Hardy v. Christy Smith Car Insurance et al

Filing 14

MEMORANDUM OPINION AND ORDER: overruling the Plaintiff's 6 Objections; adopting the 5 Proposed Findings and Recommendations of the Magistrate Judge; denying Plaintiff's 1 Application to Proceed without Prepayment of Fees or Costs; dismissing this matter and striking it from the Court's docket. Signed by Judge Irene C. Berger on 5/4/2018. (cc: attys; any unrepresented party) (btm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
TAJIIA RAMONE HARDY,
Plaintiff,
v.

CIVIL ACTION NO. 5:17-cv-02346

CHRISTY SMITH CAR INSURANCE, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s pro-se Complaint (Document 2), wherein the
Plaintiff alleges that officers of the Raleigh County Sheriff’s Department discriminated against
him and that employees of Raleigh General Hospital, Jan Care Ambulance Service, MedExpress,
and the Raleigh County Department of Health and Human Resources committed medical
malpractice and negligence in dealing with him after a car accident. His complaint also alleges
products liability against Dodge, the manufacturers of the automobile, and includes a complaint
against the insurer of the automobile’s owner. By Standing Order (Document 3), this action was
referred to the Honorable Omar Aboulhosn, 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. On May 15, 2017, Judge Aboulhosn submitted his Proposed Findings and Recommendation
(PF&R) (Document 5), wherein it is recommended that this Court deny the Plaintiff’s Application
to Proceed in Forma Pauperis (Document 1), dismiss the Plaintiff’s complaint, and remove this

matter from the Court’s docket. The Plaintiff filed his objections to the PF&R1 (Document 6) on
May 18, 2017. For the reasons stated herein, the Court finds that the Plaintiff’s objections should
be overruled and the Magistrate Judge’s PF&R adopted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Magistrate Judge Aboulhosn’s PF&R sets forth in great detail the procedural and factual
history surrounding the Plaintiff’s claims. The Court now incorporates by reference those facts
and procedural history. To provide context for the ruling herein, the Court provides the following
summary.
The Plaintiff, Tajiia Hardy, brought this action against the following Defendants: Raleigh
General Hospital (RGH), the Raleigh County Sheriff’s Department, Jan-Care Ambulance Service,
MedExpress, Raleigh County Department of Health and Human Resources (DHHR), Lt. T.L.
Miles and Cpl. R. Talley of the Raleigh County Sheriff’s Department, John and Christy Smith as
owners of the automobile he was in when the accident occurred, Dr. Mohamad Kalov, M.D.,
Jessica Sharp, Kristina Killen, J. Mingo Winters (whom the Plaintiff refers to as “fired attorney”),
Jose S. Romero of RGH, the unnamed insurers who provided John and Christy Smith with car
insurance, and Dodge automobile manufacturers along with “every seller [of Dodge automobiles]
in the distribution chain.” (Compl. at 2-4.)
According to his complaint, the Plaintiff was involved in an automobile accident on
February 3, 2016. (Id. at 8.) Mr. Hardy was a passenger seated in the back of the automobile
owned by John and Christy Smith when the automobile struck a telephone pole. The Plaintiff

1 The Court notes that the Plaintiff’s objections are not labeled as such and have no title, but state what the Court
construes to be objections to Magistrate Judge Aboulhosn’s PF&R.

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explains that the airbags in the vehicle did not deploy, and the Plaintiff was able to exit the vehicle
and wave for help to pull the automobile back from the pole. (Id.) The Plaintiff alleges that
when the police and ambulance arrived on the scene, he was “detained” on the ground while police
officers searched the car. Upon searching the trunk of the automobile, police officers found drugs
in the purse of Ms. Smith. Mr. Hardy did not know the drugs were in her possession. After being
examined2 by an EMT, Mr. Hardy was told he could go home and that he could go to the hospital
the following morning if he was still experiencing pain. Shortly thereafter, a law enforcement
officer whom Mr. Hardy refers to as a “drug specialist” took him home. (Id. at 10.)
The next morning, Mr. Hardy went to the emergency room at Raleigh General Hospital.
The doctor who performed the examination informed him he had sore muscles from the accident
and gave him an excuse for three days off work to rest and recover. According to Mr. Hardy, no
blood work was done and no x-rays or MRIs were taken. He returned to work after three days,
but because his soreness and pain persisted, he went to MedExpress. At MedExpress, he was
examined and informed by a nurse that his spine was crooked. He alleges that the nurse
“…basically right then told me it was broke.” (Id.) He further alleges that while listening to a
conversation between the nurse and the doctor at MedExpress, he overheard them talking about
the Plaintiff’s broken back and deciding whether or not to tell him about it. (Id. at 11.) Based
on that conversation, Mr. Hardy alleges that the staff at MedExpress knew his back was broken at
the time, but were hiding it from him.
Given what he alleges was a broken back, Mr. Hardy began interactions with the DHHR
regarding his “DHHR papers” that he received in the mail. (Id.) Because his employer would

