Cordle v. Rubenstein et al

Filing 69

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING THE PLAINTIFF'S OBJECTIONS, DENYING PLAINTIFF'S REQUEST TO AMEND AND GRANTING DEFENDANTS' MOTIONS TO DISMISS; Granting[3 0] Motion to Dismiss for failure to State a Claim; Granting 32 Motion to Dismiss; Granting 57 Motion to Dismiss for failure to State a Claim; Affirming and Adopting 62 Report and Recommendations re 32 MOTION to Dismiss filed by C.O. McGlochlin, 30 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM upon which relief can be granted ; Plaintiff's 64 request to Amend Complaint is Denied; and Plaintiff's 64 Objections to R/R are overruled; Plaintiff's 1 Complaint is Dismissed Without Prejudice; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 9/14/17. (copy to Pltff by cert. mail)(soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RANDY CORDLE,
Plaintiff,
v.

Civil Action No. 5:16CV18
(STAMP)

JIM RUBENSTEIN, Commissioner, WVDOC,
KAREN PSZCZOLKOWSKI, Warden,
Northern Correctional Facility,
JAMES GREYHOUSE,1
Northern Correctional Facility Staff,
C.O. McGLOCHLIN,
Northern Correctional Facility Staff;,
RYAN ADAMS,
Northern Correctional Facility Staff,
AMANDA SABATINO, LPN,
JANE DOE, Nurse,
Northern Correctional Facility Staff,
JANE DOE, Medical Servs. Coord.,
Northern Correctional Facility Staff,
DALE GRIFFITH,
Northern Correctional Facility Staff,
DAVID BALLARD, Warden,
Mt. Olive Correctional Complex,
MIKE NEESE, Special Management Committee,
Mt. Olive Correctional Complex,
CHERYL CHANDLER, Special Management Committee,
Mt. Olive Correctional Complex and
SHERRILL SNYDER, Special Management Committee,
Mt. Olive Correctional Complex,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
OVERRULING THE PLAINTIFF’S OBJECTIONS,
DENYING PLAINTIFF’S REQUEST TO AMEND AND
GRANTING DEFENDANTS’ MOTIONS TO DISMISS
1

The plaintiff mistakenly styled the case against defendant
“Greyhouse” and refers to this particular defendant throughout his
pleading using this incorrect name.
As the magistrate judge
pointed out in his report and recommendation, “[t]he Plaintiff
erroneously spelled James Greathouse’s name in his complaint as
‘James Greyhouse’.” ECF No. 62 at 2 n1.

The pro se2 plaintiff, Randy Cordle, filed this civil action
asserting claims against the defendants under 42 U.S.C. § 1983.
The case was referred to United States Magistrate Judge Michael
John Aloi under Local Rule of Prisoner Litigation Procedure 2. The
defendants filed several motions to dismiss and the magistrate
judge issued a report and recommendation (ECF No. 62) following the
plaintiff’s responses to the defendants’ motions.

The magistrate

judge recommended that the defendants’ motions to dismiss be
granted; that the plaintiff’s complaint be dismissed with prejudice
as to defendants Jim Rubenstein (“Rubenstein”), Karen Pszczolkowski
(“Pszczolkowski”), James Greathouse, Ryan Adams (“Adams”) and Dale
Griffith
dismissed

(“Griffith”);
without

and

prejudice

that
as

the
to

plaintiff’s

defendants

complaint

C.O.

be

McGlochlin

(“McGlochlin”), Amanda Sabatino, LPN (“Sabatino”), David Ballard
(“Ballard”), Mike Neese (“Neese”), Cheryl Chandler (“Chandler”) and
Sherrill Snyder (“Snyder”).

ECF No. 62 at 22.

The plaintiff then filed objections (ECF No. 64.) to the
report

and

recommendation

and

the

defendants

filed

separate

responses to the plaintiff’s objections. ECF Nos. 65, 66, 67. The
plaintiff also replied to the defendants’ separate responses to his
objections.

ECF No. 68.

2

“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).
2

For the following reasons, this Court affirms and adopts the
magistrate

judge’s

report

and

recommendation,

overrules

the

plaintiff’s objections, denies the plaintiff’s request to amend,
and grants the defendants’ motions to dismiss.
I.

Background

The pro se plaintiff, Randy Cordle, filed this civil rights
matter pursuant to 42 U.S.C. § 1983 against the defendants raising
Due Process and Eighth Amendment violations.

