Opinion

Curanovic v. Houchin

Court
District Court, N.D. West Virginia
Filed
Aug 15, 2019
Cited by
0 cases
Authority
More cited than 32.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

EDWARD CURANOVIC,

Plaintiff,

v. Civil Action No. 5:18CV88

(STAMP)

JESSICA HOUCHIN, R.N.,

MS. WILSON, P.A.,

LT. DUVALL,

DR. ANDERSON, M.D.,

M. WEAVER,

Medical Administrator,

ANGELA P. DUNBAR,

Regional Director,

JENNIFER SAAD, Warden

and IAN CONNERS,

Adm. National Inmate Appeals,

Defendants.

MEMORANDUM OPINION AND ORDER

AFFIRMING AND ADOPTING REPORT AND

RECOMMENDATION OF MAGISTRATE JUDGE,

OVERRULING PLAINTIFF’S OBJECTIONS AND

DISMISSING CIVIL ACTION WITH PREJUDICE

I. Background

The pro se1 plaintiff, Edward Curanovic, filed this civil

action asserting claims under Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388 (1971), against current FCI Gilmer

employees Michael Weaver, Health Services Administrator; Lieutenant

W. Duvall; Staff Physician Eddie Anderson; Physician Assistant

(“P.A.”) Alicia Wilson; Emergency Medical Technician/Paramedic

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).

Jessica Houchin; and FCI Gilmer Warden J. Saad. The plaintiff also

names Federal Bureau of Prisons (“BOP”) staff members Angela

Dunbar, who is BOP’s Mid-Atlantic Regional Director, and Ian

Connors, BOP’s National Inmate Appeals Administrator.2 ECF Nos. 7

and 10. In his complaint and amended complaint, the plaintiff

alleges that the defendants “violated [Bureau of Prisons] Policy

and acted with ‘deliberate indifference’ to a serious medical

situation.” ECF No. 7-1 at 8-11, 12; ECF No. 10 at 8-9 (emphasis

omitted). Specifically, the plaintiff alleges that defendant

Weaver instructed defendant Houchin, a nurse, to give him a steroid

shot after he fell off his bunk to the floor, and after he was

later transported to receive medical treatment. Id. The plaintiff

states that:

[w]hen the steroid shot did not help, Houchin and Weaver

both refused further medical attention and did not take

Plaintiff to the Hospital. Weaver ordered Plaintiff to

get up, get in the wheelchair, and to go back to the

housing unit. Because Plaintiff was unable to move, thus

not complying with Weaver’s order Weaver had Lt. Duvall

and 3 other unknown officers take Plaintiff to solitary

confinement [Special Housing Unit] (SHU). Weaver also

filed an Incident Report against Plaintiff for failing to

comply with a direct order . . . During the first three

(3) days in the (SHU), Plaintiff due to severe back

spasms, couldn’t eat, sleep, and get up to receive

medications. Plaintiff urinated and defecated on himself

2The plaintiff first filed a civil rights complaint pursuant

to 42 U.S.C. § 1983. ECF No. 1. The plaintiff was then sent a

notice of deficient pleading. ECF No. 4. Subsequently, the

plaintiff filed a complaint based on Bivens. ECF No. 7. The

plaintiff then received a notice of deficient pleading and intent

to strike pleading and dismiss action. ECF No. 8. After receiving

this notice, the plaintiff filed an amended complaint. ECF No. 10.

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and was unable to clean himself. Roughly the Fifth day

in the (SHU) Dr. Anderson visited Plaintiff and refused

to take Plaintiff to the hospital. Plaintiff was

released from the (SHU) 10 days after the medical

emergency.

ECF No. 10 at 8-9.

The plaintiff also makes another claim in his complaint based

on an alleged delay in treatment. Id. at 9. Specifically, the

plaintiff states that United States District Court Judge Vernon S.

Broderick stated that the plaintiff needed to see a medical

professional; however, the defendants did not schedule surgery for

the plaintiff. Id. The plaintiff seeks “$5.7 million dollars in

damages” and a back fusion. Id. at 10.

The plaintiff then filed a motion for a preliminary

injunction. ECF No. 37. In that motion, the plaintiff states that

there is a strong likelihood that he will prevail in this action,

and that he has met all the elements for a preliminary injunction.

Id. at 2-4. Moreover, the plaintiff indicates that a final

consultation to operate on his back has been scheduled, and that he

has continued to suffer due to his back condition. Id. at 2-3.

The plaintiff seeks an order that requires the BOP to perform the

back operation. Id. at 3.

