Moore v. Northern Regional Jail et al

Filing 34

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 26 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The plaintiffs amended complaint is hereby DISMISSED WITH PREJUDICE. It is ORDERED that this civil action be DISMISSED and STRICKEN from the ac tive docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 2/13/17. (copy to Pro Se Plaintiff via CM/rrr) (lmm) Modified on 2/13/2017 (lmm). (Additional attachment(s) added on 2/13/2017: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEMETRIUS MOORE,
Plaintiff,
v.

Civil Action No. 5:16CV24
(STAMP)

NORTHERN REGIONAL JAIL,
PRIME CARE MEDICAL,
WEXFORD MEDICAL and
OHIO VALLEY MEDICAL 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.

The plaintiff was

granted leave to amend his complaint, which he filed with this
Court on September 8, 2016.

ECF No. 24.

In his amended complaint,

the plaintiff asserts that his lower right leg has poor circulation
and began to bleed as a result of dry and chapped skin during
January 2015.

The plaintiff alleges that he complained of the

condition to unknown officers and filled out several sick call
slips, but received no response.

The plaintiff further alleges

that his lower right leg became badly infected as a result of
Northern Regional Jail and Prime Care Medical’s failure to provide
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).

him with timely medical care.

After providing him some care, the

plaintiff asserts that Prime Care Medical denied him future medical
treatment.
Additionally, the plaintiff alleges that an unknown officer
from internal affairs at Northern Regional Jail took his recorded
statement and pictures of the infected wound.

As a result of the

jail’s internal affairs involvement, the plaintiff asserts that one
or

two

of

terminated.

the

unknown

nurses

from

Prime

Care

Medical

were

The plaintiff concedes that he began receiving daily

treatment in March 2015, but asserts that the wound persisted due
to his poor circulation.
The plaintiff also alleges that his hand was broken on
November 5, 2015, and, after x-rays confirmed his hand was broken,
unknown medical staff informed him that he was on the list for
outside surgery but could not give him a date or time.

The

plaintiff contends that he was taken to Ohio Valley Medical Center
(“OVMC”) on December 24, 2015, for issues concerning his leg and
that he also complained about his hand while being treated.

The

plaintiff asserts that a doctor at OVMC also took x-rays and
confirmed his hand was broken. The plaintiff indicated that it was
his understanding that the unknown orthopedist at OVMC would
perform

surgery

while

he

was

hospitalized,

discharged on December 27, 2015.

2

but

that

he

was

The plaintiff then asserts that the broken bone in his hand
began to heal in a deformed manner.

The plaintiff alleges that he

inquired about the status of his surgery on January 25, 2016, and
that unknown medical staff told him that his appointment had been
cancelled more than once due to transportation issues.
plaintiff

indicates

that

Highlands Regional Jail.

he

was

then

transferred

to

The

Potomac

The plaintiff maintains that he cannot

make a fist and is basically handicapped because he never underwent
surgery on his hand.
For relief, the plaintiff’s amended complaint asks this Court
to

hold

Northern

Regional

Jail,

Prime

Care

Medical,

Wexford

Medical, and OVMC accountable and award him $1,000,000.00 from each
defendant for a total of $4,000,000.00 for “pain and suffering,
neglect, failure to provide [him] with medical treatment in a
timely manner, file treatment, mental and physical damage, and
ignoring [his] medical conditions, unlawful treatment, and less
than human treatment.”

ECF No. 24 at 13.

United States Magistrate Judge Robert W. Trumble then entered
a report and recommendation.

ECF No. 26.

In that report and

recommendation, the magistrate judge concluded that the plaintiff
did not exhaust all available administrative remedies as required
by 42 U.S.C. § 1997e. Accordingly, the magistrate judge recommends
that the amended complaint be dismissed with prejudice.

The

plaintiff did not file objections to the report and recommendation

3

of the magistrate judge.

For the reasons set forth below, the

report and recommendation of the magistrate judge (ECF No. 26) is
AFFIRMED and ADOPTED.

Therefore, the amended complaint (ECF No.

24) 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 amended 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.

Under the Prison Litigation Reform

Act (“PLRA”), a prisoner must exhaust his available administrative
remedies

before

§ 1997e(a).

filing

an

action

under

§

1983.

42

U.S.C.

The prisoner must “us[e] all steps that the agency

4

holds out[] and do[] so properly.”
90 (2006).

Woodford v. Ngo, 548 U.S. 81,

The magistrate judge notes that the defendant did not

raise exhaustion as an affirmative defense, but also correctly
notes that the Court is not foreclosed from dismissing a case sua
sponte on exhaustion grounds.

See Anderson v. XYZ Corr. Health

Servs, Inc., 407 F.3d 674, 681 (4th Cir. 2005).
The West Virginia Regional Jail Authority makes available to
its inmates a grievance procedure through which they may seek
review

of

complaints

confinement.

related

to

the

conditions

of

their

The inmate initiates this procedure by submitting a

grievance to the Administrator of the facility in which he or she
is confined.

Only after completing the remainder of the grievance

procedure and receiving an unfavorable decision may an inmate file
an action in federal court.
complaint

that

procedure

by

the

It is apparent from the amended

plaintiff

submitting

a

never

grievance

initiated
to

the

the

grievance

Administrator

of

Northern Regional Jail or Potomac Highlands Regional Jail.
Because it is clear from the face of the amended complaint
that the plaintiff failed to exhaust his administrative remedies,
this

Court’s

sua

sponte

dismissal

of

the

civil

action

is

appropriate. See Anderson, 407 F.3d at 682. For that reason, this
Court finds no error in the magistrate judge’s findings and
conclusions.
indicates

that,

Additionally,
even

if

the

the

magistrate

plaintiff

5

had

judge

correctly

exhausted

his

administrative remedies, his claim would still be subject to
dismissal because § 1983 requires a plaintiff to name an individual
defendant.

The plaintiff must name an individual defendant to

demonstrate that a person acting under the color of state law
deprived him of the rights guaranteed by the Constitution or
federal laws. See Rendall-Baker v. Kohn, 457 U.S. 830, 838 (1982).
Here, the plaintiff failed to name any individual defendant.
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 amended complaint is hereby DISMISSED WITH PREJUDICE.
The

Court

recognizes

that

failure

to

exhaust

administrative

remedies would normally result in dismissal without prejudice.
However, the Court dismisses with prejudice because the plaintiff’s
failure to name an individual defendant means that the civil action
would

have

no

merit

administrative remedies.

even

if

the

plaintiff

exhausted

his

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

6

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 13, 2017

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

7