRA”),
which

requires

allegedly

proof

of

unconstitutional

“physical
condition

injury”
of

arising

from

incarceration.

the
The

magistrate judge also noted that, under 42 U.S.C. § 1997e(e), a
plaintiff cannot recover monetary damages for emotional distress.
In this civil action, the plaintiff seeks monetary damages and does
not allege that he suffered any physical injuries.

Therefore, the

magistrate judge determined that the plaintiff’s complaint is
frivolous because the plaintiff has no chance of success at
receiving the relief. Accordingly, the magistrate judge recommends
that the complaint be dismissed with prejudice.

The plaintiff did

not file objections to the report and recommendation of the
magistrate judge.

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For the reasons set forth below, the report and recommendation
of the magistrate judge (ECF No. 28) is AFFIRMED and ADOPTED.
Therefore, the complaint (ECF No. 1) is DISMISSED WITH PREJUDICE.
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).
III.

Discussion

After reviewing the parties’ filings 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.

The magistrate judge properly

reviewed the plaintiff’s complaint to determine whether it was
frivolous pursuant to 28 U.S.C. § 1915(e)(2).

A complaint is

frivolous if “it lacks an arguable basis either in law or fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint is also

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frivolous if the plaintiff has little or no chance of success. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
In this civil action, the magistrate judge correctly held the
pro se complaint to less stringent standards than those complaints
drafted by attorneys.
(1972).

See Haines v. Kerner, 404 U.S. 519, 520

However, even liberally construed, the magistrate judge

correctly determined that the plaintiff’s complaint did not contain
“enough facts to state a claim to relief that is plausible on its
face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).

This Court agrees with the magistrate judge that the plaintiff has
no chance of success in this civil action because he did not allege
physical injury and seeks monetary damages for his emotional
distress. As noted previously, the PLRA requires proof of physical
injury in actions arising from incarceration and does not permit
the

recovery

of

monetary

findings

of

damages
the

for

emotional

magistrate

are

distress.

Therefore,

the

not

clearly

erroneous.

Accordingly, the 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

plaintiff’s complaint is hereby DISMISSED WITH PREJUDICE. Further,
it is ORDERED that this civil action be DISMISSED and STRICKEN from
the active docket of this Court.

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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 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 10, 2017

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

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