The defendants filed a motion to dismiss or, in the

alternative, a motion for summary judgment. ECF No. 44. The

defendants first contend that the plaintiff cannot establish that

they were deliberately indifferent to his medical condition,

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because the plaintiff fails to establish the objective and

subjective components of the deliberate indifference standard under

the Eighth Amendment of the United States Constitution. ECF No.

45-1 at 16-22. Specifically, the plaintiff cannot show that his

condition was not timely, properly treated, or the requisite

culpable state of mind of any of the defendants. Id. Second, the

defendants state that neither the plaintiff’s placement in the SHU

nor the conditions of the SHU violates the Eight Amendment since

the plaintiff cannot establish that the conditions in the SHU

resulted in serious physical or emotional injuries or the grave

risk of such harm. Id. at 22-23. Third, the defendants assert

that there is no due process violation since: (1) the plaintiff has

no constitutional right to be free from administrative detention in

the SHU and (2) the plaintiff’s placement in the SHU is neither a

condition which exceeded his sentence in an unexpected manner nor

one which created an atypical or significant hardship in relation

to the ordinary incidents of prison life. Id. at 25-26. Fourth,

the defendants note that the plaintiff makes no specific

allegations against defendants Dunbar, Saad, or Connors; and

therefore, they must be dismissed as defendants. Id. at 26.

Fifth, the defendants assert that they are entitled to qualified

immunity since the plaintiff failed to establish deliberate

indifference on the part of the staff, but rather the plaintiff

disagrees with the type of treatment he was provided. Id. at 27.

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Moreover, the defendants state that defendants Dunbar and Saad

cannot be held liable based on a respondeat superior theory of

liability, since the plaintiff fails to explain how they were

directly involved in any alleged unconstitutional actions. Id.

at 28. Further, the defendants indicate that just because the

signatures of defendants Dunbar, Saad, and Connors appear on the

BOP’s responses to the plaintiff’s administrative remedy requests

does not mean that the plaintiff can sustain an action against

them, since their involvement relates only to the administrative

remedy process. Id. at 28-29.

The plaintiff then filed what is titled as “Plaintiff’s Cross

Motion for Summary Judgement and in Opposition to Defendant’s

Motion to Dismiss and to Defendant’s Motion for Summary Judgement.”

ECF No. 82. The plaintiff attaches what is titled as “Plaintiff’s

Statement of Material Facts Genuinely in Dispute.” ECF No. 82-1.

In that attachment, the plaintiff states that defendants Weaver,

Anderson, and Houchin violated BOP policy and acted with deliberate

indifference:

by intentionally denying the Plaintiff proper medical

attention by refusing to take the plaintiff to the

hospital because of staff shortage and when Weaver wrote

an incident report and placed the plaintiff in the [SHU]

for 10 days because the Plaintiff could not stand up and

go back to his unit due to severe lower back spasms

related to Plaintiff’s significant back condition and

worsening back pain . . . Clearly, this is intentional

cruel and unusual punishment.

Id. at 6 (emphasis omitted).

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The plaintiff also attaches what is titled as “Plaintiff’s

Statement of Material Facts as to which there is No Genuine

Dispute.” ECF No. 82-2. As a third attachment, the plaintiff

filed what is titled as “Plaintiff’s Memorandum of Points and

Authorities in Support of Plaintiff’s Cross Motion for Summary

Judgement and in Opposition to Defendants Motion to Dismiss and to

Defendants Motion for Summary Judgement.” ECF No. 82-3. In the

memorandum, the plaintiff asserts that he has established

deliberate indifference to his medical condition since the

defendants “intentionally denied and delayed the plaintiff’s access

to proper medical care and Lumbar Fusion Surgery and intentionally

interfered with treatment prescribed by Neurosurgeon Dr. Marsh.”

Id. at 5 (emphasis omitted). The plaintiff states that he “could

show that his serious medical condition was not timely or properly

treated.” Id. at 7-9. The plaintiff then asserts that his Eighth

Amendment right to be free from cruel and unusual punishment was

violated when defendants Weaver, Anderson, and Houchin “acted with

deliberate indifference by intentionally denying the plaintiff

access to proper medical care as it relates to plaintiffs serious

medical needs and by placing plaintiff in the SHU instead of taking

plaintiff to the hospital.” Id. at 9 (emphasis omitted); see id.

at 9-16. Moreover, the plaintiff alleges that defendant Dunbar

acted with deliberate indifference to his medical condition by

indicating that the plaintiff was seen by medical personnel and

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that he refused to go back to his housing unit. Id. at 17.