2 Mr. Hardy takes issue with the examination he received on site by the EMT, and the examination he received the
following day at the emergency room.

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not sign off on the DHHR paperwork, Mr. Hardy eventually quit his job and began the process of
“get[ting] [his] medical card and stamps.” (Id.) He alleges that these issues involved a “3 month
wait for a 30 day process.” (Id. at 12). During this process, he asserts that several doctors
between RGH, MedExpress, and Access Health in Charleston, West Virginia, improperly handled
his complaints and failed to transfer his records appropriately. He also contends in his Amended
Complaint (Document 4) that he began the process of filing for Social Security and disability
benefits, and that it took seven months before he received an answer. Based on all of these
allegations, Mr. Hardy complains that the police officers involved in the traffic stop discriminated
against him, that all of the medical professionals committed negligence and malpractice, and that
the DHHR and Social Security Administration acted in a manner that caused him great injury. He
seeks $250,000,000 in damages from the listed Defendants.
STANDARD OF REVIEW
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
However, the Court 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 recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition,
this 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). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Petitioner is acting pro se, and

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his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
DISCUSSION
Upon review of the Plaintiff’s complaint and his petition to proceed in forma pauperis, the
Magistrate Judge recommended dismissing the complaint based on it being frivolous.. Judge
Aboulhosn first found that the Plaintiff failed to comply with the Medical Professional Liability
Act (MPLA), which requires him to serve the medical malpractice Defendants, by certified mail,
with a Notice of Claim and a Screening Certificate of Merit thirty (30) days before he filed this
lawsuit. Because he failed to comply with these requirements, Judge Aboulhosn recommended
dismissing the Plaintiff’s medical malpractice/negligence claims. The Magistrate Judge further
found that the Plaintiff’s complaint as a whole fails to comply with the requirements of Rule 8(a)
of the Federal Rules of Civil Procedure.

He reasoned that, even construing the Plaintiff’s

complaint liberally, the Plaintiff stated no set of facts for which relief could be granted.
Specifically regarding Mr. and Mrs. Smith, the insurers of their automobile, and Dodge, the
Magistrate Judge found that Mr. Hardy set forth no set of facts that would support liability of any
of these defendants for his alleged injuries. Judge Aboulhosn found that Mr. Hardy failed to state
that the automobile he was riding in during the accident was even manufactured by Dodge, much
less that Dodge had anything to do with the accident or the Plaintiff’s injuries. Thus, Judge
Aboulhosn recommended dismissal of the Plaintiff’s claims against these defendants.
Regarding the Plaintiff’s claims against DHHR and the Social Security and Disability
offices, the Magistrate Judge again noted that the Plaintiff set forth no set of facts that support any
claim, and further found that the Plaintiff’s complaint fails to precisely state the nature of his claims
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against the DHHR. Because the Plaintiff merely claims that all of these Defendants are part of
some large conspiracy against him, without any facts to support such claims, Judge Aboulhosn
also recommended dismissal of these claims.
With respect to the Plaintiff’s discrimination claims against the various law enforcement
officers who responded to the car accident, Judge Aboulhosn assumed from the sparse facts stated
in the complaint that the Plaintiff was attempting to bring a discrimination claim under 42 U.S.C.
§ 1983, although this statute is never specifically invoked. He found, based on the facts alleged,
law enforcement officers had a legitimate interest in investigating the scene of a car accident for
narcotics. He further found that, by the Plaintiff’s own allegations, law enforcement officers
drove the Plaintiff home after their investigation and never charged him with any crime.
However, Judge Aboulhosn reasoned that this Court should apply the Younger abstention doctrine3
and refrain from exercising jurisdiction over the Plaintiff’s discrimination claims because it is
unclear whether any state criminal or judicial proceeding followed the alleged car accident.
Finally, regarding the Plaintiff’s claims against J. Mingo Winters, whom the Plaintiff refers
to as his “fired attorney,” the Magistrate Judge found that the Plaintiff failed to allege any facts at
all regarding any claims he might have against Mr. Winters, and that the claims against Mr.
Winters should, therefore, be dismissed as not complying with Rule 8 of the Federal Rules of Civil
Procedure.
The Plaintiff objects to the recommendation that his claims be dismissed. He argues that
he was “harassed” by law enforcement officers in the aftermath of the car accident because “[the

