Cordle v. Rubenstein

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

RANDY CORDLE,

Plaintiff,

v. Civil Action No. 5:16CV18

(STAMP)

JIM RUBENSTEIN, Commissioner, WVDOC,

KAREN PSZCZOLKOWSKI, Warden,

Northern Correctional Facility,

JAMES GREYHOUSE,1

Northern Correctional Facility Staff,

C.O. McGLOCHLIN,

Northern Correctional Facility Staff;,

RYAN ADAMS,

Northern Correctional Facility Staff,

AMANDA SABATINO, LPN,

JANE DOE, Nurse,

Northern Correctional Facility Staff,

JANE DOE, Medical Servs. Coord.,

Northern Correctional Facility Staff,

DALE GRIFFITH,

Northern Correctional Facility Staff,

DAVID BALLARD, Warden,

Mt. Olive Correctional Complex,

MIKE NEESE, Special Management Committee,

Mt. Olive Correctional Complex,

CHERYL CHANDLER, Special Management Committee,

Mt. Olive Correctional Complex and

SHERRILL SNYDER, Special Management Committee,

Mt. Olive Correctional Complex,

Defendants.

MEMORANDUM OPINION AND ORDER

AFFIRMING AND ADOPTING MAGISTRATE

JUDGE’S REPORT AND RECOMMENDATION,

OVERRULING THE PLAINTIFF’S OBJECTIONS,

DENYING PLAINTIFF’S REQUEST TO AMEND AND

GRANTING DEFENDANTS’ MOTIONS TO DISMISS

1The plaintiff mistakenly styled the case against defendant

“Greyhouse” and refers to this particular defendant throughout his

pleading using this incorrect name. As the magistrate judge

pointed out in his report and recommendation, “[t]he Plaintiff

erroneously spelled James Greathouse’s name in his complaint as

‘James Greyhouse’.” ECF No. 62 at 2 n1.

The pro se2 plaintiff, Randy Cordle, filed this civil action

asserting claims against the defendants under 42 U.S.C. § 1983.

The case was referred to United States Magistrate Judge Michael

John Aloi under Local Rule of Prisoner Litigation Procedure 2. The

defendants filed several motions to dismiss and the magistrate

judge issued a report and recommendation (ECF No. 62) following the

plaintiff’s responses to the defendants’ motions. The magistrate

judge recommended that the defendants’ motions to dismiss be

granted; that the plaintiff’s complaint be dismissed with prejudice

as to defendants Jim Rubenstein (“Rubenstein”), Karen Pszczolkowski

(“Pszczolkowski”), James Greathouse, Ryan Adams (“Adams”) and Dale

Griffith (“Griffith”); and that the plaintiff’s complaint be

dismissed without prejudice as to defendants C.O. McGlochlin

(“McGlochlin”), Amanda Sabatino, LPN (“Sabatino”), David Ballard

(“Ballard”), Mike Neese (“Neese”), Cheryl Chandler (“Chandler”) and

Sherrill Snyder (“Snyder”). ECF No. 62 at 22.

The plaintiff then filed objections (ECF No. 64.) to the

report and recommendation and the defendants filed separate

responses to the plaintiff’s objections. ECF Nos. 65, 66, 67. The

plaintiff also replied to the defendants’ separate responses to his

objections. ECF No. 68.

2“Pro se” describes a person who represents himself in a court

proceeding without the assistance of a lawyer. Black’s Law

Dictionary 1416 (10th ed. 2014).

2

For the following reasons, this Court affirms and adopts the

magistrate judge’s report and recommendation, overrules the

plaintiff’s objections, denies the plaintiff’s request to amend,

and grants the defendants’ motions to dismiss.

I. Background

The pro se plaintiff, Randy Cordle, filed this civil rights

matter pursuant to 42 U.S.C. § 1983 against the defendants raising

Due Process and Eighth Amendment violations. The plaintiff was

granted leave to proceed in forma pauperis and paid the required

initial partial filing fee.

According to his complaint, the plaintiff was sentenced in the

Circuit Court of Mercer County, West Virginia on April 15, 2014, to

a term of 10 to 20 years. ECF No. 1 at 9. The plaintiff alleges

that prior to his incarceration, he worked as a police officer for

approximately 17 years. ECF No. 1 at 9. He maintains that he

arrived at Mount Olive Correctional Center (“MOCC”) on or about

April 17, 2014, and upon his arrival he requested that he be placed

in protective custody to avoid being attacked by other prisoners

because of his law enforcement service. ECF No. 1 at 9. The

plaintiff also maintains that in July 2014, a special management

hearing was conducted at which it was determined that there was

sufficient verifiable information to warrant plaintiff’s placement

in special management. ECF No. 1 at 9. The plaintiff alleges that

he never received any documentation related to the special

3

management hearing, but was, nonetheless, transferred to the

Northern Correctional Facility (“NCF”) on or about August 1, 2014.

