Kelly v. United States of America et al

Filing 66

MEMORANDUM OPINION AND ORDER: The Court OVERRULES Plaintiff's objections to the PF&R; ADOPTS the factual and legal analysis contained within the PF&R; GRANTS Defendants' 26 Motion to Dismiss or, in the alternative, for Summary Judgment; DENIES Plaintiff's Motions [36, 37] for a Restraining Order Against the Medical Staff at FCI McDowell; DENIES Plaintiff's 43 MOTION for a Temporary Restraining Order or Preliminary Injunction; DENIES Plaintiff's 62 Motion for an E xtension of Time to File Objections to the PF&R; DENIES Plaintiff's 64 MOTION to Reconsider his Motion for Appointment of Counsel; and DISMISSES this matter from the court's active docket. Signed by Senior Judge David A. Faber on 3/17/2016. (cc: Plaintiff, pro se; counsel of record) (mk)

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

SYLVESTER KELLY,
Plaintiff,
v.

Civil Action No: 1:15-04914

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are defendants’ motion to dismiss
or, in the alternative, motion for summary judgment, (Doc. No.
26), plaintiff’s motion for restraining order against medical
staff, (Doc. Nos. 36, 37), plaintiff’s motion for temporary
restraining order or preliminary injunction, (Doc. No. 43),
plaintiff’s motion for enlargement of time to file objections to
the court’s proposed findings and recommendation, (Doc. No. 62),
and plaintiff’s motion for reconsideration of his motion for
appointment of counsel.

(Doc. No. 64).

For the reasons that

follow, defendants’ motion is GRANTED and plaintiff’s motions
are DENIED.
I.

Procedural Background

By Order, this matter was referred to United States
Magistrate Judge Omar J. Aboulhosn for submission of proposed

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findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).

(Doc. No. 51).

The magistrate judge

submitted his proposed findings and recommendation (“PF&R”) on
January 15, 2016.

(Doc. No. 52).

In the PF&R, Magistrate Judge

Aboulhosn recommended that the court grant defendants’ motion to
dismiss or, in the alternative, motion for summary judgment,
deny plaintiff’s motion for a restraining order, deny
plaintiff’s motion for temporary restraining order or
preliminary injunction, and remove this matter from the court’s
docket.

(Doc. No. 52 at 42).

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

Plaintiff

requested, and received, two additional extensions of time in
which to file objections.

(Doc. Nos. 56, 60).

In its second

order granting plaintiff additional time to file objections to
the PF&R, the court warned plaintiff that it would not look
favorably upon further requests for extension and ordered
plaintiff’s objections due on or before February 24, 2016.
(Doc. No. 60 at 1).
Plaintiff filed objections to the PF&R on March 8, 2016
along with another motion for extension of time to file
objections and a motion for reconsideration of the court’s
denial of his motion for appointment of counsel.
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(Doc. Nos. 62,

63, 64).

Plaintiff’s objections are not timely and, as a

result, the court need not conduct de novo review of the
magistrate judge’s PF&R.
Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th

However, even if plaintiff’s filings were timely,

the court would nevertheless overrule his objections and adopt
the PF&R because plaintiff’s arguments lack merit.
II.

Factual Background

According to plaintiff’s medical records, he first arrived
at Federal Correctional Institute (“FCI”) McDowell on November
30, 2011 and was found to be in good health, aside from an
ingrown toenail.

(Doc. No. 52 at 9).

In the years following

his arrival at FCI McDowell, plaintiff made numerous trips to
Health Services, either by appointment or through sick call.
Id. at 9–17.

Plaintiff typically complained of chest pain and

stomach pain, but occasionally presented other complaints, such
as blurred vision, ear ache, and/or nausea.

Id. at 11–14.

Each

time he reported to Health Services, a staff member investigated
plaintiff’s symptoms and suggested treatment options.

Id.

From

2011 to 2015, plaintiff’s medical records indicate that he
received EKGs on eight separate occasions, all revealing normal
results aside from an irregular heartbeat on three occasions;
three abdominal x-rays, all with negative results aside from
constipation; and two chest x-rays, both with negative results.
Id. at 10–17.
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One of the many standard tests that plaintiff typically
received during his visits to Health Services was a test for
helicobacter pylori, also known as H. pylori.

Id. at 11–17.

This bacteria is a common cause of peptic ulcers, but most of
those infected with the bacteria never have any symptoms or
signs of infection.1

While the precise way that H. pylori

infects someone is still unknown, it is believed that the
bacteria spreads through direct contact with contaminated
saliva, vomit, or fecal matter and through contaminated food or
water.

Typically, doctors treat H. pylori infections with

antibiotics, and such is the case at FCI McDowell.

Id. at 13.

Despite testing negative for H. pylori previously,
plaintiff tested positive for the infection in early 2014.
at 12.

Id.

