Blanchard v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

RAY BLANCHARD,

Plaintiff,

v. Civil Action No. 5:15CV45

(STAMP)

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER

AFFIRMING AND ADOPTING REPORT AND

RECOMMENDATION OF THE MAGISTRATE JUDGE;

GRANTING DEFENDANT’S MOTION TO DISMISS,

OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT; AND

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I. Background

The pro se1 plaintiff, Ray Blanchard, initiated this case by

filing a complaint pursuant to the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671, et seq., alleging that he was denied

his right to emergency medical treatment while incarcerated at FCC-

Hazelton. Specifically, the plaintiff alleges that the negligence

of the Hazelton staff led to him requiring two knee surgeries for

an injury that he is still suffering from. The plaintiff alleges

that page 21 of Hazelton’s Inmate Handbook provides that emergency

health services are available 24 hours daily. For relief, the

plaintiff requests either that a settlement be arranged or that a

trial be set on the claims presented.

1“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).

Pursuant to Local Rule of Prisoner Litigation 2, this case was

referred to United States Magistrate Judge Robert W. Trumble for

initial review and report and recommendation. Upon preliminary

review, it appeared to the magistrate judge that the plaintiff

might not have exhausted his administrative tort claim as required

by 28 U.S.C. § 2675, or might have filed his FTCA claim beyond the

statute of limitations. Accordingly, the magistrate judge

instructed the defendant to file an answer limited to the issues of

exhaustion and timeliness. The defendant filed its response, in

which it acknowledged that the plaintiff did exhaust his

administrative remedies and filed his claim within the statute of

limitations. Thus, the defendant was then ordered to file an

answer addressing the merits of the complaint.

The defendant then filed a motion to dismiss or,

alternatively, for summary judgment. In its motion, the defendant

contends that the plaintiff has failed to file a screening

certificate of merit with his complaint as required by West

Virginia law. The defendant also argues that the plaintiff has

failed to establish that a duty was breached or that any current

injury to his knee was proximately caused by any act or omission of

the defendant.

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A Roseboro2 notice was issued and, in response, the plaintiff

filed a motion for summary judgment. In his motion, the plaintiff

argues that he has established the four required elements of a

negligence claim. First, the plaintiff contends that the defendant

had a duty to provide him with 24-hour emergency care. Second, he

argues that the defendant breached that duty by (1) not having an

adequate health care official to evaluate such a serious injury;

(2) having him housed on the top bunk when there were specific

instructions from prison doctors to house him on a bottom bunk; and

(3) transferring him to another facility after there were doctor’s

orders in place to have a second surgery. Third, the plaintiff

argues that the causation was prison officials neglecting to follow

doctor’s orders in housing him on the bottom bunk. Fourth, the

plaintiff contends that the damages are his damaged right meniscus

and additional pain and/or damage to his right knee.

The magistrate judge then entered a report and recommendation

recommending that this Court dismiss the plaintiff’s claim. The

magistrate judge advised the parties that, pursuant to 28 U.S.C.

§ 636(b)(1)(C), any party may file written objections to his

proposed findings and recommendations within 14 days after being

served a copy of the report and recommendation. Neither party

filed any objections to the report and recommendation. For the

2Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975)

(finding that the court must inform a pro se plaintiff of his right

to file material in response to a motion for summary judgment).

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reasons set forth below, this Court affirms and adopts the

magistrate judge’s report and recommendation in its entirety.

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. Because the plaintiff did not

file any objections to the report and recommendation, the

magistrate judge’s findings and recommendations will be upheld

unless they are “clearly erroneous or contrary to law.” 28 U.S.C.

§ 636(b)(1)(A).

III. Discussion

The FTCA “permits the United States to be held liable in tort

in the same respect as a private person would be liable under the

law of the place where the act occurred.” Medina v. United States,

259 F.3d 220, 223 (4th Cir. 2001). Thus, because the alleged

negligent acts occurred in West Virginia, the substantive law of

West Virginia governs this case.

To prove a medical negligence claim in West Virginia, the

plaintiff must establish that:

(a) the health care provider failed to exercise that

degree of care, skill, and learning required or expected

of a reasonable, prudent health care provider in the

profession or class to which the health care provider

belongs acting in the same or similar circumstances; and

(b) such failure was a proximate cause of the injury or

death.

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W. Va. Code § 55-7B-3. Expert testimony is required if the medical

negligence claim involves an assessment of whether the plaintiff

was properly diagnosed and whether the health care provider was the

proximate cause of the plaintiff’s injuries. Banfi v. Am. Hosp.

for Rehab., 529 S.E.2d 600, 605-06 (W. Va. 2000).

Additionally, to establish a medical negligence claim under

West Virginia law, certain requirements must be met before a health

care provider may be sued. Specifically, compliance with the

requirements of West Virginia Code § 55-7B-6 is mandatory prior to

filing suit in federal court. Stanley v. United States, 321 F.

