Eads v. Wexford Health Sources et al

Filing 41

PROPOSED FINDINGS AND RECOMMENDATION (recommending that the presiding District Judge GRANT the 26 Motion by David Ballard, Adrian Hoke and Jim Rubenstein to Dismiss; DISMISS the allegations in the Amended Complaint against defendants Grover Rosencr ance and Charlene Sotak; DENY the 28 MOTION by Suhbash Gajendragakar, David Proctor, Tristan Tenney, Wexford Health Sources to Dismiss Complaint and leave this matter referred to the undersigned United States Magistrate Judge for additional proceed ings concerning the claims in the Amended Complaint against those defendants and defendants Dameff and Lauder and deny Plaintiff's request for injunctive relief, without prejudice); Objections to Proposed F&R due by 2/14/2011. Signed by Magistrate Judge Mary E. Stanley on 1/28/2011. (cc: Plaintiff, attys) (tmh) (Modified on 1/31/2011 to add text regarding the #26 motion and the allegations in the amended complaint against Rosencrance and Sotak) (skh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

JONATHAN D. EADS,
Plaintiff,
v.

Case No. 2:10-cv-00136

WEXFORD HEALTH SOURCES,
SUBHASH GAJENDRAGADKAR,
DAVID PROCTOR, TRISTAN TENNEY,
DAVID BALLARD, ADRIAN HOKE,
JIM RUBENSTEIN, EMIL A. DAMEFF,
KIMBERLY LAUDER, GROVER ROSENCRANCE,
and CHARLENE SOTAK, each individually
and in their official capacities,
Defendants.

PROPOSED FINDINGS AND RECOMMENDATION
On February 10, 2010, Plaintiff filed a Complaint under 42
U.S.C. § 1983, asserting that the defendants have violated his
right to receive adequate medical treatment, as guaranteed by the
Eighth Amendment to the United States Constitution, while he has
been incarcerated at two different West Virginia Division of
Corrections facilities.

(Docket sheet document # 2).

This matter

is assigned to the Honorable Joseph R. Goodwin, Chief United States
District Judge, and it is referred to the undersigned United States
Magistrate

Judge

recommendation
636(b)(1)(B).

for

for

submission
disposition,

of

proposed

pursuant

to

findings
28

and

a

U.S.C.

§

The original Complaint drew the pending Motions to Dismiss (##
26 and 28).

Subsequent to the filing of the Motions to Dismiss,

however, Plaintiff moved for leave to file an Amended Complaint,
which is a more detailed version of his original Complaint and adds
four additional defendants (# 33).

On January 27, 2011, the

undersigned granted Plaintiff leave to file his Amended Complaint
(# 39).
This Proposed Findings and Recommendation will address the
pending Motions to Dismiss filed by the defendants named in the
original Complaint.
undersigned

will

However, pursuant to 28 U.S.C. § 1915A, the

also

conduct

an

initial

screening

of

the

allegations in the Amended Complaint, which incorporates the four
new defendants.
PLAINTIFF’S ALLEGATIONS AND REQUEST FOR RELIEF
The following summary of Plaintiff’s allegations is derived
from the Amended Complaint, which as noted above, is a more
detailed version of his original Complaint1:
From approximately September of 2007 until November 5, 2009,
Plaintiff

was

housed

at

the

Huttonsville

1

Correctional

Center

It is apparent that Plaintiff drafted his Amended Complaint
after receiving his medical records which were attached as exhibits
to the Motion to Dismiss filed by defendants Wexford Health
Sources, Gajendragadkar, Proctor and Tenney (hereinafter “the
Wexford Defendants”) (# 29). To avoid confusion, the undersigned
will reference only the paragraphs in the Amended Complaint and not
the page citation to the medical records, which Plaintiff has
included in each paragraph of the Amended Complaint.
2

(“HCC”).2

While

at

HCC,

Plaintiff

developed

discoloration around his testicular area.

swelling

and

(# 40, ¶ 19-20).

Plaintiff alleges that he was in severe pain and had difficulty
urinating and breathing.

(Id., ¶ 20).

On or about September 29, 2008, Plaintiff filed a request for
medical services seeking an examination of his testicular condition
by Dr. David Proctor, the facility’s primary care physician. (Id.,
¶ 21).

On October 1, 2008, Plaintiff was evaluated by defendant

Tristan Tenney, the Health Services Administrator at HCC, who
documented that Plaintiff complained of a swollen testicle, which
he

claimed

to

have

had

for

two

to

three

months

and

that

“[s]ometimes it gets worse.” (Id., ¶ 22). Tenney further observed
that Plaintiff’s “left testicle is much larger and asymmetrical
[sic] with right,” recorded that the plaintiff complained of
“tenderness to touch,” and personally observed that the plaintiff
had a “large, linear area above testicle. [A]rea is ‘squishy.’”
(Id.)
Plaintiff was seen by a physician on or about October 13,
2008,

where

the

same

observation

2

of

a

swollen

testicle

was

HCC is located within the jurisdiction of the United States
District Court for the Northern District of West Virginia. Because
Plaintiff was incarcerated at the Mount Olive Correctional Complex
(“MOCC”), which is within this court’s jurisdiction, during the
latter time frame of Plaintiff’s Complaint, and because Plaintiff
has made allegations concerning a continuing medical condition
against the Wexford Defendants and the Commissioner, the
undersigned will address all of Plaintiff’s allegations.
3

observed.

