West v. Rubenstein et al

Filing 97

MEMORANDUM OPINION AND ORDER granting the WVDOC defendants' 70 MOTION to Dismiss, as 95 joined by Sergeant Hilewitz; granting Wexford's 68 MOTION for Summary Judgment; directing this action dismissed and stricken from the docket. The court withdraws the 4/15/2013 reference in this matter. Signed by Judge John T. Copenhaver, Jr. on 3/31/2014. (cc: Vincent Allen West; counsel of record) (taq)

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

VINCENT ALLEN WEST,
Plaintiff,
v.

Case No. 2:13-4817

JAMES RUBENSTEIN, Commissioner
of Corrections, DAVID BALLARD, Warden,
Mount Olive Correctional Complex,
CAPTAIN PHILLIP MATHENY,
Former Sgt. JEFFREY HILEWITZ,
CO I ROBERT BLETHINS, each in his
individual and official capacity, and
WEXFORD HEALTH SOURCES, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are a motion to dismiss filed August 21, 2013,
by defendants Commissioner of Corrections James Rubenstein,
Warden David Ballard, Captain Phillip Matheny and CO II Robert
Blethins (“the DOC defendants”), and a motion to dismiss, or in
the alternative, for summary judgment, filed the same day by
defendant Wexford Health Sources, Inc. (“Wexford”), and a
joinder by Sergeant Jeffrey Hilewitz in the DOC defendants’
motion to dismiss, filed March 25, 2014.

The court withdraws

the April 15, 2013, reference in this matter.

I.

A.

Introduction

Plaintiff Vincent Allen West is incarcerated at Mount
Olive Correctional Complex (“MOCC”).

This litigation arises out

of an assault he suffered at the hands of fellow inmate Jacob
Samples.

The attack occurred in the recreation yard of the MOCC

Quilliams I segregation unit.

Mr. West alleges the motivation

was his prior conviction, which involved an offense against a
minor.
Mr. West alleges three claims.

First, he asserts that

the DOC defendants infringed his Eighth Amendment rights in
failing to prevent the assault.

Second, he accuses Commissioner

Rubenstein and Warden Ballard of failing to implement adequate
procedures to guarantee inmate safety.

Third, he charges

Wexford with providing him inadequate medical care following the
attack.

B.

The factual allegations supporting these claims follow.

The December 24, 2012, Assault

On December 24, 2012, two correctional officers
delivered Mr. West and Mr. Samples to the Quilliams I recreation

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area.

Mr. Samples is alleged to be a known “Hate Crime

activist.”

(Sec. Am. Compl. ¶¶ 1-2).

Just days prior, he

brutally assaulted Jason Anderson, another inmate previously
convicted of an offense involving a minor.1

CO II Blethins

served as the control officer on December 24, 2012.

He

permitted the correctional officers to place Mr. West in the
recreation area with Mr. Samples.
Samples confronted Mr. West.
question.

Soon after his arrival, Mr.

Mr. Samples asked Mr. West a

When Mr. West turned to answer, Samples brutally

assaulted him and knocked him to the ground.
Mr. Samples struck Mr. West repeatedly in the face
around the jaw, eyes, and head.
and kicked him in the head.
control area.

He then dislocated the forearm

CO II Blethins remained in the

Mr. West contends that the attack resulted in a

dislocated left elbow, a dislodged bone chip, two black eyes,
multiple contusions, and head swelling.

He suffered pain,

dizziness, and headaches that recur, along with arm and left
hand numbness that produces pain and causes challenges in

Mr. West provides further detail about Mr. Samples in an
affidavit. He notes that, after the attack, Mr. Samples
assaulted still others in the recreation area before Sergeant
Hilewitz left MOCC. Based upon these and other events he
identifies, Mr. West does not believe that the officials in
charge of MOCC are capable of providing a safe environment. He
states his desire to speak to federal law enforcement officials
about the atmosphere he perceives at MOCC.
1

3

performing daily tasks.

He fears further assaults and complains

that his quality of life has diminished.
Mr. West contends that he was removed from the area by
correctional officers while Mr. Samples uttered a “‘Hate Crime’
statement regarding baby rapers.”

(Id. ¶ 5).

He was taken to,

and x-rayed at, the medical unit.

He was subsequently

transported to Charleston Area Medical Center (“CAMC”).

Another

x-ray was taken there and his dislocated left arm was
repositioned.
Mr. West asserts that his treating physician, and
another doctor at CAMC, ordered a follow up with an orthopedist.
He spent the night in the MOCC infirmary.
he was returned to the segregation unit.
released to the general population.

