Mullins v. Prime Care Medical, Inc. et al

Filing 24

MEMORANDUM OPINION AND ORDER adopting the 16 PROPOSED FINDINGS AND RECOMMENDATION to the extent that it is consistent with this memorandum opinion and order; granting PrimeCare's 12 MOTION to Dismiss 2 Complaint, and MOTION for Summary Judgment; dismissing without prejudice Plaintiff's 2 Complaint; directing that this civil action is dismissed without prejudice and retired from the docket of the Court. Signed by Judge Thomas E. Johnston on 3/27/2014. (cc: attys; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

GERALD DAVID MULLINS, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 2:12-cv-05825

PRIME CARE MEDICAL, INC.
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is Defendant PrimeCare Medical, Inc.’s (“PrimeCare”) motion to dismiss and
alternative motion for summary judgment (“PrimeCare’s motion”). United States Magistrate
Judge Dwane L. Tinsley has submitted proposed findings and a recommendation (“PF&R”) that
the motion be granted. For the reasons that follow, that PF&R is ADOPTED to the extent that it
is consistent with this opinion and PrimeCare’s motion [ECF 12] is GRANTED.
I.

BACKGROUND

This case arises out of the treatment of certain injuries Plaintiff, Gerald D. Mullins, Jr.
(“Plaintiff”), alleges that he suffered while incarcerated at the Southwestern Regional Jail (“the
SWRJ”). (ECF 2 at 2.) PrimeCare is a Pennsylvania corporation that privately owns PrimeCare
Medical of West Virginia, Inc., which corporation was at all times relevant to Plaintiff’s
Complaint contracted with the West Virginia Regional Jail and Correctional Facility Authority
(“WVRJCFA”) to provide health care services to inmates in West Virginia’s regional jails,
including the SWRJ. (ECF 13 at 4.)

Plaintiff filed his pro se verified Complaint (ECF 2; 2-2 at 1) on September 24, 2012,
principally raising issues related to the post-surgical treatment of his left hand and the conditions
of confinement in the medical unit at SWRJ. (ECF 2.)
Specifically, Plaintiff’s Complaint alleges that he had surgery on his left hand on January
23, 2012, for a shattered fifth metacarpal bone, which required three steel pins to fix. (ECF 2 at
4). Plaintiff complains that following this surgery the staff would never change his dressing,
stating that he had to wait to see the operating physician. (Id.) Plaintiff alleges that the pins in
his hand worked their way through the skin and were protruding from his hand, and claims that
he begged staff to clean the wound and disinfect it, but they refused to do so. (Id.) Plaintiff
further alleges that, two days before he was to have the pins removed, he contracted a staph
infection. (Id.)
Plaintiff further alleges that he was housed in the medical unit of the SWRJ for over a
month. (Id.) He claims that he was required to be in a 6’ x 10’ cell with another inmate for 23.5
hours per day, and was made to sleep on the floor, which was only cleaned once a week and was
“nasty.” (Id.) Plaintiff further contends that, because of degenerative disc disease and chronic
back problems, he should not have been sleeping on the floor. (Id.) Plaintiff also alleges that his
“right hand was also damaged and needed surgery.” (Id.)
By Standing Order entered September 2, 2010, and filed in this case on September 25,
2012, this action was referred to former United States Magistrate Judge Mary E. Stanley for
submission of a PF&R. Referral of this action was later transferred to United States Magistrate
Judge Dwane L. Tinsley. Magistrate Judge Tinsley filed his PF&R (ECF 10) on May 24, 2013,
recommending that this Court dismiss as moot Plaintiff’s claims for declaratory and injunctive
relief in light of the fact that Plaintiff has been transferred to a different correctional facility.

2

Magistrate Judge Tinsley further recommended that the Court dismiss Plaintiff’s claims for
monetary relief against SWRJ, but permit the case to remain referred to the Magistrate for the
purpose of conducting additional proceedings concerning Plaintiff’s claims for monetary relief
against PrimeCare. Plaintiff did not file objections, and the Court adopted the PF&R and
ordered that the case remain referred to Magistrate Judge Tinsley for the purpose of conducting
all remaining proceedings. (ECF 15.)
On June 20, 2013, Magistrate Judge Tinsley issued a Notice and Order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (“Roseboro notice”), which notice informed
Plaintiff that PrimeCare had filed its motion to dismiss and alternative motion for summary
judgment, with accompanying affidavits and exhibits and a memorandum of law in support.
(ECF 14.) As pertinent here, this notice informed Plaintiff that he had the right and obligation to
file a response to PrimeCare’s motion and to submit affidavits or statements subject to the
penalties of perjury, exhibits, or other legal or factual material supporting his position in the case.
(ECF 14 at 1−2.)
On January 27, 2014, Magistrate Judge Tinsley submitted his PF&R with respect to
Plaintiff’s remaining claims for monetary relief against PrimeCare. (ECF 16.) The PF&R
explains that Plaintiff failed to file any response to PrimeCare’s motion, and, consistent with the
Roseboro notice, accepts as true those factual statements submitted by PrimeCare (ECF 16 at 3,
18). PrimeCare submitted three affidavits in support of its motion, attesting to the scope of
treatment that Plaintiff received, as well as his failure to comply with the requirements of the
Medical Professional Liability Act, W. Va. Code 55-7B-1, et seq., (“MPLA”) and failure to
exhaust the administrative remedies available to him through the WVRJCFA. These facts are set
forth in detail in the PF&R, and need not be repeated here. Based on those facts, the PF&R

