Wilson v. Hun
Annotate this Case
January 1995 Term
___________
No. 22688
___________
WAYNE ALLEN WILSON, SR.,
Petitioner Below, Appellant
v.
NICHOLAS J. HUN, COMMISSIONER,
DEPARTMENT OF CORRECTIONS; AND
WILLIAM DUNCIL, WARDEN,
HUTTONSVILLE CORRECTIONAL CENTER,
Respondents Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Randolph County
Honorable John L. Henning, Judge
Civil Action No. 94-C-85
AFFIRMED
___________________________________________________
Submitted: April 4, 1995
Filed: April 14, 1995
Gregory A. Elam
Cardot Law Offices
Elkins, West Virginia
Attorney for the Appellant
Darrell V. McGraw, Jr.
Attorney General
Jill Jerabeck
Leslie K. Kiser
Office of the Attorney General
Charleston, West Virginia
Attorneys for the Appellees
This Opinion was delivered PER CURIAM.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
Justice Cleckley, deeming himself disqualified, did not
participate.
SYLLABUS BY THE COURT
1. "'Certain conditions of . . . confinement may be so
lacking in the area of adequate food, clothing, shelter,
sanitation, medical care and personal safety as to constitute cruel
and unusual punishment under the Eighth Amendment to the United
States Constitution and Article III, Section 5 of the West Virginia
Constitution.' Syllabus Point 2, Hickson v. Kellison, 170 W. Va.
732, 296 S.E.2d 855 (1982)." Syl. pt. 2, Crain v. Bordenkircher,
176 W. Va. 338, 342 S.E.2d 422 (1986).
2. "The findings of fact of a trial court are entitled
to peculiar weight upon appeal and will not be reversed unless they
are plainly wrong." Syl. pt. 6, Mahoney v. Walter, 157 W. Va. 882,
205 S.E.2d 692 (1974).
Per Curiam:
This case is before this Court upon an appeal from the
final order of the Circuit Court of Randolph County, West Virginia,
entered on August 1, 1994. Contrary to the contention of the
appellant, Wayne Allen Wilson, Sr., the circuit court found that
the appellant was receiving adequate medical care at the
Huttonsville Correctional Center, Huttonsville, West Virginia. We
agree and affirm the order of the circuit court.
I
In June, 1994, the appellant, under a life sentence for
murder, filed a pro se petition with this Court asserting that he
was not receiving adequate medical care at the Huttonsville
Correctional Center. By order entered on June 21, 1994, we
returned the case to the Circuit Court of Randolph County for
disposition. The matter being in the nature of a proceeding in
habeas corpus, the circuit court appointed counsel for the
appellant and conducted an evidentiary hearing on July 5, 1994.
Concluding that the appellant's medical care while incarcerated was
adequate, if not "superior," the circuit court found the assertions
of the appellant to be without merit.
The appellant's concerns are set forth in his petition
for an appeal from the circuit court. The appellant indicates
that, sometime before 1990, a cyst appeared upon his right hip, and
he received treatment at the West Virginia State Penitentiary in
Moundsville, West Virginia. In April, 1992, penitentiary
authorities sent the appellant to Alan M. Ruben, M.D., a dermatologist in Wheeling, West Virginia, who concluded that
although antibiotics were not alleviating the problem, the cyst or
abscess could be "incised and drained." The following year,
penitentiary authorities sent the appellant to Romeo D. Tan, M.D.,
a surgeon in Moundsville, who examined the appellant, made "no
specific recommendations," and requested further examination "when
swelling recurs." The requested follow-up examination with Dr. Tan
was never scheduled.
In May, 1993, the appellant was transferred to the
Huttonsville Correctional Center and began receiving medical
treatment from Ernest Hart, Jr., M.D., Medical Director at the
Huttonsville Correctional Center. Dr. Hart's treatment of the cyst
included periodic incisions and drainage.
The appellant's principal argument before this Court is
that he should have a surgical removal of the cyst, rather than
periodic incisions and drainage. In that regard, the appellant
asserts that (1) his current level of medical care at the
Huttonsville Correctional Center constitutes cruel and unusual
punishment under U.S. Const. amend. VIII and W. Va. Const. art.
III, § 5,See footnote 1 (2) the circuit court committed error in finding that
his medical care at the Huttonsville Correctional Center was
adequate and (3) he should be sent outside the Huttonsville Correctional Center, pursuant to W. Va. Code, 25-1-16 [1972]See footnote 2 for
surgery, or a surgical consultation, regarding the cyst.
II
Of course, in West Virginia and elsewhere it has been
recognized that prisoners, generally, have a right to medical care.
