-TRJ Howard v. Medical Officer Doe et al, No. 1:2011cv00284 - Document 11 (E.D. Va. 2012)
Court Description: MEMORANDUM OPINION re: Motion to Dismiss. (see Order for complete details) Signed by District Judge T. S. Ellis, III on 1/5/12. copy mailed; yes(tfitz, )
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IN THE UNITED STATES DISTRICT COURT FORTHE EASTERN DISTRICT OF VIRGINIA r !u 'i.T Alexandria Division ll Maurice Glen Howard, Plaintiff, JAN ¢ 5 2012 V-s: "ioi'H'CTC 'uTT l:llcv284(TSE/TRJ) Medical Officer Doe, et ah, Defendants. MEMORANDUM OPINION Maurice Glen Howard, aformer detainee ofthe Fairfax County Adult Detention Center ("FCADC") currently residing in Buffalo, New York and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. §1983, alleging violation ofhis rights under the Eighth and Fourteenth Amendments. The matter is presently before the Court on aFed. R. Civ. P. 12(b)(6) Motion to Dismiss and supporting Memorandum filed by SheriffStan Barry on June 28, 2011. Dkt. 6-7. Plaintiffwas given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Dkt. 8, and he has filed no reply. For the reasons that follow, defendant Barry's Motion to Dismiss must be granted, and this action as awhole must be be dismissed. Plaintiffsets out two causes ofaction in his complaint. In Count One, plaintiffalleges that he suffered deliberate indifference to his medical needs during his confinement at the FCADC in March, 2009. Plaintiffstates that he underwent surgery in February, 2009 for a malignant tumor that fractured his spine and partially paralyzed him. Compl., \3. As aresult of his condition, plaintiffunderwent chemotherapy and radiation therapy, and was prescribed cancer medications and painkillers. Id Plaintiff alleges that he was arrested on March 20,2009 and detained at theFCADC until March 23,2009, and thatduring that period he wasdeprived of his needed medications. As a result, plaintiff"occasionally passed out in his confinement cell, became terribly incontinent, felt somewhat delirious, and suffered extreme pain and weakness." Compl., U25. The only defendant named in connection with this claim is Medical Officer Doe. In hissecond claim, plaintiffalleges that hisFourteenth Amendment right to due process was violated when he wasnot provided with a medical screening upon his admission to the FCADC or with subsequent medical care, as required by the VirginiaCode. The defendants named in connection with this claim areSheriffStan Berry and Fairfax County, Virginia. By Order dated April 27,2011, it was explained thatdefendant Fairfax County was subject to dismissal with prejudice, under 28 U.S.C. § 1915A, for failure to state a claim.1 Service of thecomplaint was ordered on Sheriff Stan Barry, and plaintiff in deference to hispro se status was advised that service could not be ordered on Medical Officer Doeuntil plaintiff ascertained and advised the Court of the identity of that person. Plaintiff was further advised that if the Court could not effect service on a defendant within 120 days, the defendant would be dismissed from the instant action without prejudice. See Fed. R. Civ. P. 4(m). Therefore, plaintiff was expressly told that he should, through discovery or otherwise, take steps to ascertain the identity ofMedical Officer Doe without delay. Nonetheless, plaintiff has filed nothing further in the lawsuit since the Order of April 27 was entered. 'It is noted that, although the Order ofApril 27 contained a discussion ofthe reasons why Fairfax County was subject to dismissal, language ordering and adjudging that dismissal was inadvertently omitted. Accordingly, Fairfax County will be formally dismissed as a party in the Order accompanyingthis Memorandum Opinion. SheriffBarry has now moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), arguing that the complaint fails to state acause ofaction against him for which reliefcan be granted. For the reasons which follow, the Motion will be granted, and the Sheriffwill be dismissed as aparty to this action. Because more than 120 days have elapsed since April 27, when the complaint was filed, Medical Officer Doe must be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m). As no defendants will remain in the lawsuit, the action will be dismissed. II. Rule 12(b)(6) allows acourt to dismiss those allegations which fail "to state aclaim upon which reliefcan be granted." Fed. R. Civ. P. 12(b)(6). When determining whether amotion to dismiss should be granted, the alleged facts are presumed true and the complaint should be dismissed only when "it is clear that no reliefcould be granted under any set offacts that could be proved consistent with the allegations." Hishon v. King A:SpniHinF 467 tj.s. 69, 73 (1984). To survive a12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state aclaim to reliefthat is plausible on its face.'" Ashcroft v. Tqhal 556 U.S. -, --, 129 S. Ct. 1937,1949 (2009) (quoting Bell Atlantic Cnrp v TwnmMy 550 U.S. 544,570 (2007)). "A claim has facial plausibility when the plaintiffpleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id, However, "[tjhreadbare recitals ofthe elements ofacause ofaction, supported by mere conclusory statements, do not suffice" to meet this standard, id, and aplaintiffs "[fjactual allegations must be enough to raise aright to reliefabove the speculative level...". Twomblv. 550 U.S. at 55. Moreover, acourt "is not bound to accept as true alegal conclusion couched as a factual allegation." Iqbal, 129 S. Ct. at 1949-1950. III. SheriffBarry is plainly entitled to the dismissal he seeks.2 The Sheriff is named as a defendant only in connection with plaintiffs second claim, where plaintiffalleges that his Fourteenth Amendment right to due process was violated when he was not provided with a medical screening upon his admission to the FCADC or with subsequent medical care. However, "[t]he Fourth Circuit Court ofAppeals has held that amedical treatment claim cannot be brought against non-medical personnel unless they were personally involved with adenial of treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians, misconduct." Lewis v. Angela 926 F.Supp. 69, 73 (W.D. Va. 1996), citing Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990). As SheriffBarry is not a medical professional, and because plaintiffdoes not allege that the Sheriffpersonally interfered with adoctor's treatment or was indifferent to medical misconduct, plaintifffails to state aclaim against the Sherifffor which reliefcan be granted. Nor does plaintiffinclude sufficient allegations to establish aclaim ofsupervisory liability against SheriffBarry. Supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates. See Shaw v. Stroud 13 F.3d 791, 798 (4th Cir. 1994) (citing Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984)). This liability is not premised on respondeat superior, but upon "a recognition that supervisory indifference or tacit authorization ofsubordinates misconduct may be acausative factor in the constitutional injuries Indeed, as can be gleaned from the foregoing discussion, SheriffBarry was served with the complaint ,n this action in deference to plaintiffs pro se status, to allow plaintiffan opportunity to discovertheidentityofMedical OfficerDoe, thesoledefendantnamedin connection withplaintiffs serious allegations ofbeing deprived ofneeded cancer medications. they inflict on those committed to their care." Id at 798 (quoting Slakan. 737 F.2d at 372-73). "[Liability ultimately is determined 'by pinpointing the persons in the decisionmaking chain whose deliberate indifferencepermitted the constitutional abuses to continue unchecked.'" Id at 798 (quoting Slakan. 737 F.2d at 376). In order to establish supervisory liability under § 1983, a plaintiff must demonstrate: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices"; and (3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Id. at 799 (citations omitted). In this case, plaintiff pleads no facts demonstrating that Sheriff Barry had actual or constructive knowledge that subordinates were engaged in conduct that posed a "pervasive and unreasonable risk" of constitutional injury to plaintiff. Therefore, Sheriff Barry can have no supervisory liability for the harm plaintiff alleges. IV. For the foregoing reasons, SheriffBarry's Motion to Dismiss must be granted, and the action must be dismissed. An appropriate Order shall issue. Entered this ^ day of 2012. Alexandria, Virginia T. S. Ellis, III United States District Judge
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