3

recommends that the Court grant PrimeCare’s motion for summary judgment. (ECF 16 at 26.)
Plaintiff was notified of his opportunity to file objections to the PF&R. (Id.)
Shortly thereafter, the Court received a letter-form objection to the PF&R from Plaintiff.
(ECF 17.) In his objection, Plaintiff asserted that he did not file a response to PrimeCare’s
motion because he never received the motion. (ECF 17 at 1.) Plaintiff asserted that he has been
moved many times over the past two and a half years, and that the only correspondence that he
received prior to a January 30, 2014, letter from the Clerk’s Office was a correspondence which,
based on Plaintiff’s description, appears to have concerned the dismissal of his claims for
declaratory and injunctive relief and his claims against SWRJ. (ECF 10; ECF 15.) Plaintiff also
suggested that he did not receive the June 20, 2013, Roseboro notice issued by Magistrate Judge
Tinsley. (ECF 18 at 1−2).
The Court found that good cause and excusable neglect existed for Plaintiff’s failure to
respond to PrimeCare’s motion, and directed Plaintiff to file a response to that motion along with
his objections to the PF&R by February 28, 2014. (ECF 19.) The Court further ordered that
PrimeCare re-serve a copy of its motion and supporting materials on Plaintiff. (Id.) Copies of
Magistrate Judge Tinsley’s Roseboro notice and the PF&R were also sent to Plaintiff. (Id.)
Thereafter, on Plaintiff’s motion, the Court further extended the period under which
Plaintiff would be permitted to respond to PrimeCare’s motion and object to the PF&R until
March 20, 2014. (ECF 20; ECF 21.)
Plaintiff timely submitted a letter reciting additional allegations similar in character to
those in his Complaint. (ECF 22.) PrimeCare filed a reply, along with another affidavit,
challenging certain of the assertions in Plaintiff’s letter. (ECF 23.)

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II.

LEGAL STANDARDS

1. PF&R Standard and Characterization of Plaintiff’s Letter
In reviewing Plaintiff’s pleadings and other filings, this Court will consider the fact that
Plaintiff is acting pro se, and his pleadings and other filings will be accorded liberal construction.
Estelle v. Gamble, 429 U.S. 97, 106, (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.
1978).
The Court is required to “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C). However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, this Court need not conduct a de novo review when a petitioner “makes
general and conclusory objections that do not direct the Court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982).
Here, the PF&R relies on the fact that Plaintiff did not respond to PrimeCare’s motion as
a basis for deeming undisputed the facts as set forth by PrimeCare. (ECF 16 at 6.) Based on
those undisputed facts, the PF&R recommends that the Court find that Plaintiff (1) failed to
establish that PrimeCare or any of its individual employees were deliberately indifferent to any
of the plaintiff’s serious medical needs; (2) failed to comply with the statutory requirements for
pursuing a claim of negligence; and (3) failed to exhaust his administrative remedies concerning
all of the claims raised in his complaint. For each of these reasons, the PF&R recommends that
the Court dismiss Plaintiff’s Complaint.

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As noted above, the Court found good cause and excusable neglect existed for Plaintiff’s
failure to file a response to PrimeCare’s motion and permitted Plaintiff to submit such a response
along with his objections to the PF&R by March 20, 2014. Plaintiff submitted a nine-page,
unverified, handwritten letter in which he largely repeats the assertions made in his Complaint
with additional detail. Accordingly, the Court construes Plaintiff’s letter as both his response to
PrimeCare’s motion and his objections to the PF&R.
To the extent that Plaintiff’s letter can be construed as a response to PrimeCare’s motion,
Plaintiff appears to argue that disputes of fact exist regarding the treatment that Plaintiff received
on his left and right hands. Presumably, Plaintiff argues that these disputed facts are material
and render summary judgment inappropriate, although his letter contains no legal argument or
citation to authority.1 To the extent that Plaintiff’s letter can be construed as an objection to the
PF&R, Plaintiff appears to argue that the PF&R’s conclusion with respect to his deliberate
indifference claim should be different in light of these factual disputes.
Importantly, Plaintiff’s letter challenges only the facts as laid out by PrimeCare with
respect to the actual treatment that he received on his injured hands, and also reiterates his
allegations about having to sleep on the floor in dirty conditions.

