Wikoff et al v. Western Regional Jail Medical Staff et al

Filing 5

MEMORANDUM OPINION AND ORDER directing Plaintiff Michael David Wikoff to pay the filing fee of $400 or submit to the Court an amended Application to Proceed Without Prepayment of Fees and Costs, which includes the institutional certification, or an inmate account transaction record; directing Plaintiffs Meyers and Fields to either pay the filing fee of $400, or submit to the Court an Application to Proceed Without Prepayment of Fees and Costs; directing Plaintiffs to amend their complaint within 30 days of the date of this Order and cure various deficiencies in pleading, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 6/3/2016. (cc: Plaintiffs) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
MICHAEL DAVID WIKOFF;
CHRISTOPHER MICHAEL MEYERS;
ZACHARY FIELDS,
Plaintiffs,
v.

Case No. 3:16-cv-04542

Western Regional Jail Medical
Nurse Staff, MS. FARMER;
C. O. BLEVINS (Evening Rover);
C. O. ADAMS; and
LT. MORRISON,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Michael David Wikoff’s (“Wikoff”)
Application to Proceed Without Prepayment of Fees and Costs, (ECF No. 1), and
Plaintiffs’ Complaint filed pursuant to 42 U.S.C. § 1983, (ECF No. 2). The
undersigned notes that the Application to proceed in forma pauperis filed by Wikoff
is incomplete. Before the Application can be accepted for review, the institution of
incarceration must complete the certificate located at the bottom of page 2 of the
Application, or Wikoff must submit a transaction record of his inmate account. For
that reason, Wikoff is hereby ORDERED to pay the filing fee of $400 or submit to
the Court an amended Application to Proceed Without Prepayment of Fees and Costs,
which includes the institutional certification, or an inmate account transaction
record.
-1 

With respect to Plaintiffs Meyers and Fields, neither has paid a filing fee or
submitted an Application to Proceed Without Prepayment of Fees and Costs.
Accordingly, Plaintiffs Meyers and Fields are hereby ORDERED to either pay the
filing fee of $400, or submit to the Court an Application to Proceed Without
Prepayment of Fees and Costs.
Plaintiffs are notified that failure to pay the fee or submit the applications
as instructed within thirty (30) days of the date of this Order shall result in a
recommendation that the complaint be dismissed.
In keeping with 28 U.S.C. § 1915(e)(2), the undersigned has conducted a
preliminary review of Plaintiffs’ complaint to determine if the action is frivolous, fails
to state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. Although pro se complaints, such as the
one filed in this case, must be liberally construed to allow the development of
potentially meritorious claims, the court may not rewrite the pleading to include
claims that were never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir.
1998), develop the plaintiff’s legal theories for him, Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the
court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). At the same
time, to achieve justice, the court may allow a pro se plaintiff the opportunity to
amend his complaint in order to correct deficiencies in the pleading. Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
Plaintiffs’ allege the following in their complaint:

-2 

1. On May 13, 2016, Wikoff was denied his daily pain and constipation
medication. The denial of medication was witnessed by cellmate and coplaintiff, Christopher Michael Meyers.
2. The nurse on duty at the time was Ms. Farmer. The Rover with her
was C. O. Blevins. The Shift Supervisor was Lt. Morrison. A correctional
officer guard prevented Wikoff from getting Lt. Morrison’s help.
3. Wikoff had previously been denied medical care at the Western
Regional Jail when C. O. Adams begged the medical staff at intake to
assist Wikoff, who was injured and in pain. Denial of medical care has
been a common occurrence at the Western Regional Jail since Wikoff’s
booking on January 9, 2016.
(ECF No. 2 at 3-4). Plaintiffs seek a “money cash settlement for [Wikoff’s] pain and
suffering.” (Id. at 4).
In order for the undersigned to complete a preliminary review of the merits of
Plaintiffs’ claims, they are ORDERED to amend their complaint within thirty (30)
days of the date of this Order and cure various deficiencies in pleading as outlined
below:
1.

To be named as a Plaintiff in a complaint, an individual must have a claim

to assert. Wikoff claims a denial of his constitutional right to basic medical care under
the Eighth Amendment to the United States Constitution. In contrast, Plaintiff
Meyers asserts no claim and appears to be listed as a plaintiff solely because he
allegedly witnessed the denial of medical care to Wikoff. Similarly, Plaintiff Fields
asserts no claim. Moreover, as he is not mentioned anywhere in the body of the
complaint, the reason for his joinder as a plaintiff is a complete mystery. In order to
continue as plaintiffs in this civil action, Plaintiff Meyers and Plaintiff Fields must
state individual claims “arising out of the same transaction, occurrence, or series of
transactions or occurrences” described by Wikoff, and there must be a “question of
-3 

law or fact common to all plaintiffs” that will arise in this action. See Fed. R. Civ. P.
20(a)(1). If Meyers and Fields are simply witnesses to Wikoff’s claims, then they
should not be listed as plaintiffs. If that is indeed the circumstance, Meyers and
Fields are ORDERED to notify the Court by filing a written motion within thirty
(30) days of the date of this Order asking the Court to dismiss them as parties to the
action and, instead, to consider them as witnesses disclosed pursuant to Rule
26(a)(1)(A)(i).
2.

On the other hand, if Meyers and Fields do have individual claims arising

out of the same transaction or occurrence, or series of transactions or occurrences,
alleged by Wikoff and wish to remain as plaintiffs herein, then they are ORDERED
to file an amended complaint within thirty (30) days of the date of this Order
setting forth factual statements, including dates and events, which show how each
named defendant allegedly violated Plaintiffs’ civil or constitutional rights.
3.