Supp. 2d 805, 806-07 (N.D. W. Va. 2004). Section 55-7B-6 provides

the following prerequisites for filing an action against a health

care provider:

(b) At least thirty days prior to the filing of a

medical professional liability action against a health

care provider, the claimant shall serve by certified

mail, return receipt requested, a notice of claim on each

health care provider the claimant will join in

litigation. The notice of claim shall include a

statement of the theory or theories of liability upon

which a cause of action may be based, and a list of all

health care providers and health care facilities to whom

notices of claim are being sent, together with a

screening certificate of merit. The screening

certificate of merit shall be executed under oath by a

health care provider qualified as an expert under the

West Virginia rules of evidence and shall state with

particularity: (1) The expert’s familiarity with the

applicable standard of care in issue; (2) the expert’s

qualifications; (3) the expert’s opinion as to how the

applicable standard of care was breached; and (4) the

expert’s opinion as to how the breach of the applicable

standard of care resulted in injury or death. A separate

screening certificate of merit must be provided for each

health care provider against whom a claim is asserted.

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The person signing the screening certificate of merit

shall have no financial interest in the underlying claim,

but may participate as an expert witness in any judicial

proceeding. Nothing in this subsection may be construed

to limit the application of rule 15 of the rules of civil

procedure.

W. Va. Code § 55-7B-6(b). The magistrate explains that the

plaintiff’s medical negligence claim against the Hazelton medical

staff must be dismissed because the plaintiff failed to provide a

screening certificate of merit from a health care provider as

required by § 55-7B-6.

The magistrate judge recognizes that there is an exception to

the certificate of merit requirement contained in § 55-7B-6(c),

which provides as follows:

(c) Notwithstanding any provision of this code, if a

claimant or his or her counsel, believes that no

screening certificate of merit is necessary because the

cause of action is based upon a well-established legal

theory of liability which does not require expert

testimony supporting a breach of the applicable standard

of care, the claimant or his or her counsel, shall file

a statement specifically setting forth the basis of the

alleged liability of the health care provider in lieu of

a screening certificate of merit.

W. Va. Code § 55-7B-6(c). However, the magistrate judge finds that

the exception does not apply because the diagnosis and treatment of

the plaintiff’s lateral tibial fracture is too complex of a matter

and not within the understanding of lay jurors without expert

testimony. See O’Neill v. United States, No. 5:07CV358, 2008 WL

906470, at *4 (S.D. W. Va. Mar. 31, 2008) (finding “that the

medical issues and alleged breaches contained therein ‘relate to

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complex matters of diagnosis and treatment that are not within the

understanding of lay jurors by resort to common knowledge and

experience’” (quoting Farley v. Shook, 629 S.E.2d 739, 744-45 (W.

Va. 2006))). Furthermore, the plaintiff does not attempt to argue

that the exception applies. Accordingly, the magistrate judge

concludes that the plaintiff’s FTCA claim must be dismissed because

of the plaintiff’s failure to submit a certificate of merit.

The magistrate judge then addresses the plaintiff’s negligence

claims on the part of the prison officials in housing him in an

upper bunk and transferring to another facility when an order was

in place for further surgery. As to those claims, the magistrate

judge finds that the plaintiff did not file and exhaust an

administrative tort claim as is required by 28 U.S.C. § 2675. See

Muth v. United States, 1 F.3d 246, 249 (4th Cir. 1993) (“Among the

limitations Congress placed on the consent to suit is the

requirement that the plaintiff initially present an administrative

claim to an appropriate federal agency within two years of the date

the cause of action accrues.”). The plaintiff’s administrative

grievance addressed only the claim against the Hazelton medical

staff. Thus, the magistrate judge concludes that this Court is

without jurisdiction to hear the claims because the plaintiff

failed to exhaust administrative remedies.

This Court finds no error in the determinations of the

magistrate judge and thus upholds his recommendation.

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IV. Conclusion

Because the parties have not objected to the report and

recommendation of the magistrate judge, and because this Court

finds that the magistrate judge’s recommendation is not clearly

erroneous, this Court AFFIRMS and ADOPTS the magistrate judge’s

report and recommendation (ECF No. 44) in its entirety.

Accordingly, the defendant’s motion to dismiss or, alternatively,

for summary judgment (ECF No. 27) is GRANTED and the plaintiff’s

motion for summary judgment (ECF No. 43) is DENIED. The

plaintiff’s complaint is thus DISMISSED WITH PREJUDICE and it is

ORDERED that this civil action be STRICKEN from the active docket

of this Court.

Finally, this Court finds that the plaintiff was properly

advised by the magistrate judge that failure to timely object to

the report and recommendation in this action would result in a

waiver of appellate rights. Because the plaintiff has failed to

object, he has waived his right to seek appellate review of this

matter. See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).

IT IS SO ORDERED.

The Clerk is directed to transmit a copy of this 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.

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DATED: December 15, 2017

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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