(Id., ¶ 23).

Plaintiff’s Amended Complaint contains no

allegations about his condition or any treatment received between
October 13, 2008 and June 4, 2009.
According to the Amended Complaint, on or about June 4, 2009,
Plaintiff requested another examination by Wexford personnel, and
he reported that “[t]here is something wrong with my left testicle.
I’ve seen the doctor about it and they said it was normal but I’m
starting to get sharp pains up in my abdomen and into my penis.
can’t stand up for two minutes without having pain.”

I

(Id., ¶ 24).

Plaintiff further states that, around 10:00 a.m. on June 7,
2009, he went to the medical unit and said that his pain was
“unbelievable.” He was advised that an appointment with the doctor
was scheduled for June 12, 2009.

(Id., ¶ 25).

Later that same day, Plaintiff said his pain became so
intolerable that he returned to the medical unit, at which time he
stated, “My sack [sic] is black.

When I breath [sic] in it feels

like someone just kicked me in the nuts.
¶ 26).

I can’t even walk.” (Id.,

It was further documented that the plaintiff’s left

“testical [sic; testicle] dipped farther than the right” and that
veins in the region were “dark.” (Id.)

Plaintiff stated that he

could not wait until June 12th to see a doctor and that something
more needed to be done to help him cope with his “chronic pain.”
(Id.)

4

On June 8, 2009, Plaintiff returned to the medical unit, where
he was seen by a nurse.
a scale of 1 to 10.

He told the nurse that his pain was 8.5 on

At that time, Plaintiff had been taking 800 mg

of Motrin. (Id., ¶ 27). Plaintiff’s Amended Complaint states that
he

informed

the

medical

personnel

that

he

had

“a

appointment Friday, but I need something for the pain.
800 mg is not helping the pain.

[doctor]

The Motrin

When I breath [sic] it feels like

someone is kicking me down there.

I’m getting sharp pains right

here - pointing to [left] lower abdomen.”

(Id.)

That same date, Plaintiff filed an administrative grievance
(No. B2-HCC-B2-199) stating that he was experiencing “excruciating”
pain and discomfort, and pleading for relief. The grievance stated
in part:
I am being neglected medical attention. I have followed
all procedures and I[‘]m still being neglected and
deprived. I have orally [complained] and written about
my [testicle] problems and the pain and discomfort it
[is] causing. I have seen the doctor, Oct[.] of last
year.
He stated he can[‘]t help me.
This is a[n]
outside matter, that[] needs attention ASAP.
I am
struggling with [pain] and discomfort, and [it is]
causing problems with my breathing and urinating (id., at
2).
(Id., ¶ 28).
Plaintiff’s grievance was received on June 9, 2009, and on
June 10, 2009, defendant Tenney responded, and Plaintiff received
the response on June 11, 2009.

(Id., ¶ 29).

Plaintiff’s Amended

Complaint does not state what Tenney’s response was, but the
grievance was attached to the Motion to Dismiss filed by the
5

medical defendants.

Tenney’s response was:

Mr. Eads,
You have been examined and have had your problem
explained to you. You have, according to the chart, a
benign varicocele, which is simple [sic; simply] a
varicose vain [sic; vein] of the testicle.
Normal
treatment of these common problems is to use a jock
strap, reduce sports and weight lifting, and take
tylenol, motrin, etc. when needed. The access to care
you are describing works perfectly, as you have seen the
nurses several times and physician; proving that no care
was ommitted [sic; omitted] and all problems are being
addressed.
(# 29 at 3).
Plaintiff

appealed

Tenney’s

response,

which

he

claims

consciously disregarded his severe pain, to the Warden (defendant
Hoke).

Although the grievance was stamped “received” on June 12,

2009, it apparently was mis-filed, and Plaintiff did not receive a
response until July 1, 2009. The grievance was denied on that date
by defendant Grover Rosencrance, Deputy Warden at HCC, who signed
off on the grievance for defendant Hoke.

(# 29 at 4).

Plaintiff

alleges that the grievance was denied without having conducted an
investigation.

(# 40, ¶ 30).

Plaintiff then appealed the grievance to the Commissioner,
defendant

Rubenstein.

The

grievance

was

denied

for

the

Commissioner by defendant Charlene Sotak, the Inmate Grievance
Coordinator,
Plaintiff

by

memorandum

alleges

that

investigation.

dated

this

November

denial

(Id., ¶ 31).

6

was

3,

2009.

made

Again,

without

any

In the meantime, on June 10, 2009, Plaintiff returned to the
medical unit to again complain about his testicular pain.

(Id., ¶

32). According to Plaintiff’s Amended Complaint, on that date, the
medical records noted that he was still having pain, that “starts
under umbilicus to the [left] quadrant and radiates from groin area
to left testicle and left thigh.”

(Id.)

Plaintiff described his

pain as 8½ out of 10 and stated that his left testicle sometimes
turns purple.
The

(Id.)

Amended

Complaint

contains

no

allegations

about

Plaintiff’s condition or medical treatment between June 10, 2009
and October 29, 2009.

On October 29, 2009, a progress note

documented that Plaintiff’s “pain has gradually gotten worse over
several months” and that plaintiff rated the severity of his pain
at “9 sometimes 10.”

Plaintiff requested “medication for pain as

well as an appointment with the physician.”