Because such response

necessarily challenges the PF&R’s conclusion with respect to the merits of Plaintiff’s deliberate
indifference claim, which conclusion was based on PrimeCare’s undisputed facts, the Court will
conduct a de novo review of those portions of the PF&R.
1

PrimeCare moved to dismiss Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and alternatively for
summary judgment. These alternative grounds were clearly stated in the title of the motion and accompanying
memorandum of law, as well as argued in those filings. (ECF 12; ECF 13.) Because the magistrate judge relied
upon information outside the four corners of the Complaint in reviewing Plaintiff’s deliberate indifference claim, he
treated PrimeCare’s motion as one for summary judgment. After the Court found good cause and excusable neglect
to extend the time for Plaintiff to respond to PrimeCare’s motion and to file objections to the PF&R, Plaintiff was
again served with a copy of PrimeCare’s motion, memorandum of law, and supporting affidavits, as well as another
copy of the Roseboro notice (which advised Plaintiff concerning PrimeCare’s motion for summary judgment) and
the PF&R (which construed PrimeCare’s motion as one for summary judgment). Plaintiff was, therefore, advised at
the time that he submitted his letter-form response and objections that PrimeCare had moved for summary judgment.

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Notably, however, Plaintiff makes no challenge to the facts as laid out by PrimeCare
concerning his failure to exhaust his administrative remedies concerning his allegations about the
medical treatment he received and the conditions of confinement or his failure to comply with
statutory requirements for pursuing a claim of negligence or medical malpractice. Nor does
Plaintiff object to the PF&R’s conclusion with respect to those issues. Accordingly, the Court is
not required to review, under a de novo or any other standard, the factual or legal conclusions of
the magistrate judge with respect to those portions of the PF&R.
2. Summary Judgment Standard
Summary judgment is proper where the pleadings, depositions, and affidavits in the
record show that there is “no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A genuine issue of material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a
reasonable fact-finder could return a verdict for the non-movant. See Fed. R. Civ. P. 56(e). A
court must neither resolve disputed facts nor weigh the evidence. Russell v. Microdyne Corp., 65
F.3d 1229, 1239 (4th Cir. 1995). Nor may a court make determinations of credibility. Sosebee
v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Rather, the party opposing the motion is entitled
to have his or her version of the facts accepted as true and, moreover, to have all internal
conflicts resolved in his or her favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th
Cir. 1979). Inferences that are “drawn from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654,
655 (1962).

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The moving party bears the initial burden of showing that there is no genuine issue of
material fact, and that he is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322–23.
“The burden then shifts to the nonmoving party to come forward with facts sufficient to create a
triable issue of fact.” Temkin v. Frederick Cnty. Comm’rs, 945 F.2d 716, 718–19 (4th Cir.
1991). The non-moving party must offer some “concrete evidence from which a reasonable
juror could return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Rule 56(c) mandates entry of summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.”
Celotex, 477 U.S. at 322. Hearsay statements or conclusory statements with no evidentiary basis
cannot support or defeat a motion for summary judgment. See Greensboro Prof’l Firefighters
Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995). Moreover, “[m]ere
unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v.
Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
“The very mission of the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.” Fed. R. Civ. P. 56,
advisory committee notes, 1963 Amendment, Subdivision (e).

In order to properly assess

“proof” the party resisting a summary judgment motion must support his factual assertions by: 1)
citing particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or 2) showing that the
materials cited establish the presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support proffered facts. See Fed. R. Civ. P. 56(c)(1)(A–B).
Where a party fails to properly support an assertion of fact or fails to properly address another

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party’s assertion of fact as required by Fed. R. Civ. P. 56(c), the Court may, inter alia, consider
any unsupported or unaddressed facts undisputed and grant summary judgment if the summary
judgment motion, its supporting materials, and the undisputed facts show the movant is entitled
to relief. See Fed. R. Civ. P. 56(e).
III.

