Thompson v. Rubinstein et al
Filing
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MEMORANDUM OPINION AND ORDER adopting and incorporating herein the 32 Proposed Findings and Recommendation by Magistrate Judge; dismissing with prejudice plaintiff's Eighth Amendment claim; dismissing without prejudice plaintiff's state law breach of contract and negligence claims; and striking this action from the docket. Signed by Judge John T. Copenhaver, Jr. on 5/16/2012. (cc: plaintiff; attys; United States Magistrate Judge) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WILLIAM THOMPSON,
Plaintiff,
v.
Civil Action No. 2:11-0409
JAMES RUBINSTEIN,
Commissioner West Virginia
Division of Corrections,
Sued in his Individual and
Official Capacities, and
DAVID BALLARD, Warden,
Sued in his Individual and
Official Capacities, and
DR. HUMA RASHID,
Sued in his Individual and
Official Capacities, and
JOHN AND JANE DOE EMPLOYEES
OF WEXFORD MEDICAL SOURCES,
Sued under Breach of Contract
Personal and Official Capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the renewed motions to dismiss the amended
complaint, filed September 26, 2011, by defendants Huma Rashid
and John and Jane Doe Employees of Wexford Medical Sources, and
the renewed motion by defendants David Ballard and James
Rubinstein to dismiss the amended complaint, also filed September
26, 2011.
This action was previously referred to Mary E. Stanley,
United States Magistrate Judge, who has submitted her Proposed
Findings and Recommendation ("PF&R") pursuant to the provisions
of 28 U.S.C. § 636(b)(1)(B).
The court has reviewed the PF&R entered by the
magistrate judge on March 27, 2012.
The magistrate judge
recommends that the court grant the renewed motions to dismiss,
decline to exercise jurisdiction over the supplemental state law
claims, and dismiss the case.
On April 13, 2012, plaintiff objected to the PF&R.
First, he asserts that a constitutional violation arises from Dr.
Rashid's alteration of his medications.
As the magistrate judge
notes, that claim suffers from insurmountable infirmities.
See,
e.g., Gibson v. Weber, 433 F.3d 642, 646 (8th Cir. 2006)
(deliberate-indifference claim based on inadequate medical
treatment requires proof that defendant knew of and disregarded
excessive risks to inmate's health, and that injury in fact
resulted); Meuir v. Greene County Jail Employees, 487 F.3d 1115,
1118-19 (8th Cir. 2007) (inmate has no constitutional right to
particular course of treatment, and his mere disagreement with
medical treatment is not basis for § 1983 liability).
Assuming
Dr. Rashid was negligent in changing plaintiff's course of
treatment, such does not give rise to an Eighth Amendment claim.
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The PF&R implicitly recommends that plaintiff be given an
opportunity to pursue his supplemental negligence claim in state
court.
The court will adopt that recommendation.
Second, plaintiff asserts that he should be given the
opportunity to pursue his claims against Wexford Health Sources
and the Doe defendants.
He does not, however, assert how Wexford
Health Sources or any Doe defendant might have committed a
constitutional violation apart from Dr. Rashid's conduct.
Inasmuch as Dr. Rashid engaged in no deprivation of plaintiff's
Eighth Amendment rights, the subject of supervisory liability is
not before the court.
Third, plaintiff asserts that he was transferred to a
facility outside this district as a "tactical" ploy "to make his
allegations in part moot."
(Objecs. at 8).
As the magistrate
judge notes, plaintiff's transfer mooted his claims for
injunctive and declaratory relief.
He apparently fears that he
will, at some future time, be transferred back to the facility
where the alleged misconduct was committed, Mount Olive
Correctional Center ("MOCC").
In the event that such a transfer
occurs, and that plaintiff is exposed to an actionable
constitutional deprivation thereafter, he may wish to avail
himself of process seeking injunctive or declaratory relief.
Until that eventuality comes to pass, however, the claims for
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injunctive and declaratory relief are indeed moot.
See, e.g.,
Townes v. Jarvis, 577 F.3d 543, 554 (4th Cir. 2009) (collecting
cases).
Apart from that observation, an award of the
aforementioned equitable relief would occur only if plaintiff
stated an actionable constitutional deprivation.
He has not done
so.
Based upon the foregoing discussion, the court
concludes that the objections are not meritorious.
It is,
accordingly, ORDERED as follows:
1. That the PF&R be, and it hereby is, adopted by the court
and incorporated herein;
2. That plaintiff's Eighth Amendment claim be, and it hereby
is, dismissed with prejudice;
3. That plaintiff's state law breach of contract and
negligence claims be, and they hereby are, dismissed
without prejudice; and
4. That this action be, and it hereby is, stricken from the
docket.
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The Clerk is directed to forward copies of this written
opinion and order to the pro se plaintiff, all counsel of record,
and the United States Magistrate Judge.
DATED: May 16, 2012
John T. Copenhaver, Jr.
United States District Judge
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