(Id., ¶ 33).

Plaintiff was seen by a doctor on October 28, 2009.
34).

(Id., ¶

The Amended Complaint does not allege what happened during

that examination or which physician he saw.

Plaintiff completed

another medical request on November 1, 2009.

(Id., ¶ 35).

However, on November 5, 2009, Plaintiff was transferred to MOCC.
(Id., ¶ 36).
On November 13, 2009, Plaintiff completed a request to see
medical personnel at MOCC about his testicle.

(Id., ¶ 37).

Plaintiff sent another request on November 14, 2009.

7

(Id., ¶ 38).

The Amended Complaint states that, on November 23, 2009,
Plaintiff sent another medical request stating that he was “in a
lot of pain” and needed to be seen quickly.

(Id., ¶ 41).

Plaintiff states that the response section of this medical request
documented that Plaintiff’s condition warranted urgent doctor sick
call.

(Id.)

Plaintiff’s Amended Complaint further states that, despite
repeated requests to see a doctor, and the acknowledgment that the
condition warranted urgent attention, he was not actually seen
until December 7, 2009.

(Id., ¶¶ 40-43).

At that time, Plaintiff

reported to the evaluating nurse that he continued to experience
pain and swelling on the left side of his testicles and it was
noted that his left testicle was enlarged.

(Id.)

On or about December 10, 2009, Plaintiff filed a grievance,
No. 09-MOCC-PA-230, directed to his unit manager.

The grievance

stated:
For more than a year now, I have been suffering daily
extreme pain in my left testical [sic; testicle], which
is swollen and discolored. The doctor at Huttonsville
diagnosed it as a varicose vein, but the doctor at MOCC
disagrees.
Whatever the cause, I need to see a
specialist immediately to determine the cause of this
condition and treatment to relieve this terrible pain.
(Id., ¶ 44).

However, on December 10, 2009, the same date that he

filed his grievance, Plaintiff was seen by the doctor at MOCC.

At

that time, it was documented that Plaintiff’s pain and swelling in
the testicle area became “worse after standing up for a while and

8

walking/activity.”

(Id., ¶ 48).

On or about December 15, 2009, Plaintiff received a response
to his grievance from his unit manager which stated, “You will be
seen

by

the

referral.
that.”

regional

doctor

to

be

evaluated

for

an

offsite

If necessary, an appointment will be scheduled after

(Id., ¶ 45).

On January 11, 2010, Plaintiff received a

response from the Warden to his appeal of the decision on his
grievance.

Warden Ballard granted the grievance to the extent

specified in the initial response.

Plaintiff alleges that this

decision was made without any investigation as to why Plaintiff was
allowed to suffer in constant extreme pain for more than a year.
(Id., ¶ 46).

Plaintiff further alleges that, on February 2, 2010,

his appeal to the Commissioner was also summarily affirmed by
Charlene Sotak without investigation.

(Id., ¶ 47).

Plaintiff was next seen on January 6, 2010.

Plaintiff

reported that it “feels like somebody constantly kicking me in my
privates - Veins on left side of my sack [sic] keep swelling Onset about a year and a half - Once on my feet for a while, I have
knots in my sack [sic].”

(Id., ¶ 49).

Plaintiff was again seen in medical on January 12, 2010.
(Id., ¶ 50).
gotten

worse,

Plaintiff reported that the pain had progressively
and

described

the

pain

as

a

10

out

of

10.

Plaintiff’s left testicle was again observed to be bigger than the
right, and it was extremely tender.

9

(Id.)

On or about January 19, 2010, Plaintiff was referred off-site
for an ultrasound at Montgomery General Hospital.

The ultrasound

report, prepared by a radiologist, Dr. Samuel Davis, indicated that
“[t]here is a 2.0 mm diameter cyst at the head of the left
epididymis,” and a “[p]rominent vericocele [footnote omitted]... on
the left.”

Plaintiff was diagnosed with “severe pain” in and

around his “left testicle.”

(Id., ¶ 51).

Plaintiff alleges that,

during his examination, he was advised that “something need[ed] to
be done” about the condition.

(Id.)

On January 21, 2010, Plaintiff returned to the medical unit at
MOCC and stated that the prescribed treatment of ice, aspirin and
anti-inflammatory medication was not working to treat his “constant
pain.”

(Id., ¶ 52).

On January 22, 2010, Plaintiff consulted with a physician’s
assistant, who acknowledged the results of the ultrasound, and
despite his acknowledgment that Plaintiff was experiencing genuine
pain, he continued Plaintiff’s course of treatment.

(Id., ¶ 53).

Plaintiff further alleges that, from approximately January 18, 2010
to January 25, 2010, his pain was so severe that he could not walk
and was prevented from going to the dining hall to receive his
meals.

(Id., ¶ 54).

On January 25, 2010, Plaintiff returned to the medical unit
and informed defendant Kimberly Lauder that the treatment he was
receiving was not helping and that he was having trouble urinating

10

because of his condition.
infirmary for observation.

Plaintiff was placed into the prison’s
(Id., ¶ 55).

On January 27, 2010, Plaintiff was seen by defendant Dameff
and was allegedly told that “no intervention is needed at this
time.”

(Id., ¶ 56).

A subsequent entry in his medical records,

however, indicates that, when Plaintiff was released from the
infirmary to the general population, “distress [was] noted.” (Id.)
Plaintiff again reported his continued severe pain to the
medical staff on February 10, 2010.