ECF No. 1 at 10. However, the plaintiff alleges that upon arriving

at NCF, he realized he was not in special management but was,

instead, housed in the general population as a mainline inmate.

ECF No. 1 at 10. The plaintiff claims that other inmates learned

of his prior service as a police officer and began to harass and

threaten him, which resulted in a vicious attack. ECF No. 1 at 10.

Plaintiff asserts he was knocked unconscious, the molars in the

rear of his mouth were shattered and broken off at the gum line, he

suffered a protein splatter inside his eyes which has impaired his

vision, and has also suffered from hearing damage and a shoulder

injury. ECF No. 1 at 10.

The plaintiff claims that once he regained consciousness, he

was handcuffed and escorted to an interview room where his injuries

were then photographed and screened by defendant Sabatino. ECF No.

1 at 11. The plaintiff maintains that despite complaining of

extreme oral and dental pain, blurred vision, ringing in his ears,

pain in his left shoulder, memory loss, head pain, and the fact

that she could see the broken molars, defendant Sabatino did not

treat his injuries or order him taken to the hospital, and he was

sent back to his cell. ECF No. 1 at 3. The plaintiff continues by

alleging that on July 9, 2015, he was seen by an eye doctor at NCF,

who indicated that he observed spots on the back of plaintiff’s

4

left eye. The doctor then ordered that plaintiff be seen by a

specialist no later than July 14, 2015. ECF No. 1 at 12. However,

the plaintiff alleges he was not, until August 31, 2015, taken to

an eye specialist, who observed protein splatters in the rear of

plaintiff’s left eye. ECF No. 1 at 12. The plaintiff maintains

that this injury is consistent with his being struck with extreme

force and is likely to cause him blurred vision. ECF No. 1 at 13.

The plaintiff alleges that on July 25, 2015, he saw the prison

dentist who determined that removing the plaintiff’s shattered

teeth was too complicated for his practice and that the plaintiff

needed to see an oral surgeon. ECF No. 1 at 12. The dentist

attempted to apply a filling to the plaintiff’s exposed nerves.

The plaintiff saw the oral surgeon on September 28, 2015. ECF No.

1 at 13.

Finally, with respect to his injuries, the plaintiff alleges

that, as of the date he prepared his complaint, despite submitting

multiple nurse sick calls trying to receive treatment for his

shoulder, he had not been treated. ECF No. 1 at 13.

The magistrate judge conducted an initial review of the

plaintiff’s complaint and found that, to the extent the plaintiff

may have raised a viable constitutional claim against the

defendants employed at Mount Olive Correctional Complex (“MOCC”),

the Court lacked jurisdiction to entertain the same because MOCC is

located within the jurisdiction of the Southern District of West

5

Virginia. However, with respect to the remaining named defendants,

the magistrate judge determined that summary dismissal was not

warranted and summonses were issued for defendants Rubenstein,

Pszczolkowski, Greathouse, McGlochlin, Adams, and Griffith. In

addition, because the plaintiff had yet to provide the court with

the identity of the Jane Does, he was given an additional 30 days

in which to identify the two Jane Does.3

Adams, Greathouse, Griffith, Pszczolkowski and Rubenstein

jointly filed a motion to dismiss. ECF No. 30. These defendants

state that the complaint is void of any references to either

Rubenstein or Pszczolkowski. In addition, the defendants

Pszczolkowski and Rubenstein argue that the plaintiff’s claims must

be dismissed because there is no supervisory liability in a § 1983

action. With regard to Greathouse, Adams, and Griffith, these

defendants argue that no conduct is alleged which would rise to the

level of a constitutional tort and argue that each is protected by

the doctrine of qualified immunity. ECF No. 62 at 5.

Defendant McGlochlin filed a motion to dismiss stating,

“[t]his alleged fact pattern [by the plaintiff] does not rise to

the level of deliberate indifference and it is therefore clear that

3One of the Jane Doe defendants named in the case caption was

terminated on January 11, 2017. On September 23, 2016, the

plaintiff filed a motion to substitute party. ECF No. 34. On

January 11, 2017, the motion was granted, and Amanda Sabatino, LPN,

was substituted as the other “Jane Doe” nurse, and the Clerk was

directed to issue a summons for said defendant.

