Roseboro v. Felts, CIVIL ACTION NO. 5:08-cv-01433

• Decision Date: 22 August 2012
• Docket Number: CIVIL ACTION NO. 5:08-cv-01433
• Parties: TERRY ROSEBORO, Plaintiff, v. CHARLES FELTS, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

TERRY ROSEBORO, Plaintiff, v. CHARLES FELTS¹, et al., Defendants.

CIVIL ACTION NO. 5:08-cv-01433

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION

Date: August 22, 2012

MEMORANDUM OPINION AND ORDER

The Court has reviewed Plaintiff's [Second] Amended Complaint (Document 112), wherein he alleges that "FCI Beckley's Prison Medical Staff[] fail[ed] to properly diagnose his aliments which eventually led to [his] suffering a stroke, which resulted in 'open heart surgury" [sic] and permanent brain damage." The Court has also reviewed the United States' Motion to Dismiss Defendants Charles Felts, Dominic McLain and Jeff Rowe and Substitute the United States ("Mot. to Dismiss Ind. Defs.") (Document 114), the United States' Motion to Dismiss for Failure to State a Claim ("U.S. Mot. to Dismiss") (Document 116), Defendants' Amended Motion to Dismiss and/or for Summary Judgment (Document 120), and the memoranda in support thereof (Documents 115, 117, 121). The Court has also reviewed the Plaintiff's Motion to Deny the United States's [sic] Motion to Dismiss and Substitute (Document 135).² After careful consideration of the motions and for the reasons set forth herein, the Court finds that Plaintiff's claims as stated in the [Second] Amended Complaint are fatally flawed.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Plaintiff, Terry Roseboro, is a federal inmate currently housed at the Federal Correctional Institution-Beckley, ("FCI-Beckley") located in Beaver, West Virginia. On July 9, 2001, Plaintiff was sentenced in the Western District of North Carolina to a term of imprisonment of one hundred eighty-eight (188) months to be followed by five (5) years of supervised release for possessing with the intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a).³ By Standing Order filed in this case on December 18, 2008, this action was referred to the Honorable R. Clarke VanDervort, 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(b)(1)(B). (Document 3). Pursuant to the referral, the Magistrate Judge has set forth a detailed account of the facts alleged in this matter and, thus, a full recitation of the facts is not required herein. (See Proposed Findings and Recommendation ("PF&R") (Document 73); Order Granting Application to Proceed Without Prepayment of Fees and Denying Motion for Appointment of Counsel ("Screening Review") (Document 17)). However, the Court will provide a brief overview of Plaintiff's allegations in this civil action.

At all times relevant to the instant pleading, Plaintiff was assigned to FCI Beckley. Beginning on January 12, 2007, Plaintiff sought medical attention at the prison for complaints of pain in his left arm and foot, gout in his legs, and a rash found on both his hands and feet. Lab tests were ordered and Plaintiff was treated with pain medication. In four subsequent sick call visits in January and February 2007, Plaintiff's rash was observed to have improved, but he still experienced pain in his left arm and leg. He was, again, provided pain medication, but no cardiac tests wereperformed. On March 7, 2007, Plaintiff was sent to the Prison's medical unit by his supervisor when he complained of dizziness, sweating, nausea and shortness of breath. He was prescribed additional pain mediation and a medical excuse to rest in bed for the remainder of the day. One day later, as he walked to the cafeteria, Plaintiff collapsed on the sidewalk. He was later taken to the Prison's medical unit. Following an EKG, Plaintiff was sent to Beckley Appalachian Regional Hospital, a local hospital. Plaintiff suffered a "paralyzing stroke" while he was being admitted. (Complaint for the Violation of Civil Rights Under 42 U.S.C. § 1983 ("Orig. Compl.") (Document 2) at 12.) Also, during the hospital visit, a myxoma was discovered on the left atrial of Plaintiff's heart. Upon receiving treatment and therapy, Plaintiff was transferred to the Charleston Area Medical Center for open heart surgery for the left atrial myxoma resection. At some point, Plaintiff developed a disorder called Aphasia which affected the language side of the brain. Plaintiff had to learn to walk, talk, and feed himself again. Plaintiff remained hospitalized or in a rehabilitation facility for nearly nine months. Thereafter, Plaintiff filed an administrative tort claim with the Federal Bureau of Prisons ("BOP") in which he claimed government liability in the amount of $500,000.00 for personal injury. On October 31, 2008, the BOP denied Plaintiff's administrative complaint, finding that his medical records revealed his condition had been monitored and he had been provided with appropriate medical care.

