Pledger v. United States, Civil Action No. 2:16-CV-83
| Decision Date | 27 September 2018 |
| Docket Number | Civil Action No. 2:16-CV-83 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | LORENZO M. PLEDGER, Plaintiff, v. UNITED STATES OF AMERICA; LORETTA LYNCH; CHARLES SAMUELS, JR.; J.F. CARAWAY; MR. WEAVER; MRS. GROVE; E. ANDERSON; JOSHUA HALL; ALICIA WILSON; ANDREA HALL; and ST. JOSEPH'S HOSPITAL, Defendants. |
LORENZO M. PLEDGER, Plaintiff,
v.
UNITED STATES OF AMERICA;
LORETTA LYNCH; CHARLES SAMUELS, JR.; J.F. CARAWAY;
MR. WEAVER; MRS. GROVE; E. ANDERSON; JOSHUA HALL; ALICIA WILSON; ANDREA HALL;
and ST. JOSEPH'S HOSPITAL, Defendants.
Civil Action No. 2:16-CV-83
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ELKINS
September 27, 2018
(Judge Bailey)
ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge Michael J. Aloi [Doc. 151]. By Local Rule, this action was referred to Magistrate Judge Aloi for submission of a report and a recommendation ("R&R"). Magistrate Judge Aloi filed his R&R on August 16, 2018. Therein, the magistrate judge recommends: (1) plaintiff's medical negligence claims be dismissed; (2) plaintiff's intentional infliction of emotional distress ("IIED") claim in plaintiff's FCTA complaint survive the motion to dismiss; (3) defendant' St. Joseph Hospital's motion to dismiss be granted; (4) the Federal Defendants' motion to dismiss be granted in part as to defendants Lynch, Samuels, Caraway, Weaver, Grove and Joshua Hall; (5) the Federal
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Defendants' motion to dismiss be denied in part as to defendants Anderson, Wilson, and Andrea Hall; (6) Plaintiff's Bivens complaint be dismissed with prejudice against defendants Lynch, Samuels, Caraway, Weaver, Grove, and Joshua Hall; and (7) plaintiff's Request for Judicial Notice be denied as moot. Both plaintiff and the United States and individual defendants Anderson, Wilson, and Andrea Hall timely filed objections to the R&R [Docs.153, 156]. This matter is now ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. 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, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi's R&R were due within fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. Defendants United States and individual defendants Anderson, Wilson, and Andrea Hall timely filed their Objections [Doc. 153] on August 29, 2018. Plaintiff Pledger timely filed his Objections [Doc. 156] on September 4, 2018. Accordingly, this Court will conduct a de novo review of the portions of the magistrate judge's R&R to which the parties object. The remainder of the R&R will be reviewed for clear error.
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A. Motion to Dismiss
In ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded material factual allegations. Advanced Health-Care Services, Inc., v. Radford Community Hosp., 910 F.2d 139, 143 (4th Cir. 1990). Moreover, dismissal for failure to state a claim is properly granted where, assuming the facts alleged in the complaint to be true, and construing the allegations in the light most favorable to the plaintiff, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Conley v. Gibson, 355 U.S. 41, 45 - 46 (1957).
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.
B. Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the Court must conduct "the threshold inquiry of determining whether there is the need for a trial - whether, in other words, there are any genuine factual issues that properly can be
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resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
Additionally, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249 (citations omitted).
The facts of the case are detailed in depth in the R&R, so, in the efforts of efficiency, this Court will not reiterate all of the facts. This Court will only recap some of the most relevant facts.
Plaintiff is a federal prisoner. He had been diagnosed with Crohn's disease before arriving in federal prison, but was not on any Crohn's medicine when he got to prison. April 16, 2014, starts a long list of at least 36 doctor appointments, consultations and examinations. The specific facts and results of these visits are described in the R&R. In short, plaintiff repeatedly went to sick call and told medical personnel that he was in a lot of pain. X-rays were done that showed nothing. Plaintiff was prescribed a number of different medications and many times told to drink water and to follow up at sick call if his condition worsened. Plaintiff never seemed to get better. At one point, he was scheduled
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to have a colonoscopy, but plaintiff refused to go through with it. A colonoscopy was eventually done, however.
On September 2, 2015, plaintiff was still in a lot of pain and sent an e-mail to Health Services and asked whether they thought if it could be his appendix and not his colon. The next day, Health Services responded that he had a pending ultrasound and during that they would also check his appendix.
On September 8, 2015, plaintiff "fell out" and said his abdominal pain was so unbearable he could not stand. Plaintiff was hospitalized and shortly thereafter had surgery to remove part of his colon and his appendix.
On March 22, 2016, plaintiff filed an Administrative Tort Claim claiming the Bureau of Prisons ("BOP") staff was, among other claims, deliberately indifferent to his medical needs and negligent in the treatment of his Crohn's disease. The BOP investigated and denied the claims and advised plaintiff he had six months to file suit in United States District Court.
Plaintiff filed both a FTCA Complaint and a Bivens Action. The Bivens and FTCA Complaint consist of the same claims. Plaintiff claimed (1) deliberate indifference by BOP employees in their failure to timely and correctly diagnose and treat his condition; (2) medical negligence; and (3) intentional infliction of emotional distress. The United States moved to dismiss (or in the alternative, moved for summary judgment) all claims. The responses and motions are more detailed in the R&R. The relevant portions of the motions and responses for this Order are included in the applicable sections and subsections.
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The United States and individual defendants Wilson, Anderson, and Andrea Hall (the "remaining defendants") made three objections to the R&R: (1) the liberal construing and less stringent pleading standards for pro se litigants must be tempered by the concept that the United States is generally immune from being sued; (2) the IIED claim should be dismissed because it was not properly presented to the appropriate federal agency, and even if it was, plaintiff cannot establish a claim for IIED; and (3) plaintiff has not established that Wilson, Anderson, and Andrea Hall were deliberately indifferent to his medical needs [Doc. 153]. On the other hand, the plaintiff made four objections: (1) the West Virginia Medical Professional Liability Act ("MPLA") is unconstitutional as applied to plaintiff and the plaintiff's medical negligence claims should not be dismissed; (2) plaintiff states he is confused as to the R&R's recommendation regarding the IIED claim; (3) St. Joseph's Hospital ("SJH") should not be dismissed from this litigation because plaintiff argues SJH should count as a federal actor; and (4) defendants Samuels, Caraway, and Weaver should not be dismissed from this litigation because plaintiff e-mailed FCI Gilmer Health Services, including Samuels and Caraway, and each employee of the Bureau of Prisons has a duty to ensure inmates receive adequate medical care [Doc. 156].
A. Pro Se Leniency
In their objections, the United States and the remaining defendants state that even though pro se litigants' pleadings are to be construed liberally and held to a less stringent standard, that this liberal construction shall be tempered. They further cite and outline case law that courts are not to advocate or construct...
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