Taylor v. Wexford Health Sources Inc. et al

Filing 29

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 25 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING WITHOUT PREJUDICE 8 PLAINTIFF'S MOTION FOR INJUNCTION. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/28/2018. (copy to Pro Se Plaintiff via CM,rrr) (nmm) (Additional attachment(s) added on 8/28/2018: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONALD LEE TAYLOR,
Plaintiff,
v.

Civil Action No. 5:17CV173
(STAMP)

WEXFORD MEDICAL SOURCES INC.,
DOCTOR PAUL, Hepatitis C Liver
Specialist for Wexford,
LOITA BUTCHER, Commissioner,
West Virginia Division of Corrections,
BETSY JIVIDEN, Commissioner,
West Virginia Division of Corrections,
JOHN T. MURPHY, Warden,
SHERRI DAVIS, (A.W.O.),
KELLY LANHAM, (A.W.S.),
ANGELA McWILLIAMS, (formerly identified
as Angie Williams) Counselor (RSAT)
Program Huttonsville Correctional Center,
AIG INSURANCE BOARD OF RISK MANAGEMENT
and PATRICK MIRANDY, Warden,
St. Marys Correctional Center.
Defendants.1
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
AND DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION FOR INJUNCTION
1

This Court notes that the above-styled case caption does not
exactly match the plaintiff’s original complaint. It also does not
match the case caption used by the magistrate judge in his report
and recommendation (ECF No. 25).
However, this Court has
referenced several of the filings in this civil action (ECF Nos. 1,
7, 8, 23, 25), and has endeavored to appropriately style this civil
action in order to resolve several apparent discrepancies and
inconsistencies. The Court requests that the above-styled caption
used in this memorandum opinion and order be used by all parties
throughout the remainder of the proceedings in this civil action
and further directs the clerk not to alter or amend the case
caption of this civil action, other than to make the docket reflect
these instant corrections, without further order of this Court.

I.

Background

The pro se2 plaintiff, Donald Lee Taylor, filed this civil
action asserting claims against the defendants under 42 U.S.C.
§ 1983.

Thereafter, plaintiff filed a motion for injunction which

is now pending before this Court.
been diagnosed with Hepatitis C.

ECF No. 8.

The plaintiff has

In his motion, plaintiff is

seeking an injunction against Wexford Medical Sources Inc. and
their Hepatitis C specialist, Dr. Paul, for allegedly subjecting
him to serious risks to his health and safety and placing him in
imminent danger by denying him needed medical treatment in refusing
to provide him “Harvoni” which he identifies as a “curative
treatment.”

ECF No. 8 at 1-2.

The plaintiff indicates that he “is

suffering extreme pain in his right side quadrulent (liver)” and
the defendants have allowed him “to suffer intentionally with the
very purpose of causing [him] harm.”

Id. at 4.

The plaintiff

requests that the court grant his motion for an injunction and
order defendants to provide him with the curative treatment before
he suffers any more additional harms.

Id.

This civil action was referred to the magistrate judge for
initial review and report and recommendation pursuant to Local Rule
of Prisoner Litigation Procedure 2. United States Magistrate Judge
James E. Seibert entered a report and recommendation.

2

ECF No. 25.

“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

The magistrate judge found that the plaintiff is a state inmate,
who

was

(“HCC”)

incarcerated
when

he

at

the

initiated

Huttonsville
this

action,

Correctional
and

incarcerated at the St. Marys Correctional Center.
1-2.

is

Center

currently

ECF No. 25 at

The magistrate judge notes that well-established United

States Court of Appeals for the Fourth Circuit precedent has
recognized that “the transfer or release of an inmate from the
facility where he suffered the challenged conditions ‘moots his
claims for injunctive and declaratory relief’ pertaining to his
imprisonment.”