The plaintiff was

granted leave to proceed in forma pauperis and paid the required
initial partial filing fee.
According to his complaint, the plaintiff was sentenced in the
Circuit Court of Mercer County, West Virginia on April 15, 2014, to
a term of 10 to 20 years.

ECF No. 1 at 9.

The plaintiff alleges

that prior to his incarceration, he worked as a police officer for
approximately 17 years.

ECF No. 1 at 9.

He maintains that he

arrived at Mount Olive Correctional Center (“MOCC”) on or about
April 17, 2014, and upon his arrival he requested that he be placed
in protective custody to avoid being attacked by other prisoners
because of his law enforcement service.

ECF No. 1 at 9.

The

plaintiff also maintains that in July 2014, a special management
hearing was conducted at which it was determined that there was
sufficient verifiable information to warrant plaintiff’s placement
in special management.
he

never

received

ECF No. 1 at 9.

any

documentation

3

The plaintiff alleges that
related

to

the

special

management

hearing,

but

was,

nonetheless,

transferred

to

the

Northern Correctional Facility (“NCF”) on or about August 1, 2014.
ECF No. 1 at 10. However, the plaintiff alleges that upon arriving
at NCF, he realized he was not in special management but was,
instead, housed in the general population as a mainline inmate.
ECF No. 1 at 10.

The plaintiff claims that other inmates learned

of his prior service as a police officer and began to harass and
threaten him, which resulted in a vicious attack.

ECF No. 1 at 10.

Plaintiff asserts he was knocked unconscious, the molars in the
rear of his mouth were shattered and broken off at the gum line, he
suffered a protein splatter inside his eyes which has impaired his
vision, and has also suffered from hearing damage and a shoulder
injury.

ECF No. 1 at 10.

The plaintiff claims that once he regained consciousness, he
was handcuffed and escorted to an interview room where his injuries
were then photographed and screened by defendant Sabatino. ECF No.
1 at 11.

The plaintiff maintains that despite complaining of

extreme oral and dental pain, blurred vision, ringing in his ears,
pain in his left shoulder, memory loss, head pain, and the fact
that she could see the broken molars, defendant Sabatino did not
treat his injuries or order him taken to the hospital, and he was
sent back to his cell.

ECF No. 1 at 3.

The plaintiff continues by

alleging that on July 9, 2015, he was seen by an eye doctor at NCF,
who indicated that he observed spots on the back of plaintiff’s

4

left eye.

The doctor then ordered that plaintiff be seen by a

specialist no later than July 14, 2015.

ECF No. 1 at 12.

However,

the plaintiff alleges he was not, until August 31, 2015, taken to
an eye specialist, who observed protein splatters in the rear of
plaintiff’s left eye.

ECF No. 1 at 12.

The plaintiff maintains

that this injury is consistent with his being struck with extreme
force and is likely to cause him blurred vision.

ECF No. 1 at 13.

The plaintiff alleges that on July 25, 2015, he saw the prison
dentist who determined that removing the plaintiff’s shattered
teeth was too complicated for his practice and that the plaintiff
needed to see an oral surgeon.

ECF No. 1 at 12.

The dentist

attempted to apply a filling to the plaintiff’s exposed nerves.
The plaintiff saw the oral surgeon on September 28, 2015.

ECF No.

1 at 13.
Finally, with respect to his injuries, the plaintiff alleges
that, as of the date he prepared his complaint, despite submitting
multiple nurse sick calls trying to receive treatment for his
shoulder, he had not been treated.

ECF No. 1 at 13.

The magistrate judge conducted an initial review of the
plaintiff’s complaint and found that, to the extent the plaintiff
may

have

raised

a

viable

constitutional

claim

against

the

defendants employed at Mount Olive Correctional Complex (“MOCC”),
the Court lacked jurisdiction to entertain the same because MOCC is
located within the jurisdiction of the Southern District of West

5

Virginia. However, with respect to the remaining named defendants,
the magistrate judge determined that summary dismissal was not
warranted and summonses were issued for defendants Rubenstein,
Pszczolkowski, Greathouse, McGlochlin, Adams, and Griffith.

In

addition, because the plaintiff had yet to provide the court with
the identity of the Jane Does, he was given an additional 30 days
in which to identify the two Jane Does.3
Adams, Greathouse, Griffith, Pszczolkowski and Rubenstein
jointly filed a motion to dismiss.

ECF No. 30.

These defendants

state that the complaint is void of any references to either
Rubenstein

or

Pszczolkowski.