6

Plaintiff has failed to sufficiently allege a Section 1983 claim

against C.O. McGlochlin.” ECF No. 32 at 1. Further, defendant

McGlochlin argues that “[p]laintiff has not utilized any

administrative remedies with regard to any of the alleged actions

of C.O. McGlochlin” and thus, “all claims against this defendant

must be dismissed as a result of plaintiff’s failure to exhaust

administrative remedies.” ECF No. 32 at 2. Defendant also claims

that “[b]ecause defendant is a government official, and because all

actions and/or inactions described in plaintiff’s complaint were

discretionary in nature, defendant is entitled to a qualified

immunity.” ECF No. 32 at 2.

A Roseboro4 notice was issued as to each of these motions.

ECF No. 35. The plaintiff filed a response (ECF No. 52) to the

motion to dismiss filed by Adams, Greathouse, Griffith,

Pszczolkowski and Rubenstein. Plaintiff asserts that he has stated

a claim upon which relief can be granted as to these defendants and

claims that his Eight Amendment rights and Fourteenth Amendment

rights were violated. Plaintiff also alleges a claim of deliberate

indifference to serious medical need and asserts that these named

defendants are not entitled to qualified immunity.

Additionally, plaintiff filed a response (ECF No. 53) to the

motion to dismiss filed by defendant McGlochlin (ECF No. 32).

Plaintiff states that the alleged fact pattern demonstrates

4Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).

7

McGlochlin was deliberately indifferent to a known risk of harm to

the plaintiff and that “[p]laintiff has utilized and exhausted his

available administrative remedy in regards to C.O. McGlochlin.”

ECF No. 53 at 1.

Defendants Adams, Greathouse, Pszczolkowski, Griffith and

Rubenstein filed a reply to the plaintiff’s response. ECF No. 54.

These defendants state that “[p]laintiff has failed to respond to

the Motion to Dismiss of Defendants Rubenstein and Pszczolkowski

and has therefore conceded that dismissal is appropriate as to

those Defendants.” ECF No. 54 at 2. Further, defendants assert

“[p]laintiff’s Response brief provides no analysis of justify the

absence of facts alleged in the Complaint as to defendants

Greathouse, Adams and Griffith. Accordingly, dismissal as to these

Defendants is appropriate for failure to state a claim for which

relief can be granted.” ECF No. 54 at 3. Lastly, defendants argue

that “[t]he factual basis of the complaint does not state a claim

under the Eighth or Fourteenth Amendments to the United States

Constitution as to defendants Rubenstein, Pszczolkowski,

Greathouse, Adams, or Griffith.” ECF No. 54 at 4.

Defendant Sabatino filed a motion to dismiss for failure to

state a claim arguing that “[t]he Plaintiff has failed to exhaust

his administrative remedies with respect to the complaint against

this Defendant.” ECF No. 57 at 1.

8

The plaintiff filed a response stating, “[t]he Plaintiff has

exhausted his available administrative remedies in regards to all

Defendants, including, Defendant Sabatino.” ECF No. 59-1 at 1.

Defendant Sabatino then filed a reply to plaintiff’s response.

ECF No. 60. Defendant Sabatino states: “Despite Plaintiff’s

attempt to argue that his grievance filed on or about September 21,

2015 is sufficient to exhaust his administrative remedies with

respect to Amanda Sabatino, LPN, it is clear that the grievance had

nothing to do with Jane Doe or Amanda Sabatino, LPN.” ECF No. 60

at 1. Defendant asserts that the plaintiff’s “grievance was filed

nearly two and a half months after Nurse Sabatino allegedly saw the

Plaintiff on July 3, 2015” (ECF No. 60 at 1) and that plaintiff

never filed a grievance with respect to Nurse Sabatino and

therefore has failed to exhaust his administrative remedies.

Magistrate Judge Michael John Aloi issued a report and

recommendation. ECF No. 62. The magistrate judge recommended that

“[d]efendants Rubenstein, Pszczolkowski, Greathouse, Adams, and

Griffith’s motion to dismiss (ECF No. 30) be granted; Defendant

McGlochlin’s motion to dismiss (ECF No. 32) be granted; Defendant

Sabatino’s motion to dismiss (ECF No. 57) be granted; the

Plaintiff’s complaint be dismissed with prejudice against

defendants Rubenstein, Pszczolkowski, Greathouse, Adams and

Griffith for failure to state a claim upon which relief may be

granted; the Plaintiff’s complaint be dismissed without prejudice

9

against defendants McGlochlin and Sabatino for failure to exhaust

administrative remedies; and the plaintiff’s complaint be dismissed

without prejudice against the Mount Olive Correction Complex

defendants: David Ballard, Mike Neese, Cheryl Chandler and Sherrill

Snyder for lack of jurisdiction.” ECF No. 62.