DISCUSSION

Although Plaintiff’s letter does not compel a conclusion contrary to the PF&R’s
recommendations, it does, however, raise a number of issues to which the Court now turns.
A. Exhaustion
1. Plaintiff Has Not Objected to the PF&R’s Recommendation that His Complaint be
Dismissed for Failure to Exhaust His Administrative Remedies
The PF&R recommends that Plaintiff’s Complaint be dismissed for failure to exhaust
administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). As
noted above, Plaintiff has not objected to this recommendation, and the Court is not required to
review, under a de novo or any other standard, the factual or legal conclusions of the magistrate
judge as to those portions of the findings or recommendation to which no objections are
addressed. See Thomas, 474 U.S. at 150. Because the PF&R’s recommendation of dismissal on
this ground concerned Plaintiff’s Complaint in its entirety, such ground provides a basis for
finding that PrimeCare is entitled to summary judgment and that Plaintiff’s Complaint must be
dismissed.
2. Plaintiff’s Letter Does Not Address His Failure to Exhaust His Administrative
Remedies
Even were the Court to conduct a de novo review of this recommendation, however,
Plaintiff’s letter contains no argument or relevant assertions regarding PrimeCare’s argument
that he failed to exhaust the available administrative remedies.
The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust his
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administrative remedies before filing a section 1983 action, providing, in pertinent part, that:
“[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see
also Woodford v. Ngo, 548 U.S. 81 (2006). An inmate’s failure to exhaust his administrative
remedies is an affirmative defense that must be raised and proved by a defendant. Jones v. Bock,
549 U.S. 199, 216 (2007).
Here, PrimeCare argues that Plaintiff has failed to exhaust required administrative
remedies provided by WVRJCFA and that, therefore, Plaintiff’s claim should be dismissed.
Specifically, in support of these assertions, PrimeCare presents an affidavit from Steven M.
Crook, the Chief of Operations for the WVRJCFA, attesting to the procedures established for
inmate grievances, and Plaintiff’s failure to comply with those procedures regarding his
allegations that he had to sleep on the floor of his cell in the medical unit at the SWRJ and that
the dressing on his post-surgical wound on his left hand was not changed as frequently as he
thought it should be. (ECF 12-3.)
The Court observes that Plaintiff filed a verified Complaint, which pleading is the
equivalent of an opposing affidavit for summary judgment purposes when the allegations
contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th
Cir. 1991). (ECF 2-2.) In his Complaint, Plaintiff states that he has “filed many grievances to
the Administrator and wrote Chareleston [sic] several times” but “nothing was done.” (ECF 2 at
3.) Plaintiff’s averments, however, are vague and conclusory and lack the specificity to conclude
that he actually exhausted these remedies, let alone that he did so with respect to the specific

10

allegations that form the basis of his Complaint. Moreover, as noted above, Plaintiff’s letter is
silent with respect to the factual averments and arguments presented by PrimeCare on this issue.
As such, Plaintiff fails to present sufficient facts indicating that there is a genuine dispute
of material fact as to whether he has, in fact, exhausted his administrative remedies with respect
to the claims brought against PrimeCare. In consideration of the undisputed facts set forth by
PrimeCare, the Court agrees with the PF&R that such facts are sufficient to demonstrate that
Plaintiff did not exhaust the administrative remedies related to the allegations in his Complaint,
and such conclusion provides another basis for finding that PrimeCare is entitled to summary
judgment. See Johnson v. Hunter, CIV.A. 0:07-0144HFFB, 2007 WL 2815596, at *5 (D.S.C.
Sept. 25, 2007) (granting summary judgment where plaintiff failed to submit any evidence to
show that he exhausted his administrative remedies with respect to his claims, or even address
the issue in his response to the Defendants’ motion for summary judgment and exhibits); see also
Yost v. PrimeCare Medical of W. Va., 3:04-cv-1296, 2009 WL 3063001, at *1−2 (S.D. W. Va.
Sept. 22, 2009) (dismissing plaintiff’s complaint where plaintiff failed to assert that he fully
complied with all of the steps of the administrative grievance processes, including specifically
the appeal of a denial of a grievance).
B. Section 1983 Claims
In his letter, Plaintiff challenges only the facts as laid out by PrimeCare with respect to
the treatment that he received on his injured hands, and reiterates the allegations made in his
Complaint about having to sleep on the floor and the cleanliness of the medical unit cells. (ECF
22.) Because the PF&R relied on PrimeCare’s undisputed version of facts recommending
dismissal of Plaintiff’s Eighth Amendment claim, Plaintiff’s response necessarily objects to that
recommendation of the PF&R. As such, the Court conducts a de novo review of those portions

11

of the PF&R. For the reasons that follow, the Court is not persuaded by Plaintiff’s letter that
summary judgment is not warranted.
1. Plaintiff’s Letter Does Not Present Summary Judgment Evidence
First, to the extent that Plaintiff seeks to challenge certain facts presented by PrimeCare
concerning the medical treatment he received, Plaintiff’s letter does not actually present
summary judgment evidence in support of such a challenge.
Plaintiff’s letter is neither sworn nor notarized, but is, rather, a self-described “letter of
dispute” which purports to present “my account of the facts of treatment or lack thereof as I
know them to be.” (ECF 22 at 1.) Such a response is contrary to both the standards of summary
judgment and the guidance provided to Plaintiff in Magistrate Judge Tinsley’s Roseboro notice,
which notice was re-sent to Plaintiff when the Court granted him an extension of time to respond
to PrimeCare’s motion and to submit objections to the PF&R.

