Ferguson v. Wilson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

KENITHA L. FERGUSON,

Plaintiff,

v. CIVIL ACTION NO. 1:18-00404

DAVIS WILSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

By Standing Order, this action was referred to United

States Magistrate Judge Omar J. Aboulhosn for submission of

findings and recommendation regarding disposition pursuant to 28

U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted to

the court his Findings and Recommendation on April 26, 2019, in

which he recommended that the court grant defendants’ Motion to

Dismiss, or in the Alternative, Motion for Summary Judgment, ECF

No. 95, dismiss plaintiff’s Amended Complaint, ECF No. 12, and

remove this case from the court’s active docket.

In accordance with the provisions of 28 U.S.C. § 636(b),

plaintiff was allotted fourteen days and three mailing days in

which to file any objections to Magistrate Judge Aboulhosn’s

Findings and Recommendation (“PF&R”). The failure of any party

to file such objections within the time allowed constitutes a

waiver of such party’s right to a de novo review by this court.

Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Neither party filed any objections to the Magistrate

Judge’s Findings and Recommendation within the requisite time

period. However, on May 3, 2019, plaintiff filed a Motion to

Add Evidence. ECF No. 103. The court will provide a brief

background on the case, and then will address plaintiff’s

pending Motion, and will treat plaintiff’s claims within the

Motion as objections to the PF&R, where appropriate.1

I. Background

On March 16, 2018, plaintiff, an inmate incarcerated at FPC

Alderson and acting pro se, filed a Bivens action against prison

officials, alleging that defendants were improperly denying her

Residential Reentry Center [“RRC”] placement and refusing to

provide her with adequate medical care in violation of the

Eighth Amendment. ECF No. 7. Plaintiff later amended her

Complaint, also alleging that defendants retaliated against

plaintiff for filing administrative remedies in violation of the

First Amendment, and that defendants acted with deliberate

1 It is likely that plaintiff’s Motion to Add Evidence was

drafted before plaintiff received the PF&R, as the Motion

contains no reference to the PF&R and nothing in the Motion is

framed as an objection. However, in order to give plaintiff,

acting pro se, all the possible process due to her, the court

will treat plaintiff’s claims within the Motion as objections to

the PF&R, where appropriate to do so.

indifference to plaintiff’s depression, callouses on her feet,

and the chronic pain in her neck, shoulders, hands, wrist, and

back. ECF No. 12. On February 5, 2019, Defendants’ filed a

Motion to Dismiss, or in the Alternative, Motion for Summary

Judgment, in which they argued that: (1) “Plaintiff failed to

exhaust administrative remedies on some of her allegations”; (2)

“Plaintiff fails to state a viable First Amendment claim”; (3)

“Plaintiff cannot establish an Eighth Amendment violation for

deliberate indifference”; (4) “There is not sufficient personal

involvement necessary to support Eighth Amendment Bivens

liability against supervisory and non-medical Defendants”; (5)

“Plaintiff has no right to a furlough”; and (6) “Defendants are

entitled to qualified immunity.” ECF No. 95, 96. Plaintiff

filed a response to defendants’ motion on February 25, 2019.

ECF No. 98.

On April 26, 2019, Magistrate Judge Aboulhosn submitted his

PF&R, in which he found that (1) plaintiff failed to exhaust her

administrative remedies except as to her shoulder and neck

condition; (2) plaintiff’s First Amendment retaliation claim is

not cognizable as a Bivens claim; (3) defendants were not

deliberately indifferent towards plaintiff; (4) plaintiff’s

claims against non-medical defendants failed because Bivens does

not allow vicarious liability claims; and (5) plaintiff’s

constitutional rights were not violated by defendant’s denial of

her request for a furlough. ECF No. 102, at 19-25, 25-34, 34-

43, 43-46, 46-49. Plaintiff then filed a Motion to Add Evidence

on May 3, 2019, which contained twenty points within a

“Memorandum of Points and Authorities.” ECF No. 103.

II. Standard of Review of Pro Se Objections

Pursuant to Fed. R. Civ. P. 72(b), the Court must “make a

de novo determination upon the record . . . of any portion of

the magistrate judge's disposition to which specific written

objection has been made.” However, the Court is not required to

review, under a de novo or any other standard, the factual or

legal conclusions of the magistrate judge as to those portions

of the findings or recommendation to which no objections are

addressed. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required and unnecessary

“when a party makes general and conclusory objections that do

not direct the court to a specific error in the magistrate's

proposed findings and recommendations.” Orpiano v. Johnson, 687

F.2d 44, 47–48 (4th Cir. 1982); see also United States v.

Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for

appeal an issue in a magistrate judge's report, a party must

object to the finding or recommendation on that issue with

sufficient specificity so as reasonably to alert the district

court of the true ground for the objection.”); McPherson v.

Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure

to file a specific objection constitutes a waiver of the right

to de novo review.”).

“A document filed pro se is ‘to be liberally construed.’ ”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se

litigant's objections broadly rather than narrowly.” Beck v.

Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2

(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).

III. Analysis of Motion to Add Evidence

Even read broadly, plaintiff’s Motion to Add Evidence does

not introduce any new evidence in the case that could be

construed as making an objection to the PF&R by challenging the

factual findings of the magistrate. In her Motion, plaintiff

lists twenty “memorand[a] of points and authorities,” many of

which refer to medical examination reports that were included as

exhibits to previous filings. Instead of offering new evidence

as to what occurred in these medical examinations, plaintiff

merely repeated certain statements made during those

examinations that were already in evidence. To wit, points 1,

2, 5, 6, 7, 8, 9, 10, 15, 18, and 19 specifically cite to

previously filed material as support for the statements made in

plaintiff’s Motion. See ECF No. 103.

After reviewing the cited material in each memoranda point,

the court determines there is no new evidence contained within

the above listed points. The court further concludes that the

magistrate judge properly considered in his PF&R the material

that plaintiff cites to, as shown by the lengthy procedural

history and summary of the evidence sections in the PF&R, which

include the facts that plaintiff restates in her Motion. See

ECF No. 102, at 1-16. These points therefore contain no factual

challenges to the PF&R’s findings, and as such do not constitute

valid objections that require de novo review. See Orpiano, 687

F.2d at 47 (explaining that when “no factual issues are

challenged, de novo review . . . may be dispensed with”) (citing

Braxton v. Estelle, 641 F.2d 392 (5th Cir. 1981)).

While points 3, 4, 12, 13, 14, 16, 17, and 20 do not

specifically refer to evidence contained in previously filed

documents, points 3, 4, 13, 16, and 20 likewise contain no new

evidence that was not considered by the magistrate judge in the

PF&R.2 See ECF No. 103. Therefore, points 3, 4, 13, 16, and 20

2 Points 3, 4, 16, and 20 contain facts entirely reflected in the

record. See ECF No. 92, Exh. 2 at 20-23 (point 3); id. at 9

(point 4); id. at 45, 214 (point 16); id. at 24-25, 134, 188,

204 (point 20) (documenting that although plaintiff had an

outside doctor advise she wear supportive shoes, there were no

abnormalities in plaintiff’s ankle/foot/toes that qualified her

to have special shoes, and plaintiff was accommodated with shoe

inserts and arch supports).

also contain no factual challenges to the PF&R’s findings, and

do not constitute valid objections that require de novo review.

Plaintiff’s points 12, 14, and 17 can also be dispensed

with. Plaintiff’s points 12 and 14 contain medical opinions

regarding proper treatment for her chronic pain and the

debilitating nature of pain generally; as plaintiff is not a

medical expert, her lay opinion is not evidence.3 Plaintiff’s

point 17 is factually inaccurate: plaintiff claims she was given

no mental health medication, yet the record reflects she made no

mental health complaints to any defendants until April 30, 2018,

Point 13 states that during a June 7, 2018 medical visit

plaintiff told defendants that she was still experiencing pain.

The PF&R and plaintiff’s medical records do not contain records

of a June 7, 2018 visit, but they do detail a May 31, 2018 visit

where plaintiff similarly complained of pain, and she and

defendant Bailey discussed her treatment plan for her chronic

pain. See id. at 8-9. At the May 31 examination, defendant

Bailey continued the conservative treatment and encouraged

plaintiff to remain active, stretch often, and use warm

compresses. Id. at 9. These facts of the May 31 visit,

contained in the medical reports and in the PF&R, mirror those

facts in plaintiff’s point 13 regarding a June 7 visit, and thus

point 13 similarly does not contain new evidence.

