Charles O'Neil v. Marty Anderson, No. 09-6834 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6834 CHARLES EDWARD O NEIL, Plaintiff Appellant, v. MARTY ANDERSON; DOMINIC MCLAIN; KENNETH KAISER; SCOTTY ROSE; SHEILA TAYLOR; K. ROSE; RICHARD RUSSELL; SUE ENGELS; DR. N. REHBERG; JERRI KIRKLAND; DR. SYED RASHEED, individually and in their Official Capacities, Defendants Appellees. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cv-00358) Submitted: March 11, 2010 Decided: March 29, 2010 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Vacated and remanded in part; affirmed in part by unpublished per curiam opinion. Charles Edward O Neil, Appellant Pro Se. Kelly Rixner Curry, Assistant United States Attorney, Charleston, West Virginia; Erin R. Brewster, THE FOSTER LAW FIRM, Charleston, West Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Edward O Neil, a federal prisoner housed at FCI Beckley ( the prison ), appeals the district court s order dismissing his civil rights action, filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), in which O Neil alleged that, on three separate occasions, the United States, sixteen physicians and members of the prison s medical staff (collectively, the Federal Defendants ), and Dr. Syed Rasheed, a physician contracted to treat O Neil, were deliberately indifferent to his serious medical condition, in violation of the Eighth Amendment. The first instance of deliberate indifference allegedly occurred on February 15, 2002, upon O Neil s arrival at the prison. medical staff examination According to O Neil s complaint, the prison s failed by a to arrange suitable for emergency cardiologist or treatment or endocrinologist, despite objective knowledge of O Neil s medical condition and O Neil s complaints regarding his health (hereinafter failure to provide emergency treatment claim ). O Neil alleged that his condition worsened extent that he was hospitalized on April 12, 2002. to the O Neil was transferred to a different hospital for further testing, where he remained discharged until with April specific 25, 2002. follow-up 2 O Neil alleged instructions he relevant was to further testing and treatment, and that prison officials failed to follow those instructions. deliberate indifference claim This gave rise to O Neil s second (hereinafter first failure to provide follow-up treatment claim ). O Neil was hospitalized again on July 23, 2004. Upon his release three days later, O Neil again received detailed discharge instructions pertaining testing, and treatment. to medications, follow-up The prison officials alleged failure to comply with these instructions formed the basis for O Neil s third and final Bivens claim (hereinafter second failure to provide follow-up treatment claim ). O Neil also relied on these facts to support a negligence claim against the United States, filed pursuant to the Federal Tort Claims Act ( FTCA ), 28 U.S.C. §§ 1346(b), 2671-2680 (2006). Upon conducting 28 U.S.C. § 1915A (2006) review, the magistrate judge recommended failure to state a claim. dismissing the complaint for The magistrate judge first found the FTCA claim failed because O Neil did not comply with W. Va. Code Ann. § 55-7B-6(b) (LexisNexis 2008), which requires that, prior to filing a medical malpractice claim, the plaintiff must submit 3 a screening certificate of merit ( screening certificate ). 1 magistrate claims, judge because further the recommended complaint could dismissing not be The the Bivens to allege read indifference to [O Neil s] serious medical needs. In his objections, O Neil argued he was excepted from See W. Va. Code Ann. the screening certificate requirement. § 55-7B-6(c) (LexisNexis Supp. 2008). O Neil also objected to the recommendation pertaining to the Bivens claims, asserting his complaint adequately pled deliberate indifference. In its opinion and order, the district court overruled O Neil s objection to the FTCA claim. However, the district court sustained O Neil s objection to the recommended dismissal of his returned Eighth to Amendment the Bivens magistrate claims. judge for Thus, further the case was proceedings. O Neil subsequently moved the court to reconsider its dismissal of the FTCA claim, reiterating his position that he was excepted from the screening certificate requirement. 1 As the magistrate judge correctly explained, the FTCA does not create an independent legal remedy against the United States. Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009). Instead, it merely renders the United States amenable to suit under applicable state law, just as a non-federal entity would be. 28 U.S.C. §§ 1346(b)(1), 2674; Unus, 565 F.3d at 117. Accordingly, limitations on tort claims in West Virginia, such as the requirement that a screening certificate be obtained as a prerequisite for filing a medical malpractice action, W. Va. Code Ann. § 55-7B-6(b), apply to O Neil s FTCA claim. 4 Defendant Rasheed filed a motion to dismiss, citing this court s decision in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), to support his contention that Bivens should not be extended to reach him, an independent contractor for the prison, against whom a state court remedy was available. The Federal Defendants also filed a Fed. R. Civ. P. 12(b)(6) were motion filed to dismiss, outside West asserting O Neil s Virginia s two-year limitations for personal injury actions. suggested time-lines for the accrual Bivens claims statute of The Federal Defendants and expiration of the statute of limitations applicable to each of the Bivens claims. Although O Neil did not challenge the Federal Defendants time-lines, he presented two arguments to extend the various limitations periods. First, O Neil asserted that the continuous treatment rule extended the statute of limitations applicable to the failure to provide emergency treatment claim. O Neil next argued the statute of limitations applicable to both failure to provide follow-up treatment claims should be tolled due to his mental incapacitation during the relevant time periods. More particularly, O Neil argued that, pursuant to W. Va. Ann. Code 2 § 55-2-15 (LexisNexis 2008), 2 the In full, W. Va. Code Ann. § 55-2-15 provides: (Continued) 5 limitations period should be tolled from June 27, 2005, until June 4, 2007. O Neil submitted an affidavit addressing his mental health status and medical records, to which he attached treatment notes from the mental health practitioners who treated him between August 24, 2005, and February 1, 2007. The magistrate judge completed a second report, in which he recommended denying O Neil s motion for reconsideration of the dismissal of his FTCA claim. recommended granting finding availability the negligence extending action Bivens Defendant under of liability Rasheed s a West The magistrate judge next state court Virginia to motion remedy law) Rasheed. to With dismiss, (a medical weighed against regard to the timeliness of the Bivens claims, the magistrate judge rejected the continuous treatment of the doctrine failure to as a provide basis to emergency extend the accrual date treatment claim. Further, acknowledging O Neil s allegations of mental If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight of this article, except that it shall in no case be brought after twenty years from the time when the right accrues. 