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.
2
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,
3
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.
4
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).
5
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
6
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.
7
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).
8
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.
9
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.
10
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
11