Chance v. Spears et al
Filing
155
MEMORANDUM OPINION AND ORDER; the court overrules plaintiff's objections to 146 Proposed Findings and Recommendation by Magistrate Judge; adopting the 146 Proposed Findings and Recommendation by Magistrate Judge; further directing that th e 131 MOTION by Subhash Gajendragadkar, Pilar Obenza, Ebenezer Obenza, Wexford Health Sources, Inc. for Summary Judgment is granted; the 133 MOTION by Pilar Obenza, Ebenezer Obenza for Summary Judgment for the Period of October 7, 2006 to May 1, 2008 is granted, and the 136 MOTION by David Ballard, Jim Rubenstein, Charlene Sotak for Summary Judgment is granted. This matter is dismissed from the court's active docket. Signed by Judge David A. Faber on 6/12/2012. (cc: attys; any unrepresented party) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTEHRN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KENNETH EDWARD CHANCE, JR.,
Plaintiff,
v.
Civil Action No. 2:08-01156
JIM RUBENSTEIN, Commissioner, West Virginia
Division of Corrections; CHARLENE SOTAK,
Inmate Grievance Coordinator,
West Virginia Division of Corrections;
DAVID BALLARD, Warden,
Mount Olive Correctional Complex;
WEST VIRGINIA DIVISION OF PURCHASING,
WEXFORD HEALTH SOURCES, INC.,
PILAR OBENZA, as Executrix and
Personal Representative of
the Estate of DR. EBENEZER OBENZA, M.D.;
and DR. SUHBASH GAJENDRGADKAR, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court are the following motions:
a
Motion for Summary Judgment filed by defendants Wexford Health
Sources, Inc., Dr. Subhash Gajendragadkar, and Pilar Obenza, as
Executrix and Personal Representative of the Estate of Dr.
Ebenezer Obenza (Doc. No. 131), a Motion for Summary Judgment
filed on behalf of the Estate of Dr. Ebenezer Obenza for the
Period of October 7, 2006 to May 1, 2008 (Doc. No. 133), and a
Motion for Summary Judgment filed by defendants Jim Rubenstein,
Charlene Sotak, and David Ballard (Doc. No. 136).
By Standing
Order, this action was referred to United States Magistrate
-1-
Judge Mary E. Stanley for submission of findings and
recommendation regarding disposition pursuant to 28 U.S.C. §
636(b)(1)(B).
Magistrate Judge Stanley submitted to the court
her Findings and Recommendation on September 16, 2011, in which
she recommended that the Defendants’ motions for summary
judgment be granted.
(Doc. No. 146).
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
Stanley’s Findings and Recommendation.
The failure of any party
to file such objections within the time allotted constitutes a
waiver of such party’s right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).
On September 27, 2011, the Plaintiff timely filed his pro
se objections to the Proposed Findings and Recommendation
(“PF&R”) of the Magistrate Judge.
(Doc. No. 147).
The court
has reviewed de novo those portions of the PF&R to which the
Movant objects and FINDS that the objections lack merit.
Accordingly, the court ADOPTS and incorporates herein the
Magistrate Judge’s PF&R.1
There being no objection, the court adopts the findings of fact
and procedural history from the PF&R in whole. (Doc. No. 146,
pp. 2-8).
1
-2-
THE PLAINTIFF’S OBJECTIONS
Objection I.
The Plaintiff asserts that Magistrate Judge Stanley has
“either misinterpreted or misstated Plaintiff’s statements
within his Response to the Summary Judgment motions.”
147 at p.1).
(Doc. No.
“Plaintiff objects to the [Magistrate Judge’s]
statements on p. 19, wherein the [Magistrate Judge] states:
‘The plaintiff then suggests a completely new hypothesis for his
symptoms:
he suggests that he may be suffering from chronic
kidney failure, and points out that he only has one kidney,
after losing his right kidney to cancer at the age of seven.’”
(Id.).
The Plaintiff argues that Magistrate Judge Stanley has
mischaracterized his factual statements in his Response to the
summary judgment motions as a “new hypothesis.”
The Plaintiff
argues instead that he was attempting to show the court the
seriousness of his condition with regards to his urinary
blockage.
The Plaintiff’s objection is without merit.
As the
Magistrate Judge points out, this court has already determined
that “the conditions at issue – manifested by inability to
urinate followed by loss of bladder control, chronic severe
pains, shooting pains and numbness – are objectively serious
medical problems by Eighth Amendment standards.”
at p. 9; see also Doc. No. 146 at p. 13).