In

addition,

the

defendants

Pszczolkowski and Rubenstein argue that the plaintiff’s claims must
be dismissed because there is no supervisory liability in a § 1983
action.

With regard to Greathouse, Adams, and Griffith, these

defendants argue that no conduct is alleged which would rise to the
level of a constitutional tort and argue that each is protected by
the doctrine of qualified immunity.
Defendant

McGlochlin

filed

a

ECF No. 62 at 5.
motion

to

dismiss

stating,

“[t]his alleged fact pattern [by the plaintiff] does not rise to
the level of deliberate indifference and it is therefore clear that

3

One of the Jane Doe defendants named in the case caption was
terminated on January 11, 2017.
On September 23, 2016, the
plaintiff filed a motion to substitute party. ECF No. 34. On
January 11, 2017, the motion was granted, and Amanda Sabatino, LPN,
was substituted as the other “Jane Doe” nurse, and the Clerk was
directed to issue a summons for said defendant.
6

Plaintiff has failed to sufficiently allege a Section 1983 claim
against C.O. McGlochlin.”
McGlochlin

argues

that

ECF No. 32 at 1.
“[p]laintiff

has

Further, defendant
not

utilized

any

administrative remedies with regard to any of the alleged actions
of C.O. McGlochlin” and thus, “all claims against this defendant
must be dismissed as a result of plaintiff’s failure to exhaust
administrative remedies.”

ECF No. 32 at 2.

Defendant also claims

that “[b]ecause defendant is a government official, and because all
actions and/or inactions described in plaintiff’s complaint were
discretionary in nature, defendant is entitled to a qualified
immunity.”

ECF No. 32 at 2.

A Roseboro4 notice was issued as to each of these motions.
ECF No. 35.
motion

to

The plaintiff filed a response (ECF No. 52) to the
dismiss

filed

by

Adams,

Greathouse,

Griffith,

Pszczolkowski and Rubenstein. Plaintiff asserts that he has stated
a claim upon which relief can be granted as to these defendants and
claims that his Eight Amendment rights and Fourteenth Amendment
rights were violated. Plaintiff also alleges a claim of deliberate
indifference to serious medical need and asserts that these named
defendants are not entitled to qualified immunity.
Additionally, plaintiff filed a response (ECF No. 53) to the
motion to dismiss filed by defendant McGlochlin (ECF No. 32).
Plaintiff

states

that

the

alleged

4

fact

pattern

demonstrates

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
7

McGlochlin was deliberately indifferent to a known risk of harm to
the plaintiff and that “[p]laintiff has utilized and exhausted his
available administrative remedy in regards to C.O. McGlochlin.”
ECF No. 53 at 1.
Defendants Adams, Greathouse, Pszczolkowski, Griffith and
Rubenstein filed a reply to the plaintiff’s response.

ECF No. 54.

These defendants state that “[p]laintiff has failed to respond to
the Motion to Dismiss of Defendants Rubenstein and Pszczolkowski
and has therefore conceded that dismissal is appropriate as to
those Defendants.”

ECF No. 54 at 2.

Further, defendants assert

“[p]laintiff’s Response brief provides no analysis of justify the
absence

of

facts

alleged

in

the

Complaint

as

to

defendants

Greathouse, Adams and Griffith. Accordingly, dismissal as to these
Defendants is appropriate for failure to state a claim for which
relief can be granted.”

ECF No. 54 at 3.

Lastly, defendants argue

that “[t]he factual basis of the complaint does not state a claim
under the Eighth or Fourteenth Amendments to the United States
Constitution

as

to

defendants

Greathouse, Adams, or Griffith.”

Rubenstein,

Pszczolkowski,

ECF No. 54 at 4.

Defendant Sabatino filed a motion to dismiss for failure to
state a claim arguing that “[t]he Plaintiff has failed to exhaust
his administrative remedies with respect to the complaint against
this Defendant.”

ECF No. 57 at 1.

8

The plaintiff filed a response stating, “[t]he Plaintiff has
exhausted his available administrative remedies in regards to all
Defendants, including, Defendant Sabatino.”

ECF No. 59-1 at 1.

Defendant Sabatino then filed a reply to plaintiff’s response.
ECF No. 60.

Defendant Sabatino states: “Despite Plaintiff’s

attempt to argue that his grievance filed on or about September 21,
2015 is sufficient to exhaust his administrative remedies with
respect to Amanda Sabatino, LPN, it is clear that the grievance had
nothing to do with Jane Doe or Amanda Sabatino, LPN.”
at 1.

