1 

 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Sanders Brown Jr., 

Plaintiff Below, Petitioner 

vs.) No. 11-1578 (Randolph County 11-C-24) 

Tristan Tenney, et al., 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioner Sanders Brown Jr., by Dana P. McDermott, his attorney, appeals the October 19, 

2011, order of the Circuit Court of Randolph County dismissing his action pursuant to 42 U.S.C. § 

1983. Respondents Tristan Tenney, Health Services Administrator, Dr. David Proctor, Medical 

Doctor and Huttonsville Correctional Center (“the respondent officials”), by Phillip C. Petty, their 

attorney, filed a response to which petitioner filed a reply. 

 The Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate 

Procedure. 

 The pro se Section 1983 complaint petitioner filed in the circuit court on February 25, 

2011, conveyed his belief that he has “a vibration in my body that [feels] like a pager vibrating.” 

As relief, petitioner sought to have the respondent officials arrange for diagnosis and treatment of 

the alleged condition, including an outside consultation, and unspecified compensatory and 

punitive damages. 

 Petitioner had abdominal surgery in 2005. After petitioner retained counsel, a 

supplemental pleading posited that “when the Petitioner had surgery in 2005/2006 while [in the 

custody of] Mt. Olive Correctional Complex,[1

] something was left/dropped in the interior of his 

body.” However, an abdominal ultrasound conducted on December 20, 2006, was negative.2

 

 

1

 Petitioner is now housed at Huttonsville Correctional Center. 

2

 Petitioner also had a barium enema on January 19, 2007, and EKG’s on August 7, 2008, June 10, 

2009, and August 17, 2010. Petitioner asserts that all these tests are insufficient to determine 

whether a foreign object is present in his body. 

FILED

January 25, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
2 

 Under petitioner’s theory of the case, the other possibility was that “something was 

implanted intentionally in the Petitioner’s body.” The supplemental pleading continues as follows: 

“There are needle marks on both sides of the Petitioner’s neck, and the Petitioner himself does not 

know of these needle marks’ origin. Nanodevices can be implanted by needle injection. 

Technology has come far.”3

 

 Prison officials filed a motion to dismiss. In an order entered October 19, 2011, the circuit 

court dismissed Mr. Brown’s action ruling as follows: 

* * * 

 In light of the following findings of fact and conclusions of 

law, the Court does not believe that the Petitioner has been denied 

his right to sufficient medical [treatment] at the Huttonsville 

Correctional Center. The Court cannot find any support for the 

allegation that the Petitioner’s rights under the Eighth Amendment 

were violated by the deliberate indifference of medical staff at the 

Huttonsville Correctional Center. The medical staff at the 

Huttonsville Correctional Center examined the Petitioner on several 

occasions after receiving complaints from the Petitioner of 

vibrations inside his body. The medical staff ran a series of tests on 

the Petitioner to find the root of any vibrations. The medical staff 

could not find any medical reason for such complaints. 

 The Petition and the Amended Petition allude to the fact that 

the medical staff may not have run every conceivable test to 

determine whether or not the Petitioner was suffering from the 

alleged vibrations. This Court finds that it is within the sound 

discretion of the medical staff at a correctional facility to determine 

what tests are reasonable in light of the circumstances of each 

inmate complaint. Disagreements between healthcare providers and 

the inmate over diagnosis and the course of treatment are not 

sufficient to maintain a deliberate indifference claim.[ 4

] 

 

3

 In supplemental pleadings, petitioner also asserted that if prison officials believed that petitioner

has a mental disorder, they should have followed up on mental health referrals. In their response to 

petitioner’s appeal, the respondent officials addressed the merits of this claim but also argue that 

the scope of psychiatric treatment and whether either petitioner or the psychologist failed to keep 

appointments were never part of the complaint in this Section 1983 action. Notwithstanding the 

parties’ various arguments, however, this Court will resolve this issue on alternate grounds as will 

be discussed infra. 

4

 As Dr. Proctor wrote in response to a letter by petitioner: “As you are quite aware, there is no test
3 

Additionally, the Court notes that inmates are not entitled to 

unqualified access to healthcare. Treatment may be limited to what 

is medically necessary. 

WHETHER PETITIONER HAS EXHAUSTED ADMINISTRATIVE REMEDIES 

REGARDING MENTAL HEALTH REFERRALS 

 Petitioner asserts that if the respondent officials believed that petitioner has a mental 

disorder, they should have followed up on the mental health referrals. “The plain language of W. 

Va. Code § 25-1A-2(a) (2000) (Repl. Vol. 2004) directs that ‘[a]n inmate may not bring a civil 

action until the administrative remedies promulgated by the [correctional] facility have been 

exhausted[.]’” Syl. Pt. 3, White v. Haines, 217 W.Va. 414, 618 S.E.2d 423 (2005). Petitioner’s 

counsel included two grievance forms in the appendix he filed. In the first grievance, petitioner 

wrote that “[he] advised the nurse that I had a vibration in my body that felt like a pager vibrating.” 

In the second grievance, petitioner wrote, “I truly believe I was surgically implanted with some 

sort of microchip technology in my physical body during a surgery at CAMC Hospital in 

Charleston, West Virginia.” There is no mention that the respondent officials should have 

followed up on the mental health referrals. Therefore, based upon the documents in the appendix 

petitioner’s counsel filed, this Court finds that petitioner did not exhaust his administrative 

remedies regarding the issue of the mental health referrals. Accordingly, this Court concludes that 

petitioner “may not” raise this issue in the instant civil action.5

See Syl. Pt. 3, White. 

WHETHER THE CIRCUIT COURT PROPERLY DISMISSED 

PETITIONER’S ACTION 

 Petitioner asserts that contrary to the circuit court’s finding, the respondent officials never 

ran any kind of test to determine whether there was an object inside petitioner’s body that could 

cause a vibration. When the respondent officials recite the tests that were conducted, petitioner 

asserts that EKG’s, lab work, and barium enemas did not address his complaints. There was also 

the abdominal ultrasound which was negative. 

 “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de 

novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 

S.E.2d 516 (1995). The abdominal ultrasound was conducted after petitioner’s abdominal surgery. 

The fact that the abdominal ultrasound was negative would rule out the possibility that something 

was negligently left or dropped in the interior of petitioner’s body during surgery. As for 

 

for ‘vibration,’ and none was done. Most diagnoses are based on clinical information, especially 

when there is no test available (emphasis in original).” 

5

 The circuit court did not address exhaustion of administrative remedies. However, “[t]his Court 

may, on appeal, affirm the judgment of the lower court when it appears that such judgment is 

correct on any legal ground disclosed by the record, regardless of the ground, reason or theory 

assigned by the lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 

246, 140 S.E.2d 466 (1965). 
4 

petitioner’s other theory that an electronic device was intentionally implanted in his body, after 

careful consideration, this Court finds that this is a frivolous claim. Therefore, this Court concludes 

that the circuit court did not err in granting the respondent officials’ motion to dismiss petitioner’s 

Section 1983 action. 

 For the foregoing reasons, we find no error in the decision of the Circuit Court of Randolph 

County and affirm its October 19, 2011 order dismissing petitioner’s action. 

 Affirmed. 

ISSUED: January 25, 2013 

CONCURRED IN BY:

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II