Taylor v. Riverside Regional Jail Authority, 2011

WL 6024499 at *4 (E.D. Va. Dec. 2, 2011); see also Rendellman v.
Rouse, 569 F.3d 182, 186 (4th Cir. 2009) (“as a general rule, a
prisoner’s transfer or release from a particular prison moots his
claims for injunctive and declaratory relief with respect to his
incarceration there.”).

However, the magistrate judge reasoned

that, in the instant case, the plaintiff’s claims relate to Wexford
Health and Dr. Paul, their Hepatitis C specialist, and because
Wexford provides medical care at all WVDOC facilities, plaintiff’s
transfer does not make his claim moot.

Id. at 2 n.2.

The magistrate judge states that “plaintiff’s motion and
supplement cite several recent court decisions that have recognized
the potential significance of the developments in the treatment
protocol for Hepatitis C and found that claims for denial of such
treatment can support a plausible Eighth Amendment claim.”

3

Id.

at 4.

Among those decisions, the magistrate judge found that the

opinion in Cunningham v. Sessions, No. 9:16-cv-1292, 2017 WL
2377838 (D.S.C. May 31, 2017), is particularly instructive herein.
In his analysis, the magistrate judge found that “[t]he Cunningham
decision

details

the

advances

that

have

been

made

in

the

medications and treatment protocol for Hepatitis C, and determined
that the refusal to provide curative therapy for Hepatitis C could
plausibly state a claim under the Eighth Amendment.” Id. However,
the magistrate judge found that “[w]hile the plaintiff’s complaint
may

state

a

claim

for

relief

sufficient

to

survive

summary

dismissal, it fails to establish an entitlement to a preliminary
injunction.”

Id. at 6.

The magistrate judge notes this is the

second complaint which the plaintiff has filed with respect to his
Hepatitis C, and in the instant case, the plaintiff again alleges
that Wexford Health is maintaining unconstitutional policies,
customs and practices to deny him adequate and necessary treatment.
Id.

The magistrate judge states that the court does not yet have

before it any specific information regarding Wexford’s policy on
treatment of Hepatitis C for inmates in West Virginia, nor does the
plaintiff specify the policy, or portion of the policy he believes
is unconstitutional by demonstrating deliberate indifference.

Id.

However, the magistrate judge further notes that “it appears that
Wexford relies on a number of factors, including the stage of

4

fibrosis, blood test results, APRI scores” and that “a specialist
monitors all patients with Hepatitis C.”

Id.

Thus, that magistrate judge found that “based on the record
before the court, the plaintiff has not made the necessary showing
that he is likely to succeed on the merits” and that there has been
no evidence presented “to suggest that [the plaintiff’s] condition
has deteriorated since his last case was filed nearly three years
ago.” Id. at 7. The magistrate judge recommended that plaintiff’s
pending motion for injunction (ECF No. 8) be denied without
prejudice.

Id.

The magistrate judge informed the plaintiff that “[w]ithin
fourteen (14) days after being served with a copy of this Report
and Recommendation, any party may file with the Clerk of Court
written objections identifying those portions of the recommendation
to which objections are made and the basis for such objections.
Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals. Snyder
v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
The plaintiff filed a “report to the court” following the
entry of the magistrate judge’s report and recommendation. ECF No.
28.

This Court does not construe plaintiff’s filing (ECF No. 28)

5

as

written

objections

recommendation.

to

the

magistrate

judge’s

report

and

In this “report to the court,” plaintiff requests

that this Court hold his motion for injunction in abeyance, and
states

that

“[s]hortly

after

the

Courts

findings

and

recommendations I was preparing to do my Objection, however was
informed

by

(Defendant’s

Wexford)

—

that

my

case

was

being

submitted for Treatment (that I was in the running for it).”
at 1.

Id.

Plaintiff represents that “On (August 6th, 2018) I spoke to

a Nurse Practitioner from (CAMC) Charleston W. Va. by (Video)
conference

named

(Lisa)

who

was

gathering

all

my

medical

information to be submitted for determination as to what would be
the best treatment to start me on, — at the conclusion of the
meeting I was Informed by nurse Lisa that I would be seeing her
again in three to (3 - 4) weeks to see how I was responding to
treatment.”