ECF No. 60

Defendant asserts that the plaintiff’s “grievance was filed

nearly two and a half months after Nurse Sabatino allegedly saw the
Plaintiff on July 3, 2015” (ECF No. 60 at 1) and that plaintiff
never

filed

a

grievance

with

respect

to

Nurse

Sabatino

and

therefore has failed to exhaust his administrative remedies.
Magistrate

Judge

Michael

John

Aloi

issued

a

report

and

recommendation. ECF No. 62. The magistrate judge recommended that
“[d]efendants Rubenstein, Pszczolkowski, Greathouse, Adams, and
Griffith’s motion to dismiss (ECF No. 30) be granted; Defendant
McGlochlin’s motion to dismiss (ECF
Sabatino’s

motion

to

Plaintiff’s

complaint

defendants

Rubenstein,

dismiss
be

No. 32) be granted; Defendant

(ECF

No.

dismissed

Pszczolkowski,

57)

with

be

granted;

prejudice

Greathouse,

the

against

Adams

and

Griffith for failure to state a claim upon which relief may be
granted; the Plaintiff’s complaint be dismissed without prejudice

9

against defendants McGlochlin and Sabatino for failure to exhaust
administrative remedies; and the plaintiff’s complaint be dismissed
without

prejudice

against

the

Mount

Olive

Correction

Complex

defendants: David Ballard, Mike Neese, Cheryl Chandler and Sherrill
Snyder for lack of jurisdiction.”

ECF No. 62.

As to defendants Rubenstein and Pszczolkowski,5 the magistrate
judge found: “It [is] clear that the Plaintiff has failed to allege
facts which would sustain a finding of supervisory liability.

The

Plaintiff does not allege any causal link between either Rubenstein
or Pszczolkowski and any alleged failure to protect or deliberate
indifference to a serious medical need. Accordingly, it is clear
that the Plaintiff has simply named these two defendants in their
official

capacities

as

Commissioner

and

Warden

.

.

.

[and]

Plaintiff’s claims against Rubenstein and Pszczolkowski should be
dismissed.”
As

to

ECF No. 62 at 14-15.
defendants

Greathouse,

Adams,

and

Griffith,

the

magistrate judge found that the plaintiff has failed to state a
claim that these defendants failed to protect him, violated his Due
Process rights, or were deliberately indifferent to his serious

5

The plaintiff, as a basis for his objections, cites to the
subheading titled, “A. Defendants Rubenstein and Plumley” (ECF No.
62 at 13) under Section IV of the magistrate judge’s report and
recommendation (ECF No. 63) which “improperly identifies Warden
Plumley . . . as a Defendant in the instant case.” ECF No. 64 at
2. However, this Court recognizes that this mistake was merely a
typographical error, as the remainder of the analysis in the
magistrate judge’s report and recommendation properly addresses the
appropriate named defendants Rubenstein and Pszczolkowski.
10

medical need, and that the complaint as it relates to these three
defendants should be dismissed.

The magistrate judge found that,

“the Plaintiff has failed to state a claim for either theory, and
the complaint as it relates to these three defendants should be
dismissed.”

ECF No. 62 at 15.

As to defendants McGlochlin and Sabatino, the magistrate judge
found that “the Plaintiff failed to exhaust his administrative
grievances with respect to either McGlochlin or Sabatino, and
accordingly the complaint should be dismissed against each.”

ECF

No. 62 at 18.
The plaintiff then filed his objections to “the Magistrate’s
entire legal analysis contained in the Magistrate’s R&R.”

ECF No.

64 at 2.
The

plaintiff

states

as

the

basis

for

his

objection:

“Apparently the Magistrate has not fully reviewed the facts in the
instant case” citing to the portion of the R&R which “improperly
identifies Warden Plumley6 . . . as a Defendant in the instant
case” and further posits that “the Magistrate somehow determined
that Plaintiff is asserting a vicarious liability claim against
Defendants’ Rubenstein and Pszczolkowski” when “[p]laintiff is
asserting

supervisory

liability

Rubenstein and Pszczolkowski.”

claims

against

ECF No. 64 at 2.

