Witherspoon v. United States of America et al
Filing
74
MEMORANDUM OPINION AND ORDER: The court ACCEPTS the 72 Proposed Findings and Recommendation by Magistrate Judge VanDervort; GRANTS the United States' 61 MOTION to Dismiss; GRANTS defendants Hickey, Lowe, Blankenship, Rehburg and Basham-Calla way's 67 MOTION to Dismiss and/or for Summary Judgment; DISMISSES plaintiff's 1 Complaint and the Clerk is directed to remove this case from the court's active docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 9/30/2011. (cc: Plaintiff, Pro Se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD
ROSALYNN CROSS WITHERSPOON,
Plaintiff,
v.
Civil Action No. 1:07-0802
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United States
Magistrate Judge R. Clarke VanDervort for submission of findings
and recommendations regarding disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B).
Magistrate Judge VanDervort submitted to the
court his Second Proposed Findings and Recommendation ("PF&R") on
January 3, 2011, in which he recommended that the District Court:
1) grant the United States’ motion to dismiss; 2) grant the
motion to dismiss and/or for summary judgment filed by defendants
Hickey, Lowe, Blankenship, Rehberg, and Basham-Callaway; 3)
dismiss plaintiff’s complaint; and 4) remove this matter from the
court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b), the
parties were allotted fourteen days, plus three mailing days, in
which to file any objections to Magistrate Judge VanDervort’s
Findings and Recommendation.
The failure of any party to file
such objections constitutes a waiver of such party's right to a
de novo review by this court.
Plaintiff timely filed objections
to the PF&R.
The court has conducted a de novo review of
plaintiff’s complaint and her objections to the magistrate
judge’s PF&R.
I.
Factual and Procedural Background
On December 10, 2007, while an inmate at FPC Alderson,1
plaintiff filed a Complaint alleging deliberate indifference in
the medical care she received while incarcerated.
Named as
defendants are: 1) the United States of America; 2) Debra Hickey,
former Warden of FPC Alderson; 3)Alice Lowe, Assistant Warden;
4) James Blankenship, Health Services Administrator; 5) Dr. Neal
Rehburg, Clinical Director; and 6) Dr. Callaway.
Specifically,
plaintiff alleges that she received inadequate medical care for
her skin cancer and suffered a number of adverse consequences as
a result thereof.
In her Complaint, she seeks the following
relief:
I ask for my face to be repaired, teeth, and the
disfigurement of my face, due to lack of care and
failure to follow treatment plan that was given by the
surgeon Dr. Paine. I should be compensated monetarily
and I ask for 2 (two) million dollars for this. Also I
ask to be compensated for the pain and suffering I
endured in this an [sic] still am suffering with today
because of all of this.
Complaint p.5.
Plaintiff also complains of her diagnosis with H.
Pylori and the treatment she received for that illness.
1
The Bureau of Prisons’ (“BOP”) Inmate Locator indicates
that plaintiff was released from custody on April 3, 2009.
2
On July 8, 2010, Magistrate Judge VanDervort entered his
First Proposed Findings and Recommendation in this matter
recommending that defendants’ motion to dismiss or, in the
alternative, motion for summary judgment be granted and that
plaintiff’s complaint be dismissed.
Plaintiff filed objections
to that PF&R.
By Memorandum Opinion and Order entered on September 27,
2010, the court granted defendants’ motion to dismiss and/or
summary judgment in part and referred the matter back to
Magistrate Judge VanDervort for reconsideration of plaintiff’s
claims concerning 1) H. Pylori and 2) brought pursuant to the
Federal Tort Claim Act.
Specifically, the magistrate judge was
directed to make a determination as to (1) “whether plaintiff has
exhausted her claim regarding H. Pylori and for a recommendation
regarding disposition” and (2) whether “plaintiff is pursuing
relief under the FTCA in this lawsuit and, if so, whether she
should be permitted to do so.”
It is to those issues that the
instant PF&R is directed.
As to the FTCA claim, Magistrate Judge VanDervort has
recommended that it be dismissed because the record does not show
that Witherspoon complied with the requirements of West Virginia
Code § 55-7B-6.
The second PF&R also recommends that the H.
Pylori claims be dismissed because they were not exhausted prior
to filing suit.