On December 25, 2012,
The next day he was

He claims to have submitted

a grievance to Unit Manager William Kincaid.

He provides no

detail respecting what the grievance concerned.

C.

Mr. West’s Claims and the Motion Practice

Mr. West accuses Commissioner Rubenstein of failing
“to instruct his subordinates and provide adequate procedures
for handling of ‘Hate Crimes’ inmates and failing to instruct
and provide procedures for the specific separate housing of
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dangerous and combative inmates in the West Virginia Division of
Corrections segregation facilities.”

(Id. ¶ 8).

He further

alleges that Commissioner Rubenstein, “as Respondeat Superior,
failed to draft and implement adequate and specific procedures
for the segregation and separation of malicious ‘Hate Crime’
individuals in a Gang reference and failed to protect this
Plaintiff accordingly.”
similar allegations.

(Id. ¶ 9).

Warden Ballard faces

(Id. ¶ 11).

Mr. West also contends that Captain Matheny, CO II
Blethins, and Sergeant Hilewitz allowed him to be in the company
of Mr. Samples despite his and his “Hate Gang[’s]” reputation
for assaulting those accused of crimes against minors.
10).

(Id. ¶

He asserts that the failure to protect him was

“incompetent and irresponsible” and also a “willful violation
of” the Eighth Amendment. (Id.)
He specifically alleges the following actionable
conduct on the part of each of these correctional officers:
That CO II Blethins failed to protect him given his
role of controlling the movement of prisoners into and
out of the recreation area;
That Sergeant Hilewitz, who was tasked with
supervisory responsibilities in Quilliams,
“orchestrated and arranged the systematic assaults of
sex offenders through collaboration with inmate Jacob
Samples resulting in the assault on this Plaintiff and
three others with sex offenses . . . .” (Id. ¶ 13).

5

That Captain Metheny as the “ranking supervisor of the
Quilliams unit, . . . failed to pass along information
regarding the types of persons Samples would and had
preyed upon and this placed the plaintiff in danger of
assault.” (Id., ¶ 15). He additionally accuses
Captain Matheny of failing to make or implement the
decision to place Mr. Samples on single recreation to
ensure the safety of other inmates in the segregation
unit. That occurred in the months following December
24, 2012.
Respecting Wexford, Mr. West alleges it failed to
provide follow-up examination and treatment by an orthopedist
for the bone chip and fracture found on the CAMC x-ray.

He

alleges that this conduct was “incompetent” and a “direct denial
of treatment of a serious medical need.”

(Id. ¶ 17).

He also

contends he has suffered the denial of appropriate mental health
treatment for trauma and anxiety following the assault event.
Mr. West seeks damages and injunctive relief.

He is

presently incarcerated at the Northern Correctional Facility
(“NCF”), in Moundsville.

As a result, his injunctive relief

requests arising out of his treatment and conditions of
confinement at MOCC are now moot.

See Rendellman v. Rouse, 569

F.3d 182, 186 (4th Cir. 2009) (stating “[A]s a general rule, a
prisoner’s transfer or release from a particular prison moots
his claims for injunctive and declaratory relief with respect to
his incarceration there.”)

6

On August 21, 2013, Wexford moved to dismiss or, in
the alternative, for summary judgment.

That same day

Commissioner Rubenstein, Warden Ballard, and Captain Matheny
moved to dismiss.
joined therein.

Following service of process, CO II Blethins
The briefing on the motions is complete.

II.

A.

Governing Standards

Both the Rule 12(b)(6) and Rule 56 standards require
discussion.

First, Rule 8(a)(2) requires that a pleader provide

“a short and plain statement of the claim showing . . .
entitle[ment] to relief.”

Fed. R. Civ. P. 8(a)(2); Erickson v.

Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule 12(b)(6)

correspondingly permits a defendant to challenge a complaint
when it “fail[s] to state a claim upon which relief can be
granted . . . .”

Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 127 S. Ct.

1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), overruled on other grounds, Twombly, 127 S. Ct. at

7

1969)); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007).

Additionally, the showing of an “entitlement

to relief” amounts to “more than labels and conclusions . . . .”
Twombly, 127 S. Ct. at 1965.

It is now settled that “a

formulaic recitation of the elements of a cause of action will
not do.” Id.; Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir.
2008).
The complaint must allege "enough facts to state a
claim to relief that is plausible on its face."

Twombly, 127 S.

