Villalobos v. W. Reg'l Jail

• Decision Date: 24 May 2019
• Docket Number: Civil Action No. 3:18-01385
• Court: U.S. District Court — Southern District of West Virginia
• Parties: CODY ALLEN VILLALOBOS, Plaintiff, v. WESTERN REGIONAL JAIL, et al., Defendants.

CODY ALLEN VILLALOBOS, Plaintiff, v. WESTERN REGIONAL JAIL, et al., Defendants.

Civil Action No. 3:18-01385

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

May 24, 2019

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is PrimeCare Medical of West Virginia, Inc.'s ("PrimeCare") "Motion to Dismiss Complaint and Alternative Motion for Summary Judgment" (Document No. 11), filed on December 27, 2018. The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4^th Cir. 1975), that Plaintiff had the right to file a response to Defendant's Motion and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by the Defendant in moving to dismiss. (Document No. 13.) Plaintiff failed to file a Response in Opposition. Having examined the record and considered the applicable law, the undersigned has concluded that PrimeCare's Motion (Document No. 11) should be granted and Plaintiff's claim against the Western Regional Jail should be dismissed.

PROCEDURAL BACKGROUND

On October 25, 2018, Plaintiff, acting pro se, filed his Motion to Proceed Without Prepayment of Fees and Complaint claiming entitlement to relief pursuant to Title 42 U.S.C. § 1983.¹ (Document Nos. 1 and 2.) In his Complaint, Plaintiff names the following as Defendants:(1) Western Regional Jail; and (2) PrimeCare. (Document No. 2, p. 4.) Plaintiff appears to allege that Defendants acted with negligence and violated his constitutional rights under the Eighth Amendment by failing to provide him with appropriate and necessary medical care. (Id.) In the "Relief" section of the form Complaint, Plaintiff states as follows:

I would like the Court to show the negligence of both parties involved. I would like to have my nose fixed properly. I also would like to be financially compensated for all the pain I have had to endure and all the pain in the future to have the nose fixed.

(Id., p. 5.) Plaintiff, however, left the "Statement of Claim" section of the form Complaint blank. (Id., pp. 4 - 5.) By Order entered on November 6, 2018, United States Magistrate Judge Cheryl A. Eifert noted that Plaintiff failed to include any factual information in support of his Complaint and directed Plaintiff to file an Amended Complaint within 30 days. (Document No. 4.) On November 16, 2018, Plaintiff filed an Amendment to his Complaint including his "Statement of Claim." (Document No. 5.) Specifically, Plaintiff states as follows:

On June 10, or around that date, I was cleaning my cell and I slipped and hit my nose on the metal shelf on my wall. I called out over our box to get help. I was bleeding bad. My nose was broken. The COs that came to help me was Vanhoose and Dennison. They finally showed up about six hours after the fact. They did take me up to medical. When I saw Nurse Josh, Josh tells me that there is no way to get x-rays that late so he ordered them for the next day. It took over 3 days to get me up to get x-rays. Once the x-rays were done, they assured me that a doctor would look at them and we would go from there. No one ever got back to me about what was broken or not. On the 3^rd day of asking, they said the swelling was now too bad and would have to repeat the x-ray when the swelling subsides. It was almost one month before the second x-ray was done. No one ever got back with me on it. I asked every CO that came in my section to help, I never got the answer. I could tell my nose was broken due to the fact it was crooked and I could not breathe. Later, on or about end of October, I asked Josh the nurse about the x-rays and he told me that it in fact was broken but it was now too late to do anything about it. He was not for sure why they didn't do anything at the time, but it was now too late to do anything to fix it.

(Id., pp. 2 - 3.)

By Order entered on November 28, 2018, Judge Eifert granted Plaintiff's Application to Proceed Without Prepayment of Fees and Costs, directed the Clerk to issue a summons for each Defendant, and directed the United States Marshals Service to serve the Summons and a copy of Plaintiff's Complaint and Amended Complaint upon each Defendant. (Document No. 6.) On December 27, 2018, PrimeCare filed its "Motion to Dismiss Complaint and Alternative Motion for Summary Judgment" and Memorandum in Support. (Document Nos. 11 and 14.) PrimeCare argues that Plaintiff's Complaint should be dismissed based on the following: (1) "Plaintiff's claim should be dismissed for failure to state a claim upon which relief can be granted" (Document No. 14, pp. 3 - 4.); (2) "Plaintiff's Complaint should be dismissed because he has failed to exhaust his administrative remedies" (Id., pp. 4 - 7.); (3) "Plaintiff has failed to comply with the Notice of Claim and Screening Certificate of Merit Requirements of the MPLA" (Id., pp. 7 - 9.); (4) "Plaintiff's Complaint should be dismissed because PrimeCare is not a 'person' subject to suit under 42 U.S.C. § 1983" (Id., pp. 9 - 10.); (5) "Plaintiff's claims do not meet the legal threshold for a viable Eighth Amendment claim" (Id., pp. 10 - 13.); and (6) "Alternatively, PrimeCare should be awarded summary judgment" (Id., pp. 13 - 14.).

As Exhibits, PrimeCare attaches the following: (1) A copy of Plaintiff's pertinent medical records (Document Nos. 11-2 and 11-4.); (2) A copy of Plaintiff's Radiology Interpretation dated June 30, 2018 (Document No. 11-3.); and (3) A copy of Plaintiff's Radiology Interpretation dated July 10, 2018 (Document No. 11-5.). Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), was issued to Plaintiff on January 2, 2019, advising him of the right to file a response to PrimeCare's "Motion to Dismiss Complaint and Alternative Motion for Summary Judgment." (Document No. 13.) Plaintiff, however, has failed to file a Response to PrimeCare's Motion.

On January 8, 2019, the Western Regional Jail filed its Answer asserting numerous defenses to Plaintiff's Complaint and Amended Complaint. (Document No. 15, pp. 1 - 4.) Among the numerous defenses, Western Regional Jail argues that it is not a "person" subject to suit under 42 U.S.C. § 1983 and it is entitled to immunity. (Id.) The Western Regional Jail further asserts a Cross-claim against PrimeCare. (Id., pp. 5 - 10.) PrimeCare filed its Answer to the Western Regional Jail's Cross-claim on February 5, 2019. (Document No. 21.)

THE STANDARD

Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 554, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "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." Id. "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief." Id. at 556 U.S. at 679, 129 S.Ct. at 1950. The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Twombly, 550 U.S. at 555, 127 S.Ct. at 1959. Although factual allegations must be accepted as true for purposes of a motion to dismiss, this principle does not apply to legal conclusions. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

This Court is required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal construction, however, "does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Miller v. Jack, 2007 WL 2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the "courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va. Legal Aide Society, Inc., 807 F.3d 619 (4^th Cir. 2015).

Summary Judgment

Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Once the moving party demonstrates the lack of evidence to support the non-moving party's claims, the non-moving party must go beyond the pleadings and make a sufficient showing of facts presenting a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 - 87, 106 S.Ct.1348, 89 L.Ed.2d 538 (1986). All inferences must be drawn from the underlying factsin the light most favorable to...