3 Moreover, on point 12, there is evidence from medical experts

that support defendants’ choice of placing plaintiff on a

conservative treatment plan to deal with her chronic pain. See

ECF No. 92, Exh. 2 at 42-43 (defendant Dr. Wright advising a

conservative treatment plan); id. at 213 (plaintiff’s outside

physician Dr. Chris Karas recommending “conservative measures”).

As to point 14, there is also ample evidence that shows

defendants appropriately took efforts to decrease plaintiff’s

pain. See, e.g., id. at 61 (documenting that Dr. Bailey

prescribed two pain medications for plaintiff).

at which point she was given Zoloft, a mental health medication.

See ECF No. 92, Exh. 2 at 86 (documenting no mental health

complaints); id. at 12-14 (given Zoloft prescription after

asking for mental health medication). Point 17 also contains a

general conclusory statement as to defendants’ deliberate

indifference, which is not a valid objection. See Orpiano, 687

F.2d at 47-48 (holding that de novo review is not required and

unnecessary when a party makes general and conclusory

objections).

Plaintiff’s point 11 contains statements challenging the

sufficiency of the medical treatment that defendants gave to

plaintiff. Specifically, plaintiff asserts that defendants gave

her the “bare minimum treatment” and did not prescribe to her

the medications she was taking prior to incarceration, and thus

defendants “knew what was need[ed] to relieve her pain” but did

not treat her properly. ECF No. 103, at ¶ 11. Liberally

construing this claim as an objection to the PF&R’s conclusion

that “[d]efendants did not act with deliberate indifference in

providing medical treatment for [p]laintiff’s conditions,” see

ECF No. 102, at 43, the court will review this claim de novo.

However, plaintiff has not objected in any form to the PF&R’s

findings that Bivens claims require the exhaustion of

administrative remedies and that plaintiff only fully exhausted

her claim of inadequate care involving her shoulder and neck

pain. See id. at 18-25. Plaintiff has also not objected to the

PF&R’s findings that Bivens does not impose vicarious liability

on supervisory officials and that the non-medical defendants had

no personal involvement in plaintiff’s claimed Eighth Amendment

violations. See id. at 43-46. Therefore, the de novo review

will examine only whether the medical defendants’ treatment of

plaintiff’s shoulder and neck conditions constituted deliberate

indifference.

i. Medical Defendants Were Not Deliberately Indifferent to

Plaintiff’s Shoulder and Neck Conditions.

Under the Eighth Amendment, incarcerated persons are

entitled to “adequate food, clothing, shelter, sanitation,

medical care and personal safety.” Wolfish v. Levi, 573 F.2d

118, 125 (2d Cir. 1978), rev’d on other grounds, Bell v.

Wolfish, 441 U.S. 520 (1979). If an inmate claims that prison

officials disregarded specific known risks to their health or

safety, these claims are analyzed under the Eighth Amendment’s

deliberate indifference standard. See Moore v. Winebrenner, 927

F.2d 1312, 1316 (4th Cir. 1991) (holding that supervisory

liability may be imposed where prison supervisors “obdurately,”

“wantonly,” or “with deliberate indifference” fail to address a

known pervasive risk of harm to an inmate’s health or safety).

To establish a violation of the Eighth Amendment in the context

of a challenge to conditions of confinement, an inmate must

allege (1) a “sufficiently serious” deprivation under an

objective standard;4 and (2) that prison officials acted with

“deliberate indifference” to the inmate’s health and safety

under a subjective standard. Wilson v. Seiter, 501 U.S. 294,

297-99 (1991). In particular as to this second element,

plaintiff must establish that each defendant “knows of and

disregards an excessive risk to inmate health and 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.” Farmer v. Brennan, 511

U.S. 825, 837 (1994). To meet the subjective standard,

plaintiff must allege and establish that each defendant was

aware that there was a substantial risk to plaintiff’s health or

safety and that defendants disregarded the serious physical

consequences.

Based upon the record, plaintiff cannot meet the subjective

standard required to show deliberate indifference. Every time

plaintiff sought a medical examination for shoulder or neck

pain, defendants provided her with treatment the same day.5 The

4 Plaintiff alleges that her condition causes continuous severe

pain and suffering. Accordingly, the court will assume for

purposes of this review of the PF&R that plaintiff’s injuries

were serious enough to give rise to an Eighth Amendment claim.