Lt. Morrison has been named as a defendant in this action although there

are no allegations suggesting that Lt. Morrison committed any violation of the
plaintiffs’ civil or constitutional rights. To the contrary, it appears that Lt. Morrison is
named as a defendant simply because he was the supervisor on duty on the day in
question, and was not notified of Wikoff’s request for medical care. C. O. Adams has
similarly been named as a defendant even though the only factual allegations
involving C. O. Adams indicate that he/she tried to obtain medical care for Wikoff.
Each plaintiff must bear in mind that in order to state a cause of action for money
damages under 42 U.S.C. § 1983, he each must show that an individual (the
defendant) was acting under color of state law and deprived the plaintiff of a federally
-4 

protected civil right, privilege, or immunity. Perrin v. Nicholson, 2010 U.S. Dist.
LEXIS 105121, at *4 (D.S.C. 2010); American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 50-52 (1999). For the most part, liability under 42 U.S.C. § 1983 is personal in
nature, based upon a defendant’s own constitutional violation. Monell v. Department
of Social Services of the City of NY, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978). Therefore, claims asserted against an individual solely because he or she is an
employer or supervisor are not cognizable under § 1983. Supervisory officials may be
held liable for the constitutional violations of those in their charge only when
“supervisory indifference or tacit authorization of subordinates' misconduct [is] a
causative factor in the constitutional injuries [the subordinates] inflict on those
committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing
Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)). To state a claim against an
individual under a theory of supervisory liability, a plaintiff must show:
(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed “a pervasive and
unreasonable risk” of constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate
as to show “deliberate indifference to or tacit authorization of the
alleged offensive practices”; and (3) that there was an “affirmative
causal link” between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.
Id. at 799. Consequently, Plaintiffs should not name Lt. Morrison as a defendant
unless he has personally violated Plaintiffs’ rights, or the allegations against him meet
the three prongs of a supervisory liability claim. If Plaintiffs have erroneously named
Lt. Morrison as a defendant, they are ORDERED to so notify the Court by filing a
written motion within thirty (30) days of the date of this Order asking the Court to
-5 

dismiss Lt. Morrison as a party to the action. On the other hand, if Plaintiffs have
individual claims against Lt. Morrison that meet the requirements sets forth above,
then they are ORDERED to file an amended complaint within thirty (30) days of
the date of this Order setting forth factual statements, including dates and events,
which show how Lt. Morrison allegedly violated their civil or constitutional rights.
The same reasoning applies to C. O. Adams. C. O. Adams should be dismissed as
a defendant unless Plaintiffs can allege facts showing that C. O. Adams personally
violated Plaintiffs’ rights. If Plaintiffs have erroneously named C. O. Adams as a
defendant, they are ORDERED to so notify the Court by filing a written motion
within thirty (30) days of the date of this Order asking the Court to dismiss C. O.
Adams as a party to the action. On the other hand, if Plaintiffs have individual claims
against C. O. Adams that meet the requirements sets forth above, then they are
ORDERED to file an amended complaint within thirty (30) days of the date of
this Order setting forth factual statements, including dates and events, which show
how C. O. Adams allegedly violated their civil or constitutional rights.
4.

The Eighth Amendment to the United States Constitution requires the

State to provide its prison inmates with basic medical care. Estelle v. Gamble, 429
U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A prison official violates this
constitutional guarantee when he responds to a prisoner’s serious medical need with
deliberate indifference. Estelle, 429 U.S. at 104; Farmer v. Brennan, 511 U.S. 825,
834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Therefore, to state a cognizable Eighth
Amendment claim, an inmate must meet two prongs, one objective and one
subjective. First, the inmate must demonstrate the existence of a medical condition or
-6 

need that is objectively serious. Estelle, 429 U.S. at 104. Second, the inmate must
show that the official subjectively knew of, but disregarded, “an excessive risk to
inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). A prison official is not liable under the Eighth Amendment if a
reasonable response is made, “even if the harm ultimately [is] not averted.” Odom v.
South Carolina DOC, 349 F.3d 765, 770 (4th Cir. 2003) (citing Farmer, 511 U.S. at
844). To establish that a prison official’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). Accordingly, Plaintiffs must set
forth facts in their complaint that meet the standard of an Eighth Amendment
violation. A mere difference of opinion about whether medical care is needed is
usually insufficient to maintain a valid cause of action. Therefore, when and if
Plaintiffs amend their complaint to assert Eighth Amendment claims, they should
bear these standards in mind.
5.

Plaintiffs must identify the nature of the injury they claim to have

suffered as a result of the alleged constitutional violations. In the complaint, Wikoff
describes only pain and suffering, and Meyers and Fields make no claim of injury. If
Plaintiffs suffered any physical injuries as a result of the alleged violations, then that
injury should be described in the complaint.
Plaintiffs are hereby given notice that a failure to amend the
complaint as ordered may result in a recommendation that the complaint
be dismissed for failure to state a claim cognizable under 42 U.S.C. § 1983
-7 

and/or for failure to prosecute under Fed. R. Civ. P. 41 and L. R. Civ. P.
41.1. Plaintiffs are also reminded of their obligation to promptly notify the Clerk of
Court of any change in contact information.
The Clerk is instructed to provide a copy of this order to Plaintiffs.
ENTERED: June 3, 2016

-8