Wallace v. McDowell County Commission, et al.

Filing 27

MEMORANDUM OPINION AND ORDER: the court OVERRULES plaintiff's and defendant Dr. Jones' objections to Magistrate Judge VanDervort's PF&R. The court ADOPTS the 23 PROPOSED FINDINGS AND RECOMMENDATION of Magistrate Judge VanDervort; G RANTS defendants Rubenstein's and the West Virginia Department of Corrections' 15 MOTION to Dismiss, GRANTS defendant Walker's 13 MOTION to Dismiss, GRANTS defendant Dr. Jones' Motion to Dismiss with respect to plaintiff's medical malpractice claim, and DENIES defendant Dr. Jones' Motion to Dismiss with respect to plaintiff's deliberate indifference claim. Signed by Judge David A. Faber on 12/2/2014. (cc: counsel of record and plaintiff, pro se) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD

COURTNEY S. WALLACE, SR.,
Plaintiff,
v.

Civil Action No: 1:14-17900

McDOWELL COUNTY COMMISSION,
et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are motions to dismiss filed by
defendants April Walker and Dr. Kimberly Jones, (Doc. No. 13),
and defendants Commissioner Jim Rubenstein and the West Virginia
Division of Corrections, (Doc. No. 15).

By Standing Order, this

matter was referred to United States Magistrate Judge R. Clarke
VanDervort for submission of proposed findings and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B).

(Doc. No. 2).

The magistrate judge submitted his

proposed findings and recommendation (“PF&R”) on November 5,
2014.

(Doc. No. 23).

In accordance with the provisions of 28 U.S.C. § 636(b),
all parties were allotted fourteen days, plus three mailing
days, in which to file any objections to the PF&R.

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Plaintiff

submitted objections to the PF&R, which the court received on
November 26, 2014.

(Doc. No. 26).

Defendant Dr. Jones timely

filed objections to the PF&R on November 13, 2014.

(Doc. No.

24).
I.

Background
On June 9, 2014, plaintiff filed a complaint seeking relief

pursuant to 42 U.S.C. § 1983.

(Doc. No. 1).

Plaintiff is

currently incarcerated at McDowell County Correctional Center
and contends that he injured his back and hip on April 4, 2013
when he slipped in milk that was spilled on the floor of the
facility.

(Doc. No. 1 at ¶ 4).

Plaintiff claims that he

immediately informed prison officials of his injury, but has
received little to no care in connection with his condition.
Specifically, plaintiff raises medical malpractice claims
against defendants Dr. Jones and Nurse Walker as well as
alleging that they acted with deliberate indifference to his
injuries.

According to plaintiff, Dr. Jones evaluated his

injury two days after the incident and prescribed Tylenol for
his injuries, to be taken three times a day.
6).

(Doc. No. 1 at ¶

When he continued to complain of discomfort, Dr. Jones

ordered an x-ray.

(Doc. No. 1 at ¶ 8).

In her follow-up

regarding the x-rays, plaintiff contends that Dr. Jones
initially confused his records with another inmate’s, could not

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find his x-ray results, and ultimately sent plaintiff to Welch
Hospital to have more x-rays taken.

Id.

Plaintiff further contends that doctors at Welch Hospital
told him not to continue taking Tylenol as prescribed by Dr.
Jones, but instead, to take Naproxen twice daily.
at ¶ 9).

(Doc. No. 1

The doctor at Welch Hospital told plaintiff that he

should return for further testing, but plaintiff contends that
prison officials never took him back for any follow-up exams.
Id.
Further, plaintiff alleges that he has had considerable
difficulties receiving the medicine prescribed by doctors at
Welch Hospital.

(Doc. No. 1 at ¶ 10).

He alleges that he has

filed three grievances in connection with prison officials’
failure to make available the Naproxen prescribed by doctors at
Welch Hospital.

Id.

Plaintiff contends that the prison medical

unit ran out of his prescribed medicine and he was forced to
take Tylenol instead.

Id.

When plaintiff continued to complain of pain in his hip and
lower back, Dr. Jones sent him back to Welch Hospital.
No. 1 at ¶ 11).

(Doc.

According to plaintiff, the doctors at Welch

Hospital mentioned that plaintiff might have a pinched nerve in
his lower back and asked plaintiff to return for further
testing.

Id.

However, plaintiff says that he has never

returned for any of the requested follow-up exams.
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Id.

Additionally, plaintiff claims that he has experienced
chest pain on a number of occasions.

(Doc. No. 1 at ¶ 16).

