Deck v. Rubenstein
| Decision Date | 13 April 2016 |
| Docket Number | Civil Action No. 1:15cv159 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | PERNELL ANTHONY DECK, SR., Plaintiff, v. JAMES RUBENSTEIN, Commissioner of Corrections; DR. POLICARPIO, Doctor Under Contract with D.O.C./Wexford; PAT MIRANDY, Warden, St. Marys; and MILESSA WADSWORTH, Health Service Administrator/Wexford Defendants. |
(Judge Keeley)
On September 10, 2015, the pro se plaintiff, Pernell Anthony Deck, Sr. ("Deck"), an inmate at St. Marys Correctional Center ("SMCC") in St. Marys, West Virginia, initiated this civil rights action pursuant to 42 U.S.C. §1983. Along with his Complaint, Deck filed a motion to proceed in forma pauperis with supporting documents. By Order entered September 14, 2015, Deck was granted leave to proceed IFP but directed to pay an initial partial filing fee ("IPFF"). On October 2, 2015, the plaintiff paid the IPFF.
On October 13, 2016, the undersigned conducted a preliminary review of the complaint and determined that summary dismissal was not appropriate. Summonses were issued that same day. On November 9, 2015, Defendants Pat Mirandy ("Mirandy") and James Rubenstein ("Rubenstein") filed a Motion to Dismiss with a memorandum in support. Because Plaintiff was proceeding pro se, on November 10, 2015, a Roseboro Notice was issued. Also on November 10, 2015, Defendants Dionisio Policarpio ("Policarpio") and Milessa Wadsworth, RN, Health Services Administrator ("HSA")("Wadsworth") filed a Motion to Dismiss with a memorandum in support. Another Roseboro Notice was issued, advising the Plaintiff of his right to file a response to the dispositive motion. On December 3, 2015, the plaintiff filed a response in opposition to Mirandy and Rubenstein's Motion to Dismiss, and on December 9, 2015, he filed a response in opposition to Policarpio and Wadsworth's Motion to Dismiss. A review of the record on March 21, 2016 indicated both of Plaintiff's responses to the defendants' dispositive motions were unsigned. Accordingly, by Order entered March 22, 2016, Plaintiff was directed to refile signed copies of the same. On March 29, 2016, Plaintiff refiled signed copies of his responses in opposition to the defendants' motions to dismiss.1
This case is before the undersigned for a Report and Recommendation on the defendants' dispositive motions.
In his complaint, the plaintiff asserts a claim of deliberate indifference to his serious medical needs claims against the defendants for their failure to dispense or administer prescribed medications for his pre-existing degenerative spinal problems, including bulging and/or herniated discs and chronic shoulder and back pain. Plaintiff contends he is in continuous pain; is losing the feeling in his legs; suffers constant headaches; memory loss; and mental anguish.2 In an unsworn, unsigned one-page typewritten affidavit attached to his Complaint, construed here as a memorandum in support, he further alleges that SMCC defendants and Wexford Medical Sources, Inc. personnel ignored his grievances over the same, sidestepped the issues and provided non-responsive answers to his requests, merely "rubber stamping" grievances in hopes that they would go away.3
The plaintiff contends he has fully exhausted his administrative remedies and attaches what is apparently partial proof of the same.4
As relief, he seeks a jury trial, punitive damages, and reimbursement of all fees/costs in this matter. Further, he requests injunctive relief in the form of immediate attention from a specialist and an investigation of the medical department at SMCC.5
In their motion, Defendants Mirandy and Rubenstein argue that the plaintiff's complaint should be dismissed because
1) plaintiff has failed to state a § 1983 claim upon which retroactive monetary or equitable relief can be granted;
2) the 11th Amendment bars Plaintiff's request for monetary relief from the state defendants;
3) the state defendants are not "persons" who can be sued under 42 U.S.C. § 1983; and
4) the state defendants are entitled to qualified immunity.
In his unsigned response, Plaintiff reiterates his arguments and attempts to refute Defendants Mirandy and Rubenstein's on the same.
Defendants Policarpio and Wadsworth contend that the plaintiff's complaint should be dismissed because
1) Plaintiff has failed to allege any claims against either Dr. Policarpio or Milessa Wadsworth;
2) the allegations of the Complaint fail to allege the necessary factual predicate for a claim of deliberate indifference; and 3) the plaintiff has failed to comply with the West Virginia Medical Professional Liability Act ("WVMPLA"), West Virginia Code Chapter 55, Article 7B.
In his response, the plaintiff reiterates his arguments and attempt to refute Policarpio and Wadsworth's responses to the same. He more clearly describes his medical ailments as 6 For the first time, he asserts specific allegations of deliberate indifference against both Policarpio and Wadsworth. He argues that because he is asserting a claim of deliberate indifference, compliance with WVMPLA is not required. He avers that he has repeatedly requested that the Defendants obtain his prior medical records from outside hospitals, which would prove his past medical history and present condition. He claims he was prescribed medications that were never dispensed but was charged for the same anyway. Finally, he alleges that Defendant Wadsworth's response to one of his grievances was not even addressed to him, but rather, to another inmate.
A. Motion to Dismiss
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
The Federal Rules of Civil Procedure "require only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited the "rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [a] claim which would entitle him to relief." Conley, 355 U.S. at 45-46. In Twombly, the United States Supreme Court noted that a complaint need not assert "detailed factual allegations," but must contain more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Conley, 550 U.S. at 555 (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," (Id). (citations omitted), to one that is "plausible on its face," (Id). at 570, rather than merely "conceivable." (Id). Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 279, 281 (4th Cir. 2002)). In so doing, the complaint must meet a "plausibility" standard, instituted by the Supreme Court in Ashcroft v. Iqbal, where it held that 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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thus, a well-pleaded complaint must offer more than "a sheer possibility that a defendant has acted unlawfully" in order to meet the plausibility standard and survive dismissal for failure to state a claim. (Id).
When a motion to dismiss pursuant to Rule 12(b)(6) is accompanied by affidavits, exhibits and other documents to be considered by the Court, the motion will be construed as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
Plaintiff is proceeding pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251(1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)(per curiam); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). While pro se pleadings are held to a less stringent standard than those drafted by attorneys, Haines, 404 U.S. at 520, even under this less stringent standard, a pro se complaint is still subject to dismissal. Id. at 520-21. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). A court may not construct ...
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