6

See supra, footnote 2.
11

Defendants’

The plaintiff goes on to assert, “[a]dditionally, it is quite
shocking that the Magistrate could not identify the striking
similarity between the facts of the Plaintiff’s complaint and prior
complaints filed by Pro Se inmates in this Court’s district”
referring to several cases involving “physical and constitutional
injuries of other inmates” which have “resulted in settlements
being issued for those Plaintiffs’ injuries which resulted from
WVDOC Defendants.”

ECF No. 64 at 5.

Plaintiff further states, in

support of his Due Process violation allegation, that he “should
not

have

been

housed

in

the

general

population”

and

that

“Defendants themselves were deliberately indifferent to Plaintiff’s
serious medical needs.”

ECF No. 64 at 5.

Plaintiff goes on to

assert that defendant McGlochlin failed to protect him and was
“deliberately indifferent to the risk of harm presented” and argues
that “McGlochlin is not entitled to qualified immunity.”
64 at 9.

ECF No.

Lastly, the plaintiff asserts that the cases cited by the

magistrate judge in regard to plaintiff’s failure to exhaust
administrative remedy regarding defendant Sabatino “[have] no
bearing whatsoever on the instant case.”

ECF No. 64 at 10.

Plaintiff maintains that his “complaint is meritorious and
therefore the Magistrate’s R&R must be rejected and this mater must
proceed to discovery and trial” or that “the Plaintiff be given the
opportunity to Amend his complaint in order to better assert his
claim against the Defendants.”

ECF No. 64 at 11.

12

Defendant Sabatino responded to the plaintiff’s objections to
the report and recommendation. ECF No. 65. Defendant asserts that
“[i]t is obvious that neither grievance mentions Nurse Sabatino by
name” and argues that the plaintiff failed to follow the required
grievance procedure with respect to his allegations of conduct by
Nurse Sabatino.

ECF No. 65 at 2.

Defendant Sabatino states

“[a]ccordingly, the Magistrate Judge’s Recommendation is correct as
a matter of law and should be adopted by this Court.”

ECF No. 65

at 2.
Defendants Adams, Greathouse, Griffith, Pszczolkowski, and
Rubenstein responded to the plaintiff’s objections to the report
and recommendation.

ECF No. 66.

Defendants assert, “[t]he

available evidence clearly demonstrates that the Plaintiff has
waived his right to submit objections to the Magistrate Court’s
Report and Recommendation” stating that, “the last date for the
Plaintiff to file objections would be August 15, 2017 . . . [and]
plaintiff did not mail his objections to the Clerk of the Court
until August 17, 2017.”
state,

“[e]ven

assuming

ECF No. 66 at 2.
that

Plaintiff’s

Defendants further
objection

was

filed

timely, the objection should be overruled as the Finding and
Recommendation made by the Magistrate are proper and well-founded.”
ECF No. 66 at 3.
On September 5, 2017, defendant McGlochlin responded to the
plaintiff’s objections to the report and recommendation.

13

ECF No.

66.

Defendant states as his response to plaintiff’s objections,

“[i]n this case, there is no question that plaintiff did not file
a grievance or utilize any administrative procedure alleging that
Officer C.O. McGlochlin failed to protect him or acted improperly
in any way on July 3, 2015” and “[t]hus, plaintiff cannot proceed
with a failure to protect claim against Officer C.O. McGlochlin.”
ECF No. 67 at 2.
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.

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.”
U.S.C. § 636(b)(1)(A).
the

report

and

28

Because the plaintiff filed objections to

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo as to those findings to
which objections were made.
To survive a motion to dismiss under Rule 12(b)(6), “a
complaint 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).

This plausibility

standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff has stated a claim
that makes it plausible he is entitled to relief.

14

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)).
Under the Prison Litigation Reform Act (PLRA), a prisoner
bringing an action with respect to prison conditions under 42
U.S.C. § 1983, or any other federal law, must first exhaust all
available

administrative

remedies.

42

U.S.C.

§

1997(e)(a).

Exhaustion as provided in § 1997(e)(a) is mandatory.

Booth v.

Churner, 532 U.S. 731, 741 (2001). The exhaustion of administrative
remedies “applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and
whether they alleges excessive force or other some wrong and is
required even when the relief sought is not available. Porter v.
Nussle,

534

U.S.

516,

532

(2002).

Because

exhaustion

is

a

prerequisite to suit, all available administrative remedies must be
exhausted prior to filing a complaint in federal court.
Porter, at 524 (citing Booth, 532 U.S. at 741).

See

Not only must a

prisoner exhaust his administrative remedies, he must also do so
properly.