Plaintiff’s Amended Complaint

further states:
After officials had refused to provide surgery or any
other means of remedying the actual cause of the pain, it
was clear that the only recourse remaining available to
the plaintiff was medication which, he hoped, would at
least mitigate the symptomatic pain.
The healthcare
personnel observed that the plaintiff was “walking [with]
one leg stiff” and reported that he was experiencing
“constant sharp pain in testicles,” and referred the
plaintiff again to the physician’s assistant.
(Id., ¶ 57).
Plaintiff’s Amended Complaint indicates that he was again seen
by the physician’s assistant on February 12, 2010.
Plaintiff

reported

“continued

testicular

pain,”

At that time,
but

reported “no change in size of cyst or vericocele.”

further

Plaintiff

reported that he was experiencing increased pain, despite the
proposed treatment of scrotal support, icing the scrotum, and
taking Motrin as directed. Plaintiff requested “something stronger
for the pain.”

It was noted that he walked with his legs apart,

11

evidencing the pain he was in.

(Id., ¶ 58).

Plaintiff’s Amended Complaint further states:
At some point approximately within the first quarter
of the year 2010, the plaintiff was expressly instructed
by an unknown employee of Wexford Health Sources at MOCC
to cease coming to the medical unit seeking medical
treatment for the condition, that nothing further would
be done to relieve him of the resulting constant severe
pain.
(Id., ¶ 59).
Plaintiff’s

Amended

Complaint

alleges

that

each

of

the

defendants were aware of Plaintiff’s serious medical condition, and
that he was in constant severe pain, due to his repeated oral and
written complaints and requests for treatment. Plaintiff’s Amended
Complaint further states that “[e]ach of the defendants recognized
that their individual actions were insufficient to mitigate the
risk [] that plaintiff would continue to suffer constant severe
pain arising from those serious medical needs, but consciously
disregarded that risk, recklessly taking only grossly inappropriate
and ineffective measures in relation thereto.”

(Id., ¶¶ 62-63).

Plaintiff’s Amended Complaint further alleges that, through
additional discovery he would likely have evidentiary support to
allege that defendant Wexford Health Sources has official customs,
policies,

practices

and

procedures

that

result

in

deliberate

indifference to prisoners’ serious medical needs. (Id., ¶¶ 64-67).
Plaintiff’s Amended Complaint alleges that the conduct of the
defendants violated his Eighth and Fourteenth Amendment rights, and

12

also constituted the tort of negligence.

(Id., ¶¶ 74-81).

Plaintiff seeks declaratory and injunctive relief, as well as
compensatory and punitive damages from each of the defendants.
(Id., ¶¶ 82-87).
DEFENDANTS’ MOTIONS TO DISMISS
On May 27, 2010, defendants Ballard, Hoke, and Rubenstein
filed a Motion to Dismiss Complaint (docket sheet document # 26)
and a Memorandum of Law in support thereof (# 27).

On June 3,

2010, defendants Wexford Health Sources, Inc., Gajendragadkar,
Proctor, and Tenney filed a Motion to Dismiss Complaint (# 28),
with supporting exhibits (# 29), and a Memorandum in support
thereof (# 30).
In Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007),
the Supreme Court observed that a case should be dismissed for
failure to state a claim upon which relief can be granted if,
viewing the well-pleaded factual allegations in the complaint as
true

and

in

the

light

most

favorable

to

the

plaintiff,

the

complaint does not contain “enough facts to state a claim to relief
that is plausible on its face.”

While the complaint need not

assert “detailed factual allegations,” it must contain “more than
labels and conclusions” or a “formulaic recitation of the elements
of a cause of action.”

Id. at 555.

The Supreme Court further explained its holding in Twombly in
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), a civil rights case.

13

The Court wrote:
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. [Twombly, 550
U.S.] at 555, 127 S. Ct. 1955 (Although for the purposes
of a motion to dismiss we must take all of the factual
allegations in the complaint as true, we “are not bound
to accept as true a legal conclusion couched as a factual
allegation” (internal quotation marks omitted). Rule 8
. . . does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss. Id., at 556. *
* *
In keeping with these principles a court considering
a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
129 S. Ct. at 1949-50.
Both of these motions were filed before Plaintiff filed his
Amended

Complaint,

which

adds

more

detailed

allegations

and

includes Emil Dameff, Kimberly Lauder, Grover Rosencrance and
Charlene Sotak as defendants.

However, pursuant to the provisions

of 28 U.S.C. § 1915A, the court screens each case in which a
prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.

On review, the court must

dismiss the case if the complaint is frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary
14

relief from a defendant who is immune from such relief.

The

allegations in Plaintiff’s Amended Complaint will be reviewed under
this standard.
ANALYSIS
A.

Deliberate indifference standard.

In 1976, the Supreme Court set the standard for evaluating
whether a prisoner’s Eighth Amendment right to be free of cruel and
unusual punishment was violated based upon a prison healthcare
provider’s deliberate indifference (subjective component) to the
prisoner’s serious medical needs (objective component). Estelle v.
Gamble, 429 U.S. 97 (1976); see also Wilson v. Seiter, 501 U.S.
294,

298

(1991).

