UNPUBLISHED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Vacated and remanded in part; affirmed in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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. According to O’Neil’s complaint, the prison’s
medical staff failed to arrange for emergency treatment or
examination by a suitable cardiologist 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 to the
extent that he was hospitalized on April 12, 2002. O’Neil was
transferred to a different hospital for further testing, where
he remained until April 25, 2002. O’Neil alleged he was
discharged with specific follow-up instructions relevant to
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further testing and treatment, and that prison officials failed
to follow those instructions. This gave rise to O’Neil’s second
deliberate indifference claim (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 to medications, follow-up
testing, and treatment. 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 dismissing the complaint for
failure to state a claim. 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
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a screening certificate of merit (“screening certificate”). 1 The
magistrate judge further recommended dismissing the Bivens
claims, because the complaint could not “be read to allege
indifference to [O’Neil’s] serious medical needs.”
In his objections, O’Neil argued he was excepted from
the screening certificate requirement. See W. Va. Code Ann.
§ 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 Eighth Amendment Bivens claims. Thus, the case was
returned to the magistrate judge for further 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) motion to dismiss, asserting O’Neil’s Bivens claims
were filed outside West Virginia’s two-year statute of
limitations for personal injury actions. The Federal Defendants
suggested time-lines for the accrual 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. Code Ann. § 55-2-15 (LexisNexis 2008), 2 the limitations
2
In full, W. Va. Code Ann. § 55-2-15 provides:
(Continued)
5
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. The magistrate judge next
recommended granting Defendant Rasheed’s motion to dismiss,
finding the availability of a state court remedy (a medical
negligence action under West Virginia law) weighed against
extending Bivens liability to Rasheed. With regard to the
timeliness of the Bivens claims, the magistrate judge rejected
the continuous treatment doctrine as a basis to extend the
accrual date of the failure to provide emergency 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.
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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. Accordingly, the magistrate judge
recommended accepting the time-lines asserted by the Federal
Defendants and dismissing based on the statute of limitations.
O’Neil timely objected to the magistrate judge’s
recommendation. In its opinion, the district court first
overruled O’Neil’s objection to the recommended denial of his
motion for reconsideration of the FTCA claim, finding the
objection was insufficiently specific. 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 court thus denied O’Neil’s motion for
reconsideration, granted Defendants’ motions to dismiss, and
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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, 534 U.S. 61 (2001), O’Neil asserts that the
existence of a viable state court remedy does not 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. This court,
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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).
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III. Dismissal of Bivens Claims Against Federal Defendants
Because of Statute of Limitations
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 period relevant to the failure to provide
follow-up treatment claims raised concerns that warranted
greater scrutiny. On their face, the medical records available
to us support a legitimate concern that, at least during
portions of the relevant statute of limitations periods,
O’Neil’s mental status was seriously compromised. This
evidence, coupled with the fact that O’Neil was a 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 to conduct limited
10
discovery on the issue and to obtain the records he avers are
relevant. Compare Douglas v. York County, 433 F.3d 143 (1st
Cir. 2005) (affirming 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 mental status during the applicable
limitations periods. 4 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.
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