Proper exhaustion “’means using all steps that the

agency holds out, and doing so properly (so that the agency
addresses the issues on the merits.’” Woodford v. Ngo, 548 U.S. 81
(2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002).
Further,

“[t]he

doctrine

of

qualified

immunity

protects

government officials from liability for civil damages insofar as

15

their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted).

Courts must consider two steps in

determining whether an official is entitled to qualified immunity.
Id. at 232.
plaintiff

“First, a court must decide whether the facts that a
has

alleged

constitutional right.

.

.

.

make

out

a

violation

of

a

Second, . . . the court must decide whether

the right at issue was ‘clearly established’ at the time of the
defendant’s alleged misconduct.”

Id.

The Eighth Amendment imposes a duty on prison officials “to
protect prisoners from violence at the hands of other prisoners.”
Farmer v. Brennan, 511 U.S. 825, 833 (1994).
failure

to

prevent

harm,

the

inmate

“For a claim based on

must

show

that

he

is

incarcerated under conditions posing a substantial risk of serious
harm,” and that the prison officials acted with “‘deliberate
indifference’ to inmate health or safety.”

Id. at 834.

“[A]

prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”

Id. at 837.

Furthermore, the Eighth Amendment is not violated by the negligent

16

failure to protect inmates from violence.

Rather, the plaintiff

must show that the defendants knew of the risk and consciously
disregarded it. Whitley v. Albers, 475 U.S. 312, 319 (1986); Moore
v. Winebrenner, 927 F.2d 1312 (4th Cir. 1991).
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). 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).
III.

Discussion

Because the plaintiff filed objections to the report and
recommendation,

this

Court

reviews

the

magistrate

judge’s

recommendation de novo as to those findings to which objections
were made.
For the reasons stated below, this Court adopts and affirms
the report and recommendation of the magistrate judge in its
entirety, grants defendants Rubenstein, Pszczolkowski, Greathouse,

17

Adams,

and

Griffith’s

motion

to

dismiss,

grants

defendant

McGlochlin’s motion to dismiss, grants defendant Sabatino’s motion
to dismiss, dismisses with prejudice the plaintiff’s complaint
against defendants Rubenstein, Pszczolkowski, Greathouse, Adams and
Griffith for failure to state a claim upon which relief may be
granted, dismisses without prejudice the plaintiff’s complaint
against defendants McGlochlin and Sabatino for failure to exhaust
administrative remedies,; denies the plaintiff’s request to amend
the complaint, and dismisses without prejudice the plaintiff’s
complaint against defendants Ballard, Neese, Chandler and Snyder of
the Mount Olive Correction Complex for lack of jurisdiction.
A.

Mount Olive Correction Complex Defendants: Ballard, Neese,

Chandler and Snyder
The magistrate judge conducted an initial review of the
plaintiff’s complaint and found that to the extent the plaintiff
may

have

raised

a

viable

constitutional

claim

against

the

defendants employed at Mount Olive Correctional Complex (“MOCC”),
summary dismissal was warranted due to lack of jurisdiction.

In

making his recommendations, the magistrate judge found that MOCC is
located within the jurisdiction of the Southern District of West
Virginia, and dismissal was warranted pursuant to 28 U.S.C. § 636
(b)(1). Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766
F.2d. 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984).

18

Plaintiff

did

not

object

to

the

magistrate

judge’s

recommendation of summary dismissal without prejudice due to lack
of jurisdiction in regard to the Mount Olive Correction Complex
defendants Ballard, Neese, Chandler and Snyder.

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.
Accordingly, following its review of the claims within the
plaintiff’s complaint against the Mount Olive Correction Complex
defendants David Ballard, Mike Neese, Cheryl Chandler and Sherrill
Snyder, this Court finds that the plaintiff’s complaint should be
dismissed without prejudice as to these defendants for lack of
jurisdiction.
B.

Defendants McGlochlin and Sabatino
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 WVDOC has established a three-level grievance process for
prisoners to grieve their complaints in an attempt to resolve the
prisoners’ issues.

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

19

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 WVDOC.
In making his recommendations, the magistrate judge found that
the plaintiff’s complaint should be dismissed without prejudice
against defendants McGlochlin and Sabatino for failure to exhaust
administrative remedies.

The magistrate judge noted in his report

and recommendation that “despite asserting the affirmative defense
of failure to exhaust, these Defendants have also addressed the
merits of the Plaintiff’s claims.

The undersigned has declined to

do so in light of the purpose of requiring exhaustion as outlined
in Woodford.