Addressing

the

objective

component

first,

“serious medical needs” are those which have been diagnosed by a
physician as mandating treatment or that are so obvious that even
a lay person would easily recognize the necessity for a doctor’s
attention. Gaudreault v. Munic. of Salem, Mass., 923 F.2d 203, 208
(1st Cir. 1990); Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)
(quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1976)).
The subjective component of “deliberate indifference” sets a
high bar to recovery.

In Iko, a case involving excessive use of

pepper spray by correctional officers, the Fourth Circuit wrote:
An officer is deliberately indifferent only when he
“knows of and disregards” the risk posed by the serious
medical needs of the inmate. Farmer v. Brennan, 511 U.S.
825, 837, 114 S. Ct. 1970, 128 L. Ed.2d 811 (1994). ***

15

This court has identified two slightly different
aspects of an official’s state of mind that must be shown
in order to satisfy the subjective component in this
context. First, actual knowledge of the risk of harm to
the inmate is required. Young v. City of Mt. Ranier, 238
F.3d 567, 575-76 (4th Cir. 2001); see also Parrish ex
rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)
(“It is not enough that the officer [] should have
recognized it.”). Beyond such knowledge, however, the
officer must also have “recognized that his actions were
insufficient” to mitigate the risk of harm to the inmate
arising from his medical needs. Parrish, 372 F.3d at 303
(emphasis added).
535 F.3d at 241.
B.

The Wexford Defendants.

The Motion to Dismiss filed by the Wexford Defendants asserts
that Plaintiff cannot meet either the objective or subjective
components of this standard. Specifically, the Wexford Defendants’
Memorandum of Law, which relies heavily on the medical records
provided therewith, states:
This patient was diagnosed by multiple doctors and
each one has made the same diagnosis. It is clear from
the note of 2/12/2010 that Dr. Dameff, Dr. Lauden [sic;
Lauder] and Dr. Gajendragadkar were all in agreement that
this patient should not be treated with narcotics for his
condition. (Jonathan Eads Records bates 000057). The
treatment has been timely and proper and the Complaint
has failed to present evidence that any of these
defendants failed to provide timely and proper treatment.
The plaintiff cannot and does not allege that there is
any evidence that the moving defendants deviated from the
appropriate standard of care.
Plaintiff’s Complaint does not meet the objective
component set forth in Wilson and the Motion to Dismiss
is proper. Plaintiff has also wholly failed to meet the
subjective component requirement in Wilson and has made
no allegation that can reasonably be interpreted as
alleging that these Defendants are “wanton” under the
facts of this case. The Complaint is silent as to any
16

allegation of wantonness regarding these defendants.
This subjective component requires that the prison
official[s] have actual knowledge or reckless disregard
with respect to the medical condition or substantial risk
of future harm to the inmate. Rish v. Johnson, 131 F.3d
1092 (4th Cir. 1997).
(# 30 at 9).

The Wexford Defendants assert that, at most,

Plaintiff has a dispute with his health care providers about the
precise type of treatment that should be rendered.

(Id. at 11).

Plaintiff filed a Consolidated Response to both of the Motions
to Dismiss (# 32).

Plaintiff’s Response directs the court to

several cases that concerned allegations of the denial of treatment
for chronic pain. Addressing the objective component, the Response
states:
“[T]he
Eighth
Amendment
forbids
not
only
deprivations of medical care that produce physical
torture and lingering death, but also less serious
denials which cause or perpetuate pain.”
Tordaro v.
Ward, 565 F.2d 48, 52 (2d Cir. 1977). See also Brock v.
Wright, 315 F.3d 158, 163 (2d Cir. 2003)(chronic pain the
magnitude of which probably falls somewhere between
annoying and extreme, rather than only extreme pain or a
degenerative condition, also suffices to meet the legal
standard of a serious medical condition). “We will no
more tolerate prison officials’ deliberate indifference
to the chronic pain of an inmate than we would a sentence
that required the inmate to submit to such pain. We do
not, therefore, require an inmate to demonstrate that he
or she experiences pain that is at the limit of human
ability to bear, nor do we require a showing that his or
her condition will degenerate into a life-threatening
one.” Brock, 315 F.3d at 163-64.
(Id. at 9).

Turning to the subjective component, the Response

asserts:
“Plaintiffs must also show the subjective component
- deliberate indifference. An officer is deliberately
17

indifferent only when he ‘knows of and disregards’ the
risk posed by the serious medical needs of the inmate.”
Iko, supra, quoting Farmer v. Brennan, 511 U.S. 825, 837,
114 S. Ct. 1970, 128 L. Ed.2d 811 (1994). “The subject
component therefore sets a particularly high bar to
recovery.” Iko, supra (citation omitted).
* * *
“This is not to say that a prisoner must establish that
officials intended or desired the harm that transpired.”
Greeno [v. Daley, 414 F.3d 645 (7th Cir. 2005)], supra,
citing Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.
2002).
“Instead, it is enough to show that the
defendants knew of a substantial risk of harm to the
inmate and disregarded the risk.
Additionally, ‘a
factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was
obvious.” Greeno, supra, quoting Farmer, 511 U.S. at 842
(internal citation omitted); see also McElligott v.
Foley, 182 F.3d 1248, 1256 (11th Cir. 1999)(actual
knowledge threshold satisfied where jury could find that
defendants were aware of inmate’s tremendous pain and
illness at the time of incarceration, based on medical
examination of inmate and inmate’s “nearly constant
complaints about the pain he was having”).
As will be discussed in detail infra, the defendants
concede that they were made aware of the plaintiff’s pain
on countless occasions. Given the plaintiff’s repeated
follow-up visits reporting that the severe pain continued
to plague him, there is no doubt that the Wexford
defendants recognized that there was an excessive risk
that the plaintiff would remain in such pain unless more
aggressive treatment was offered.
“[T]here is no
requirement that a prisoner provide ‘objective’ evidence
of his pain and suffering - self-reporting is often the
only indicator a doctor has of a patient’s condition.”
Greeno. 414 F.3d at 655, citing Cooper v. Casey, 97 F.3d
914, 916-17 (7th Cir. 1996)(“The fact that a condition
does not produce ‘objective’ symptoms does not entitle
the medical staff to ignore it . . . Subjective,
nonverifiable complaints are in some cases the only
symptoms of a serious medical condition.”). Yet, they
consciously disregarded the risk posed to the plaintiff:
They were deliberately indifferent.
(# 32 at 10-11).