Thereafter, on December 12, 2008, Plaintiff initiated this civil action alleging that Dominic McLain, Medical Doctor, Jeff Rose, APRN, and Charles Felts, then Warden of FCI Beckley, are liable for his injuries in that Defendants demonstrated a deliberate indifference to his medical needs, maintained a sick call policy that utilized handwritten notes rather than modern computerized indices, mis-diagnosed his medical condition, and failed to perform cardiac testing. On June 10,2009, Plaintiff sought to amend his complaint to allege a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq., as well as his entitlement to relief pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff, among other things, sought to add the United States of America and Peter D. Keisler, United States Attorney General, as party defendants. On February 17, 2010, the assigned Magistrate Judge permitted Plaintiff to amend his complaint. Additionally, the Magistrate Judge concluded, pursuant to 28 U.S.C. § 1915A, that Plaintiff alleged that Defendants violated his rights under the Eighth Amendment and that his claim was remediable under Bivens. (Screening Review at 7.) The Magistrate Judge also found that Plaintiff had asserted a negligence claim under the Federal Tort Claims Act against the United States. (Id. at 8.)

In response, on April 1, 2010, Defendants sought a dismissal or summary judgment on each of Plaintiff's claims. (Documents 29-30, 41-42, 50-51.) As the parties filed their submissions with respect to the motions, Plaintiff began to seek the appointment of counsel. (See Documents 15, 47, 49, 57, 59). The Magistrate Judge denied the motions and/or requests. On February 2, 2011, Magistrate Judge VanDervort issued his PF&R, wherein it is recommended that this Court grant each of Defendants' motions and dismiss this case. (PF&R at 53.) On the same day, the Magistrate Judge, again, denied Plaintiff's motion to appoint counsel in this matter. (Order (Document 74)).

On March 25, 2011, this Court, "out of an abundance of caution," vacated the Magistrate Judge's denial of the appointment of counsel for Plaintiff. (Order (Document 78)). The Court considered Plaintiff's renewed request for counsel in his objections to the PF&R, the nature of the claims presented, and Plaintiff's assertion that he suffered from brain damage and Aphasia. (Id.) The Court appointed Attorney Lonnie Simmons as Plaintiff's pro bono counsel. (Id.) The Court alsodenied, without prejudice, the Defendants' pending dispositive motions and permitted Plaintiff's appointed counsel an opportunity to amend the pleadings, if he so desired. (Id.) However, the Court made no finding with respect to the disposition of the PF&R.

Within six months of the appointment of counsel, Plaintiff moved for his removal and requested a new attorney. (See Documents 86, 89). On March 15, 2012, this Court, inter alia, granted Plaintiff's letter-form motion to remove his attorney, but denied the appointment of additional counsel. (Order (Document 93) at 3) ("Based on Plaintiff's pro se filings, subsequent to being appointed counsel, the Court is no longer concerned that Plaintiff lacks the capacity to present his claim. Plaintiff has shown that he has the cognitive ability to clearly communicate with the Court and to clearly articulate his disagreement with his appointed counsel's opinions."); see also Order (Document 95) (denying Plaintiff's motion to reconsider the appointment of a second pro-bono attorney.) The Court, again, granted Plaintiff leave to file an amended complaint. (Id.)⁴ On May 25, 2012, the Court entered a scheduling order setting this matter for trial, permitting the parties to engage in discovery and to file dispositive motions. (Scheduling Order (Document 104)).

On June 21, 2012, Plaintiff filed an amended complaint, wherein he alleged, in total that:

1. The Plaitiff [sic] respectfully states that this civil complaint is based on FCI Beckley's Prison Medical Staff's failure to properly diagnose his ailments which eventually led to the Plaintiff suffering a stroke, which resulted in 'open heart surgury [sic]' and permanent brain damage.

2. Due to all these injuries, the Plaintiff is disabled for the rest of his life. Compensation must be given to him, since he will have extraordinary medical costs for the remainder of his life. The evidence lies in his medical files, and permanently on his body.

3. These permanent injuries have limited the plaintiff's movements, caused pain in his heart, and impaired the proper functions of his brain.

4. To prove an injury has happened, the Plaintiff must prove that the Health Care provider failed to exercise that degree of care, skill and learning required, furthermore that failure was a proximate cause of the injury.

In this case, there is no question that the Health Care staff at FCI Beckley are responsible for the injury caused to the Plaintiff. Furthermore, they allowed the Plaintiff to suffer in pain by not prescribing him medication. The medical Doctor at Beckley deprived the Plaintiff of pain medication and proper care. See 42 U.S.C. § 1985(3)

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