3 Younger abstention, which derives its name from the United States Supreme Court case of Younger v. Harris, 401
U.S. 37 (1971), is a federal court abstention doctrine in which the “interest of comity and federalism counsel federal
courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial
proceedings that concern important state interests.” Hawaii Housing Auth. V. Midkiff, 467 U.S. 229, 237-38 (1984).

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officer] kept implying that I was lying talking about taking me to jail and making me walk 3 hours
home after I asked her to drive me home with a broken back.” (Document 6 at 1.) He further
argues that the same officer discriminated against him by “saying I know the black people [who
were earlier at the scene of the accident] when I don’t even know them,” and that this creates an
extraordinary circumstance that presents a threat of immediate and irreparable injury under Nivens
v. Gilchrist, 44 F.3d 237, 241 (4th Cir. 2006). The Plaintiff also objects on the grounds that the
“time limits” that the cops, doctors, and lawyers have allegedly imposed on him were purposefully
imposed to “prolong his process.” Lastly, he objects to Judge Berger presiding over the action
because the Court4 “never took a look into anything nor asked for [the Plaintiff’s] records.”
When a plaintiff brings an action pro se, a district court must dismiss the case if it is
determined that the case is frivolous. 28 U.S.C. § 1915(e)(2)(B). Courts often perform this
screening process to determine whether a case is frivolous while reviewing the plaintiff’s motion
to proceed in forma pauperis. See, Neitzke v. Williams, 490 U.S. 319, 324 (1989). A pro se
complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Id. at 325. “[28
U.S.C. § 1915] accords judges not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. at 327.
Examples of complaints whose factual contentions are “clearly baseless” include “claims
describing fantastic or delusional scenarios.” Id. at 328. Further, the plausibility standard
articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly also applies to a pro se
plaintiff’s complaint and requires factual allegations such that it states a claim for relief that is

4 Mr. Hardy refers to the Court as “Mr. Burger” throughout his objections.

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plausible on its face and “demonstrate[s] more than a sheer possibility that a defendant has acted
unlawfully.” Randolph v. Baltimore City States Atty., No. CIV.A. WDQ-14-3176, 2014 WL
5293708, at *2 (D. Md. Oct. 14, 2014), aff'd sub nom. Randolph v. New Tech., 588 F. App'x 219
(4th Cir. 2014).
Courts are required, however, to hold a pro se plaintiff’s complaint to a “less stringent
standard[] than formal pleadings drafted by lawyers.” Id. Nevertheless, “[a] court . . . may dismiss
a claim as frivolous if ‘the facts alleged are clearly baseless.’” Id. (quoting Denton v. Hernandez,
504 U.S. 25, 32 (1992)).
Even under the most liberal construction, the Court finds the Plaintiff has failed to set forth
a claim that is plausible on its face and which demonstrates more than a sheer possibility that any
of the named Defendants acted in an unlawful manner. With respect to the Plaintiff’s claims for
medical malpractice and negligence against a litany of medical professionals, the Plaintiff has
provided no indication that he even attempted to comply with the mandatory pre-filing
requirements of the Medical Professional Liability Act (MPLA), W.Va. Code § 55-7B-1 et seq.
Because the Plaintiff’s claims of malpractice and negligence sound in tort, the substantive law of
West Virginia, and therefore the MPLA, applies. The MPLA requires claimants to serve any
health care providers they intend to sue with a notice of claim setting forth the theory of liability,
and a screening certificate of merit completed by an expert. W.Va. Code § 55-7B-6(b). Because
the Plaintiff has made no effort to abide by these mandatory provisions and nothing in the record
demonstrates notice to the Defendants or the merits of his claims, his claims for medical
malpractice and negligence against Raleigh General Hospital, MedExpress, Jan Care Ambulance

