Anderson v. Northern Regional Jail et al

Filing 19

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING IN PART REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, DENYING § 1983 PETITION AND SUSTAINING PLAINTIFFS OBJECTIONS AS TO EXHAUSTION OF REMEDIES: Affirming and Adopting in part 15 Report and Recommendations ; Dismissing 1 Complaint with Prejudice as to the named defendants; Sustaining Plaintiff's Objections; civil action is Dismissed and Stricken from active docket. NOA to be filed within 30 days. Signed by Senior Judge Frederick P. Stamp, Jr on 5/25/17. (copy to Pltff. by cert. mail)(soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARQUEL ANDERSON,
Plaintiff,
v.

Civil Action No. 5:16CV138
(STAMP)

NORTHERN REGIONAL JAIL
and WEXFORD MEDICAL,
Defendants.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING IN PART REPORT
AND RECOMMENDATION OF MAGISTRATE JUDGE,
DENYING § 1983 PETITION AND
SUSTAINING PLAINTIFF’S OBJECTIONS
AS TO EXHAUSTION OF REMEDIES
I.

Background

The pro se1 plaintiff, Marquel Anderson (“Anderson”), filed a
civil rights action under 42 U.S.C. § 1983 alleging he was denied
seizure medication at the Northern Regional Jail. Anderson further
alleges that after being without his medication an entire month, he
suffered a seizure. Anderson maintains that during the seizure, he
hit his head and bit his tongue. Anderson claims that the Northern
Regional Jail and Wexford Medical Services (“Wexford”) violated his
Eighth Amendment rights by failing to administer his medication.
Anderson seeks $500,000.00 due to pain and suffering, neglect, and
failure to provide him with treatment in a timely manner.

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“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 2009).

The case was referred to United States Magistrate Judge
Michael John Aloi for initial review and recommendation under Local
Rule

of

Prisoner

Litigation

Procedure

83.01

and

28

U.S.C.

§§ 1915(e) and 1915A. After conducting a preliminary review of the
complaint,

Magistrate

Judge

Aloi

recommended

that

Anderson’s

complaint be dismissed without prejudice for a failure to name
proper defendants and a failure to exhaust all administrative
remedies.

Anderson then filed an objection to the portion of

Magistrate Judge Aloi’s recommendation regarding his failure to
exhaust.

For the following reasons, the report and recommendation

is adopted and affirmed in part, Anderson’s petition is denied, and
his objections are sustained.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of the
magistrate judge’s recommendation to which objection is timely made
will be reviewed de novo by this Court.

Any portions of a

recommendation to which no objection is made, will be reviewed
under a “clearly erroneous” standard.

28 U.S.C. § 636(b)(1)(A).

Because the plaintiff has filed timely objections, this Court will
undertake a de novo review as to those portions of the report and
recommendation to which objections were made.
III.

Discussion

Magistrate Judge Aloi first concluded that Anderson failed to
name proper defendants because neither is a “person” under § 1983.

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To this conclusion, Anderson offered no objection.
judge

next

concluded

administrative remedies.

that

Anderson

failed

to

The magistrate
exhaust

his

Specifically, he concluded that Anderson

failed to follow the proper grievance procedure because he filed a
grievance with the medical unit but did not file a grievance with
the Northern Regional Jail Administrator. Anderson objects to this
part of the recommendation and it will be reviewed de novo.
A.

Improper Defendants
The magistrate judge first concluded that Anderson failed to

name a proper “person” as a defendant because he instead names only
the Northern Regional Jail and Wexford Medical Services.

Anderson

does not object to this portion of the magistrate judge’s review
and it will be reviewed under a clear error standard.

This Court

finds no clear error with regard to this issue.
Section 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any State,
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
natural

“persons”

Generally, the language of § 1983 provides that
are

appropriate

defendants,

and

does

not

expressly state that municipal corporations fall under the statute.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 660 (1978).

For a

municipal entity or a private corporation that is a state actor to
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be held liable under § 1983, there must be an official policy
adopted that is responsible for the deprivation of rights.

Id. at

690 (U.S. June 6, 1978); see also Paige v. Kirby, 314 F. Supp. 2d
619, 622 (N.D. W. Va. 2004).
Anderson does not name a natural person as a defendant.
Further, Anderson’s complaint fails to allege that Wexford or the
Northern Regional Jail have official policies or customs that
prevent the surgery and or treatment the plaintiff believes is
required to alleviate his medical conditions.

This Court finds no

clear error with regard to this issue.
B.

Exhaustion of Administrative Remedies
The magistrate judge concluded, sua sponte, that Anderson

failed to exhaust his administrative remedies. Anderson objects to
this conclusion and it will therefore be reviewed de novo.
Under 42 U.S.C. § 1997(e)(a), a prisoner bringing an action
with respect to prison conditions under § 1983 must first exhaust
all available administrative remedies.
Exhaustion is mandatory.
(2001).

However,

42 U.S.C. § 1997(e)(a).

Booth v. Churner, 532 U.S. 731, 741

exhaustion

is

an

affirmative

defense

typically cannot be grounds for sua sponte dismissal.
Davis, 851 F.3d 358, 361 (4th Cir. 2017).

and

Custis v.

In the rare case that

sua sponte dismissal is appropriate, a plaintiff’s complaint must
show a failure to exhaust administrative remedies on its face. Id.

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at 361; see also Anderson v. XYZ Prison Health Serv., 407 F.3d 674,
682 (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

Following this procedure, inmates submit a grievance

to facility administration, which is reviewed and either rejected
or

accepted.

If

accepted,

the

grievance

investigated and reported on by staff members.

continues

to

be

Written decisions

are provided to the inmates which include any subsequent action
taken by prison administration.
inmates may appeal.

If the decision is unfavorable,

The grievance process is to be concluded

within 60 days inclusive of an extensions.
In this case, it is not clear from the facts alleged that
Anderson failed to exhaust the administrative remedies available to
him.

Anderson states that he did file grievances, and also

attached illegible copies to his complaint.

In his objections,

Anderson

states

with

Regional

Jail

that

his

grievances

Administration

received

filed
no

the

response,

Northern
and

that

requested copies of these documents were never delivered to him.
Anderson further argues that he did not receive proper guidance or
assistance from jail officials in pursuing the grievance procedure.
A court’s dismissal for failure to exhaust is not appropriate
where a plaintiff argues that failure was a direct result of prison

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officials failing to provide him with the proper appeal forms.
Custis v. Davis, 851 F.3d 358, 362 (4th Cir. 2017).

This Court

finds that Anderson adequately alleged his attempt to exhaust and
that dismissal for failure to exhaust is not proper.

Dismissal is

as to Anderson’s failure to name proper defendants, not as to
exhaustion.
IV.

Conclusion

For the above reasons, the magistrate judge’s report and
recommendation (ECF No. 15) is AFFIRMED and ADOPTED IN PART.
Accordingly, Anderson’s complaint (ECF No. 1) is DISMISSED WITH
PREJUDICE as to the named defendants, and Anderson’s objections to
the report and recommendation as to exhaustion of remedies is
SUSTAINED.

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, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 30
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 plaintiff by certified mail and to
counsel of record herein.

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DATED:

May 25, 2017

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

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