Similarly, the plaintiff states that defendant Saad showed

deliberate indifference by failing to investigate his alleged

medical emergency or any issues related to this medical emergency,

noting that defendant Saad is “in charge of [ ] day to day

operations.” Id. at 18. Moreover, the plaintiff states that

defendant Connors was personally involved in the delay of medical

treatment since he “concurred in the findings of [defendants] Saad

and [ ] Dunbar’s opinions.” Id. at 18-19.

The plaintiff then filed a motion to intervene. ECF No. 83.

In that motion, the plaintiff states that the defendants have

refused to take him to surgery and that his back condition is

getting worse. Id. at 1-2.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of

Prisoner Litigation 2, this case was referred to United States

Magistrate Judge James P. Mazzone. The magistrate judge entered a

report and recommendation. ECF No. 86. In that recommendation,

the magistrate judge recommended that the defendants’ motion to

dismiss or, in the alternative, motion for summary judgment (ECF

No. 44) be granted, the plaintiff’s cross-motion for summary

judgment (ECF No. 82) be denied, the plaintiff’s complaint be

dismissed with prejudice, and the plaintiff’s motion for a

preliminary injunction (ECF No. 37) and motion to intervene (ECF

No. 83) be denied as moot.

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The plaintiff timely filed objections. ECF No. 88. First,

the plaintiff asserts that defendants Dunbar, Saad, and Connors

were “given notice of [his] administrative grievances[,]” and that

they “are required to investigate the filed grievances and act.”

Id. at 2 (emphasis omitted). The plaintiff states that “[t]heir

intentional inaction makes all (3) Defendants just as culpable and

liable as the other Defendants.” Id. The plaintiff then proceeds

to restate the bases for his claims that were previously made with

respect to his deliberate indifference claim and due process claim.

Id. at 3-12.

For the reasons that follow, this Court finds that the report

and recommendation of the magistrate judge (ECF No. 86) should be

adopted 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 an objection is timely made. 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 the plaintiff objected. As to those findings to which

objections were not filed, all findings and recommendations will be

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

U.S.C. § 636(b)(1)(A).

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III. Discussion

In reviewing the record, the report and recommendation, and

the plaintiff’s objections, this Court finds that the plaintiff’s

objections are without merit.

In the report and recommendation, the magistrate judge first

correctly found that with respect to defendants Saad, Dunbar, and

Connors, the plaintiff has not provided any evidence that these

defendants tacitly authorized or were indifferent to an alleged

violation of the plaintiff’s constitutional rights. Id. at 9. The

magistrate judge properly found that the plaintiff’s allegations

that the defendants failed to grant plaintiff relief during the

administrative process is not the type of personal involvement

required to sustain the plaintiff’s Bivens claim. Id. Second,

after a detailed account of the plaintiff’s medical records and

treatment, the magistrate judge correctly concluded that such

records establish that the plaintiff has received substantial and

adequate care; therefore, the plaintiff cannot satisfy the

subjective component to establish an Eighth Amendment violation.

Id. at 9-24. Third, the magistrate judge properly found that the

plaintiff’s placement in the SHU does not implicate a due process

right, since the plaintiff did not establish that his days in the

SHU resulted in serious physical or emotional injuries, or the

grave risk of such harm. Id. at 25-26.

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This Court has conducted an appropriate de novo review of the

plaintiff’s objections to the report and recommendation. After

such review, this Court upholds the magistrate judge’s

recommendation (ECF No. 86) and overrules the plaintiff’s

objections (ECF No. 88).

IV. Conclusion

For the reasons discussed above, the report and recommendation

of the magistrate judge (ECF No. 86) is hereby AFFIRMED and ADOPTED

in its entirety. Accordingly, the defendants’ motion to dismiss

or, in the alternative, motion for summary judgment (ECF No. 44) is

hereby GRANTED, the plaintiff’s cross-motion for summary judgment

(ECF No. 82) is hereby DENIED, the plaintiff’s complaint is hereby

DISMISSED WITH PREJUDICE, and the plaintiff’s motion for a

preliminary injunction (ECF No. 37) and motion to intervene (ECF

No. 83) are hereby DENIED AS MOOT. The plaintiff’s objections (ECF

No. 88) are hereby OVERRULED.

It is further ORDERED that this case be DISMISSED WITH

PREJUDICE and STRICKEN from the active docket of this Court.

Should the plaintiff choose to appeal the judgment of this

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

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 60

days after the date of the entry of this order.

IT IS SO ORDERED.

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The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein and to the pro se

plaintiff by certified mail. Pursuant to Federal Rule of Civil

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

matter.

DATED: August 15, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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