Pledger v. Lynch

Decision Date21 July 2021
Docket NumberNo. 18-2213,18-2213
Citation5 F.4th 511
Parties Lorenzo M. PLEDGER, Sr., Plaintiff – Appellant, v. Loretta LYNCH ; Charles Samuels, Jr; J.F. Caraway; United States of America; Mr. Weaver; Mrs. Grove; E. Anderson; Nurse Joshua Hall; Alicia Wilson ; Andrea Hall; St. Joseph's Hospital, Defendants – Appellees, and Charles Williams ; Dr. Todd Savidge; Johanna Lehmann ; Andrea Smith-Posey; Ms. Ruthie Carson; Sabrina Hudnall; Salvatore Lanasa, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: David Kendall Roberts, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. Maximillian Fitzsimmons Nogay, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia; Christine Sayre Vaglienti, WEST VIRGINIA UNIVERSITY HOSPITALS, INC., Morgantown, West Virginia, for Appellees. ON BRIEF: Shannon Barrett, Ally Scher, O'MELVENY & MYERS LLP, Washington, D.C., for Appellant. William J. Powell, United States Attorney, Tara N. Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Federal Appellees.

Before GREGORY, Chief Judge, and HARRIS and QUATTLEBAUM, Circuit Judges.

Reversed in part, vacated in part, and remanded by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory joined. Judge Quattlebaum wrote a separate opinion, concurring in part and dissenting in part.

PAMELA HARRIS, Circuit Judge:

Lorenzo Pledger, incarcerated in federal prison, alleges that prison officials ignored his repeated medical complaints and denied him meaningful treatment, leading to his collapse and major surgery. Pledger sued for damages in federal court in West Virginia, raising two claims relevant on appeal: a Federal Tort Claims Act ("FTCA") claim against the United States, alleging medical negligence; and a Bivens claim against certain individuals involved in his care, alleging deliberate indifference in violation of the Eighth Amendment.

The district court dismissed the FTCA claim because Pledger did not secure a certification from a medical expert before filing suit, as required by West Virginia law. See W. Va. Code § 55-7B-6. This was in error. As two of our sister circuits have concluded, state-law certification requirements like West Virginia's are inconsistent with the Federal Rules of Civil Procedure, and thus displaced by those rules in federal court. Accordingly, we reverse the district court's dismissal of Pledger's FTCA claim.

The district court also granted summary judgment to the individual defendants on Pledger's Bivens claims, reasoning that Pledger could not establish deliberate indifference as a matter of law. But the district court did not first provide Pledger, a pro se plaintiff, with proper notice of his obligation to support his claims or an opportunity to seek discovery. For that reason, we vacate this portion of the district court's judgment and remand for further proceedings on the Bivens claims.


Lorenzo Pledger was incarcerated at FCI Gilmer, a federal prison in West Virginia, from April 2014 to February 2016.1 Before his arrival, Pledger was diagnosed with Crohn's disease, a chronic inflammatory bowel disease characterized by inflammation of the digestive tract. See Crohn's Disease , Nat'l Inst. of Diabetes & Digestive & Kidney Diseases, /crohns-disease /all-content (last visited June 29, 2021) (hereinafter "NIDDK"); see also Pledger v. Lynch (Pledger I ), No. 2:16-cv-83, 2018 WL 5905893, at *3 n.2, *39 n.69 (N.D. W. Va. Aug. 16, 2018). Symptoms include diarrhea, abdominal cramping and pain, and weight loss. See NIDDK, supra. If left untreated, Crohn's disease can cause serious complications, such as intestinal obstructions and life-threatening bleeding. Id. Crohn's disease is episodic, characterized by periods of remission and periods of "flare-ups." Id. Although there is no cure, medication can treat symptoms, reduce inflammation, and prevent flare-ups. Id.

Upon arrival at FCI Gilmer, Pledger informed Dr. Eddie Anderson, a staff physician, that he had Crohn's disease but was not taking any medication to control it. Just a few months later, in June 2014, Pledger began to experience a flare-up of his Crohn's symptoms. As he reported his distress to providers at FCI Gilmer over the next several months, they prescribed a variety of medications. When he reported continuing abdominal pain in March 2015, Pledger agreed to be scheduled for a colonoscopy and gastroscopy, which were conducted in May at St. Joseph's Hospital. No sign of active Crohn's disease was detected in the colon, but the procedure did reveal several ulcers in Pledger's stomach and small intestines.