As to defendants Rubenstein and Pszczolkowski,5 the magistrate

judge found: “It [is] clear that the Plaintiff has failed to allege

facts which would sustain a finding of supervisory liability. The

Plaintiff does not allege any causal link between either Rubenstein

or Pszczolkowski and any alleged failure to protect or deliberate

indifference to a serious medical need. Accordingly, it is clear

that the Plaintiff has simply named these two defendants in their

official capacities as Commissioner and Warden . . . [and]

Plaintiff’s claims against Rubenstein and Pszczolkowski should be

dismissed.” ECF No. 62 at 14-15.

As to defendants Greathouse, Adams, and Griffith, the

magistrate judge found that the plaintiff has failed to state a

claim that these defendants failed to protect him, violated his Due

Process rights, or were deliberately indifferent to his serious

5The plaintiff, as a basis for his objections, cites to the

subheading titled, “A. Defendants Rubenstein and Plumley” (ECF No.

62 at 13) under Section IV of the magistrate judge’s report and

recommendation (ECF No. 63) which “improperly identifies Warden

Plumley . . . as a Defendant in the instant case.” ECF No. 64 at

2. However, this Court recognizes that this mistake was merely a

typographical error, as the remainder of the analysis in the

magistrate judge’s report and recommendation properly addresses the

appropriate named defendants Rubenstein and Pszczolkowski.

10

medical need, and that the complaint as it relates to these three

defendants should be dismissed. The magistrate judge found that,

“the Plaintiff has failed to state a claim for either theory, and

the complaint as it relates to these three defendants should be

dismissed.” ECF No. 62 at 15.

As to defendants McGlochlin and Sabatino, the magistrate judge

found that “the Plaintiff failed to exhaust his administrative

grievances with respect to either McGlochlin or Sabatino, and

accordingly the complaint should be dismissed against each.” ECF

No. 62 at 18.

The plaintiff then filed his objections to “the Magistrate’s

entire legal analysis contained in the Magistrate’s R&R.” ECF No.

64 at 2.

The plaintiff states as the basis for his objection:

“Apparently the Magistrate has not fully reviewed the facts in the

instant case” citing to the portion of the R&R which “improperly

identifies Warden Plumley6 . . . as a Defendant in the instant

case” and further posits that “the Magistrate somehow determined

that Plaintiff is asserting a vicarious liability claim against

Defendants’ Rubenstein and Pszczolkowski” when “[p]laintiff is

asserting supervisory liability claims against Defendants’

Rubenstein and Pszczolkowski.” ECF No. 64 at 2.

6See supra, footnote 2.

11

The plaintiff goes on to assert, “[a]dditionally, it is quite

shocking that the Magistrate could not identify the striking

similarity between the facts of the Plaintiff’s complaint and prior

complaints filed by Pro Se inmates in this Court’s district”

referring to several cases involving “physical and constitutional

injuries of other inmates” which have “resulted in settlements

being issued for those Plaintiffs’ injuries which resulted from

WVDOC Defendants.” ECF No. 64 at 5. Plaintiff further states, in

support of his Due Process violation allegation, that he “should

not have been housed in the general population” and that

“Defendants themselves were deliberately indifferent to Plaintiff’s

serious medical needs.” ECF No. 64 at 5. Plaintiff goes on to

assert that defendant McGlochlin failed to protect him and was

“deliberately indifferent to the risk of harm presented” and argues

that “McGlochlin is not entitled to qualified immunity.” ECF No.

64 at 9. Lastly, the plaintiff asserts that the cases cited by the

magistrate judge in regard to plaintiff’s failure to exhaust

administrative remedy regarding defendant Sabatino “[have] no

bearing whatsoever on the instant case.” ECF No. 64 at 10.

Plaintiff maintains that his “complaint is meritorious and

therefore the Magistrate’s R&R must be rejected and this mater must

proceed to discovery and trial” or that “the Plaintiff be given the

opportunity to Amend his complaint in order to better assert his

claim against the Defendants.” ECF No. 64 at 11.