Medical staff at FCI McDowell reviewed plaintiff’s

diagnosis with him, prescribed a 14-day regimen of antibiotics,
and explained to plaintiff the importance of taking his
medication regularly.

Id. at 13.

At this time, as on a number

of prior occasions, medical staff reiterated the importance of a
proper diet and encouraged plaintiff to purchase over-thecounter antacids from the commissary.

Id.

Medical staff

1

Mayo Clinic Staff, Diseases and Conditions: H. pylori
infection, The Mayo Clinic (June 5, 2014),
http://www.mayoclinic.org/diseases-conditions/hpylori/basics/definition/CON-20030903?p=1.
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further advised plaintiff to wash his hands frequently before
meals.

Id.

When plaintiff’s complaints of stomach pains persisted,
medical staff reviewed his commissary purchases and discovered
that plaintiff had not followed their dietary recommendations.
Id. at 13–14.

Instead, plaintiff routinely purchased honey

pepper turkey logs, barbecue corn chips, honey buns, chocolate
chip cookies, Cajun chicken soup, and assorted candy bars, among
other food items.

Id. at 13–16.

And plaintiff did not purchase

over-the-counter antacids from the commissary, even after
medical staff provided him with medical commissary slips for
Zantac.

Id. at 14.

Plaintiff repeatedly presented at Medical

Services complaining of stomach and abdominal pain but, by midJune, his H. pylori infection was clear and he did not test
positive for the infection again.

Id. at 14, 17.

On April 17, 2015, plaintiff filed a complaint seeking
relief pursuant to the Federal Tort Claims Act (“FTCA”) and
alleging violations of his constitutional and civil rights
pursuant to Bivens v. Six Unknown Federal Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971).

(Doc. No. 2).

Plaintiff named seven defendants in his complaint, alleging
negligence and deliberate indifference in the diagnosis and
treatment of his H. pylori infection.

Id.

In the PF&R, the

magistrate judge made the following findings:
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1. That defendant Lucas is entitled to absolute immunity
as a Commissioned Officer in the United States Public
Health Service;
2. That plaintiff’s complaint evidenced no personal
involvement in plaintiff’s medical treatment by
either defendants Hogsten or Friss;
3. That defendants Goode, Stark, and Matos did not act
with
deliberate
indifference
with
regards
to
plaintiff’s H. pylori infection;
4. That plaintiff failed to provide pre-suit notice of
his claim as required by the West Virginia Medical
Professional Liability Act, precluding his FTCA claim
against the United States; and
5. That plaintiff could not establish the likelihood of
irreparable harm or of success on the merits of his
complaint, thereby precluding a restraining order or
injunctive relief.
Id. at 20–42.

As a result, the magistrate judge recommended

granting defendants’ motion to dismiss or, in the alternative,
for summary judgment, denying plaintiff’s motion for a temporary
restraining order against the medical staff of FCI McDowell, and
denying plaintiff’s motion for temporary restraining order or
preliminary injunction.

Id. at 42.

III. Analysis
Plaintiff raises a number of arguments in his filing, but
few of these relate to the legal analysis provided in the PF&R.
Instead, the majority of plaintiff’s objections relate to the
factual findings reached by the magistrate judge.

Specifically,

plaintiff objects to the PF&R’s inclusion of certain statements
made by defendants prior to February 8, 2013 and after February
7, 2014 as “outside of time frame;” to the finding that
defendants evaluated plaintiff following his sick call requests;
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to the inclusion of medical records before 2013; to the
exclusion of plaintiff’s declaration regarding his medical
treatment; to the exclusion of his prescription for Amoxicillin;
and to the PF&R’s finding that defendant Stark scheduled a
follow-up urea breath test for H. pylori.

(Doc. No. 63 at 1–3).

However, the court need not “accept as true allegations
that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.”

Veney v. Wyche et al., 293 F.3d 726,

730 (4th Cir. 2002) (citing Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001)).

Nor must the court “accept

as true allegations that contradict matters properly subject to
judicial notice or by exhibit.”

Id.

Plaintiff’s filing does

not offer any reason for the court to discredit the factual
findings contained in the PF&R or provide any documentation
indicating that these findings are false.

Having reviewed

plaintiff’s medical records, the court concurs with the
magistrate judge’s factual findings.

As a result, plaintiff’s

objections to these findings are overruled.
Additionally, plaintiff objects to the PF&R’s conclusion
that defendant Lucas is entitled to absolute immunity, rather
than qualified immunity.

Public Health Service (“PHS”)

employees are immune from personal liability actions arising
from the performance of their official duties.

Hui v.

Castaneda, 559 U.S. 799, 806 (2010) (“Section 233(a) [of Title
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42 of the United States Code] grants absolute immunity to PHS
officers and employees for actions arising out of the
performance of medical or related functions within the scope of
their employment by barring all actions against them for such
conduct.”).