548 U.S. at 84-85.”

ECF No. 22 at 21 n.3.

The plaintiff, in his objections, argues again that he has
exhausted his administrative grievances. However, as noted by
defendant McGlochlin in his response to the plaintiff’s objections,
“[i]n this case, there is no question that plaintiff did not file
a grievance or utilize any administrative procedure alleging that
Officer C.O. McGlochlin failed to protect him or acted improperly
in any way on July 3, 2015” and thus, “plaintiff cannot proceed
with a failure to protect claim against Officer C.O. McGlochlin.”
ECF No. 67 at 2.

Further, as noted by defendant Sabatino in her

response to the plaintiff’s objections “[i]t is obvious that
neither grievance mentions Nurse Sabatino by name” and that the
plaintiff failed to follow the required grievance procedure with

20

respect to his allegations of conduct by Nurse Sabatino.

ECF No.

65 at 2.
Following its de novo review of the deliberate indifference
and failure to protect claims, this Court finds that defendants
McGlochlin, Sabatino and the magistrate judge are correct that the
plaintiff

failed

to

exhaust

his

respect to these two defendants.

administrative

remedies

with

Thus, this Court finds that the

plaintiff’s complaint should be dismissed without prejudice against
defendants

McGlochlin

and

Sabatino

for

failure

to

exhaust

administrative remedies.
C.

Defendants Rubenstein, Pszczolkowski, Greathouse, Adams, and

Griffith
In making his recommendations, the magistrate judge found
that, aside from naming Rubenstein and Pszczolkowski as defendants,
the plaintiff makes no specific reference to either of them in the
body of his complaint and most certainly fails to allege any
personal involvement on their part in the alleged violations of his
constitutional rights.

ECF No. 62 at 13.

The plaintiff does,

however, allege “supervisory liability” as his third claim.

The

magistrate judge found that it is clear that the plaintiff has
failed to allege facts which would sustain a finding of supervisory
liability.

ECF No. 62 at 15.

The plaintiff does not allege any

causal link between either Rubenstein or Pszczolkowski and any
alleged failure to protect or deliberate indifference to a serious

21

medical need. The magistrate judge found that it is clear that the
plaintiff has simply named these two defendants in their official
capacities as Commissioner and Warden.

The magistrate judge found

that

the

the

plaintiff’s

claims

against

defendants

in

their

official capacities are improper and thus, plaintiff’s claims
against Rubenstein and Pszczolkowski should be dismissed.
As

to

defendants

Greathouse,

Adams,

and

Griffith,

the

plaintiff claims that these defendants failed to protect him,
violated his Due Process rights, and were deliberately indifferent
to his serious medical need. The magistrate judge found that these
claims should be dismissed because the plaintiff has failed to
state a claim as to these theories.

ECF No. 62 at 15.

Further,

the magistrate judge found that plaintiff has failed to plead that
the defendants were actually aware of an excessive risk as required
by the deliberate indifference standard.

The plaintiff’s first

three allegations concerning these defendants only involve conduct
after the altercation.

ECF No. 62 at 16.

Thus, the plaintiff

failed to allege that these three Defendants were subjectively
aware of a risk before the altercation.

Moreover, the plaintiff’s

fourth allegation regarding these defendants only alleges that they
should have been aware that he was in danger and not that they
actually were aware.

ECF No. 62 at 16.

In order to state a claim that non-medical personnel, such as
these

defendants,

were

deliberately

22

indifferent

to

a

serious

medical need, the plaintiff must show that “the [officials were]
personally involved in the treatment or denial of treatment, or
that they deliberately interfered with the treatment, or that they
tacitly authorized or were indifferent to the medical provider’s
misconduct.”

Kinder v. PrimeCare Med., Inc., No. CIV.A. 3:13-

31596, 2015 WL 1276748, at *8 (S.D. W. Va. Mar. 19, 2015) (citing
Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990) (abrogated on other
grounds)).
The magistrate judge, in regard to the plaintiff’s claim of
deliberate indifference, further found that only one of the four
claims against these defendants relates to the plaintiff’s medical
care

on

July

24,

2015.

The

magistrate

judge

found

that

“[d]efendants Adams and Griffith told plaintiff he would see a
dentist the next day,” and “[t]he Plaintiff did in fact see a
dentist the next day” thus failing to meet the standard articulated
in Kinder regarding defendants Greathouse, Adams, and Griffith. ECF
No. 62 at 17.
Following
defendants

its

de

Rubenstein,

novo

review

of

Pszczolkowski,

the

claims

Greathouse,

regarding

Adams,

and

Griffith, this Court finds that the plaintiff’s complaint should be
dismissed with prejudice.