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II. Analysis
Pursuant to § 636(b)(1), a district court is required to
conduct a de novo review of those portions of the magistrate
judge’s report to which a specific objection has been made.
The
court need not conduct de novo review, however, “when a party
makes general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed findings
and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982); see also Fed. R. Civ. P. 72(b) (“The district court
to whom the case is assigned shall make a de novo determination
upon the record, or after additional evidence, of any portion of
the magistrate judge’s disposition to which specific written
objection has been made in accordance with this rule.”).
For the most part, plaintiff’s “objections” do not direct
the court to any specific error.
For example, she states “I do
not agree with a dismissal and would ask for a review of all the
evidence and all medical records submitted.”
Objections at p.1.
However, to the extent possible, the court will attempt to
discuss those objections which might be deemed responsive to the
PF&R.
A.
Failure to Comply with West Virginia Code § 55-7B-6
Magistrate Judge VanDervort found that plaintiff did not
comply with the West Virginia Medical Professional Liability Act
(“MPLA”), W. Va. Code § 55-7B-6, and that, as a result, her
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medical negligence claim against the United States under the
Federal Tort Claims Act should be dismissed.
The Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 1346(b)(1), provides in pertinent part:
[T]he district courts . . . shall have
exclusive jurisdiction of civil actions on
claims against the United States, for money
damages . . . for injury or loss of property,
or personal injury or death caused by the
negligent or wrongful act or omission of any
employee of the Government while acting
within the scope of his office or employment,
under circumstances where the United States,
if a private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
An inmate “can sue under the FTCA to recover damages from the
United States Government for personal injuries sustained during
confinement in a federal prison, by reason of the negligence of a
government employee.”
(1963).
United States v. Muniz, 374 U.S. 150, 150
The FTCA holds the United States liable “to the same
extent as a private individual under like circumstances.”
28
U.S.C. § 2674; United States v. Orleans, 425 U.S. 807, 813
(1976).
“Under the FTCA, West Virginia law governs this action.
In
West Virginia, the Medical Professional Liability Act (“MPLA”)
controls medical malpractice claims.”
Dreenen v. United States,
2010 WL 1650032, *2 (4th Cir. 2010); Callahan v. Cho, 437 F.
Supp. 2d 557, 561 (E.D. Va. 2006); Stanley v. United States, 321
F. Supp. 2d 805, 808-09 (N.D.W. Va. 2004); Osborne v. United
5
States, 166 F. Supp. 2d 479, 496-97 (S.D.W. Va. 2001); Bellomy v.
United States, 888 F. Supp. 760, 764-65 (S.D.W. Va. 1995).
The MPLA provides that in order to bring such a claim, a
plaintiff must prove that:
(1) The health care provider failed to
exercise that degree of care, skill and
learning required or expected of a
reasonable, prudent health care provider in
the profession or class to which the health
care provider belongs acting in the same or
similar circumstances; and
(2) Such failure was a proximate cause of the
injury or death.
W. Va.Code § 55-7B-3(a).
When a medical negligence claim
involves an assessment of whether the plaintiff was properly
diagnosed and treated, or whether the health care provider was
the proximate cause of the plaintiff's injuries, expert testimony
is required.
Banfi v. American Hosp. for Rehabilitation, 539
S.E.2d 600, 605-06 (W. Va. 2000).2
Additionally, under West Virginia Code § 55-7B-6, certain
requirements must be met before a person may even file an action
against a health care provider.
This section provides in
pertinent part:
2
“West Virginia law stipulates that medical experts must
establish the applicable standard of care in medical malpractice
cases. W. Va. Code § 55-7B-7(a). The only exceptions to this
requirement, where the breach of duty is so gross as to be
apparent or the standard is within the common knowledge of lay
jurors, are the same as the exceptions to the medical certificate
requirement.” Callahan v. Cho, 437 F. Supp. 2d 557, 564 (E.D.
Va. 2006).
6
(a) Notwithstanding any other provisions of
this code, no person may file a medical
professional liability action against any
health care provider without complying with
the provisions of this section.