Ct. at 1974; Giarratano, 521 F.3d at 302. The recent decision in
Iqbal provides some guidance concerning the plausibility
requirement:
A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable
for the misconduct alleged. The plausibility standard
is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint
pleads facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of ‘entitlement
to relief.’”
Iqbal, 129 S. Ct. at 1949-50 (citations omitted).
As noted in Iqbal, the Supreme Court has consistently
interpreted the Rule 12(b)(6) standard to require a district
court to “‘accept as true all of the factual allegations
contained in the complaint . . . .’”
8

Erickson, 127 S. Ct. at

2200 (quoting Twombly, 127 S. Ct. at 1965); see also South
Carolina Dept. of Health and Environmental Control v. Commerce
and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004)
(quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).
The court is additionally required to “draw[] all reasonable . .
. inferences from those facts in the plaintiff's favor . . . .”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Respecting summary judgment, a movant will prevail
“if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment
as a matter of law.”

Fed. R. Civ. P. 56(c).

Material facts are

those necessary to establish the elements of a party’s cause of
action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

B.

The Law Governing the Claims and the Analysis

1. DOC Defendants’ Motion to Dismiss

In Farmer v. Brennan, 511 U.S. 825, 832 (1994), the
Supreme Court noted that the Eighth Amendment “imposes duties on
[prison] officials who must provide humane conditions of

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confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the
inmates.’”

It emphasized that “[p]rison conditions may be

‘restrictive and even harsh.’” Id. at 833.
That explains, in part, the high standard governing
Eighth Amendment claims.

To prevail, an inmate must show: (1)

“the deprivation . . . [is] objectively, ‘sufficiently
serious;’” that is, “denial of ‘the minimal civilized measure of
life’s necessities;’” and (2) the prison official had a
“‘sufficiently culpable state of mind;’” that is, “‘deliberate
indifference’ to inmate health or safety.”

Id. at 834.

(citations omitted.).
Lest there be any doubt respecting the subjective
component found in the second element above, the Supreme Court
additionally stated as follows:
We hold . . . that a prison official cannot be
found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless 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.

10

Id. at 837 (emphasis added).

The negligent failure to protect

inmates from violence will not suffice.

Pressly v. Hutto, 816

F.2d 977, 979 (4th Cir. 1987).
The DOC defendants contend Mr. West has offered only
conclusory assertions without any factual support.

They note

that a claim should be dismissed if it is merely conceivable and
fails to cross the line between possibility and plausibility.
They also assert entitlement to the defense of qualified
immunity, stating that no reasonable officer or official under
the circumstances would have believed that his or her conduct
violated clearly established law.

See Pearson v. Callahan, 555

U.S. 223 (2009) (discussing the discretionary sequencing of the
two-part qualified immunity assessment, namely, whether a
constitutional right was violated and, if so, whether it was
clearly established at the time of the deprivation).
In response, Mr. West principally notes that the “the
[DOC] [d]efendants each had actual knowledge of inmate
Samples[’] illegal and criminal acts of assault upon inmates who
were convicted of sexual assault, based upon the fact inmate
Samples has assaulted other inmates, and they failed to take
corrective action to prevent him from assaulting other inmates.”
(Resp. at 3).

11

He adds that WVDOC records show that Mr. Samples had a
history of at least two prior assaults on inmates due to their
sexual preferences or their crimes of conviction, namely, Jason
Anderson and an unidentified individual.

He alleges that Mr.

Samples’ beliefs and violent acts were well known to the DOC
defendants, yet they failed to put in place practices or
policies to prevent him from engaging in inmate violence.

At

bottom, he contends that this “is not a case where it was a one
time situation that an inmate assaulted another inmate.

This is

a case that inmate Samples was a known violent offender that
committed hate crimes against certain inmates.”

(Id. at 11).

It is noteworthy that, prior to the assault, Mr. West
did not cite any particular threat from, or concern about, Mr.
Samples.

His general assertions that the DOC defendants knew or

should have known of the violent history or reputation of Mr.
Samples, and the possibility that he might harm an inmate who
was convicted of a sexual offense or other offense involving a
minor, are insufficient to establish liability under the Eighth
Amendment on a failure-to-protect theory.
It is well-established that in order to successfully
assert such a claim, a plaintiff must be able to demonstrate
that each individual defendant was actually and subjectively
aware of a specific risk of harm to the plaintiff from the
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inmate involved and that the substantial risk was ignored by
that defendant.

Mr. West’s allegations relating to two prior

assaults, one upon an identified individual and the other upon
an individual whom he fails to identify, fall short of that
mark.

His operative pleading is littered instead with

speculation and conjecture on those points.

He has neither pled

the deprivation of his Eighth Amendment rights nor a violation
of clearly established law.
The court, accordingly, ORDERS that the DOC
defendants’ motion to dismiss be, and hereby is, granted.