-3-
(Doc. No. 68
Therefore,
Plaintiff’s statement “[t]his is not a new hypothesis for
Plaintiff’s symptoms, but rather clearly, unequivocally
establishes how serious urinary tracts blockage can be to the
body” (Doc. No. 147 at p. 1, punctuation changed from original)
is not really an objection at all.
The Magistrate Judge, as
well as this court, have previously recognized that the medical
problems the Plaintiff complains of are serious.
at p.9).
(Doc. No. 68
The court therefore OVERRULES the Plaintiff’s first
objection.
Objection II.
The Plaintiff next makes a series of factual assertions,
which have been consolidated for the purposes of this Order.
In
short, the Plaintiff has brought forth “new evidence” by
reciting conversations he had during recent medical
examinations.
(See Doc. No. 147 at pp. 2-4).
The Plaintiff’s
main objection seems to be that he has not yet been diagnosed.
Thus, he states, his treatment cannot have been proper.
The
Plaintiff argues that summary judgment should be denied “to
allow the matter to proceed until applicable defendants cause a
diagnosis to be found and treatment for those specified serious
medical conditions by whatever medical professionals are
needed.”
(Doc. No.
147 at p. 5).
The Plaintiff’s allegations that he has not yet been
diagnosed amounts to a disagreement with his doctors over his
-4-
diagnosis and the proper course of treatment.
It is well
settled that disagreements between a health care provider and an
inmate over a diagnosis and the proper course of treatment are
not sufficient to support a deliberate indifference claim, and
questions of medical judgment are not subject to judicial
review.
Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985);
Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).
An
inmate is not entitled to unqualified access to health care and
treatment may be limited to what is medically necessary and not
that “which may be considered merely desirable” to the inmate.
Bowring v. Godwin, 551 F.2d 44, 47-48 (4th Cir. 1977).
The court finds that Mr. Chance has received care that is
more than adequate, and any evidence he raises is simply a
disagreement between the inmate and his health care providers
over his diagnosis and the proper course of treatment.
The
complaints raised by Mr. Chance and his “new evidence” do not
approach the level of a constitutional violation that is
required to sustain an Eighth Amendment violation.
As the
Defendants point out, if anything, Mr. Chance’s new evidence
shows that “his medical conditions and symptoms have been taken
seriously by the medical care providers at the correctional
facility.”
(Doc. No. 150 at p. 2).
Nor would it be proper for
this court to, as the Plaintiff suggests, delay summary judgment
until doctors at the correctional facility find a diagnosis with
-5-
which the Plaintiff agrees.
For these reasons, the Plaintiff’s
second objection relating to his diagnosis is OVERRULED.
Objection III.
Finally, the Plaintiff asserts a series of factual
statements which include a statement of his current medical
condition and conversations with a different doctor at the
correctional facility.
(See Doc. No. 147 at pp. 2-4).
The
Plaintiff’s objection is general and conclusory, and is not
entitled to a de novo review by this court.
“[T]his 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.’”
Ashworth v. Berkebile, No. 5:09-cv-01106,
2010 U.S. Dist. LEXIS 138413, at *6-7 (S.D.W. Va. Dec. 27, 2010)
(citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
The Plaintiff has failed to point the undersigned to any
specific errors in the Magistrate Judge’s PF&R.
For this
reason, the court OVERRULES the remaining statements in the
Plaintiff’s Objections, and finds that they lack merit.
CONCLUSION
For the reasons set forth above, the court OVERRULES the
Plaintiff’s objections to Magistrate Judge’s PF&R, ADOPTS the
Magistrate Judge’s findings and recommendations (Doc. No. 146),
and ORDERS as follows:
-6-
1) Defendants’ Wexford Health Sources, Inc., Dr. Subhash
Gajendragadkar, and Pilar Obenza, as Executrix and Personal
Representative of the Estate of Dr. Ebenezer Obenza Motion
for Summary Judgment (Doc. No. 131) is GRANTED;
2) Defendant Dr. Ebenezer Obenza’s Motion for Summary Judgment
for the period of October 7, 2006 to May 1, 2008 (Doc. No.
133) is GRANTED;
3) Defedants’ Jim Rubenstein, Charlene Sotak, and David
Ballard’s Motion for Summary Judgment (Doc. No. 136) is
GRANTED; and
4) This matter is DISMISSED from the court’s active docket.
The Clerk is directed to forward copies of this Memorandum
Opinion and Order to Plaintiff, pro se, and counsel of record.
IT IS SO ORDERED on this 12th day of June, 2012.
ENTER:
David A. Faber
Senior United States District Judge
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?