12

Defendant Sabatino responded to the plaintiff’s objections to

the report and recommendation. ECF No. 65. Defendant asserts that

“[i]t is obvious that neither grievance mentions Nurse Sabatino by

name” and argues that the plaintiff failed to follow the required

grievance procedure with respect to his allegations of conduct by

Nurse Sabatino. ECF No. 65 at 2. Defendant Sabatino states

“[a]ccordingly, the Magistrate Judge’s Recommendation is correct as

a matter of law and should be adopted by this Court.” ECF No. 65

at 2.

Defendants Adams, Greathouse, Griffith, Pszczolkowski, and

Rubenstein responded to the plaintiff’s objections to the report

and recommendation. ECF No. 66. Defendants assert, “[t]he

available evidence clearly demonstrates that the Plaintiff has

waived his right to submit objections to the Magistrate Court’s

Report and Recommendation” stating that, “the last date for the

Plaintiff to file objections would be August 15, 2017 . . . [and]

plaintiff did not mail his objections to the Clerk of the Court

until August 17, 2017.” ECF No. 66 at 2. Defendants further

state, “[e]ven assuming that Plaintiff’s objection was filed

timely, the objection should be overruled as the Finding and

Recommendation made by the Magistrate are proper and well-founded.”

ECF No. 66 at 3.

On September 5, 2017, defendant McGlochlin responded to the

plaintiff’s objections to the report and recommendation. ECF No.

13

66. Defendant states as his response to plaintiff’s objections,

“[i]n this case, there is no question that plaintiff did not file

a grievance or utilize any administrative procedure alleging that

Officer C.O. McGlochlin failed to protect him or acted improperly

in any way on July 3, 2015” and “[t]hus, plaintiff cannot proceed

with a failure to protect claim against Officer C.O. McGlochlin.”

ECF No. 67 at 2.

II. Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de

novo review of any portion of the magistrate judge’s recommendation

to which objection is timely made. As to those findings to which

objections were not filed, the findings and recommendations will be

upheld unless they are “clearly erroneous or contrary to law.” 28

U.S.C. § 636(b)(1)(A). Because the plaintiff filed objections to

the report and recommendation, the magistrate judge’s

recommendation will be reviewed de novo as to those findings to

which objections were made.

To survive a motion to dismiss under Rule 12(b)(6), “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, 678 (2009). This plausibility

standard requires a plaintiff to articulate facts that, when

accepted as true, demonstrate that the plaintiff has stated a claim

that makes it plausible he is entitled to relief. Francis v.

14

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556

U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Under the Prison Litigation Reform Act (PLRA), a prisoner

bringing an action with respect to prison conditions under 42

U.S.C. § 1983, or any other federal law, must first exhaust all

available administrative remedies. 42 U.S.C. § 1997(e)(a).

Exhaustion as provided in § 1997(e)(a) is mandatory. Booth v.

Churner, 532 U.S. 731, 741 (2001). The exhaustion of administrative

remedies “applies to all inmate suits about prison life, whether

they involve general circumstances or particular episodes, and

whether they alleges excessive force or other some wrong and is

required even when the relief sought is not available. Porter v.

Nussle, 534 U.S. 516, 532 (2002). Because exhaustion is a

prerequisite to suit, all available administrative remedies must be

exhausted prior to filing a complaint in federal court. See

Porter, at 524 (citing Booth, 532 U.S. at 741). Not only must a

prisoner exhaust his administrative remedies, he must also do so

properly. Proper exhaustion “’means using all steps that the

agency holds out, and doing so properly (so that the agency

addresses the issues on the merits.’” Woodford v. Ngo, 548 U.S. 81

(2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.

2002).

Further, “[t]he doctrine of qualified immunity protects

government officials from liability for civil damages insofar as

15

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted). Courts must consider two steps in

determining whether an official is entitled to qualified immunity.

Id. at 232. “First, a court must decide whether the facts that a

plaintiff has alleged . . . make out a violation of a

constitutional right. Second, . . . the court must decide whether

the right at issue was ‘clearly established’ at the time of the

defendant’s alleged misconduct.” Id.

The Eighth Amendment imposes a duty on prison officials “to

protect prisoners from violence at the hands of other prisoners.”

Farmer v. Brennan, 511 U.S. 825, 833 (1994). “For a claim based on

failure to prevent harm, the inmate must show that he is

incarcerated under conditions posing a substantial risk of serious

harm,” and that the prison officials acted with “‘deliberate

indifference’ to inmate health or safety.” Id. at 834. “[A]

prison official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health

or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Id. at 837.

