Perkins v. Princeton Community Hospital, et al
Filing
33
MEMORANDUM OPINION AND ORDER: Plaintiff's objections to the 26 Proposed Findings and Recommendation of Magistrate Judge Aboulhosn are SUSTAINED insofar as she argues that the court should order service by the U.S. Marshal and asks for further consideration of her claims against Gee and Stultz. Her objections are OVERRULED in all other respects. Defendants' 16 MOTION to Dismiss is GRANTED in part and DENIED in part as follows: plaintiff's constitutional and Section 1983 claims are DISMISSED. Plaintiff's claims under the Mental Health Bill of Rights are DISMISSED. Plaintiff's claims of medical malpractice and/or negligence claim arising out of her medical care are DISMISSED as well as her claim of deliberate indif ference to her serious medical needs. Plaintiff's False Claims Act claims are DISMISSED. The court RECOMMITS this matter to Magistrate Judge Aboulhosn for consideration of plaintiff's belated request regarding service by the U.S. Marshal an d for reconsideration of whether plaintiff's additional allegations against Gee and Stultz are sufficient under Twombly and Iqbal. Signed by Senior Judge David A. Faber on 7/21/2017. (cc: Plaintiff, pro se, counsel of record and Magistrate Judge Aboulhosn) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ETHELOMA RENEE PERKINS,
Plaintiff,
v.
CIVIL ACTION NO. 1:16-06736
PRINCETON COMMUNITY HOSPITAL,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn 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 Proposed Findings and Recommendations ("PF&R) on
January 26, 2017, in which he recommended that the court (1)
grant defendants’ motion to dismiss.
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 Aboulhosn's
Findings and Recommendations.
The failure of any party to file
such objections within the time allowed constitutes a waiver of
such party's right to a de novo review by this court.
Ridenour, 889 F.2d 1363 (4th Cir. 1989).
Snyder v.
Plaintiff filed
objections to the PF&R and defendants have responded to those
objections.
It is worth noting that this court need not conduct
a de novo review 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.”
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Orpiano
With respect to
plaintiff’s objections, where appropriate, the court has
conducted a de novo review.
As Magistrate Judge Aboulhosn noted, plaintiff’s
complaint arises out of defendants’ part in submitting a certain
document, an OIC-WC-1, to the West Virginia Workers’ Compensation
Bureau.
According to plaintiff, the form contained “false and
misleading assertions” that caused her claim for workers’
compensation benefits to be denied.
Plaintiff asserted the
following claims or causes of actions against defendants:
1.
Violation of her civil rights under the Eighth
Amendment to the U.S. Constitution, having been
subjected to cruel and unusual punishment;
2.
Violation of her civil rights to due process and
equal protection under the Fourteenth Amendment;
3.
Libel, slander, and defamation of character;
4.
Intentional infliction of emotional distress;
5.
Medical malpractice;
6.
Negligence;
7.
Deliberate indifference to her serious medical
needs;
8.
“Tortious actions against her”;
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9.
Violation of her rights to due process of law
under the Fifth Amendment;
10.
Fraud upon the court;
11.
Violation of the Mental Health Bill of Rights; and
12.
False statements under the False Claims Act.
Defendants moved to dismiss the complaint for a host of reasons.
Plaintiff’s objections are largely conclusory and fail to
direct the court to a specific error in the PF&R.
For example,
in her objections, plaintiff
specifically objects to all paragraphs of the
Proposed Findings and Recommendations of the
Magistrate Judge as she has stated a valid claim
against these individuals and their employer. As
has been stated throughout the Complaint, the
Office of Internal Affairs was made aware of the
actions of the employees of Princeton Community
Hospital, and Behavioral Health Pavilion and
nothing in the record indicates that any actions
has [sic] been taken against the name[d]
employees. The Hospital and Pavilion do business
in the State of West Virginia and are bound by
the laws of this State that prohibit the
slanderous, libelous, and defamatory documents
submitted to a court of law that deprived the
Plaintiff of the income she was entitled to and
that was supported by the first OIC-WC1 that was
destroyed by Anita Waid, Kerry Musick, and Jenny
Stultz.
Objections at p.5.
The foregoing objection does not “direct the
court to a specific error in the magistrate's proposed findings
and recommendations,” Orpiano, 687 F.2d at 47, and for this
reason, this objection and others like it are OVERRULED.
3
With respect to plaintiff’s constitutional and claims
under 42 U.S.C. § 1983, Magistrate Judge Aboulhosn concluded that
there was “no factual or reasonable grounds supporting any theory
of liability against these Defendants.”
PF&R at p.9.
As
Magistrate Judge Aboulhosn noted, plaintiff does not allege nor
is there is any indication that the defendants named herein are
state actors.