There are insufficient facts alleged by

plaintiff to allow this Court to find a claim of supervisory
liability.

Whereas

Pszczolkowski,

and

defendants
Rubenstein

Adams,
responded

23

Greathouse,
to

the

Griffith,
plaintiff’s

objections to the report and recommendation (ECF No. 66) stating
that the plaintiff waived his right to object due to timeliness,
this Court finds that plaintiff’s objections to the magistrate
judge’s report and recommendation were in fact timely under the
“mailbox rule” which applies here.

However, even if the mailbox

rule was not considered, the same findings as stated above are
appropriate on the merits. This Court also finds that the conduct
alleged against these defendants took place after the altercation
and plaintiff alleges only that these defendants should have known,
not that they were actively aware of a known risk of harm to the
plaintiff. Thus, the plaintiff’s complaint should be dismissed with
prejudice for failure to state a claim upon which relief may be
granted.
D.

Request to Amend Complaint
After

the

recommendation,

magistrate
the

judge

plaintiff

entered

filed

his

his

report

objections

to

and
the

magistrate judge’s report and recommendation and added that he “now
wishes to submit an amended complaint which would more adequately
state his constitutional claims in this matter.”
Plaintiff

concludes

his

objections

by

ECF No. 64 at 3.

stating,

“[p]laintiff

respectfully requests that the Magistrate’s R&R be rejected and
this matter be allowed to proceed to discovery and trial or the
Plaintiff be given the opportunity to Amend his complaint in order

24

to better assert his claims against the Defendants.” ECF No. 64 at
11.
Under Local Rule of Civil Procedure 15.01, titled “Amended
Pleadings”, “[a]ny party filing a motion to amend a pleading that
requires leave of court to file, shall attach to that motion a
signed copy of the proposed amended pleading. However, the amended
pleading shall not be filed until the Court grants the particular
motion.”

LR Civ P 15.01.

Here, the plaintiff has not complied

with the local rule regarding amended pleadings by failing to
attach a signed copy of the proposed amended complaint to his
objections in which he requests the opportunity to amend.
Further, even if Local Rule of Civil Procedure 15.01 did not
apply to this pro se plaintiff, the plaintiff has still failed to
state with any particularity what the contents of his amended
complaint would be and what he would assert. Plaintiff merely
requests the opportunity to amend his complaint “in order to better
assert his claims against the Defendants.”

ECF No. 64 at 11.

Plaintiff not only fails to attach a signed copy of the proposed
amended complaint, but also fails to assert any support or proposal
regarding his requested amended complaint. Plaintiff explicitly
states that he merely “wishes to submit an amended complaint which
would more adequately state his constitutional claims in this
matter.”

ECF No. 64 at 3.

25

Therefore, for the reasons stated above, this Court finds that
the plaintiff’s request “to submit an amended complaint” (ECF No.
64 at 3) should be denied.
IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and

recommendation

Accordingly,

(ECF

defendants

No.

62)

Rubenstein,

is

AFFIRMED

and

Pszczolkowski,

ADOPTED.

Greathouse,

Adams, and Griffith’s motion to dismiss is GRANTED (ECF No. 30);
defendant McGlochlin’s motion to dismiss is GRANTED (ECF No. 32);
defendant Sabatino’s motion to dismiss is GRANTED (ECF No. 57); the
plaintiff’s complaint against defendants Rubenstein, Pszczolkowski,
Greathouse, Adams and Griffith (ECF No. 1) is DISMISSED WITH
PREJUDICE for failure to state a claim upon which relief may be
granted; the plaintiff’s complaint against defendants McGlochlin
and Sabatino (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for failure
to exhaust administrative remedies; the plaintiff’s complaint
against the Mount Olive Correction Complex defendants, Ballard,
Neese, Chandler and Snyder (ECF No. 1) is DISMISSED WITHOUT
PREJUDICE for lack of jurisdiction; the plaintiff’s request to
amend his complaint (ECF No. 64) is DENIED; and the plaintiff’s
objections to the report and recommendation (ECF No. 64) are
OVERRULED.
Should the plaintiff choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit

26

on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within
thirty days after the date of the entry of the judgment order.
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:

September 14, 2017

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

27