According to plaintiff, Dr. Jones examined him in response to
his complaints and told him that he should be “on meds” for his
chest pain.

Id.

Dr. Jones sent plaintiff to Stevens

Correctional Center Medical Unit for an EKG, and, after
examining him again, Dr. Jones determined that he should be sent
to the hospital for further evaluation.

(Doc. No. 1 at ¶ 18).

After being examined by another doctor, plaintiff was told that
he needed to have additional testing, but plaintiff contends
that he has never been taken back for this additional testing.
(Doc. No. 1 at ¶ 19).
Plaintiff named the following defendants in his complaint:
(1) McDowell County Commission; (2) McDowell County Correctional
Center; (3) West Virginia Division of Corrections; (4) Jim
Rubenstein, Commissioner of Corrections; (5) Dennis Dingus,
Warden of McDowell County Corrections; (6) Dr. Kimberly Jones;
and (7) Ms. April Walker, R.N.

In the PF&R, Magistrate Judge

VanDervort recommended that the court grant the motion to
dismiss submitted by defendants Commissioner Rubenstein and the
West Virginia Division of Corrections.

Magistrate Judge

VanDervort further recommended that the court grant defendants
Dr. Jones’s and Walker’s motion to dismiss with respect to
defendant Walker.

The PF&R recommended that the court dismiss
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plaintiff’s medical malpractice claim against defendant Dr.
Jones, but deny her motion to dismiss with respect to
plaintiff’s claim of deliberate indifference.
II.

Plaintiff’s Objections to the PF&R

In his objections to the PF&R, plaintiff raises a number of
arguments.

Initially, plaintiff objects to the recommended

dismissal of his claim against the West Virginia Division of
Corrections and Commissioner Jim Rubenstein.
1).

(Doc. No. 26 at

In support for his objection, plaintiff incorporates an

article from The Charleston Gazette detailing institutional
deficiencies at Stevens Correctional Center.
2).

(Doc. No. 26 at

Plaintiff argues that the article provides evidence that

the West Virginia Division of Corrections and Commissioner
Rubenstein were deliberately indifferent toward his medical
issues.

Id.

However, plaintiff is incarcerated at the McDowell County
Correctional Center at Welch, West Virginia, where plaintiff
contends he slipped in spilled milk and injured himself.
No. 1 at 2).

(Doc.

Plaintiff does not provide any information

suggesting that he has ever been incarcerated at the Stevens
Correctional Center.
Furthermore, even if plaintiff had been incarcerated at
Stevens Correctional Center, the newspaper article he cites
would not indicate that either the West Virginia Division of
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Corrections or Commissioner Rubenstein displayed deliberate
indifference to his condition.

Assuming that plaintiff’s

allegations are true, the newspaper article he cites indicates
that the Division of Corrections and Commissioner Rubenstein
were aware of problems at the facility and, instead of turning a
blind eye to them, were working to remedy the problems.

This

falls short of demonstrating that either defendant “acted
wantonly, obdurately, or with deliberate indifference to [a]
pervasive risk of harm.”
1315 (4th Cir. 1991).

Moore v. Winebrenner, 927 F.2d 1312,

Accordingly, plaintiff’s objection is

overruled.
Plaintiff also argues that Commissioner Rubenstein knew of
plaintiff’s medical issues and, therefore, acted with deliberate
indifference.

(Doc. No. 26 at 4).

Plaintiff contends that he

filed a letter and grievance with Commissioner Rubenstein’s
office, which the Commissioner answered and returned to him.
Id.

However, as the PF&R indicates, an official’s denial of an

institutional grievance falls short of the personal involvement
required to state a claim for deliberate indifference to serious
medical needs.

Mabry v. Ramirez et al., 2007 WL 4190398, Civil

Action No. 2:06cv103, at *6 (N.D.W. Va. Nov. 21, 2007).
Therefore, plaintiff’s objection lacks merit.
Plaintiff also objects to Magistrate Judge VanDervort’s
recommendation that the court dismiss his complaint against
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defendant Walker.

(Doc. No. 26 at 4).

Plaintiff contends that

defendant Walker “should have been let go/quit/or/terminated
[sic] since this July 1, 2014, [sic] over this ordeal.”

Id.

He

further argues that defendant Walker was aware that medical
staff “fail[ed] to have ready” his medication and x-rays, as
well as failed to follow-up on plaintiff’s medical appointments.
Id.
Plaintiff did not make any of these allegations in his
complaint.