(b) At least thirty days prior to the filing
of a medical professional liability action
against a health care provider, the claimant
shall serve by certified mail, return receipt
requested, a notice of claim on each health
care provider the claimant will join in
litigation. The notice of claim shall include
a statement of the theory or theories of
liability upon which a cause of action may be
based, and a list of all health care
providers and health care facilities to whom
notices are being sent, together with a
screening certificate of merit. The screening
certificate of merit shall be executed under
oath by a health care provider qualified as
an expert under the West Virginia rules of
evidence and shall state with particularity:
(1) the expert's familiarity with the
applicable standard of care in issue; (2) the
expert's qualifications; (3) the expert's
opinion as to how the applicable standard of
care was breached; and (4) the expert's
opinion as to how the breach of applicable
standard of care resulted in injury or death.
A separate screening certificate of merit
must be provided for each health care
provider against whom a claim is asserted.
The person signing the screening certificate
of merit shall have no financial interest in
the underlying claim, but may participate as
an expert witness in any judicial proceeding.
Nothing in this subsection may be construed
to limit the application of rule 15 of the
Rules of Civil Procedure.
W. Va. Code § 55-7B-6.
Courts have held that a plaintiff’s
failure to adhere to the pre-filing requirements of the MPLA
warrants dismissal.
See, e.g., Callahan v. Cho, 437 F. Supp. 2d
557, 565 (E.D. Va. 2006); Stanley v. United States, 321 F. Supp.
7
2d 805, 809 (N.D.W. Va. 2004)
In her objections, plaintiff does not argue that she has
complied with the pre-filing requirements of the MPLA.
And, to
the extent that she argues they are inapplicable to her claims
under the FTCA, that argument is without merit.
U.S., 2010 WL 1650032, *2 (4th Cir. 2010).
See Dreenen v.
Furthermore, the
injuries she complains of are not within the understanding of lay
jurors by resort to common knowledge and experience and,
accordingly, she is not excused from filing a screening
certificate of merit.
Therefore, because this court finds that
plaintiff has not complied with the requirements of West Virginia
Code § 55-7B-6, the dismissal of her FTCA claim, to the extent it
alleges medical malpractice, is appropriate.
Any objection to
this finding is OVERRULED.
B.
Failure to Exhaust Administrative Remedies
Magistrate Judge VanDervort recommended that plaintiff’s
Bivens claim be dismissed because she failed to exhaust her
administrative remedies prior to filing suit.
Plaintiff’s
objections do not specifically address this deficiency and,
instead, she merely argues that she exhausted her administrative
remedies.
The Prison Litigation Reform Act (the “PLRA”) states that
“[n]o action shall be brought with respect to prison conditions .
. . by a prisoner confined in any jail, prison, or other
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correctional facility until such administrative remedies as are
available are exhausted.”
42 U.S.C. § 1997e(a); see also
Anderson v. XYZ Corr. Health Serv., Inc., 407 F.3d 674, 675 (4th
Cir. 2005).
The Supreme Court has stated that the PLRA's
exhaustion requirement requires proper exhaustion - - using all
the steps the agency holds out and doing so properly.
Woodford
v. Ngo, 548 U.S. 81, 90-93 (2006).
The fact that plaintiff exhausted her administrative
remedies concerning her H. Pylori claim after filing suit does
not save the claim from dismissal.
The plain text of the statute
makes clear exhaustion must occur prior to commencing a federal
action.
42 U.S.C. § 1997e(a) (“No action shall be brought . . .
until such administrative remedies as are available are
exhausted.”).
Va. 2009).
See Johnson v. Taylor, 2009 WL 691207, *5 (W.D.
Furthermore, every federal appeals court to have
considered the issue has agreed that exhaustion is a precondition
to filing suit.
See id. at n. 16 and authorities cited therein.
For this reason, plaintiff’s objection is OVERRULED.
III.
Conclusion
Based on the foregoing, the court accepts Magistrate Judge
VanDervort’s findings and recommendation.
Accordingly, the
United States’ motion to dismiss is GRANTED; the motion to
dismiss and/or for summary judgment filed by defendants Hickey,
Lowe, Blankenship, Rehberg, and Basham-Callaway is GRANTED;
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plaintiff’s complaint is DISMISSED; and the Clerk is directed to
remove this case from the court’s active docket.
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and to the plaintiff, pro
se.
IT IS SO ORDERED this 30th day of September, 2011.
ENTER:
David A. Faber
Senior United States District Judge
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