5 The record reflects that plaintiff complained of neck or

shoulder pain on six visits with defendants:

On August 16, 2017, plaintiff complained of neck pain while

being evaluated by defendant Bailey. ECF No. 92, Exh. 2 at 93.

Plaintiff was approved by RN Ward for a lower bunk pass, id. at

76, and was also seen later that day by defendant Dr. Wright,

where plaintiff did not again complain of neck pain. Id. at 78-

81.

On October 19, 2017, plaintiff complained of neck pain and

requested a new nonsteroidal anti-inflammatory drug (“NSAID”) be

prescribed instead of ibuprofen. Id. at 59. In response,

Bailey prescribed two new pain medications that same day, and

advised plaintiff to use Tylenol for cases of “break through

pain.” Id. at 61.

On December 21, 2017, Wright informed plaintiff that the

EMG of plaintiff’s neck returned normal, and that while

plaintiff occasionally gets pain in her neck, this is a result

of a prior surgery and she will have some pain due to that

surgery every so often. Id. at 42. Wright then counseled

plaintiff that irrespective of the treatment plaintiff received

while at home, the best course of treatment was a conservative

management technique that called for NSAIDs, using hot and cold

compresses, and exercise to strengthen her muscles. Id.

On March 29, 2018, plaintiff asked for a muscle relaxer or

Biaxin to deal with severe neck pain and loss of range of motion

in her neck. Id. at 20. Bailey noted that plaintiff’s work

detail supervisor had not heard any complaints from plaintiff,

and that plaintiff had no apparent difficulties completing her

job duties. Id. at 21. Bailey then continued plaintiff’s

conservative treatment plan, and educated plaintiff on range of

motion exercises, band resistance exercises, and the benefits of

gentle stretching and using warm moist compresses. Id. at 22.

On April 12, 2018, plaintiff sought additional medication

for neck pain. Id. at 18. Bailey prescribed a new pain

medication for plaintiff that same day. Id. at 19.

On May 31, 2018, plaintiff complained of pain in her neck.

Id. at 8. Bailey noted that neurologically, plaintiff was

within normal limits and could ambulate without difficulty. Id.

at 9. In response, Bailey continued the conservative treatment

plan, encouraging plaintiff to manage and reduce her pain by

remaining active, stretching, using warm compresses, and by

avoiding high impact activities. Id.

record contains no indications that defendants knew of and

disregarded plaintiff’s need for medical treatment for her

shoulder or neck condition. While plaintiff may disagree with

the course of treatment provided to her, an inmate’s

disagreement with her medical care or course of treatment

provided cannot serve as the basis for a deliberate indifference

claim outside exceptional circumstances, which are not present

here. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)

(“Disagreements between an inmate and a physician over the

inmate's proper medical care do not state a [Bivens or] § 1983

claim unless exceptional circumstances are alleged.”); Bowring

v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (“[W]e disavow any

attempt to second-guess the propriety or adequacy of a

particular course of treatment.”).

The fact that, prior to her incarceration, plaintiff’s

“outside” doctors prescribed different medications and/or

advised more aggressive courses of treatment than defendants did

is not grounds for finding that prison officials were

deliberately indifferent. See Lewis v. Proctor, 2010 WL 148383,

at *3 (S.D.W. Va. Jan. 12, 2010) (an inmate’s “allegations that

one doctor's treatment plan was better than another's . . . do

not state a constitutional claim”). Even if defendants’

treatment of plaintiff was negligent or amounted to medical

malpractice, this also does not provide the grounds for a

deliberate indifference claim. See Wright, 766 F.2d at 849

(“Negligence or malpractice in the provision of medical services

does not constitute a [constitutional] claim.”).

Therefore, it is evident that plaintiff has not satisfied

the subjective standard required to sustain a claim of

deliberate indifference, and thus any objection formed in

plaintiff’s point 11 is OVERRULED.

Iv. Conclusion

Accordingly, the court adopts the Findings and

Recommendation of Magistrate Judge Aboulhosn as follows:

1. Defendants’ Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment is GRANTED;

2. Plaintiff’s Amended Complaint is DISMISSED; and

3. The Clerk is directed to remove this case from the

court’s active docket.

The Clerk is further directed to forward a copy of this

Memorandum Opinion and Order to plaintiff.

IT IS SO ORDERED this 27th day of September, 2019.

BNTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

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