Skaggs v. Western Regional Jail et al

Filing 111

MEMORANDUM OPINION AND ORDER denying Plaintiff's 109 OBJECTIONS; accepting and incorporating the 106 Proposed Findings and Recommendations of the Magistrate Judge; granting Defendant Berlin's 92 Motion to Dismiss or, in the alternative, Motion to Quash Service; granting Defendant Dr. Dominique Wong's 86 MOTION to Dismiss or, in the alternative, Motion for Summary Judgment. Signed by Judge Robert C. Chambers on 1/21/2015. (cc: attys; any unrepresented parties) (mkw)

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

SHELBY DEAN SKAGGS,
Plaintiff,
v.

CIVIL ACTION NO. 3:13-3293

MICHAEL CLARK, Administrator,
DR. DOMINIQUE WONG, and
OFFICER BERLIN
Defendants.

MEMORANDUM OPINION AND ORDER
Proceeding on Plaintiff’s Amended Complaint (ECF No. 80), this matter concerns
allegations of deliberate indifference to a serious medical need by Defendants Dr. Dominique
Wong, Michael Clark, and Officer Berlin. This action was referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to this Court of proposed findings of fact
and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge
has submitted findings of fact and recommended that the Court grant both Defendant Dr. Wong’s
Motion to Dismiss or, in the alternative, Motion for Summary Judgment (ECF No. 86) and
Defendant Berlin’s Motion to Dismiss or, in the alternative, Motion to Quash Service (ECF No.
92). Plaintiff timely filed objections to the finding and recommendations of Magistrate Judge
Tinsley.
I.

BACKGROUND

A. Plaintiff’s Complaint and Defendants’ Pending Motions

As summarized in the proposed findings and recommendation, Plaintiff’s claims relate to
the alleged confiscation of a special shoe worn by the Plaintiff on his left foot by Defendant
Michael Clark. Upon confiscation and thereafter, Plaintiff was forced to only use his right shoe
and brace, which eventually broke as a result of the added strain. Since his right shoe and brace
broke, Plaintiff has been confined to a wheelchair.
Relevant to the instant motion, in his Amended Complaint, Plaintiff alleges that Defendant
Dr. Dominique Wong, a contracted medical provider at the Western Regional Jail (“WRJ”), was
aware of Plaintiff’s condition and demonstrated deliberate indifference to Plaintiff’s health and
welfare. ECF No. 80. Plaintiff further alleges that Defendant Berlin slammed a steel door into
Plaintiff’s shoulder upon entering the medical unit on September 16, 2012. Dr. Wong ordered an
x-ray of Plaintiff’s shoulder after pain had continued for three months. Plaintiff seeks an order
requiring provision of a new brace and shoes and award of monetary damages, including payment
for future rehabilitation services and operations.
On May 14, 2014, Defendant Dr. Wong filed a Motion to Dismiss or, in the alternative,
Motion for Summary Judgment (ECF No. 86) and a supporting Memorandum of Law (ECF No.
87). Plaintiff filed a Response on June 3, 2014 (ECF No. 97), and Defendant Dr. Wong filed a
Reply on June 15, 2014 (ECF No. 98).
On May 20, 2014, Officer Matthew Berlin, by counsel, filed a Motion to Dismiss or, in the
alternative, Motion to Quash Service (ECF No. 92) and a supporting Memorandum of Law (ECF
No. 93). As explained in the motion, Officer Berlin was no longer employed at the WRJ when
service of process by certified mail, return receipt requested was attempted, and therefore, service
was improper. ECF No. 93. On May 23, 2014, Magistrate Judge Tinsley directed the Clerk to
prepare a new summons and to serve the same certified mail, return receipt requested, to Berlin’s

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last known home address, which had been provided by defense counsel. ECF No. 94. On May 30,
2014, that summons was returned unexecuted as undeliverable with no known forwarding address.
ECF No. 96.
B. Magistrate Judge’s Proposed Findings and Recommendations
The Magistrate Judge performed a thorough review of Plaintiff’s complaint, affording his
claims the liberal construction required for pro se pleadings. See Erickson v. Pardus, 551 U.S. 89,
94 (2007). After reviewing the multiple attempts to serve Defendant Berlin and the court’s
obligations related thereto, Magistrate Judge Tinsley proposed finding “that the attempted service
of process upon Officer Berlin at the WRJ was improper and that such service should be quashed”
and “that additional attempts at serving Officer Berlin have been unsuccessful and that there is no
viable way to obtain personal jurisdiction over the plaintiff’s claim against him.” ECF No. 106 at
8. Accordingly, Magistrate Judge Tinsley recommended that the Court grant Defendant Berlin’s
Motion to Dismiss Amended Complaint or in the alternative Motion to Quash (ECF No. 92). ECF
No. 106 at 8.
With respect to Defendant Wong, Magistrate Judge Tinsley proposed finding that Plaintiff
“failed to establish that Dr. Wong was deliberately indifferent to any serious medical need of the
Plaintiff.” ECF No. 106 at 14. ECF No. 106 at 14. Instead, Magistrate Judge Tinsley noted that
that undisputed evidence in the record showed mere disagreement with Dr. Wong’s medical
judgment, not deliberate indifference to Plaintiff’s complaints. Accordingly, Magistrate Judge
Tinsley recommended that Dr. Wong is entitled to judgment as a matter of law with respect to
Plaintiff’s Eighth Amendment claim. ECF No. 106 at 14.