Crain v. Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422 (1986); 14B
M.J. Prisons and Prisoners § 8 (1988); 60 Am. Jur. 2d Penal and
Correctional Institutions § 91 (1987); 72 C.J.S. Prisons and Rights
of Prisoners § 80 (1987); Michael Mushlin, Rights of Prisoners 3.00
(McGraw-Hill, Inc. 2nd ed. 1993); John W. Palmer, Constitutional
Rights of Prisoners 10.3 (Anderson Publishing Co. 3rd ed. 1985);
Marvin Zalman, "Prisoners' Rights to Medical Care" 63 Journal of
Criminal Law, Criminology & Police Science 185 (1972). Moreover,
the appellant is correct in his assertion that issues concerning
the medical care of prisoners may, under certain circumstances,
invoke constitutional provisions against cruel and unusual
punishment. See n. 1, supra; Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Brown v. Briscoe, 998 F.2d 201 (4th Cir. 1993); Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990).
In that regard, we stated in syllabus point 2 of Crain, supra:
'Certain conditions of . . . confinement
may be so lacking in the area of adequate
food, clothing, shelter, sanitation, medical
care and personal safety as to constitute
cruel and unusual punishment under the Eighth
Amendment to the United States Constitution
and Article III, Section 5 of the West
Virginia Constitution.' Syllabus Point 2,
Hickson v. Kellison, 170 W. Va. 732, 296 S.E.2d 855 (1982).
See also syl. pt. 1, State ex rel. Pingley v. Coiner, 155 W. Va.
591, 186 S.E.2d 220 (1972).
However, in this case the record clearly demonstrates
that, while incarcerated at the West Virginia State Penitentiary
and at the Huttonsville Correctional Center, the appellant received
considerable attention and treatment for a variety of medical
complaints, including the cyst upon his right hip. The appellant's
medical file, attached to this appeal, is voluminous, and, as the
testimony brought out at the July 5, 1994, hearing indicates, the
appellant is under continuing care.See footnote 3
In fact, the testimony of Dr. Hart of the Huttonsville
Correctional Center suggests that the appellant's complaints about
his right hip have been intermittent, and the appellant has not
been consistent in following the instructions of medical
authorities relating to his care. At least one other cyst or
abscess upon the appellant was successfully treated by Dr. Hart, by
way of incision and drainage. The record, therefore, supports the
conclusion of the circuit court.
In the context of a challenge to a criminal conviction,
this Court held in syllabus point 1 of State ex rel. Postelwaite v.
Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975), cert. denied, 424 U.S. 909 (1976), that "[f]indings of fact made by a trial court in
a post-conviction habeas corpus proceeding will not be set aside or
reversed on appeal by this Court unless such findings are clearly
wrong." Syl. pt. 2, State ex rel. Kidd v. Leverette, 178 W. Va.
324, 359 S.E.2d 344 (1987).
Although the appellant does not challenge his conviction
in this proceeding, this Court recognized, generally, in syllabus point 6 of Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d 692
(1974), that "[t]he findings of fact of a trial court are entitled
to peculiar weight upon appeal and will not be reversed unless they
are plainly wrong." See also syl. pt. 3, Serge v. Matney, 165
W. Va. 801, 273 S.E.2d 818 (1980): "Findings of fact by a trial
court will not be set aside unless clearly wrong."
The evidence in this case supports the ruling of the
Circuit Court of Randolph County concerning the medical care
provided to the appellant at the Huttonsville Correctional Center.See footnote 4
Accordingly, the final order of August 1, 1994, is affirmed.
Affirmed.
Footnote: 1
U. S. Const. amend. VIII provides that "[e]xcessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted."
Similarly, W. Va. Const. art. III, § 5 provides, in
part, that "[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted."Footnote: 2
W. Va. Code, 25-1-16 [1972] provides, in part:
Whenever a convict in a state prison
needs medical attention, other than mental
care, not available at said prison, the
warden or superintendent of said prison shall
immediately notify the commissioner of public
institutions [corrections], who, after proper
investigation, shall cause the transfer of
said convict to a hospital within the state
of West Virginia properly equipped to render
the medical attention necessary.
Footnote: 3
At the evidentiary hearing of July 5, 1994, before the
circuit court, Dr. Hart testified:
Q. -- for his condition -- are you going to
continue to monitor his condition?
A. Yes.
Q. So if there is any change or it becomes
necessary for him to have some other type of
treatment you would provide that?
A. Yes.
Q. And if you couldn't provide it would you
allow him to be sent out of the Institution?
A. Without question.
. . . .
Q. But you saw no reason for Mr. Wilson to
have a surgery consult [concerning a cyst
problem]?
A. No . . . indication for -- for an outside
consultant at this point, no.
Footnote: 4
In his initial pro se petition and at the July 5,
1994, evidentiary hearing, the appellant focused upon the cyst or
abscess upon his right hip. However, the record also indicates
that the appellant may be under some discomfort from a broken
nose. Although the review of the testimony and exhibits by the
circuit court encompassed the providing of medical care to the
appellant, generally, we trust that Dr. Hart will monitor the
appellant's condition as to that additional problem.
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