Matters came to a head in the summer of 2015, when Pledger visited Health Services more than a dozen times complaining of loss of appetite, weight loss, and severe abdominal pain. In early June, a physician on duty ordered an abdominal ultrasound to evaluate Pledger's "recurrent daily, worsening right sided abdominal pain." J.A. 438–39. Over the next several months, other providers also recommended a CT scan of Pledger's abdomen, as well as a consultation with a gastroenterologist ("GI"). Those appointments were never scheduled.

By August, Pledger's pain had worsened. He visited Health Services half a dozen times that month, complaining of "[s]tabbing" pain and a feeling that "something is going to bust open." J.A. 399, 410. During one visit, a Physician's Assistant found a "palpable & tender, firm ... mass" in Pledger's abdomen and said she would "try to push up" his pending ultrasound and GI consultation. J.A. 560. A week later, Dr. Anderson likewise indicated that he would "inquire on priority" for an abdominal ultrasound. J.A. 411. But there is no evidence in the record that any follow-up appointments in fact were scheduled, on a priority basis or otherwise. Instead, each time Pledger went to Health Services, providers recommended only "[r]est and hydration," J.A. 413, or told him to "[f]ollow-up ... as needed," J.A. 411. On August 28, after a nurse instructed Pledger to increase his fluid and fiber intake before a "follow up scheduled ... in the near future," he replied that he would "be dead before the tests are done." J.A. 399.

Two weeks later, on September 8, 2015, Pledger collapsed from "extreme pain." J.A. 82, 393. After he was transferred to a hospital, Pledger finally underwent a CT scan, which revealed inflammation in his abdomen necessitating surgery. That surgery revealed acute ulceration, stricture formation (abnormal narrowing), and abscesses in his colon. The surgeon removed just over a foot of Pledger's colon and small intestines, including a 4-centimeter section of obstructed colon. A hospital staff member told Pledger that had he "waited another month" for evaluation and treatment, "he would have likely died." J.A. 83.


After the Bureau of Prisons denied his timely administrative tort claim, Pledger filed suit against the United States, several individual officers involved in his medical care, and St. Joseph's Hospital, where his May 2015 colonoscopy was performed. Proceeding pro se in the Northern District of West Virginia,2 Pledger pled Federal Tort Claims Act ("FTCA") claims against the United States and Bivens claims against the individual officers and the hospital. Our focus here is on the district court's disposition of the two claims that remain relevant on appeal: an FTCA claim for medical negligence against the United States, and a Bivens claim against three individual officers for deliberate indifference to Pledger's serious medical needs.3


In the district court, the United States moved to dismiss Pledger's FTCA medical negligence claim. As the government noted, the FTCA effects a partial waiver of the sovereign immunity of the United States, allowing damages liability for certain acts of federal employees that violate state law. See 28 U.S.C. § 1346(b)(1) (allowing suit "where the United States, if a private person, would be liable ... in accordance with the law of the place where the act or omission occurred"). Because the FTCA incorporates West Virginia liability standards into Pledger's suit, the government argued, Pledger also should be held to the pre-suit requirements of the West Virginia Medical Professional Liability Act ("MPLA"). Under the MPLA, plaintiffs bringing medical malpractice or negligence claims under West Virginia law generally must serve on each named provider, at least thirty days before filing suit, a notice of the claim, a statement of the theory of liability, a list of other providers and health care facilities also being notified, and a "screening certificate of merit" by a qualifying health care provider evaluating the claim. W. Va. Code § 55-7B-6(b). Because Pledger had not done so, the government concluded, his claim should be dismissed.

The magistrate judge reviewing Pledger's complaint agreed with the United States and recommended dismissal of the FTCA claim, finding that the MPLA's certificate requirement is "mandatory prior to filing suit in federal court." See Pledger I , 2018 WL 5905893, at *27 (citing Stanley v. United States , 321 F. Supp. 2d 805, 806–07 (N.D. W. Va. 2004) ). The district court accepted this portion of the magistrate's report and recommendation, overruling Pledger's objection to application of the MPLA's certificate requirement. See Pledger v. United States (Pledger II ), No. 2:16-cv-83, 2018 WL 4627023, at *8–9 (N.D. W. Va. Sept. 27, 2018). The court did not address Pledger's contention that the MPLA's "specialized pleading[ ]" requirement "conflict[s]" with the Federal Rules of Civil Procedure. J.A. 112. Instead, the court focused on whether Pledger had adequate notice of the MPLA's requirements and, finding that he did, dismissed his FTCA medical negligence claim with prejudice. See Pledger II , 2018 WL 4627023, at *8–9.


The individual defendants, too, asked the district court to dispose of the Biv...

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