Despite Plaintiff’s unequivocal

representation in his Response that he is not alleging a medical negligence claim against Dr.
Wong, Magistrate Judge Tinsley nonetheless generously considered the possible merits of a

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medical negligence claim, and finding none owing to procedural defaults, again recommended that
the Court grant Defendant Wong’s Motion to Dismiss.
C. Plaintiff’s Objections
Plaintiff’s Objections to the findings and recommendations of the Magistrate Judge were
timely filed on December 24, 2014 (ECF No. 109). Regarding Defendant Berlin’s Motion to
Dismiss or, in the alternative, Motion to Quash Service (ECF No. 92), Plaintiff’s objections to the
Magistrate Judge’s findings and recommendation begin with explaining that Plaintiff never
received such motions or supporting memoranda nor was he afforded notice that either had been
filed. Plaintiff goes on to argue that the court has a continuing obligation to effect service on his
behalf. Finally, Plaintiff questions the appropriateness of a defendant who has not been or cannot
be served nonetheless managing to file a motion for the Court.
Regarding Defendant Dr. Wong’s Motion to Dismiss or, in the alternative, Motion for
Summary Judgment, Plaintiff’s objections include a recitation of facts he argues support his claim
against Dr. Wong. Those facts highlight that: (1) Dr. Wong was the examining physician who
concluded Plaintiff’s shoe and brace were unsafe to wear; and (2) despite the fact that Dr. Wong
offered deposition testimony that she only treats patients with acute, not chronic, medical
problems, the record nonetheless demonstrates that Dr. Wong indeed treated Plaintiff for his
chronic condition.
Plaintiff further objects to Magistrate Judge Tinsley’s findings and recommendations on
the ground that Plaintiff was never informed that Magistrate Judge Tinsley would be assigned to
his case. Plaintiff goes on to allege that Magistrate Judge Tinsley is biased in cases involving
incarcerated individuals and that such bias stems from his former role as a prosecutor. Plaintiff

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insists that bias on the part of Magistrate Judge Tinsley is evident in examining his responses to
Defendants’ motions as compared to Plaintiff’s motions.
II.

ANALYSIS

This Court conducts a de novo review of those portions of the magistrate judge’s proposed
findings and recommendations to which Petitioner objects. 28 U.S.C. § 636(b)(1)(C) (“A judge of
the court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate.”). The
Court, however, 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 recommendations
to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
A. Defendant Berlin’s Motion to Dismiss or, in the alternative, Motion to Quash
As reviewed by Magistrate Judge Tinsley, the court is responsible for service of process on
behalf of Plaintiff, who is proceeding in forma pauperis. 28 U.S.C. § 1915(d). This requirement,
however, does not transform the court into an advocate for Plaintiff. Here, two attempts at service
of the summons for Defendant Berlin were made—the first to the place of his previous
employment and the second to a last known residence provided by defense counsel.
Plaintiff claims in his Objections that he never received notice or copies of Defendant
Berlin’s motion and memorandum challenging the adequacy of service. ECF No. 109. Defendant
Berlin’s motion and memorandum were filed on May 20, 2014. ECF Nos. 92 and 93. Shortly
thereafter, on May 23, 2014, Magistrate Judge Tinsley entered an Order directing the Clerk to
issue a new summons and effect service of the same. ECF No. 94. The opening sentence of that
Order announces the inciting motion filed on behalf of Defendant Berlin. On the basis of that

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Order, Plaintiff reasonably could have understood that there were relevant pending motions before
the Court. Regardless, through Plaintiff’s Objections he has been afforded an opportunity to
respond to the instant motion, and the Court is now conducting a de novo review.
Plaintiff asks in his Objections how the Court expects him to be able to properly serve
Defendant Berlin while incarcerated if the court itself is unable to do so. Notwithstanding the
difficulties faced by an incarcerated plaintiff, it is not yet, and cannot become, the role of the courts
to track down defendants on behalf of incarcerated plaintiffs. At a minimum, such plaintiffs bear
the reasonable burden of identifying some address where service can be properly made. Only
upon provision of such information—which is absent here—can the courts execute service.
That an attorney has filed a Motion to Dismiss or Quash Service on behalf of Defendant
Berlin does not change Plaintiff’s obligation to facilitate service by providing the court with an
address and does not provide this Court with personal jurisdiction over Plaintiff’s claims against
Defendant Berlin. Accordingly, the Court grants Defendant Berlin’s Motion and dismisses
Defendant Berlin as a defendant herein.
B. Defendant Wong’s Motion to Dismiss or, in the alternative, Motion for Summary
Judgment
To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in
the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).