Id.

Plaintiff then adds that “[a]lthough treatment

has not actually started as of this date, — it would appear that
Defendant’s have decided to now treat the Plaintiff with some form
of new treatment (which if they do) such would render Plaintiffs
Id. (emphasis in original).

Motion For Injunction as “Moot.”

For the reasons set forth below, this Court finds that the
report and recommendation of the magistrate judge should be adopted
in its entirety.

6

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.
file

any

objections

to

the

Because the plaintiff did not

report

and

recommendation,

the

magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A).
The standard for granting injunctive relief in this circuit is
set forth in International Refugee Assistance Project v. Trump, 857
F.3d 554 (4th Cir. 2017), cert. granted, 137 S. Ct. 2081 (2017).
“A preliminary injunction is an ‘extraordinary remedy,’ which may
be awarded only upon a ‘clear showing’ that a plaintiff is entitled
to such relief.”

Int’l Refugee Assistance Project, 857 F.3d at

607-08 (citing Real Truth About Obama, Inc. v. Federal Election
Commission, 575 F.3d 342 (4th Cir. 2009) (citing Winter v. Natural
Resources Defense Counsel, Inc., 555 U.S. 7 (2008))).

Under the

Fourth Circuit standard of review, “[a] preliminary injunction must
be supported by four elements: (1) a likelihood of success on the
merits; (2) that the plaintiff likely will suffer irreparable harm
in the absence of preliminary relief; (3) that the balance of
equities tips in the plaintiff’s favor, and (4) that a preliminary
injunction is in the public interest.”
Truth, 575 F.3d at 346).

Id. at 608 (citing Real

In order to obtain the extraordinary

7

remedy of a preliminary injunction, the burden is on the moving
party to demonstrate these elements.

See Dewhurst v. Century

Aluminum Co., 649 F.2d 287, 290 (4th Cir. 2011).

The demanding

standard outlined above becomes even more exacting when a plaintiff
seeks a preliminary injunction that mandates action, as contrasted
with

the

typical

form

of

preliminary

injunction

that

merely

preserves the status quo pending trial. See East Tennessee Natural
Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004) (quoting Wetzel
v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980)) (noting that
“mandatory preliminary injunctions do not preserve the status quo
and normally should be granted only in those circumstances when the
exigencies of the situation demands such relief”).
III.

Discussion

Upon review of the plaintiff’s motion for an injunction and
the underlying record in this civil action, this Court finds that
in his report and recommendation, the magistrate judge correctly
determined that while the plaintiff’s complaint may state a claim
for relief sufficient to survive summary dismissal as possibly
stating a plausible Eight Amendment claim, it fails to establish an
entitlement to a preliminary injunction as the plaintiff has failed
to make the requisite showing that he is likely to succeed on the
merits and has also failed to establish that he will suffer
irreparable harm in the future.

ECF No. 25 at 6.

Again, this

Court notes that plaintiff did not file written objection to the

8

magistrate judge’s report and recommendation, but instead filed a
report to this Court representing that he in fact did not prepare
objections to the report and recommendation because “[his] case was
being

submitted

for

[t]reatment.”

ECF

No.

28.

Plaintiff

explicitly states that based upon what he represents within his
report, his motion for an injunction may be moot.
Thus, as the magistrate judge properly concluded, this Court
finds that the plaintiff’s pending motion for injunction should be
denied without prejudice.

This Court finds no clear error in any

of the above determinations of the magistrate judge and thus
upholds his rulings.
IV.

Conclusion

Because the plaintiff did not object to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 25) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, plaintiff’s motion for an injunction (ECF No. 8)
is hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
plaintiff by certified mail.

9

DATED:

August 28, 2018

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

10