2. Wexford’s Alternative Motion for Summary Judgment

“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

(1976); United States v. Clawson, 650 F.3d 530, 537 (4th Cir.
2011).

“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

13

fundamental fairness."

Miltier v. Beorn, 896 F.2d 848, 851 (4th

Cir. 1990).
In Farmer, the Supreme Court observed as follows
concerning this branch of an inmate’s Eighth Amendment rights:
In considering the inmate's claim in Estelle that
inadequate prison medical care violated the Cruel and
Unusual Punishments Clause, we distinguished
“deliberate indifference to serious medical needs of
prisoners,” from “negligen[ce] in diagnosing or
treating a medical condition,” holding that only the
former violates the Clause. We have since read Estelle
for the proposition that Eighth Amendment liability
requires “more than ordinary lack of due care for the
prisoner's interests or safety.”
Farmer, 511 U.S. at 835.
As our court of appeals recently observed, however, an
inmate’s allegation that he is receiving inadequate care to
treat his medical needs may support a claim of deliberate
indifference.

De'lonta v. Johnson, 708 F.3d 520, 526 (4th

Cir.2013) (While “a prisoner does not enjoy a constitutional
right to the treatment of his or her choice, the treatment a
prison facility does provide must nevertheless be adequate to
address the prisoner's serious medical need.”).

It is not

enough though that the inmate asserts nothing more than a
disagreement with his diagnosis or prescribed treatment.

Wright

v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); Russell v.
Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).

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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).
At the same time, correctional facility physicians
transgress the Eighth Amendment if they decline to provide the
level of care they deem medically necessary or fail to
adequately address a prisoner's complaints that the care he is
receiving is not effective.

See Miltier v. Beorn, 896 F.2d 848,

853 (4th Cir.1990) (treating physician may be deliberately
indifferent where he fails to provide level of care he believes
is necessary); Sosebee v. Murphy, 797 F.2d 179, 182 (4th
Cir.1986) (failure to respond to an inmate's known medical needs
raises an inference of deliberate indifference to those needs).
At bottom, the burden of demonstrating deliberate
indifference to a serious medical need is very high, as noted in
Iko:
[T]here is a subjective and an objective component to
showing a violation of the right. The plaintiff must
demonstrate that the officers acted with “deliberate
indifference” (subjective) to the inmate's “serious
medical needs” (objective).
Beginning with the objective component, a
“serious ... medical need” is “one that has been
diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily
recognize the necessity for a doctor's attention.” . .
15

.
Plaintiffs must also show the subjective
component -- deliberate indifference. An officer is
deliberately indifferent only when he “knows of and
disregards” the risk posed by the serious medical
needs of the inmate. The subjective component
therefore sets a particularly high bar to recovery.
Iko, 535 F.3d at 241 (citations omitted).
For example, in Webster v. Jones, 554 F.2d 1285 (4th
Cir. 1977), the plaintiff complained numerous times of eye
problems and loss of vision.

He asserted that he was cursorily

examined after his initial complaint but never re-examined
despite later complaints.

A specialist subsequently found that

Webster’s vision had deteriorated to 20/400, that he suffered
from a detached retina and iritis, and that his vision could not
be restored.

Nevertheless, the court of appeals concluded that,

assuming the doctor had been negligent in failing to properly
diagnose or treat Webster, negligence is insufficient to
demonstrate deliberate indifference to a serious medical need.
Webster’s allegations thus fell short of the Eighth Amendment
bar.

See also, Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir.

1998).2

Wexford notes that any traditional medical malpractice
claim asserted by Mr. West is also barred. He has neglected the
pre-requisites of the West Virginia Medical Professional
Liability Act (“MPLA”), § 55-7B-6. The MPLA requires pre-suit
notice of a claim and a screening certificate of merit from a
qualified expert health care provider indicating that a
2

16

Wexford notes Mr. West’s accusation that it failed to
provide a follow-up examination and treatment by an orthopedist
for the bone chip and fracture.

Wexford first observes that Mr.

West’s characterization of his discharge instructions is
inaccurate.

Specifically, no box was checked in the section

titled “Call to arrange follow-up.”

The instructions were

instead to provide Motrin 800mg every six hours, furnish a
sling, keep the dressing clean and dry, elevate as much as
possible, and provide ice for 20 minutes, 6-8 times per day.
The only reference to follow-up appointments was listed in the
“Other Comments” section, which stated, “Return to ER if
symptoms worsen or if new concerns.”3
Wexford additionally notes the treatment history.
First, it took steps to treat Mr. West prior to his transport to
CAMC.

For example, the first entry in his medical records on

December 24, 2012, indicates that Mr. West complained of severe
pain in, and the inability to move, his left elbow.