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The nonmoving party nonetheless must offer some “concrete evidence from which a
reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256.
Summary judgment is appropriate when the nonmoving party has the burden of proof on an
essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23-2(1986). The nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Deliberate indifference to a serious medical need is a markedly high constitutional
standard:
A medical need serious enough to give rise to a constitutional claim involves a
condition that places the inmate at a substantial risk of serious harm, usually loss of
life or permanent disability, or a condition for which lack of treatment perpetuates
severe pain. See Farmer, 511 U.S. at 832–35; Sosebee v. Murphy, 797 F.2d 182–83
(4th Cir. 1986); Loe v. Armistead, 582 F.2d 1291, 1296–97 (4th Cir. 1978).
Rush v. VanDevander, 2008 WL 495651 (W.D. Va. Feb. 21, 2008). Under this standard, mere
disagreements between an inmate and a medical provider over diagnosis and treatment cannot
support a deliberate indifference claim; such disagreements regarding 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). The Fourth Circuit has further explained that inmates’
qualified access to healthcare and treatment may be limited to what is medically necessary, to the
exclusion of “that which may be considered desirable” by the inmate. Bowring v. Godwin, 551
F.2d 44, 47–48 (4th Cir. 1977).
Upon review of the record, the Court agrees with the conclusion reached by Magistrate
Judge Tinsley that Plaintiff has failed to show that Dr. Wong was deliberately indifferent to any
serious medical need of Plaintiff. As noted in Plaintiff’s Objections, Dr. Wong indeed provided

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medical care to Plaintiff related to his chronic medical condition, and Dr. Wong was necessarily
aware of Plaintiff’s complaints related to both his legs and his shoulder. However, neither of
Plaintiff’s conditions rises to the level of being a serious medical need for purposes of an Eighth
Amendment claim. Even assuming either or both conditions might be deemed serious medical
needs, Plaintiff has similarly not produced evidence showing that Dr. Wong was deliberately
indifferent to Plaintiff’s complaint.

Quite the contrary, she prescribed medication to ease

Plaintiff’s pain and discomfort and ordered diagnostic testing.

Plaintiff’s disagreements

regarding the adequacy of treatment might have supported a medical negligence claim—which
Plaintiff has specifically renounced—but such disagreements and dissatisfaction with the
provision of qualified medical care offered while incarcerated do not state a viable Eighth
Amendment claim. Accordingly, the Court grants Defendant’s Wong’s Motion for Summary
Judgment.
C. Objection to Assignment of Magistrate Judge Tinsley
Finally, Plaintiff generally objects to assignment of Magistrate Judge Tinsley, alleging that
Magistrate Judge Tinsley is “bias in cases where anyone incarcerated is involved, him being a
former prosecutor.” 1 ECF No. 109. In support of his allegation, Plaintiff offers that Magistrate
Judge Tinsley granted Defendants motions in 3-days’ time and denied Plaintiff’s request to have a
deposition taken. Id.
This matter was transferred to Magistrate Judge Tinsley on May 15, 2014, after a conflict
arose preventing Magistrate Judge Eifert from continuing. ECF No. 88.

Since that time,

Magistrate Judge Tinsley indeed issued one Order within 3-days of a defendant filing a motion.
1

The Court need not conduct a de novo review “when a party 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) (citations
omitted). Nonetheless, the Court will briefly respond to Plaintiff’s allegation of bias.
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ECF No. 94. However, that Order was an attempt to aid Plaintiff by directing that the Clerk issue
a new summons and attempt service of the same against Defendant Berlin. Id. In the opinion of
this Court, Magistrate Judge Tinsley acted more than fairly and with a response that was decidedly
to Plaintiff’s benefit. With respect to other requests made by Plaintiff, decisions by Magistrate
Judge Tinsley have been similarly fair. That some among Plaintiff requests have been denied
hardly demonstrates a lack of fairness, as fairness does not equate to invariably favorable
dispositions. In short, Plaintiff’s allegations of bias are baseless. This Court has never had
previous occasion to doubt the ethics and judgment of Magistrate Judge Tinsley, and Plaintiff’s
baseless allegations do nothing to shake this Court’s confidence in the honorable judicial service
he consistently renders.
III.

CONCLUSION

Accordingly, for the foregoing reasons, the Court DENIES Plaintiff’s objections and
ACCEPTS AND INCORPORATES the Proposed Findings and Recommendations of the
Magistrate Judge.

The Court GRANTS Defendant Berlin’s Motion to Dismiss or, in the

alternative, Motion to Quash Service (ECF No. 92).

Furthermore, the Court GRANTS

Defendant Dr. Dominique Wong’s Motion to Dismiss or, in the alternative, Motion for Summary
Judgment (ECF No. 86)
The Court DIRECTS the Clerk to forward copies of this written opinion and order to all
counsel of record, and any unrepresented parties.

ENTER:

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January 21, 2015