For example, this notice

instructed plaintiff of his “right and obligation to file a response to defendant’s motion,
submitting affidavits or statements subject to the penalties of perjury, exhibits, or other legal or
factual material supporting his position in the case.” (ECF 14 at 1.) It further instructed Plaintiff
that he “must set out either in his own affidavit or sworn statement, or the affidavits or sworn
statements of other witnesses, specific facts that show that the plaintiff and the defendant
actually disagree about one or more important facts present in this case.” (ECF 14 at 1−2.) See
also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials).
Accordingly, Plaintiff’s letter does not demonstrate the existence of genuine disputes of

12

material fact. Consistent with both Fed. R. Civ. P. 56(e) and the instructions provided to
Plaintiff in Magistrate Judge’s Roseboro notice, the Court may, therefore, accept as undisputed
for purposes of this motion the factual statements in the affidavits submitted by PrimeCare,
which statements were relied upon in the PF&R. Upon review of this summary judgment record,
the Court concludes that the findings and recommendations set forth in the PF&R are
appropriate, and dismissal of Plaintiff’s Complaint is warranted for the reasons articulated
therein. As such, this ground provides another basis for finding that PrimeCare is entitled to
summary judgment.
2. Plaintiff’s Response Does Not Demonstrate a Triable Issue of Fact with Respect to
His Eighth Amendment Claim Based on Medical Treatment
In light of Plaintiff’s pro se status, however, the Court will also evaluate Plaintiff’s letter
as presenting summary judgment evidence in opposition to PrimeCare’s motion. But even
accepting as true all of the assertions therein that are based on personal knowledge and would be
admissible in evidence,2 Plaintiff’s letter does not demonstrate that there exists a genuine issue of
material fact as to whether PrimeCare was deliberately indifferent to Plaintiff’s serious medical
need in violation of the Eighth Amendment, nor does it indicate that PrimeCare is not entitled to
judgment as a matter of law on Plaintiff’s claim.
a. Relevant Law
Neither Plaintiff’s Complaint nor his letter state the statutory provision under which he
asserts a claim or what Constitutional rights, if any, may form the basis of his claim. In
consideration of his factual allegations and claim for monetary damages, however, the Court
2

Plaintiff’s letter includes many assertions regarding statements made by other individuals that are not clearly
admissible evidence, as well as many speculative and conclusory assertions regarding certain medical diagnoses.
See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”) .

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agrees with the magistrate judge that Plaintiff arguably at least asserts a claim under section 1983
for a violation of the Eighth Amendment.3
“In order to state a cognizable claim for denial of medical care under the Eighth
Amendment, an inmate must allege facts sufficient to demonstrate a deliberate indifference to a
serious medical need.” Estelle v. Gamble, 429 U.S. 97, 104−05 (1976). “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).

Deliberate

indifference may be demonstrated by either actual intent or reckless disregard. See Benson v.
Cady, 761 F.2d 335, 339 (7th Cir. 1985). A defendant acts with deliberate indifference when
“the official knows of and disregards an excessive risk to inmate health or safety; the official
must both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). “To establish that a health care provider’s actions constitute deliberate indifference
to a serious medical need, the treatment must be so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990).
Mere negligence or malpractice does not violate the Eighth Amendment. See Estelle, 429
U.S. at 106. Likewise, disagreements between a health care provider and the inmate over a
diagnosis and the proper course of treatment are not sufficient to support a deliberate
3

As discussed in more detail in the PF&R, because it appears that Plaintiff was a sentenced state prisoner during the
time period in question, the Eighth Amendment’s guarantee against cruel and unusual punishment, rather than the
due process clause of the Fourteenth Amendment, applies to this case. (ECF 16 at 15 n.2.) See also Albright v.
Oliver, 510 U.S. 266, 271 (1994) (“Section 1983 is not itself a source of substantive rights, but merely provides a
method for vindicating rights elsewhere conferred. The first step in any such claim is to identify the specific
constitutional right allegedly infringed.”) (internal quotations and citation omitted).