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Service, Dr. Mohamad Kalou, Jessica Sharp, Kristina Kellen, and Jose S. Romero should be
dismissed.
As to the Plaintiff’s claim against the car owners, their insurers, and Dodge, the Court
finds that the Plaintiff has failed to set forth a claim that is plausible on its face. Mr. Hardy has
alleged no facts that state Christy and John Smith were operating their car in a negligent manner,
or that it was defective in any way. He claims that the airbags did not deploy during the accident,
but offers no factual support that this was the fault of the car owners or the car’s manufacturer or
that properly operating airbags would have deployed under the circumstances. Mr. Hardy fails to
even allege any facts indicating the automobile was actually manufactured by Dodge. He merely
makes the type of naked assertions that the Twombly court found are not sufficient to support a
claim for which relief can be granted. Thus, the claims against John Smith, Christy Smith, Christy
Smith’s car insurance, and Dodge should be dismissed as being frivolous and without merit.
The Plaintiff also fails to state a valid claim against the Department of Health and Human
Resources and the SSI and Disability offices in Beckley and Charleston. Mr. Hardy alleges some
type of “conspiracy” in his complaint and amended complaint, but fails to specifically explain how
these agencies and offices conspired against him to deprive him of anything. The Plaintiff merely
states that he was required to wait and follow procedure in order to receive certain state and federal
benefits, and his objections to the Magistrate Judge’s PF&R fail to provide any greater factual
detail to support his claims. Like the claims against the Smiths, their insurer and Dodge, the
claims against the Department of Health and Human Resources, the SSI and Disability offices, the
City of Beckley, the State of West Virginia, Mrs. Moore, and Mr. Moss should be dismissed as
frivolous inasmuch as they lack any arguable basis in law or fact.
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The Plaintiff’s claims of discrimination and harassment against the Raleigh County
Sheriff’s Department and the individual law enforcement officers who arrived at the scene of the
accident likewise should be dismissed.

Judge Aboulhosn relied on the Younger abstention

doctrine in making his finding and reasoned that the Court should abstain from exercising
jurisdiction over these claims because the Plaintiff’s complaint does not make it clear whether any
state judicial proceedings were filed after the automobile accident. However, the Court finds that
it need not reach the question of Younger abstention, because the Plaintiff has failed to state a
plausible claim for discrimination. The Plaintiff states in his complaint that the law enforcement
officers detained him on the ground while they searched the wrecked automobile for drugs and
when officers ascertained that the found drugs were not his, they drove him home. The Plaintiff
alleges that the officers discriminated against him by asking him if he knew other black people
who had been at the scene of the accident before the police arrived. The Court finds that these
assertions do not support a plausible claim for discrimination, particularly when law enforcement
officers pressed no charges against the Plaintiff. The Plaintiff’s objections with respect to these
claims should be overruled.
The Court has reviewed the Plaintiff’s claims against attorney J. Mingo Winters. Neither
the Plaintiff’s complaint, amended complaint, nor objections, set forth any factual allegations
whatsoever that state a plausible claim for relief against Mr. Winters. The Plaintiff makes no
factual statements as to when Mr. Winters was hired, why he was fired, or what he has done that
constitutes grounds for legal relief. Therefore, the Plaintiff’s claims against him should be
dismissed as frivolous.

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Finally, the Court has reviewed the applicable law regarding recusal. 28 U.S.C. §455(a)
The Court finds no facts have been pled by the Defendant which would cause an objective observer
to reasonably question the Court’s impartiality in this matter. Thus, the objection to this Court
reviewing the objections should be overruled.
CONCLUSION
WHEREFORE, after thorough review and careful consideration, the Court ORDERS that
the Plaintiff’s objections (Document 6) be OVERRULED, that the Magistrate Judge’s Proposed
Findings and Recommendation (Document 5) be ADOPTED, and that the Plaintiff’s Application
to Proceed in Forma Pauperis (Document 1) be DENIED. The Court further ORDERS that this
matter be DISMISSED and STRICKEN from the Court’s docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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May 4, 2018