Nowhere in her objections does plaintiff address
this aspect of the PF&R and, therefore, the constitutional and §
1983 claims are hereby DISMISSED.
As to plaintiff’s claims under the Mental Health Bill of
Rights, 42 U.S.C. §§ 9501 and 10841, the magistrate judge agreed
with defendants that these statutes did not create a private
right of action and that, therefore, those claims should be
dismissed.
See, e.g., Green v. Lichtcsien, No. 00 C 0563, 2001
WL 78915, *3 (N.D. Ill. Jan. 26, 2001) (and authorities cited
therein).
Once again, plaintiff fails to mention this aspect of
the PF&R.
Therefore, these claims are DISMISSED.
Magistrate Judge Aboulhosn also found that a number of
plaintiff’s claims were governed by the Medical Professional
Liability Act (“MPLA”).
Having so found, he recommended that the
court dismiss those claims for failure to comply with the
prerequisites to filing a cause of action under the MPLA.
In her
objections, plaintiff argues that she “is NOT complaining about
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the [medical] care she received” and that her “Complaint should
not be converted to a MPLA Complaint.”
Objections at pp. 2-3.
Notwithstanding plaintiff’s assertion to the contrary, it is
clear that any medical malpractice and/or negligence claim
arising out of her medical care would be governed by the MPLA.
Accordingly, her objection is OVERRULED and those counts are
dismissed.
To the extent her claim of “deliberate indifference
to her serious medical needs” was not grounded in alleged
violations of the United States Constitution and 42 U.S.C. §
1983--which claims have already been dismissed--it is likewise
DISMISSED.
With respect to plaintiff’s False Claims Act claims,
Magistrate Judge Aboulhosn recommended dismissal because those
claims did not comply with the heightened pleading requirements
governing such claims.
Plaintiff’s objections fail to address
the deficiencies noted by the magistrate judge with respect to
any claim under the False Claims Act and, therefore, those claims
are DISMISSED.
See United States ex rel. Wilson v. Kellogg Brown
& Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (“[A]n FCA
plaintiff must, at a minimum, describe the time, place and
contents of the false representations, as well as the identity of
5
the person making the misrepresentation and what he obtained
thereby.”) (internal quotations and citation omitted).1
Plaintiff also objects to the recommended dismissal of
her complaint for failure to properly serve defendants.
In her
objections, plaintiff argues that the court should have ordered
that service be effected by the United States Marshal Service.
However, as far as the court can tell, prior to the filing of her
objections, plaintiff never sought to have the U.S. Marshal serve
defendants.
Pursuant to Federal Rule of Civil Procedure 4(c)(3),
“[a]t the plaintiff’s request, the court may order that service
be made by a United States marshal or deputy marshal or by a
person specially appointed by the court.
The court must so order
if the plaintiff is authorized to proceed in forma pauperis under
28 U.S.C. § 1915. . . .”
On August 5, 2016, Magistrate Judge
Aboulhosn granted plaintiff’s application to proceed without
prepayment of fees and costs.
For this reason and because the
issue was first raised in plaintiff’s objections, the court
RECOMMITS this matter to Magistrate Judge Aboulhosn for
consideration of plaintiff’s belated request regarding service by
the U.S. Marshal.
1
Plaintiff’s complaint also does not specifically
mention or otherwise implicate that a false statement was made to
the federal government nor does it follow the procedure for
filing a qui tam action.
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Finally, Magistrate Judge Aboulhosn recommended that the
court grant defendants’ motion to dismiss defendants Gee and
Stultz based upon plaintiff’s failure to sufficiently plead
supporting facts or provide any plausible allegations of
misconduct which would entitle her to relief against these
defendants.
In her objections, plaintiff attempts to provide
further facts in support of her causes of action against these
defendants.
The court recognizes that the proper time for
plaintiff to have offered these further facts and/or arguments
would have been in responding to the motion to dismiss.
However,
given these additional allegations, the court RECOMMITS this
matter to Magistrate Judge Aboulhosn for reconsideration of
whether plaintiff’s additional allegations against Gee and Stultz
are sufficient under Twombly and Iqbal.
Based upon the foregoing, plaintiff’s objections are
SUSTAINED insofar as she argues that the court should order
service by the U.S. Marshal and asks for further consideration of
her claims against Gee and Stultz.
Her objections are OVERRULED
in all other respects and defendants’ motion to dismiss is
GRANTED in part and DENIED in part as stated herein.
This matter
is RECOMMITTED to Magistrate Judge Aboulhosn for the reasons
outlined in this Memorandum Opinion and Order.
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The Clerk is directed to send copies of this Memorandum
Opinion and Order to Magistrate Judge Aboulhosn, counsel of
record, and to plaintiff, pro se.
IT IS SO ORDERED this 21st day of July, 2017.
ENTER:
David A. Faber
Senior United States District Judge
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