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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). As noted by the Fourth Circuit, 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).
Because PrimeCare is a contracted medical provider for the WVRJCFA, a state agency,
the deliberate indifference standard is applicable to the conduct of PrimeCare and its employees.
West v. Atkins, 487 U.S. 42 (1998) (explaining that a private entity which contracts with the state
to provide medical services acts “under color of state law”). In order to succeed on a § 1983
claim, however, Plaintiff must show that “the official[s] charged acted personally in the
deprivation of the plaintiffs’ rights. The doctrine of respondeat superior has no application under
[§ 1983].” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (quoting Bennett v. Gravelle,
323 F.Supp. 203, 214 (D. Md. 1971)). “[A] private corporation is liable under § 1983 only when
an official policy or custom of the corporation causes the alleged deprivation of federal rights.”
Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999) (emphasis in original).
b. Official Policy or Custom
Initially, the Court observes Plaintiff’s Complaint does not appear to allege that his
constitutional rights were violated due to a policy or custom of PrimeCare’s. (ECF 2 at 4-5.)
Rather, it is concerned with the particular treatment that he received for his injury from “the
staff” in the medical unit of SWRJ. (Id.) Very liberally construed, however, it is arguable that
Plaintiff’s assertion that “the staff” would not change the post-surgical dressing on his wound,
telling him that he instead had to wait to see the operating physician, could be understood as an

15

assertion of an official policy. (ECF 2 at 4.)
In his letter, Plaintiff again principally complains of certain individual treatment by
employees of PrimeCare and other jail officials, none of whom are named as defendants in his
Complaint. He occasionally, however, makes reference to a “protocol” that he asserts existed
and led to his injuries. Such assertions again appear to principally concern the failure by nurses
at SWRJ to change the post-surgical dressings on his left hand. The closest thing to allegations
regarding a policy or custom of PrimeCare’s that the Court can discern from Plaintiff’s letter are
that: one nurse would change his bandage when it was dirty only at night when no one else was
present so that she wouldn’t get in trouble for following PrimeCare’s orders (ECF 22 at 5);
Plaintiff “feels” he got an infection in his left hand from, among other things, “neglect due to
nurses haveing [sic] to Follow PrimeCares [sic] Protocol”(ECF 22 at 8); and, Plaintiff did not
receive proper treatment and was submitted to unsafe and unhealthy conditions due to neglect on
the part of PrimeCares [sic] employees and its protocol of treatment of inmates.” (ECF 22 at 9).
To the extent that such statements can be understood as support for Plaintiff’s allegation of an
official policy or custom, Plaintiff’s claim still fails for at least three independent reasons.
First, Plaintiff presents no evidence of such a policy or custom beyond his own
conclusory and speculative assertions. See e.g., Greensboro Prof’l Firefighters Ass’n, 64 F.3d at
967 (explaining that conclusory statements with no evidentiary basis cannot support or defeat a
motion for summary judgment); Ennis, 53 F.3d at 62 (“[m]ere unsupported speculation . . . is
not enough to defeat a summary judgment motion”). Indeed, PrimeCare has introduced evidence
that the post-surgical changing of Plaintiff’s dressing was handled by the doctor who performed
the surgery, and that the doctor’s discharge orders included a direction that the dressing not be
removed. (ECF 12-2 at 5.)

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Second, as noted above, to the extent that such a policy existed, Plaintiff presents no
specific evidence (beyond this vague and conclusory statements in his Complaint) to counter
PrimeCare’s evidence that he failed to exhaust the grievance procedures available to him. See
Jones, 549 U.S. at 211 (“There is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court.”); Anderson, 477 U.S. at 256 (explaining
that the non-moving party must offer some “concrete evidence from which a reasonable juror
could return a verdict in his favor”).
Third, even if such a policy existed and Plaintiff had properly challenged it through the
grievance procedures available to him, the policy articulated by Plaintiff of not changing postsurgical bandages as frequently as Plaintiff believes they should be changed, does not
demonstrate that PrimeCare was deliberately indifferent to Plaintiff’s serious medical needs.
This is so because there are no allegations, let alone evidence, that such a policy was put in place
with the actual intent to cause harm or reckless disregard of the risk of harm, nor does it indicate
a treatment protocol that is so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness. Cf. Little v. Tygarts Valley Reg’l Jail,
5:12CV148, 2013 WL 5744780, at *2 (N.D. W. Va. Oct. 23, 2013) (noting that defendant
corporation was not a “person” for purposes of 42 U.S.C. § 1983, and that where there are no
allegations against it involving policies or customs of deliberate indifference such entity should
be dismissed); Rowe v. PrimeCare Med. of W. Virginia, Inc., CIV.A. 3:04-1246, 2009 WL
3063429, at *2 (S.D. W. Va. Sept. 21, 2009) (Chambers, J.) (finding no liability under section
1983 for defendant corporation where there was no basis for concluding that defendant
corporation’s involvement extended beyond the fact that it employed health care workers who
treated plaintiff).