Furthermore, the Eighth Amendment is not violated by the negligent

16

failure to protect inmates from violence. Rather, the plaintiff

must show that the defendants knew of the risk and consciously

disregarded it. Whitley v. Albers, 475 U.S. 312, 319 (1986); Moore

v. Winebrenner, 927 F.2d 1312 (4th Cir. 1991).

This Court must liberally construe pro se complaints.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Gordon v. Leeke, 574

F.2d 1147, 1151 (4th Cir. 2007). While the plaintiff’s allegations

are assumed to be true, Erickson, 551 U.S. at 93, this Court may

not ignore a clear failure in the pleading to allege facts that set

forth a claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387,

390-91 (4th Cir. 1990). This Court may not rewrite a complaint to

include claims that were never presented, Barnett v. Hargett, 174

F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff’s legal

arguments for him, id., or “conjure up questions never squarely

presented” to the court. Beaudett v. City of Hampton, 775 F.2d

1274, 1278 (4th Cir. 1985).

III. Discussion

Because the plaintiff filed objections to the report and

recommendation, this Court reviews the magistrate judge’s

recommendation de novo as to those findings to which objections

were made.

For the reasons stated below, this Court adopts and affirms

the report and recommendation of the magistrate judge in its

entirety, grants defendants Rubenstein, Pszczolkowski, Greathouse,

17

Adams, and Griffith’s motion to dismiss, grants defendant

McGlochlin’s motion to dismiss, grants defendant Sabatino’s motion

to dismiss, dismisses with prejudice the plaintiff’s complaint

against defendants Rubenstein, Pszczolkowski, Greathouse, Adams and

Griffith for failure to state a claim upon which relief may be

granted, dismisses without prejudice the plaintiff’s complaint

against defendants McGlochlin and Sabatino for failure to exhaust

administrative remedies,; denies the plaintiff’s request to amend

the complaint, and dismisses without prejudice the plaintiff’s

complaint against defendants Ballard, Neese, Chandler and Snyder of

the Mount Olive Correction Complex for lack of jurisdiction.

A. Mount Olive Correction Complex Defendants: Ballard, Neese,

Chandler and Snyder

The magistrate judge conducted an initial review of the

plaintiff’s complaint and found that to the extent the plaintiff

may have raised a viable constitutional claim against the

defendants employed at Mount Olive Correctional Complex (“MOCC”),

summary dismissal was warranted due to lack of jurisdiction. In

making his recommendations, the magistrate judge found that MOCC is

located within the jurisdiction of the Southern District of West

Virginia, and dismissal was warranted pursuant to 28 U.S.C. § 636

(b)(1). Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766

F.2d. 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91

(4th Cir. 1984).

18

Plaintiff did not object to the magistrate judge’s

recommendation of summary dismissal without prejudice due to lack

of jurisdiction in regard to the Mount Olive Correction Complex

defendants Ballard, Neese, Chandler and Snyder. As to those

findings to which objections were not filed, the findings and

recommendations will be upheld unless they are clearly erroneous or

contrary to law.

Accordingly, following its review of the claims within the

plaintiff’s complaint against the Mount Olive Correction Complex

defendants David Ballard, Mike Neese, Cheryl Chandler and Sherrill

Snyder, this Court finds that the plaintiff’s complaint should be

dismissed without prejudice as to these defendants for lack of

jurisdiction.

B. Defendants McGlochlin and Sabatino

Under the Prison Litigation Reform Act (“PLRA”), a prisoner

must exhaust his available administrative remedies before filing an

action under § 1983. 42 U.S.C. § 1997e(a). The prisoner must

“us[e] all steps that the agency holds out[] and do[] so properly.”

Woodford v. Ngo, 548 U.S. 81, 90 (2006).

The WVDOC has established a three-level grievance process for

prisoners to grieve their complaints in an attempt to resolve the

prisoners’ issues. Level One involves filing a G-1 Grievance Form

with the Unit Manager. If the inmate receives no response or is

unsatisfied with the response received at Level One, the inmate may

19

proceed to Level Two by filing a G-2 Grievance Form with the warden

or administrator. Finally, the inmate may appeal the Level Two

decision to the Commissioner of the WVDOC.

In making his recommendations, the magistrate judge found that

the plaintiff’s complaint should be dismissed without prejudice

against defendants McGlochlin and Sabatino for failure to exhaust

administrative remedies. The magistrate judge noted in his report

and recommendation that “despite asserting the affirmative defense

of failure to exhaust, these Defendants have also addressed the

merits of the Plaintiff’s claims. The undersigned has declined to

do so in light of the purpose of requiring exhaustion as outlined

in Woodford. 548 U.S. at 84-85.” ECF No. 22 at 21 n.3.