Plaintiff’s Response also cites Chance v.
18

Armstrong, 143 F.3d 698, 701 (2d Cir. 1998), in which the court
stated, “[w]hether a course of treatment was the product of sound
medical judgment, negligence or deliberate indifference depends on
the facts of the case.”
In the instant case, the parties rely heavily on Plaintiff’s
medical records.3

These records are not verified and there are no

sworn statements of any sort from the defendants concerning their
knowledge of Plaintiff’s medical condition and their treatment
thereof.

Because the Wexford Defendants, in particular, rely upon

information outside the four corners of the original Complaint to
support their arguments, this matter is better suited to be
addressed on summary judgment.
In deciding a motion to dismiss under Rule 12(b)(6), the court
must accept the material facts alleged in the complaint as true and
draw all inferences in favor of the plaintiff. Cooper v. Pate, 378
U.S. 546 (1964).

Taking Plaintiff’s allegations as true, the

undersigned proposes that the presiding District Judge FIND that
Plaintiff

has

alleged

that

the

Wexford

Defendants

(including

defendants Dameff and Lauder, who were added in the Amended
Complaint), knew he was in extreme pain and knowingly prescribed
him medications that they knew to be ineffective to treat his pain.
The undersigned further proposes that the presiding District Judge

3

Plaintiff’s Response also questions whether the records
provided by the Wexford Defendants with their motion are a complete
copy of his medical records. (# 32 at 17).
19

FIND that such allegations are sufficient to state a claim of
deliberate indifference to a serious medical need.
Plaintiff
Sources,

Inc.

also
has

specifically
either

alleges

tacitly

that

authorized

Wexford
or

Health

condoned

its

employees’ deliberate indifference to serious medical needs, and
that Wexford has insufficient policies, customs or procedures for
providing timely and adequate care for prisoners who suffer from
severe pain, which has resulted in unnecessary delay in treatment
and proximately caused Plaintiff to needlessly suffer additional
pain.

The

Wexford

Defendants’

Motion

to

Dismiss

does

not

specifically address these claims, other than to argue that Wexford
Health Sources, Inc. is not a “person” that can be sued under
section 1983.
As

noted

by

Plaintiff

in

his

Response,

“[a]

private

corporation is liable under § 1983 . . . when an official policy or
custom causes the alleged deprivation of federal rights.”

Austin

v. Paramount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999); see
also Motto v. Corr. Med. Servs., 2007 U.S. Dist. Lexis 72436 (S.D.
W.

Va.,

Sept.

27,

2007)(Johnston,

J.).

(#

32

at

30-31).

Plaintiff’s Response further states:
The maltreatment recounted in the plaintiff’s
complaint was not a single, isolated incident. Instead,
he received the same deliberately indifferent care at
medical units operated by Wexford at two distinct
locations, from many of its employees. Accordingly, the
plaintiff’s complaint states a claim against Wexford
sufficient to survive a motion to dismiss [footnote
omitted] and the plaintiff should be permitted a
20

reasonable
opportunity
to
conduct
discovery
substantiate his well-pleaded allegations.

to

(Id. at 31).
It is not necessary, however, to address Plaintiff’s claims
against Wexford Health Sources, Inc., unless and until Plaintiff
has established that one or more of the individual defendants was
deliberately indifferent to Plaintiff’s serious medical needs.
Accordingly, those claims will not be dismissed at this stage of
this litigation, but they will not be immediately addressed in
discovery either.
C.

The DOC Defendants.

Defendants Rubenstein, Ballard and Hoke (as well as defendants
Rosencrance and Sotak, who were added in the Amended Complaint)
(hereinafter “the WVDOC Defendants”) are supervisory employees of
the West Virginia Division of Corrections, who had no direct
involvement in Plaintiff’s medical treatment. Prior to the Supreme
Court’s ruling in Farmer v. Brennan, 511 U.S. 825, 834 (1994), the
Fourth

Circuit

established

“the

principle

that

supervisory

officials may be held liable in certain circumstances for the
constitutional injuries inflicted by their subordinates.”
v. Porter, 737 F.2d 368, 372 (4th Cir. 1984).

