Kenney v. Kanawha County E.M.T. et al
MEMORANDUM OPINION AND ORDER withdrawing the Magistrate Judge referral and dismissing this action for failure to state a claim. Signed by Judge Joseph R. Goodwin on 9/7/2021. (cc: Plaintiff) (lca)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
MICHAEL ALLEN KENNEY,
CIVIL ACTION NO. 2:19-cv-00020
KANAWHA COUNTY E.M.T., et al.,
MEMORANDUM OPINION AND ORDER
By standing order dated January 4, 2016, and entered in this case on January
8, 2019, this matter is referred to United States Magistrate Judge Dwane L. Tinsley
for submission of proposed findings and recommendations for disposition pursuant to
28 U.S.C. § 636(b)(1)(B).
(ECF No. 5.)
The reference is hereby WITHDRAWN.
And for the reasons explained more fully herein, this action is hereby DISMISSED
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim
upon which relief may be granted.
Plaintiff Michael Allen Kenney (“Plaintiff”) brings this purported 42 U.S.C.
§ 1983 action against Defendants Kanawha County E.M.T. and E.M.T. Ambulance
Department and John Does 1 and 2, E.M.T. Medical Paramedics (collectively,
“Defendants”). (ECF No. 2 at 4, 8.) He alleges that on January 11, 2017, he was
involved in a rollover vehicle accident in Saint Albans, West Virginia, to which
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Defendants responded upon request from Saint Albans police officers after Plaintiff
complained of a head injury causing pain, dizziness, and nausea. (Id. at 10–11.)
According to Plaintiff, “the EMT Guy Looked at [his] Head [and] it Had a bad gash in
it and [was] Bleeding [but] he only Renced [sic] it out[,] Wraped [sic] it and told the
officers [Plaintiff] was ok.” (Id. at 11.) Plaintiff alleges that he was then taken to
the police station “and Handcuffed to a wall,” and when “the officer went and
complaind [sic] that [Plaintiff] was Really Hurt,” Defendants were “called again to
take [him] to the Hospitol [sic].” (Id. at 11–12.) He avers that “the EMTs was [sic]
very Hostiol [sic] and Mean and Rude” to him, and at the hospital “it was determined”
that his injuries “were more suver [sic] than the EMTs expected.”
(Id. at 12.)
Plaintiff requests $60,000 in compensatory damages and $40,000 in punitive
damages, in addition to the “cost of this suit and Medical Bills and Lawyer Bills.”
(Id. at 14–15.)
Plaintiff filed his Complaint (ECF No. 2) and an Application to Proceed
Without Prepayment of Fees and Costs (ECF No. 1) on January 7, 2019.
Application was granted by Order and Notice dated June 13, 2019. (ECF No. 14.)
Where, as here, a plaintiff seeks to proceed in forma pauperis, this Court has
a duty to “screen initial filings . . . to independently assess the merits of in forma
pauperis complaints” and “exclude suits that have no arguable basis in law or fact.”
Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th Cir. 2006) (citing Nasim v.
Warden, 64 F.3d 951, 953–54 (4th Cir. 1995)); see 28 U.S.C. § 1915(e). This Court
must “dismiss a complaint filed in forma pauperis ‘at any time if [it] determines that
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. . . the action or appeal . . . is frivolous or malicious . . . [or] fails to state a claim on
which relief may be granted.’”
Eriline Co., 440 F.3d at 656 (quoting 28 U.S.C.
This Court conducts a similar screening process when, as in this case, “a
prisoner seeks redress from a governmental entity or officer or employee of a
28 U.S.C. § 1915A(a).
This screening also requires this
Court to dismiss a complaint that “is frivolous, malicious, or fails to state a claim
upon which relief may be granted.” Id. § 1915A(b)(1).
When reviewing the complaint for failure to state a claim under either statute,
this Court applies the same standards that it applies to review a motion to dismiss
filed pursuant to Federal Rule of Civil Procedure 12(b)(6).
Thomas v. Salvation
Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016) (citing De’Lonta v. Angelone, 330
F.3d 630, 633 (4th Cir. 2003)); De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir. 2013)
(citing Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 248 (4th Cir. 2005)). That
is, this Court first “identif[ies] pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). This Court then “assume[s] the veracity” of the complaint’s “wellpleaded factual allegations” and “determine[s] whether they plausibly give rise to an
entitlement to relief.” Id. “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.” Id. at 678. Stated another way, the
factual allegations in the complaint “must be sufficient ‘to raise a right to relief above
the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir.
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2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint
that alleges enough facts “to satisfy the elements of a cause of action created by [the
relevant] statute” will survive a motion to dismiss. Id. at 648 (quoting McCleary-
Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.
This Court construes a pro se plaintiff’s allegations “liberally,” but the
complaint must nonetheless “contain enough facts to state a claim for relief that is
plausible on its face.” Thomas, 841 F.3d at 637 (internal quotation marks omitted).
Although Plaintiff claims that Defendants’ actions violated his Eighth
Amendment rights under the federal Constitution (ECF No. 2 at 10, 13), the Eighth
Amendment’s protections apply only to “convicted and sentenced prisoners.” Loftus
v. Kanawha Cty. Sheriff’s Dep’t, No. 2:18-cv-01345, 2021 WL 2419449, at *3 (S.D.W.
Va. May 19, 2021), adopted by 2021 WL 2418575 (S.D.W. Va. June 14, 2021). The
facts alleged in the Complaint, which detail Plaintiff’s treatment by Defendants at
the scene of a vehicle accident and transport by Defendants to the hospital after
booking at the police station, suggest that he was not a convicted and sentenced
prisoner on January 11, 2017. (ECF No. 2.)
More importantly, Plaintiff’s allegations sound in mere negligence. He claims
that Defendants “Neglected there [sic] Hypocratic [sic] oath” and “Deveated [sic] from
[the] standerd [sic] of cair [sic],” but he does not allege any facts showing that they
did so with malintent or with some specific knowledge that he was badly injured.
(Id. at 10.) To the contrary, he avers that at the hospital “it was determined” that
his injuries “were more suver [sic] than the EMTs expected.” (Id. at 12.) In other
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words, this is nothing more than a medical negligence case. 1 “[T]he Constitution
does not guarantee due care on the part of state officials; liability for negligently
inflicted harm is categorically beneath the threshold of constitutional due process.”
Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (citing Daniels v. Williams, 474
U.S. 327, 328 (1986)). As such, Plaintiff’s Complaint fails to state a claim against
Defendants under 42 U.S.C. § 1983.
To the extent the Complaint alleges state-law medical negligence claims
against Defendants, this Court lacks jurisdiction over such claims.
purportedly alleges that Defendants are, like him, citizens of West Virginia for
diversity purposes. (ECF No. 2 at 9.) But diversity jurisdiction provides a federal
forum for actions “between . . . citizens of different States.”
28 U.S.C. § 1332(a).
Therefore, this Court is not an appropriate forum for any state-law medical
negligence claims against Defendants.
For the foregoing reasons, this action is hereby DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which
relief may be granted.
IT IS SO ORDERED.
Plaintiff appears to agree with this characterization of his claims, as he describes this action as one
for “Neglegent [sic]/Neglect/Mawpractice [sic]/and Violation of Civil Rights” in his motion for default
judgment. (ECF No. 18 at 3.)
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The Clerk is DIRECTED to send a copy of this Memorandum Opinion and
Order to Plaintiff.
September 7, 2021
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