# Blanchard v. United States

> District Court, N.D. West Virginia · December 15, 2017

URL: https://www.frixlaw.com/law-library/cases/10724867

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** December 15, 2017
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10724867

## How later opinions describe it (automated extraction)

- finding that the court must inform a pro se plaintiff of his right to file material in response to a motion for summary judgment

## Opinion text

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.

2
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).
3
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.
4
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.
5
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
6
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.
7
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.
8
DATED: December 15, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

9

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10724867. Public record. Not legal advice.