Slakan

A named supervisor

may be liable for acts of subordinates if the official was aware of
a pervasive, unreasonable risk of harm from a specified source and
failed to take corrective action as a result of his deliberate
indifference or tacit authorization of the offensive practice. Id.
21

at 373.
Liability may attach where “supervisory indifference or tacit
authorization of subordinates’ misconduct may be a causative factor
in the constitutional injuries they inflict on those committed to
their care.”
defendants

Id. at 372.

acted

The relevant inquiry is whether the

“wantonly,

obdurately,

or

with

deliberate

indifference to the pervasive risk of harm.” Moore v. Winebrenner,
927 F.2d 1312, 1315 (4th Cir. 1991).

However, the Fourth Circuit

has held that supervisory prison officials are entitled to rely on
the professional judgment of trained medical personnel.
Miltier, 896 F.2d at 854.

See

Thus, prison officials fulfill their

duty by taking reasonable measures to ensure that an inmate
receives health care.

Even if the health care provider acts

negligently, there is no violation of the Eighth Amendment.
The WVDOC Defendants’ Memorandum of Law in support of their
Motion to Dismiss states in pertinent part:
In the present case, the Plaintiff’s allegations do
not rise to the level necessary to advance a claim
against the WVDOC Defendants.
It is clear, from the
Complaint, that Plaintiff is being provided access to
health care providers.
See Plaintiff’s Complaint
generally. The WVDOC Defendants cannot be charged with
second guessing the clinical decisions of the treatment
providers. As the United States Court of Appeals for the
Fourth Circuit has held:
Even assuming that the physicians’ failure to
provide a cardiac exam was a pervasive and
unreasonable risk of harm from some specified
source,” see Slakan, 737 F.2d at 372, it would
be an unprecedented extension of the theory of
supervisory liability to charge these wardens,
22

not only with ensuring that Gwendolyn received
prompt and unfettered medical care, but also
with ensuring that their subordinates employed
proper medical procedures - procedures learned
during several years of medical school,
internships, and residencies.
Miltier, 896
F.2d at 856.
Similarly, in Pinkney v. Davis, 952 F. Supp. 1561
(M.D. Ala. 1997) (citations omitted), the court found a
prison warden entitled to qualified immunity. In doing
so, it reasoned:
The plaintiff attempts to make significant the
fact that the prison system and its wardens
are responsible for making sure that inmates
receive appropriate treatment. However, there
is a vast difference between making the warden
responsible for the well-being of an inmate
and saying he must answer to that inmate in
damages for failure to provide medical
treatment. The balance between the warden’s
duty and his liability is struck by the
applicable law. [T]he warden is liable only if
he
participated
in
the
constitutional
violation or if a causal connection exists
between his actions and the constitutional
deprivations.
Even if there is a causal
connection, he is qualifiedly immune unless
the plaintiff shows that he would have known
that his actions were unlawful in light of
preexisting law and the information he
possessed.
* * *
The plaintiff has failed to present any
evidence
that
the
warden’s
actions
or
inactions
caused
the
constitutional
deprivation.
Moreover, [the plaintiff] has
pointed to no case which establishes that the
warden of a correctional institution has a
duty to directly supervise medical staff, to
set policy for the medical staff or to
intervene in treatment decisions where he is
not informed by medical personnel that
intervention is necessary to prevent a
constitutional wrong. Id. at 1572, 1573.
23

Based upon the foregoing, it is clear that the
Plaintiff has been provided access to health care, and,
therefore, it is proper for this Court to enter an Order
dismissing the WVDOC Defendants.
(# 27 at 3-4).
As noted by the WVDOC Defendants, it is well-settled that
prison

officials

are

entitled

to

rely

judgment of trained medical personnel.

upon

the

professional

Miltier v. Beorn, 896 F.2d

848, 854 (4th Cir. 1990); Shakka v. Smith, 71 F,3d 162, 167 (4th
Cir. 1995).

Thus, to establish a claim of deliberate indifference

against non-medical prison personnel, a plaintiff must demonstrate
that the official was personally involved in the treatment or
denial of treatment, or that they deliberately interfered with the
treatment, or that they tacitly authorized or were indifferent to
the medical provider’s misconduct.

Miltier, 896 F.2d at 853.

The WVDOC Defendants’ Memorandum of Law further states:
In the instant case the Plaintiff’s claims against
the WVDOC Defendants appear to be wholly supervisory in
nature. The WVDOC Defendants cannot simply choose to
accept an inmate’s desired course of treatment over that
of [a] physician.
None of the WVDOC Defendants may
practice medicine.
Thus, they cannot be expected to
countermand a phsycian’s orders, whether right or wrong.
Consequently, the Plaintiff has not set forth a
sufficient
exception
to
the
prohibition
against
supervisory liability.
(# 27 at 5).
Plaintiff’s Response asserts that the DOC Defendants have
“tacitly authorized the deliberately indifferent conduct of their
contracted medical personnel.” (# 32 at 32). Plaintiff’s Response

24

further states that “after a reasonable opportunity to engage in
discovery, he will be able to show that the DOC defendants are
aware of and have consciously disregarded a pervasive pattern of
deliberately indifferent conduct exhibited by Wexford personnel,
including that which is alleged by the instant plaintiff: that he
is being left to suffer needless pain ‘because of an official
corporate policy or custom . . . [of providing] only the least
expensive and time-consuming means of medical treatment possible.’”
(Id.)
Plaintiff’s Response further asserts that he is not seeking to
hold the DOC Defendants liable under a theory of respondeat
superior.