17

The Court is also not persuaded that Plaintiff has a viable section 1983 action based on
his assertions with respect to the treatment of injuries Plaintiff alleges that he suffered on his
right hand. None of Plaintiff’s allegations concerning the treatment of his right hand, many
newly made in his letter, relate to an alleged policy or custom of PrimeCare, as opposed to the
individual treatment that he received by certain doctors and nurses. See Vinnedge v. Gibbs, 550
F.2d at 928 (“The doctrine of respondeat superior has no application under [§ 1983].”); Austin,
195 F.3d at 728 (“[A] private corporation is liable under § 1983 only when an official policy or
custom of the corporation causes the alleged deprivation of federal rights.”).
The same is true with respect to Plaintiff’s assertions that he should not have slept on the
floor because he had chronic degenerative disc disease and chronic back problems. (ECF 2 at 5.)
Not only is this assertion unmoored from any allegation of a policy or custom, but, assuming that
this condition constituted a serious medical need, Plaintiff has also not alleged that PrimeCare
was aware of such condition and either intentionally or recklessly disregarded the risk of harm to
Plaintiff from sleeping on the floor.
Ultimately, nothing Plaintiff has alleged in his Complaint or reiterated in the assertions of
his letter indicate that a policy or custom of PrimeCare’s existed, let alone that a policy or
custom existed that had a direct causal relation to providing medical care to Plaintiff that was
constitutionally inadequate.
Accordingly, and for each of these independent reasons, the Court cannot conclude as a
matter of law that even accepting Plaintiff’s representation of events in his letter he could
succeed on his section 1983 claim against PrimeCare. See Celotex, 477 U.S. at 322 (explaining
that Rule 56(c) mandates entry of summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case”). Such

18

conclusion presents another basis for finding that PrimeCare is entitled to summary judgment.
3. There is No Triable Issue of Fact with Respect to Plaintiff’s Eighth Amendment Claim
Based on Prison Conditions
Plaintiff’s Complaint also alleges that he had to sleep on the floor of the medical unit and
describes a lack of cleanliness in the cells. Plaintiff’s letter re-states and expands on such
allegations.4 To the extent that these assertions can be construed as separate grounds for stating
an Eighth Amendment claim, however, such a claim also cannot survive summary judgment on
this record. See Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (explaining that to state
a claim for cruel and unusual punishment in violation of the Eighth Amendment, an inmate must
show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to
prison conditions on the part of prison officials) (internal quotations and citation omitted).
First, as noted above, Plaintiff has not produced any argument or evidence to counter
PrimeCare’s evidence that he failed to exhaust the administrative remedies available to him
regarding his allegations of having to sleep on a mattress on the floor. See Ngo, 548 U.S. at 90.
Even were the Court to ignore Plaintiff’s failure to exhaust his administrative remedies
with respect to his allegations of having to sleep on the floor and to credit all of the additional
assertions in Plaintiff’s letter regarding these conditions as factual evidence for purposes of
summary judgment, PrimeCare would still be entitled to summary judgment on Plaintiff’s Eighth
Amendment claim as it relates to these claims. This is so because Plaintiff has offered no
argument or evidence to counter PrimeCare’s evidence that the WVRJCFA correctional staff
controls prisoner assignments and the cleaning of cells (ECF 12-2 at 12), and that, therefore,

4

For instance, Plaintiff states that he had to sleep on the floor of the cells in the medical units (ECF 22 at 6, 9), and
that he was moved several times from cell to cell in the medical unit (ECF 22 at 4). He complains that these cells
were not cleaned thoroughly while he was there. (ECF 22 at 4−5, 8). He also makes numerous complaints about the
amount of recreation time, and other conditions of confinement in the medical unit. (ECF 22 at 8.)

19

PrimeCare is not the proper party against whom to bring such claims. Additionally, Plaintiff has
neither alleged nor produced evidence that such conditions were the result of an official policy of
PrimeCare, let alone that such a policy was put in place with deliberate indifference to a serious
medical need.
C. Negligence Claims
Ultimately, Plaintiff’s allegations appear to concern what may be characterized as at most
negligence or medical malpractice. To the extent that Plaintiff can be understood to be making a
claim that PrimeCare’s conduct constitutes negligence or medical malpractice (ECF 2-1 at 2;
ECF 22 at 8−9), however, PrimeCare is also entitled to summary judgment on such claims for at
least three reasons.
First, Plaintiff has not objected to the PF&R’s recommendation that to the extent that he
raises negligence and medical malpractice claims they should be dismissed for failure to comply
with the MPLA. As such, the Court is not required to review such recommendation under a de
novo or any other standard. See Thomas, 474 U.S. at 150.
Second, such claims are not properly brought pursuant to section 1983.

Estelle v.

