Michael v. Gordon et al

Filing 44

MEMORANDUM OPINION AND ORDER the 37 Objections by Robert Logan Michael to 36 Proposed Findings and Recommendation are overruled; the 36 Proposed Findings and Recommendation of the Magistrate Judge are adopted and incorporated in full; granti ng the 19 MOTION by Drs. Garcia and Lye to Dismiss, 21 Motion by Nate Kendrick to Dismiss or in the alternative for summary judgment and 31 Motion by David Ballard and Dave Gordan to join; denying the plaintiff's 32 Motion to deny t he motion to dismiss; and directing that this civil action be dismissed without prejudice as to defendants Gordon, Kendrick and Ballard, and dismissed with prejudice as to Drs. Lye and Garcia. Signed by Judge John T. Copenhaver, Jr. on 3/14/2019. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
ROBERT LOGAN MICHAEL,
Plaintiff,
v.

Civil Action No. 2:17-cv-04314

CO II DAVE GORDON; LT. NATE
KENDRICK; DAVID BALLARD; DR.
LYE; and DR. GARCIA,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending is a motion to dismiss, filed on March 27,
2018 by Drs. Lye and Garcia, and a motion to dismiss or in the
alternative for summary judgment, filed on March 27, 2018 by
Nate Kendrick.

Defendants David Ballard and Dave Gordan moved

to join defendant Kendrick’s motion on April 23, 2018.

On April

25, 2018, plaintiff filed a motion to deny the motions to
dismiss.
In his complaint, the plaintiff alleges that he
suffered a neck and back injury from a hit-and-run car accident
involving an inmate work crew van in which he was a passenger.
(Compl. at 4).

Plaintiff asserts claims against C.O. Dave

Gordon, who was driving the van, Lt. Nate Kendrick, the shift
commander who assisted at the accident scene, Drs. Lye and

Garcia, who handled plaintiff’s medical treatment related to the
accident, and Warden David Ballard.

Id.

The plaintiff asserts

that his constitutional rights were violated by the prison
employees’ negligence regarding the accident and by the doctors’
refusal of proper medical treatment.

Id. at 4-7.

Plaintiff

seeks nominal, compensatory and punitive damages.

Id. at 5.

Defendants move to dismiss the complaint on the basis that the
plaintiff has not exhausted his administrative remedies.
#s 19, 21, 31).

(ECF

Drs. Lye and Garcia also move to dismiss on the

basis that the plaintiff has failed to state a claim upon which
relief can be granted.

(ECF # 19).

This action was previously referred to the Honorable
Cheryl A. Eifert, United States Magistrate Judge, for submission
to the court of her Proposed Findings and Recommendations
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On June 15, 2018, the magistrate judge entered her PF&R
recommending that the motions to dismiss and the motion to join
the motion to dismiss be granted and that the complaint be
dismissed without prejudice as to defendants Gordon, Kendrick
and Ballard, and with prejudice as to defendants Drs. Lye and
Garcia.
2018.

The plaintiff filed objections to the PF&R on July 2,
(ECF # 37).

Defendants Ballard, Gordon and Kendrick

filed a response to the objections on July 11, 2018, (ECF #38),

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and defendants Drs. Garcia and Lye filed a response on July 17,
2018.

(ECF #40).
Upon an objection, the court reviews a PF&R de novo.

Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
The plaintiff’s first objection is that the magistrate
judge incorrectly decided the exhaustion issue.
1).

(ECF No. 37, at

Specifically, the plaintiff points to four grievances, Nos.

17-MDC-B-193, 17-MDC-B-194, 16-MDC-Q-522, and 16-MDC-B-91, which
he believes were properly exhausted under both the federal and
the West Virginia Prison Litigation Reform Acts, 42 U.S.C. §
1997e(a) and W.Va. Code § 25-1A-2a(i)).

Id.

The court agrees

with the magistrate judge’s conclusion on this matter.

In

finding that the plaintiff did not exhaust his administrative
remedies for his claims, the magistrate judge properly presented
the relevant law and prison grievance procedure.
6-10).

(ECF # 36 at

Upon the filing of a grievance, if the Unit Manager

rejects it for not being properly submitted, denies it or fails
to respond within five days, the inmate may appeal to the
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Warden/Administrator, and then, within five days of the
Warden/Administrator’s response, or if the Warden/Administrator
fails to respond, the inmate may appeal to the West Virginia
Division of Corrections Commissioner.

See ECF # 21-1, State of

West Virginia Division of Corrections Policy Directive 335.00 at
6-7 (setting forth inmate grievance procedure).

Notably, “[a]

rejected grievance does not exhaust the grievance process or
that step of the process.”

Id. at 9.

The magistrate judge correctly found that the
grievances were not exhausted as to defendants Ballard, Kendrick
and Gordon because only one grievance, No. 16-MDC-C-130, which
refers to Gordon, relates to them and it was rejected for being
unsigned by the plaintiff.

(ECF # 36 at 11-13).

It was not

appealed to the Commissioner or refiled to comply with the
grievance procedure.
The magistrate judge correctly found that the
plaintiff had not exhausted his administrative remedies as to
Drs. Garcia and Lye because the plaintiff did not proffer
evidence showing that there were no available administrative
remedies for grievance No. 16-MDC-B-91 that was filed over ten
months after the accident, and the remaining grievances either
did not pertain to the medical care at issue in the complaint or

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were rejected for not following the grievance procedure.

Id. at

13-17.
The plaintiff’s remaining objections relay general
disagreement with the magistrate judge’s decision regarding the
Eighth Amendment claim alleging failure to provide proper
medical care.

The magistrate judge correctly disposed of this

claim as the plaintiff did not allege sufficient facts
establishing an Eighth Amendment claim.

See id. at 17-23.

The

complaint does not show that any delay in medical treatment
exacerbated an injury, unnecessarily prolonged pain, or
constituted deliberate indifference by the doctors.

While the

plaintiff may disagree with the course of treatment, there is no
indication that the course of treatment chosen by the doctors
constituted a constitutional violation.
The court thus finds that the magistrate judge’s PF&R
adequately addressed and correctly resolved all issues presented
in the defendants’ motions to dismiss.
The court, accordingly, ORDERS as follows:
1. That the plaintiff’s objections to the PF&R be, and they
hereby are, overruled.

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2. That the magistrate judge’s Proposed Findings and
Recommendations be, and they hereby are, adopted and
incorporated in full.
3. That the two pending motions to dismiss and the motion to
join the Kendrick motion to dismiss be, and they hereby
are, granted.
4. That plaintiff’s pending motion to deny the motion to
dismiss be, and it hereby is, denied.
5. That this civil action be dismissed without prejudice as to
defendants Gordon, Kendrick and Ballard, and dismissed with
prejudice as to Drs. Lye and Garcia.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and to any
unrepresented parties.
Enter: March 14, 2019

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