Plaintiff argues that the DOC Defendants were aware of

his constant severe pain through the filing of his grievances and
were themselves “deliberately indifferent to his pleas for relief”
and, consequently, caused him additional pain and suffering.
at 34-35).

(Id.

Plaintiff argues that “[r]eceipt of letters by prison

officials may be evidence of personal knowledge of unconstitutional
conditions.”

Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)

[citations omitted], and that “[s]uch notice can . . . facilitate
personal involvement in a deprivation of rights where the harm
continues over a period of time . . . . [N]otification of a
continuing

problem

.

.

.

official’s] power to remedy.”

may

have

been

Wright, supra.

25

within

[the

prison

(Id. at 35).

The WVDOC Defendants filed a Reply on August 20, 2010 (# 35).
The Reply asserts in pertinent part:
Based upon a plain reading of the Plaintiff’s
Complaint and other pleadings, it is clear that Plaintiff
was provided with unfettered access to medical care.
Rather, the Plaintiff’s claim against these Defendants
essentially alleges that he is not satisfied with the
course of care provided by the medical Defendants. The
WVDOC Defendants do not concede that the care provided by
the medical Defendant to the Plaintiff was anything less
than proper adequate and reasonable.
Nevertheless, for the plaintiff to prevail in his
action the Court would have to place the WVDOC
Defendant’s [sic; Defendants] in the position of second
guessing the medical opinions of trained medical care
professionals.
(Id. at 2).
The

conduct

of

defendants

Rubenstein,

Ballard,

Hoke,

Rosencrance and Sotak in this matter was limited to reviewing and
denying Plaintiff’s grievances after confirming that Plaintiff was
receiving treatment based upon the judgment of the trained medical
personnel.

Accordingly,

these

defendants

fulfilled

their

constitutional duties and there is no basis for liability against
them.

Therefore,

the

undersigned

proposes

that

the

presiding

District Judge FIND that Plaintiff’s allegations fails to state a
claim

upon

which

relief

can

be

granted

against

defendants

Rubenstein, Ballard, Hoke, Rosencrance and Sotak.
D.

Plaintiff’s Claim for Injunctive Relief.

Plaintiff has requested injunctive relief in the form of a
“preliminary and thereafter permanent injunction compelling the

26

defendants to provide him with adequate care by rendering medically
available treatment to prevent the plaintiff from continuing to
suffer needlessly in constant severe pain.”

(# 40, ¶ 84).

Plaintiff’s claim for injunctive relief is only addressed in
a summary fashion by the Wexford Defendants in their Memorandum of
Law, which states that Plaintiff has “wholly failed to set forth
any basis for . . . an injunction” and that “[t]here is no evidence
to support a claim

that Plaintiff will suffer irreparable harm.

(# 30 at 1). Plaintiff’s Response contends that “absent injunctive
relief, it is clear that [he] will remain in nonstop, unrequited,
severe pain for the foreseeable future.”

(# 32 at 14).

Plaintiff is now incarcerated at the St. Marys Correctional
Center (“SMCC”), which is within the jurisdiction of the United
States District Court for the Northern District of West Virginia.
The correctional and medical staff at SMCC are not defendants
herein, and not subject to this court’s jurisdiction. Accordingly,
this court cannot order prospective injunctive relief for Plaintiff
under those circumstances.
RECOMMENDATION
For the reasons stated herein, it is respectfully RECOMMENDED
that the presiding District Judge GRANT the Motion to Dismiss filed
by defendants Rubenstein, Ballard and Hoke (# 26).

For those same

reasons, it is respectfully RECOMMENDED that the presiding District
Judge DISMISS the allegations in the Amended Complaint against
27

defendants Rosencrance and Sotak, pursuant to 28 U.S.C. § 1915A.
It is further respectfully RECOMMENDED that the presiding
District Judge DENY the Motion to Dismiss filed by defendants
Wexford Health Sources, Inc., Gajendragadkar, Proctor, and Tenney
(# 28), and leave this matter referred to the undersigned United
States Magistrate Judge for additional proceedings concerning the
claims in the Amended Complaint against those defendants and
defendants

Dameff

and

Lauder.

Finally,

it

is

respectfully

RECOMMENDED that the presiding District Judge DENY Plaintiff’s
request for injunctive relief, without prejudice.
The parties are notified that this Proposed Findings and
Recommendation is hereby FILED, and a copy will be submitted to the
Honorable Joseph R. Goodwin, Chief United States District Judge.
Pursuant to the provisions of Title 28, United States Code, Section
636(b)(1)(B), the Rules 6(d) and 72(b), Federal Rules of Civil
Procedure,

the

parties

shall

have

fourteen

days

(filing

of

objections), and then three days (service/mailing), from the date
of filing this Proposed Findings and Recommendation within which to
file with the Clerk of this court, specific written objections,
identifying

the

portions

of

the

Proposed

Findings

and

Recommendation to which objection is made, and the basis of such
objection.

Extension of this time period may be granted by the

presiding District Judge

for good cause shown.

28

Failure to file written objections as set forth above shall
constitute a waiver of de novo review by the District Court and a
waiver of appellate review by the Circuit Court of Appeals. Synder
v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S.
140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United
States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

Copies of such

objections shall be served on opposing parties and Chief Judge
Goodwin.
The Clerk is directed to file this Proposed Findings and
Recommendation and to mail a copy of the same to Plaintiff and
counsel of record.
January 28, 2011
Date

29