Gamble, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.”); Templeton v. Bennett, CIV.A. 3:13-6577, 2014 WL
294299, at *12 (S.D. W. Va. Jan. 24, 2014) (“[M]edical negligence is not the equivalent of a
constitutional violation.”).
Third, even were the Court to review such portion of the PF&R de novo and to construe
Plaintiff’s Complaint as bringing a negligence or medical malpractice claim, Plaintiff has also
not produced any argument, let alone evidence, to challenge PrimeCare’s assertion and evidence
that the MPLA applies to his claims and that he failed to comply with the required statutory pre-

20

requisites.
In West Virginia, “[c]laims of professional negligence arising from health care practices
are generally governed by the Medical Professional Liability Act (“MPLA”), W. Va. Code § 55–
713–1, et seq.” Treadway v. W. Virginia Reg’l Jail & Corr. Facility Auth., 5:12-CV-00049,
2013 WL 690431, at *4−5 (S.D. W. Va. Feb. 25, 2013) (citing Banfi v. American Hosp. for
Rehabilitation, 529 S.E.2d 600, 605 (W. Va. 2000)).
As pertinent here, certain pre-filing prerequisites must be met before a health care
provider may be sued, including:
At least thirty days prior to the filing of a medical professional
liability action against a health care provider, the claimant shall
serve by certified mail, return receipt requested, a notice of claim
on each health care provider the claimant will join in litigation.
The notice of claim shall include a statement of the theory or
theories of liability upon which a cause of action may be based,
and a list of all health care providers and health care facilities to
whom notices of claim are being sent, together with a screening
certificate of merit. The screening certificate of merit shall be
executed under oath by a health care provider qualified as an
expert under the West Virginia rules of evidence and shall state
with particularity: (1) The expert’s familiarity with the applicable
standard of care in issue; (2) the expert’s qualifications; (3) the
expert’s opinion as to how the applicable standard of care was
breached; and (4) the expert’s opinion as to how the breach of the
applicable standard of care resulted in injury or death. A separate
screening certificate of merit must be provided for each health care
provider against whom a claim is asserted. The person signing the
screening certificate of merit shall have no financial interest in the
underlying claim, but may participate as an expert witness in any
judicial proceeding. . . .
W. Va.Code, § 55–7B–6(b). The primary purpose of requiring a pre-suit notice of claim and
screening certificate of merit: is (1) to prevent the making and filing of frivolous medical
malpractice claims and lawsuits; and (2) to promote the pre-suit resolution of non-frivolous
medical malpractice claims. W. Va. Code § 55–7B–6; Hinchman v. Gillette, 618 S.E.2d 387,
394 (W.Va. 2005).
21

Here, in support of its argument, PrimeCare has presented an affidavit from Sandra M.
Ulerick, Director of Risk Management for PrimeCare. Ms. Ulerick states that although Plaintiff
attempted to send PrimeCare a letter-form “Notice of Claim” before he filed the instant lawsuit,
this “Notice of Claim” was not sent by certified mail, did not identify the specific type of claim
that Plaintiff sought to pursue, and did not include a screening certificate of merit by a qualified
health provider. (ECF 12-1.) At the time that Plaintiff filed his Complaint, Ms. Ulerick attests,
he still had not properly complied with the requirements of the MPLA.

Plaintiff has not

responded with any argument or evidence that he complied with these requirements,5 nor does he
argue that for any reason he was not required to so comply. Cf. W. Va. Code § 55-7B-6(c)
(“Notwithstanding any provision of this code, if a claimant or his or her counsel, believes that no
screening certificate of merit is necessary because the cause of action is based upon a wellestablished legal theory of liability which does not require expert testimony supporting a breach
of the applicable standard of care, the claimant or his or her counsel, shall file a statement
specifically setting forth the basis of the alleged liability of the health care provider in lieu of a
screening certificate of merit.”).
The Court is persuaded, as PrimeCare asserts, that Plaintiff’s allegations concerning the
quality and timeliness of his treatment could implicate a medical malpractice claim under the
MPLA, and that, therefore, Plaintiff should have followed the applicable pre-filing requirements.
Plaintiff has not, however, produced any argument or evidence that he either did satisfy such
requirements, or that such requirements were not applicable to his claim. See Treadway, 2013
WL 690431, at *5.

5

The Court observes that in his initial letter-form objection to the PF&R Plaintiff did indicate that he did not use
certified mail to file his notice with PrimeCare because he is indigent and has no access to legal counsel. (ECF 17 at
2.)

22

For these reasons, and those stated more fully in the PF&R, the Court further finds that
PrimeCare is entitled to summary judgment on Plaintiff’s negligence and medical malpractice
claims, to the extent that Plaintiff’s Complaint alleges such claims.
IV.

CONCLUSION

For all of these reasons, the Court ADOPTS the PF&R [ECF 16] to the extent that it is
consistent with this memorandum opinion and order, GRANTS PrimeCare’s motion to dismiss
and alternative motion for summary judgment [ECF 12], and DISMISSES WITHOUT
PREJUDICE Plaintiff’s Complaint [ECF 2]. Therefore it is ORDERED that this civil be, and
the same is hereby, DISMISSED WITHOUT PREJUDICE and retired from the docket of the
Court.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

23

March 27, 2014