Instead, plaintiff only claimed that defendant

Walker failed to respond to his grievance adequately.
1 at 8).

(Doc. No.

As noted in the PF&R, an assertion of mere negligent

conduct or malpractice is insufficient to constitute an Eighth
Amendment violation.
(1986).

See Daniels v. Williams, 474 U.S. 327, 328

Plaintiff’s allegation falls short of the standard for

deliberate indifference and, as a result, the court overrules
his objection.
Furthermore, even if plaintiff had included these
allegations in his complaint, the court nevertheless would
dismiss his claim against defendant Walker.

“[T]o state a

plausible claim [for deliberate indifference], Plaintiff must
allege that a defendant deliberately denied, delayed, or
interfered with [his] medical care with knowledge of [his] grave
condition.”

Newbrough v. Piedmont Reg’l Jail Auth., 822 F.

Supp. 2d 558, 577 (E.D. Va. 2011).
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Plaintiff’s allegations do

not rise to the level of deliberate interference with his
medical care because he does not allege that defendant Walker
acted deliberately to deny his medical care.

At most, plaintiff

alleges that defendant Walker acted negligently.

As described

above, negligent conduct is insufficient to constitute an Eighth
Amendment violation.

Consequently, the court overrules

plaintiff’s objection.
Finally, plaintiff includes a number of objections that are
unrelated to his initial complaint.

Plaintiff asserts a

violation of his constitutional rights, based on his detention
at a county jail “for over two years without being told that it
is a County ran [sic] facility.”

(Doc. No. 26 at 5).

Plaintiff

also includes in his objections an excerpt from an article that
originally appeared in The Bluefield Daily Telegraph describing
a problem with mold at the McDowell County Courthouse.
No. 26 at 10–11).

(Doc.

Neither of these concern plaintiff’s

complaint or the findings in the PF&R.

Therefore, the court

overrules these objections, as well.
III. Defendant Dr. Jones’s Objections to the PF&R
Defendant Dr. Jones filed formal objections to the PF&R,
however these objections are, verbatim, the same arguments that
she made in her motion to dismiss.

These objections “do not

direct the court to a specific error in the magistrate’s
proposed findings and recommendations” but, instead, are
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“general and conclusory.”
(4th Cir. 1982).

Orpiano v. Johnson, 687 F.2d 44, 47

As a result, a court need not conduct a de

novo review of such objections.

Id.

However, upon review of the PF&R, the court overrules
defendant Dr. Jones’s objections.

In essence, plaintiff argues

that Dr. Jones demonstrated deliberate indifference to his
medical condition in her failure to follow up on other doctors’
prescribed courses of treatment for plaintiff.

Deliberate

indifference is a high standard; a showing of negligence will
not suffice.
1999).

Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

An official evinces deliberate indifference to a serious

medical need by completely failing to consider an inmate’s
complaints or by acting intentionally to delay or deny a
prisoner access to adequate medical care.
429 U.S. 97, 104 (1976).

Estelle v. Gamble,

However, disagreement regarding the

proper course of treatment does not provide a basis for relief.
Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).
The Fourth Circuit has held that a medical official’s
failure to follow up on a prescribed course of treatment
presents a plausible claim of deliberate indifference.

Miltier

v. Beorn, 896 F.2d 848, 853 (4th Cir. 1990) (denying the
defendant’s motion for summary judgment where a jail’s chief
doctor, after approving a recommendation for referral to a
hospital, “did nothing to follow up,” despite the detainee’s
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“continued complaints”), overruled on other grounds; see also
Newbrough, 822 F. Supp. 2d at 580.
plaintiff makes in the instant case.

This is the same claim that
As a result, Dr. Jones’s

objections to the PF&R are without merit.
IV.

Conclusion

Accordingly, the court OVERRULES plaintiff’s and defendant
Dr. Jones’s objections to Magistrate Judge VanDervort’s PF&R.
The court ADOPTS the factual and legal analysis contained within
the PF&R, GRANTS defendants Rubenstein’s and the West Virginia
Department of Corrections’ motion to dismiss, (Doc. No. 15),
GRANTS defendant Walker’s motion to dismiss, (Doc. No. 13),
GRANTS defendant Dr. Jones’s motion to dismiss with respect to
plaintiff’s medical malpractice claim, and DENIES defendant Dr.
Jones’s motion to dismiss with respect to plaintiff’s deliberate
indifference claim.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and plaintiff, pro se.
IT IS SO ORDERED on this 2nd day of December, 2014.
ENTER:

David A. Faber
Senior United States District Judge

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