George et al v. Kanawha County Sheriffs Dept. et al

Filing 121

MEMORANDUM OPINION AND ORDER adopting and incorporating in their entirety the magistrate judge's 105 first, 106 second and 111 third Proposed Findings and Recommendation; granting J. M. Vernon's 62 Motion to dismiss, granting the ja il employees' 78 motion to dismiss, and granting the nurses' 80 motion for summary judgment; defendants Nicholas Frye, Terry Mitchell, Stephanie Rhodes, Sherry Queen, Michelle Harrison, Misty Garbin, and Aaron Meadows are dismissed; the amended complaint is dismissed; and the claims remaining in the original complaint against defendants the Kanawha County Sheriff's Department, Sheriff Mike Rutherford, Deputy J. M. Vernon, and Officer Dick Coll are referred anew to the magistrate judge for further proceedings in accordance with the 3/11/2008 standing order. Signed by Judge John T. Copenhaver, Jr. on 1/27/2010. (cc: pro se plaintiffs; attys; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON DAVID A. GEORGE and TINA N. GEORGE, Plaintiffs, v. Civil Action No. 2:08-0141

KANAWHA COUNTY SHERIFF'S DEPARTMENT and SHERIFF MIKE RUTHERFORD and OFFICER J. M. VERNON and OFFICER DICK COLL and NICHOLAS FRYE and TERRY MITCHELL and STEPHANIE RHODES and SHERRY QUEEN MICHELLE HARRISON and MISTY GARBIN and AARON MEADOWS, Defendants MEMORANDUM OPINION AND ORDER

Pending are defendant J. M. Vernon's motion to dismiss the amended complaint ("Vernon motion to dismiss"), filed March 2, 2009, the motion to dismiss the amended complaint filed by defendants Nicholas Frye, Terry Mitchell, and Stephanie Rhodes ("jail employees' motion to dismiss"), filed March 26, 2009, and the motion to dismiss, or in the alternative, for summary judgment, as to the amended complaint, filed by defendants Sherry Queen, Michelle Harrison, Misty Garbin, and Aaron Meadows ("nurses' motion for summary judgment"), on March 31, 2009.

This action was previously referred to Mary E. Stanley, United States Magistrate Judge, who has submitted her Proposed

Findings and Recommendations ("PF&R") pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). The magistrate judge has filed

three PF&Rs, two filed on October 21, 2009, and the third filed November 9, 2009.

The court has reviewed the PF&Rs entered by the magistrate judge on the aforementioned dates. The first PF&R

entered on October 21, 2009, addresses the Vernon motion to dismiss. The magistrate judge concludes therein that plaintiffs

have failed to demonstrate that Deputy Vernon was deliberately indifferent to plaintiff Tina George's serious medical needs. The magistrate judge recommends that the court find that Deputy Vernon is entitled to qualified immunity for his failure to document that Ms. George advised him at the time he arrested her that she had a seizure disorder medical condition. Shortly

thereafter, at the time of booking, Ms. George herself so advised the booking clerks, following which she apparently had a seizure approximately 24 hours later.

The magistrate judge further recommends that the court find that there is no legal basis for the inclusion of any claims in the amended complaint for plaintiff David George related to Deputy Vernon. Based upon these recommendations, the magistrate

judge recommends that the Vernon motion be granted respecting the 2

amended complaint, but that he remain a defendant as to the allegations against him in the original complaint.

The second PF&R entered October 21, 2009, addresses the jail employees' motion to dismiss on a similar basis. The

magistrate judge concludes therein that plaintiffs have failed to allege in the amended complaint, and thus failed to state a claim, that the jail employees, who, in keeping with their duties, merely recorded, based on her assertion, that she had a seizure disorder, violated Ms. George's Fourteenth Amendment rights by breaching the applicable deliberate indifference standard. The magistrate judge further recommends that the court

find that there is no legal basis for the inclusion of any claims in the amended complaint for plaintiff David George related to the jail employees. Based upon these recommendations, the

magistrate judge recommends that the jail employees' motion to dismiss be granted with prejudice.

The third PF&R addresses the nurses' motion for summary judgment. The magistrate judge concludes therein that the

undisputed facts, taken in the light most favorable to Ms. George, again fail to demonstrate that nurses Queen, Harrison, Garbin, and Meadows were deliberately indifferent to Ms. George's serious medical needs or that their oversight relating to any such needs resulted in any serious harm to Ms. George. 3 The

magistrate judge further recommends that nurses Queen, Harrison, Garbin, and Meadows receive qualified immunity regarding their care of Ms. George during her incarceration. The magistrate

judge additionally recommends that the court find that there is no legal basis for the inclusion of any claims in the amended complaint for plaintiff David George related to nurses Queen, Harrison, Garbin, and Meadows. Based upon these recommendations,

the magistrate judge recommends that the portion of the nurses' motion for summary judgment that seeks summary judgment be granted and that the remainder of the same motion seeking dismissal pursuant to Rule 12(b)(6) be denied as moot.

On October 27, 2009, the Georges filed objections to the first and second PF&Rs. On November 18, 2009, the Georges The objections do not

filed objections to the third PF&R.

overcome the magistrate judge's analysis respecting why the amended complaint does not meet the demanding deliberate indifference threshold. are the most substantial. The objections filed November 18, 2009, Despite their girth, the evidence and

allegations found therein do not raise a genuine issue of material fact on the question of deliberate indifference.

As noted by the magistrate judge, the nurses provided immediate medical attention during Ms. George's seizure activity and Ms. George did not sustain a serious injury during her 4

incarceration.

While Ms. George was not immediately provided the

medications designed to abate her seizure activity, efforts were undertaken to ascertain the nature of the medications and they were thereupon provided to her at a delayed, though reasonably seasonable, time. Again, the Georges' allegations amount to, at

most, a showing of negligence that does not satisfy the governing Fourteenth Amendment standard.

Inasmuch as the objections are not meritorious, and following a de novo review, the court concludes that the recommended disposition is correct. ORDERS as follows: 1. That the magistrate judge's first, second, and third PF&Rs be, and they hereby are, adopted and incorporated herein in their entirety; The court, accordingly,

2.

That the Vernon motion to dismiss, the jail employees' motion to dismiss, and the nurses' motion for summary judgment be, and they hereby are, granted;

3.

That defendants Nicholas Frye, Terry Mitchell, Stephanie Rhodes, Sherry Queen, Michelle Harrison, Misty Garbin, and Aaron Meadows be, and they hereby are, dismissed.

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4.

That the amended complaint be, and it hereby is, dismissed; and

5.

That the claims remaining in the original complaint against defendants the Kanawha County Sheriff's Department, Sheriff Mike Rutherford, Deputy J. M. Vernon, and Officer Dick Coll be, and they hereby are, referred anew to the magistrate judge for further proceedings in accordance with the March 11, 2008, standing order.

The Clerk is directed to forward copies of this written opinion and order to counsel of record, the pro se plaintiffs, and the United States Magistrate Judge. DATED: January 27, 2010 John T. Copenhaver, Jr. United States District Judge

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