As defendant Lucas is a Commissioned Officer in the

United States Public Health Service, 42 U.S.C. § 233(a)
explicitly grants her with absolute immunity from actions
related to the performance of her employment, such as the one
filed by plaintiff.

Therefore, the court concurs with the

PF&R’s finding that defendant Lucas is entitled to absolute
immunity and plaintiff’s objection is overruled.
Plaintiff further objects to the PF&R’s conclusion that his
FTCA claim is subject to dismissal because he did not provide
pre-suit notice of his claim pursuant to the West Virginia
Medical Professional Liability Act.

Plaintiff argues that he

“has been put in an unfair disadvantage by Defendants because
McDowell’s law library do [sic] not provide West Virginia Law.”
(Doc. No. 63 at 2).

While the court holds plaintiff’s filings

to a lesser standard than those filed by an attorney, Haines v.
Kerner, 404 U.S. 519, 520–21 (1972), plaintiff must nevertheless
abide by all legal and procedural requirements.
For those plaintiffs who seek redress for medical
malpractice against a health care provider located in the state
of West Virginia, West Virginia Code § 55-7B-6(c) requires the
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filing of a certificate of merit before those plaintiffs may
initiate a legal action.

Only in cases where a plaintiff’s

cause of action “is based upon a well-established legal theory
of liability” and does not require expert testimony is a
plaintiff excused from filing this certificate.

Id.

The

magistrate judge concluded that plaintiff’s case would require
expert testimony to determine the appropriate diagnostic testing
and treatment options for a H. pylori infection as the bacteria
and infection are uncommon and outside the scope of a lay
juror’s knowledge.

Because plaintiff did not file a screening

certificate and was not exempt from doing so, the magistrate
judge concluded that his FTCA claim against the United States
should be dismissed.

Plaintiff does not contend in his

objections that expert testimony would be unnecessary to
adjudicate his claims, that his cause of action is based upon a
well-established legal theory or liability, or provide any
evidence that he filed the necessary certificate.

As a result,

his claim is not exempt from the screening requirement and,
consequently, the law required the filing of a certificate of
merit before plaintiff could bring a medical malpractice claim.
Accordingly, plaintiff’s objection is overruled.
Finally, plaintiff objects to “whether Defendant Goode,
Stark, and Matos acted with deliberat [sic] indifference to
health and safety under the subjective standard; because (i)
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Defendant Goode and Matos [sic] failed to answer the complaint
against them.”

(Doc. No. 63 at 3).

To the extent that

plaintiff objects that these defendants did not answer his
complaints with regard to his treatment, the court finds that
the PF&R thoroughly documents the extensive care that plaintiff
received while incarcerated at FCI McDowell and supports the
conclusion that defendants did not knowingly disregard
plaintiff’s positive H. pylori test or fail to provide him with
adequate treatment.

To the extent that plaintiff objects that

these defendants did not answer his complaint as filed with this
court, the court finds that the defendants did not need to file
an answer before filing their motion to dismiss for failure to
state a claim.

Fed. R. Civ. P. 12(b) (“A motion asserting any

of these defenses must be made before pleading if a responsive
pleading is allowed.”).

Accordingly, plaintiff’s objection is

overruled.
Finally, the court has considered plaintiff’s third motion
for an enlargement of time to file his objections, (Doc. No.
62), and his motion for reconsideration of the court’s denial of
his motion for appointment of counsel.

(Doc. No. 64).

As

stated above, plaintiff received two extensions to file his
objections but still failed to do so in a timely fashion.

His

arguments do not evidence good cause for a third extension.
Having reviewed plaintiff’s motion for appointment of counsel
10 

and the magistrate judge’s denial, the court finds no need for
reconsideration as plaintiff’s case lacks merit and, as
plaintiff himself conceded, he received legal assistance on his
filings from an experienced attorney at FCI McDowell.
64 at 2).
IV.

(Doc. No.

Accordingly, both of these motions are DENIED.
Conclusion

For the reasons stated above, the court OVERRULES
plaintiff’s objections to the PF&R.

The court ADOPTS the

factual and legal analysis contained within the PF&R, GRANTS
defendants’ motion to dismiss or, in the alternative, for
summary judgment, (Doc. No. 26), DENIES plaintiff’s motion for a
restraining order against the medical staff at FCI McDowell,
(Doc. Nos. 36, 37), DENIES plaintiff’s motion for a temporary
restraining order or preliminary injunction, (Doc. No. 43),
DENIES plaintiff’s motion for an extension of time to file
objections to the PF&R, (Doc. No. 62), DENIES plaintiff’s motion
to reconsider his motion for appointment of counsel, (Doc. No.
64), and DISMISSES this matter from the court’s active docket.
The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED on this 17th day of March, 2016.
ENTER:
David A. Faber
Senior United States District Judge
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