Wexford

notes that the entry states to “follow hospital staff’s

defendant’s conduct violated the applicable standard of care,
which resulted in injury to the plaintiff. See, e.g., Boggs v.
Camden-Clark Memorial Hosp. Corp., 609 S.E.2d 917 (W. Va. 2004).
The discharge instructions, in a section entitled “CALL TO
ARRANGE FOLLOW-UP,” lists this: “Dr. Sop 388-7100 – call 12-26
am.” (Dischg. Ins. at 1). It is uncertain whether Mr. West was
expected to call Dr. Sop regardless or only if symptoms worsened
or new concerns arose.
3

17

instructions; submit NSC [Nurse Sick Call] slip." (Wexford Prog.
Notes at 1).

Second, Wexford points out that, upon his return

to MOCC, Mr. West received multiple follow-up visits, with
examinations by a Wexford physician who provided appropriate
continuing care in accordance with CAMC emergency room
personnel.
Mr. West responds and notes that portion of the
discharge instruction providing contact information for Dr. Sop
with a date of “12/26 a.m.” (“discharge instruction”).

He also

provided additional medical records with his responses to the
defendants’ motions.

One such document is a summary of the

treatment rendered by Dr. Edward E. Wright, M.D., one of his
treating physicians at CAMC (“summary of treatment”).

The

discharge plan at the bottom of this summary directs that Mr.
West have a “follow-up with Dr. Sop,” and “call for
appointment.”

Mr. West additionally notes as follows:

The Plaintiff still has an injured elbow that will
need medical surgery to remove the spurs, this is to
the best of his knowledge and belief, as he is
experiencing pain and still has a week [sic; weak]
left arm because of the injury sustained from the
assault. The facts show actual injury, and without
another Doctor[‘]s opinion, the Plaintiff is without
knowledge as to extent he will be able to obtain full
use of his left arm without pain and weakness.

18

(Pl.’s Resp. at 2).

He also contends that, without discovery,

he “does not know who is responsible for not returning him in a
timely manner to the CAMC.”

(Id. at 3).

Wexford notes in reply that Mr. West is ineligible for
the injunctive command of surgery inasmuch as he is no longer
incarcerated at MOCC.

It also emphasizes that he complains

merely of a disagreement respecting the appropriate course of
treatment.
Having considered the materials presented, it appears
Mr. West received treatment for a dislocated elbow following the
assault by inmate Samples.

He was transported promptly to CAMC,

where he received both diagnostic testing and treatment.

The

failure to follow up with Dr. Sop does not support an Eighth
Amendment claim.

Respecting the discharge instruction, its

equivocal nature, in the form of a brief chart entry, does
little to satisfy the subjective component.

The same is true of

the summary of treatment from Dr. Wright.
It is evident that Wexford physicians deemed the
necessary follow-up within their expertise.

Wexford physician

orders found in the record reflect that Mr. West was seen on
three separate occasions by Wexford medical personnel following
his release from CAMC.

Those assessments occurred on December

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28, 2012, January 8, 2013, and January 11, 2013.

There was thus

an established course of evaluation and treatment.
Mr. West is not entitled under binding precedent to
demand that the opinion of his emergency room physician be
permitted to override the reasonable professional judgment of
the MOCC physician(s) who thereafter examined him multiple
times.

Cf. Clawson, 650 F.3d at 538 (noting that an inmate is

entitled to necessary medical treatment, but he does not enjoy
“a right to demand that the opinion of his pre-imprisonment
doctor be permitted to override the reasonable professional
judgment of the prison's medical team.”).
In sum, the claim against Wexford alleges little more
than a disagreement with the course and timing of his treatment.
Treating his allegations as true, Mr. West has not alleged a
plausible Eighth Amendment claim that Wexford or its employees
acted with deliberate indifference to his serious medical needs.
Inasmuch as there is no genuine issue of material fact, Wexford
is entitled to judgment as a matter of law on the Eighth
Amendment claim alleged against it.

It is, accordingly, ORDERED

that Wexford’s motion for summary judgment be, and it hereby is,
granted.

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III.

Based upon the foregoing discussion, it is ORDERED as
follows:

1.

That the WVDOC defendants’ motion to dismiss, as

joined by Sergeant Hilewitz, be, and it hereby is, granted;
2.

That Wexford’s motion for summary judgment be, and

hereby is, granted; and
3.

That this action be, and hereby is, dismissed and

stricken from the docket.

The Clerk is directed to transmit a copy of this
written opinion and order to counsel of record and Mr. West.
DATE:

March 31, 2014

John T. Copenhaver, Jr.
United States District Judge

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