Perkins v. Princeton Community Hospital, et al

Filing 38

MEMORANDUM OPINION AND ORDER: Plaintiff's 35 MOTION to Extend Time to File objections is GRANTED and the objections are deemed to be timely filed. Plaintiff's objections are OVERRULED and defendants' 16 MOTION to Dismiss is G RANTED. Insofar as plaintiff's objections seek to reargue issues decided by the court's earlier Memorandum Opinion and Order, those objections are OVERRULED. Signed by Senior Judge David A. Faber on 3/6/2018. (cc: Plaintiff, pro se; attys) (mk)

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 grant
defendants’ motion to dismiss.
that PF&R.

Plaintiff filed objections to

By Memorandum Opinion and Order entered on July 21,

2017, the court sustained plaintiff’s objections insofar as she
argued that the court should order service by the U.S. Marshal
and asked for further consideration of her claims against Gee and
Stultz.

To that end, the court ordered the matter recommitted to

Magistrate Judge Aboulhosn for consideration of those two issues.
Plaintiff’s objections were overruled in all other respects and
defendants’ motion to dismiss was granted in part and denied in
part.

Magistrate Judge Aboulhosn submitted his second PF&R to
the court on July 31, 2017, in which he recommended that the
court grant defendants’ motion to dismiss in all remaining
Plaintiff filed objections on August 15, 2017,1 and

aspects.

defendants responded to those objections on August 22, 2017.
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.

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.”
1982).

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.

With respect to plaintiff’s objections, where

appropriate, the court has conducted a de novo review.
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, she became

1

Plaintiff’s motion for an extension of time to file
objections (ECF No. 35) is hereby GRANTED and the objections are
deemed to be timely filed.
2

suicidal and, on or about March 27, 2015, she was admitted to the
Princeton Community Hospital, Behavioral Health Pavilion (“BHP”),
See ECF No. 2 at p.2.

While a

patient, plaintiff was under the care of Anita Waid.

See id.

for approximately seven days.

Upon admission to the BHP, plaintiff alleges that she filled out
an OIC-WCI for Worker’s Compensation.

Thereafter, on or about

April 3, 2015, Jenny Stultz, a receptionist, brought plaintiff a
second OIC-WCI, explaining that the first one was destroyed
because it had been signed by Anita Waid who would not be working
there much longer.

See id. at p.3.

According to plaintiff,

Stultz told her that Dr. Kerry Musick needed to be the one to
sign the form.

See id.

Stultz allegedly also told Perkins “so

you’re going to sue your Employer.”

Id.

The second form was

signed by Dr. Musick who, according to plaintiff, never examined
or treated her.

See id.

Plaintiff alleges that the second OCI-WCI and her
discharge summary were “replete with false and misleading
assertions.” that caused her claim for workers’ compensation
benefits to be denied.

Id.

After plaintiff complained, on or

about October 19, 2015, Dr. Musick submitted an addendum to the
discharge summary retracting the assertions that plaintiff had
tested positive for cocaine on a drug screen and that she had
admitted to cocaine use approximately one week prior to
admission.

See id. at p.4.

On or about March 2016, Dr. Jeffrey
3

T. Gee, the medical director at BHP, issued another addendum
which, in essence, stated that the discharge summary overstated
her issues with alcohol abuse.

See ECF No. 3.

Named as defendants in this lawsuit are: Princeton
Community Hospital, Behavioral Health Pavillion, Dr. Musick,
Anita Waid, Dr. Gee, and Jenny Stultz.

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”;

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.

4

Defendants moved to dismiss the complaint for a host of reasons
and, with the exceptions noted above, that motion was largely
granted.
With respect to the directive that he consider
plaintiff’s belated request for service by the U.S. Marshal,
Magistrate Judge Aboulhosn noted that he had failed to screen
plaintiff’s complaint, pursuant to 28 U.S.C. § 1915.
p.1 (ECF No. 34).

See PF&R at

He further acknowledged that, having granted

plaintiff’s application to proceed in forma pauperis, he should
have ordered the U.S. Marshal to serve her complaint and,
therefore, the recommended dismissal for failure to properly
serve defendants was erroneous.

See id. at p.4.

However, the

magistrate judge noted that, pursuant to 28 U.S.C. § 1915(e)(2),
“the court shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous or malicious.
. . [or] fails to state a claim on which relief may be granted.”
See id.

Therefore, after considering the additional allegations

against defendants Gee and Stultz, the magistrate judge
recommended dismissal of the complaint because plaintiff “failed
to sufficiently plead supporting facts or any `plausible’
allegations of misconduct that would entitle her to relief to
survive Twombly and Iqbal.”

See id. at p.5.

Plaintiff objects to the recommended dismissal of her
complaint.

However, upon review of the record, the court agrees
5

with Magistrate Judge Aboulhosn that plaintiff has failed to
state a claim on which relief may be granted.
Viewing plaintiff’s claims against Jenny Stultz
liberally, she appears to argue, in wholly conclusory fashion,
that Stultz conspired with the other individual defendants to
make the slanderous, libelous, and defamatory statements
contained in the discharge summary.
supporting plaintiff’s argument.2

However, there are no facts

Indeed, there is nothing in

any of plaintiff’s filings from which the court can infer any
actionable misconduct on the part of defendant Stultz.3
With respect to Dr. Gee, the allegations likewise do not
state a claim upon which relief can be granted.

According to

Perkins, Dr. Musick filled out an erroneous discharge summary.
After she complained, Dr. Musick filed an addendum to that
discharge summary to correct the information with respect to
2

For example, plaintiff states: “It should be noted that
Jenny Stultz knew this second summary was false, misleading, and
contained the complained of language as she brought out BOTH
forms).” Objections at p. 2. (ECF No. 36). However, this is
exactly the type of conclusory allegation that fails to satisfy
Twombly and Iqbal. Even if the court can infer that Stultz read
the discharge summaries, plaintiff fails to explain how, as a
receptionist, Jenny Stultz should have known or was charged with
knowing exactly what medical care plaintiff received and which
version of the discharge summary was correct. In other words,
her claims as to Stultz are simply implausible.
3

Furthermore, any claims for slander, libel, and
defamation as to the discharge summary are likely barred by the
one-year statute of limitations applicable to such claims. See
W. Va. Code § 55–2–12(c).
6

cocaine usage.
addendum.

After further complaints, Dr. Gee filed a second

According to plaintiff, Dr. Gee’s wrongdoing amounts

to not amending the discharge summary in a greater fashion and
his failure to “report” Dr. Musick for signing a false discharge
summary.

Perkins alleges that Dr. Gee’s conduct is a violation

of 42 U.S.C. § 1986.

42 U.S.C. § 1986 authorizes a remedy

against state actors who have negligently failed to prevent a
conspiracy that would be actionable under Section 1985.

However,

as the Memorandum Opinion and Order of July 21, 2017, pointed
out: there is no “indication that the defendants named herein are
state actors.”

ECF No. 33 at p.4.

Simply put, plaintiff has

failed to sufficiently plead supporting facts or provide any
plausible allegations of misconduct which would entitle her to
relief against Dr. Gee.
Based upon the foregoing, plaintiff’s objections are
OVERRULED and defendants’ motion to dismiss is GRANTED.4
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record, and to plaintiff, pro se.
IT IS SO ORDERED this 6th day of March, 2018.
ENTER:
David A. Faber
Senior United States District Judge
4

Insofar as plaintiff’s objections seek to reargue
issues decided by the court’s earlier Memorandum Opinion and
Order, those objections are OVERRULED.
7