6 disability, the magistrate judge found that being treated by a psychologist does not render Plaintiff under a mental disability, and thus recommended rejecting the proffered basis for tolling the limitations periods of the failure to provide follow-up treatment claims. recommended accepting the Accordingly, the magistrate judge time-lines asserted by the Federal Defendants and dismissing based on the statute of limitations. O Neil timely recommendation. In objected its to opinion, the the magistrate district judge s court first overruled O Neil s objection to the recommended denial of his motion for reconsideration of the FTCA objection was insufficiently specific. claim, finding the The district court next reviewed the mental competency claim de novo, and found that, though Plaintiff is documented as having a history of mental illness during [the relevant] time, there is insufficient evidence that Plaintiff s condition ever rose to the level of insanity for purposes of [West Virginia s] savings clause. Finally, the district court found O Neil had a viable state law claim for medical negligence against Rasheed, the availability of which counseled against allowing O Neil to pursue a Bivens claim against him. The district reconsideration, court granted thus denied Defendants 7 O Neil s motions to motion for dismiss, and dismissed O Neil s complaint with prejudice. O Neil timely noted this appeal. In his informal brief on appeal, O Neil asserts that the district court erred in (1) dismissing his Bivens claim against Rasheed; (2) rejecting O Neil s contention that he was excepted from filing a screening certificate; and (3) declining to toll the statute of limitations relevant to his failure to provide follow-up treatment claims due to his mental incompetence. I. Dismissal of Bivens Claim Against Rasheed This court reviews de novo the grant of a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. Philips v. Pitt County Mem l Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009). Citing Justice Stevens dissent in Corr. Servs. Corp. v. Malesko, existence of 534 a U.S. viable 61 (2001), state court O Neil asserts remedy does that not the preclude extending a Bivens cause of action to an independent contractor. However, the Malesko Court did not address whether a Bivens action might lie against a private individual, Malesko, 534 U.S. at 65, and while the dissent suggested this might be the case, Malesko, 534 U.S. at 79 n.6 (Stevens, J., dissenting), the Supreme Court has not further opined on the issue. 8 This court, however, has declined to extend the Bivens remedy to an individual private actor, in part because of the availability of a state court remedy. Holly, 434 F.3d at 295-97. Accordingly, we affirm the district court s order dismissing the Bivens claim against Rasheed. 3 II. Denial of Motion for Reconsideration of FTCA Claim As described above, the district court found O Neil failed to specifically object to the magistrate judge s recommendation to deny O Neil s motion for reconsideration of the district court s order dismissing his FTCA claim. This failure to object waived appellate review of the dispositive issue. United States v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007). Accordingly, we affirm the district court s order as to O Neil s FTCA claim. 3 Relatedly, O Neil asserts the district court abused its discretion in denying his motion to appoint counsel to assist in the presentation of this claim. We conclude there was no abuse of discretion because, within this Circuit, the legal landscape surrounding the issue was relatively clear. See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987) (appointing counsel is matter of district court s discretion). 9 III. Dismissal of Bivens Claims Against Because of Statute of Limitations Federal Defendants In granting the Federal Defendants motion to dismiss, the district court rejected O Neil s contention that the statute of limitations on his failure to provide follow-up treatment claims should be tolled due to periods of mental incapacitation. The district court found that, although O Neil s evidence demonstrated a documented . . . history of mental illness, it was insufficient to demonstrate that O Neil was insane within the meaning of West Virginia s savings clause. O Neil challenges this ruling on appeal. After a thorough review of the record, we are persuaded that O Neil s evidence regarding his competency during the limitations follow-up period treatment relevant claims to raised the failure concerns to that provide warranted greater scrutiny. On their face, the medical records available to legitimate us support a portions of the relevant O Neil s mental evidence, coupled status with concern statute was the that, of seriously fact that at least limitations during periods, compromised. O Neil was a This pro se plaintiff, incarcerated by the very institution that controlled his access to the evidence that may have supported his assertion, leads us to conclude that the district court should have permitted O Neil the opportunity 10 to conduct limited discovery on the issue and to obtain the records he avers are relevant. Compare Douglas v. York County, 433 F.3d 143 (1st Cir. (affirming 2005) grant of summary judgment to State on statute of limitations issue after discovery on disputed tolling issue) with Brown v. Parkchester S. Condos., 287 F.3d 58, 60-61 (2d Cir. 2002) (vacating dismissal of Title VII and ADA action and remanding for evidentiary hearing regarding plaintiff s mental disability that he alleged tolled the filing period). Accordingly, we vacate the district court s order dismissing the two failure to provide follow-up treatment claims and remand this case to the district court with instructions to appoint counsel to represent O Neil and to permit discovery on the issue of O Neil s limitations periods. 4 mental status during the applicable However, we affirm the district court s order pertaining to the failure to provide emergency treatment claim, the FTCA claim, and the dismissal of the Eighth Amendment claims against Defendant Rasheed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED IN PART; AFFIRMED IN PART 4 In view of our disposition, we deny O Neil s motion for appointment of counsel on appeal. 11

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