The plaintiff, in his objections, argues again that he has

exhausted his administrative grievances. However, as noted by

defendant McGlochlin in his response to the plaintiff’s objections,

“[i]n this case, there is no question that plaintiff did not file

a grievance or utilize any administrative procedure alleging that

Officer C.O. McGlochlin failed to protect him or acted improperly

in any way on July 3, 2015” and thus, “plaintiff cannot proceed

with a failure to protect claim against Officer C.O. McGlochlin.”

ECF No. 67 at 2. Further, as noted by defendant Sabatino in her

response to the plaintiff’s objections “[i]t is obvious that

neither grievance mentions Nurse Sabatino by name” and that the

plaintiff failed to follow the required grievance procedure with

20

respect to his allegations of conduct by Nurse Sabatino. ECF No.

65 at 2.

Following its de novo review of the deliberate indifference

and failure to protect claims, this Court finds that defendants

McGlochlin, Sabatino and the magistrate judge are correct that the

plaintiff failed to exhaust his administrative remedies with

respect to these two defendants. Thus, this Court finds that the

plaintiff’s complaint should be dismissed without prejudice against

defendants McGlochlin and Sabatino for failure to exhaust

administrative remedies.

C. Defendants Rubenstein, Pszczolkowski, Greathouse, Adams, and

Griffith

In making his recommendations, the magistrate judge found

that, aside from naming Rubenstein and Pszczolkowski as defendants,

the plaintiff makes no specific reference to either of them in the

body of his complaint and most certainly fails to allege any

personal involvement on their part in the alleged violations of his

constitutional rights. ECF No. 62 at 13. The plaintiff does,

however, allege “supervisory liability” as his third claim. The

magistrate judge found that it is clear that the plaintiff has

failed to allege facts which would sustain a finding of supervisory

liability. ECF No. 62 at 15. The plaintiff does not allege any

causal link between either Rubenstein or Pszczolkowski and any

alleged failure to protect or deliberate indifference to a serious

21

medical need. The magistrate judge found that it is clear that the

plaintiff has simply named these two defendants in their official

capacities as Commissioner and Warden. The magistrate judge found

that the plaintiff’s claims against the defendants in their

official capacities are improper and thus, plaintiff’s claims

against Rubenstein and Pszczolkowski should be dismissed.

As to defendants Greathouse, Adams, and Griffith, the

plaintiff claims that these defendants failed to protect him,

violated his Due Process rights, and were deliberately indifferent

to his serious medical need. The magistrate judge found that these

claims should be dismissed because the plaintiff has failed to

state a claim as to these theories. ECF No. 62 at 15. Further,

the magistrate judge found that plaintiff has failed to plead that

the defendants were actually aware of an excessive risk as required

by the deliberate indifference standard. The plaintiff’s first

three allegations concerning these defendants only involve conduct

after the altercation. ECF No. 62 at 16. Thus, the plaintiff

failed to allege that these three Defendants were subjectively

aware of a risk before the altercation. Moreover, the plaintiff’s

fourth allegation regarding these defendants only alleges that they

should have been aware that he was in danger and not that they

actually were aware. ECF No. 62 at 16.

In order to state a claim that non-medical personnel, such as

these defendants, were deliberately indifferent to a serious

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medical need, the plaintiff must show that “the [officials were]

personally involved in the treatment or denial of treatment, or

that they deliberately interfered with the treatment, or that they

tacitly authorized or were indifferent to the medical provider’s

misconduct.” Kinder v. PrimeCare Med., Inc., No. CIV.A. 3:13-

31596, 2015 WL 1276748, at *8 (S.D. W. Va. Mar. 19, 2015) (citing

Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990) (abrogated on other

grounds)).

The magistrate judge, in regard to the plaintiff’s claim of

deliberate indifference, further found that only one of the four

claims against these defendants relates to the plaintiff’s medical

care on July 24, 2015. The magistrate judge found that

“[d]efendants Adams and Griffith told plaintiff he would see a

dentist the next day,” and “[t]he Plaintiff did in fact see a

dentist the next day” thus failing to meet the standard articulated

in Kinder regarding defendants Greathouse, Adams, and Griffith. ECF

No. 62 at 17.

Following its de novo review of the claims regarding

defendants Rubenstein, Pszczolkowski, Greathouse, Adams, and

Griffith, this Court finds that the plaintiff’s complaint should be

dismissed with prejudice. There are insufficient facts alleged by

plaintiff to allow this Court to find a claim of supervisory

liability. Whereas defendants Adams, Greathouse, Griffith,

Pszczolkowski, and Rubenstein responded to the plaintiff’s

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objections to the report and recommendation (ECF No. 66) stating

that the plaintiff waived his right to object due to timeliness,

this Court finds that plaintiff’s objections to the magistrate

judge’s report and recommendation were in fact timely under the

“mailbox rule” which applies here. However, even if the mailbox

rule was not considered, the same findings as stated above are

appropriate on the merits. This Court also finds that the conduct

alleged against these defendants took place after the altercation

and plaintiff alleges only that these defendants should have known,

not that they were actively aware of a known risk of harm to the

plaintiff. Thus, the plaintiff’s complaint should be dismissed with

prejudice for failure to state a claim upon which relief may be

granted.

D. Request to Amend Complaint

After the magistrate judge entered his report and

recommendation, the plaintiff filed his objections to the

magistrate judge’s report and recommendation and added that he “now

wishes to submit an amended complaint which would more adequately

state his constitutional claims in this matter.” ECF No. 64 at 3.

Plaintiff concludes his objections by stating, “[p]laintiff

respectfully requests that the Magistrate’s R&R be rejected and

this matter be allowed to proceed to discovery and trial or the

Plaintiff be given the opportunity to Amend his complaint in order

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to better assert his claims against the Defendants.” ECF No. 64 at

11.

Under Local Rule of Civil Procedure 15.01, titled “Amended

Pleadings”, “[a]ny party filing a motion to amend a pleading that

requires leave of court to file, shall attach to that motion a

signed copy of the proposed amended pleading. However, the amended

pleading shall not be filed until the Court grants the particular

motion.” LR Civ P 15.01. Here, the plaintiff has not complied

with the local rule regarding amended pleadings by failing to

attach a signed copy of the proposed amended complaint to his

objections in which he requests the opportunity to amend.

Further, even if Local Rule of Civil Procedure 15.01 did not

apply to this pro se plaintiff, the plaintiff has still failed to

state with any particularity what the contents of his amended

complaint would be and what he would assert. Plaintiff merely

requests the opportunity to amend his complaint “in order to better

assert his claims against the Defendants.” ECF No. 64 at 11.

Plaintiff not only fails to attach a signed copy of the proposed

amended complaint, but also fails to assert any support or proposal

regarding his requested amended complaint. Plaintiff explicitly

states that he merely “wishes to submit an amended complaint which

would more adequately state his constitutional claims in this

matter.” ECF No. 64 at 3.

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Therefore, for the reasons stated above, this Court finds that

the plaintiff’s request “to submit an amended complaint” (ECF No.

64 at 3) should be denied.

IV. Conclusion

For the reasons set forth above, the magistrate judge’s report

and recommendation (ECF No. 62) is AFFIRMED and ADOPTED.

Accordingly, defendants Rubenstein, Pszczolkowski, Greathouse,

Adams, and Griffith’s motion to dismiss is GRANTED (ECF No. 30);

defendant McGlochlin’s motion to dismiss is GRANTED (ECF No. 32);

defendant Sabatino’s motion to dismiss is GRANTED (ECF No. 57); the

plaintiff’s complaint against defendants Rubenstein, Pszczolkowski,

Greathouse, Adams and Griffith (ECF No. 1) is DISMISSED WITH

PREJUDICE for failure to state a claim upon which relief may be

granted; the plaintiff’s complaint against defendants McGlochlin

and Sabatino (ECF No. 1) is DISMISSED WITHOUT PREJUDICE for failure

to exhaust administrative remedies; the plaintiff’s complaint

against the Mount Olive Correction Complex defendants, Ballard,

Neese, Chandler and Snyder (ECF No. 1) is DISMISSED WITHOUT

PREJUDICE for lack of jurisdiction; the plaintiff’s request to

amend his complaint (ECF No. 64) is DENIED; and the plaintiff’s

objections to the report and recommendation (ECF No. 64) are

OVERRULED.

Should the plaintiff choose to appeal the judgment of this

Court to the United States Court of Appeals for the Fourth Circuit

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on the issues to which objection was made, he is ADVISED that he

must file a notice of appeal with the Clerk of this Court within

thirty days after the date of the entry of the judgment order.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to the pro se plaintiff by certified mail and to

counsel of record herein. Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this

matter.

DATED: September 14, 2017

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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