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 VIRGINIA2

Under petitioner’s theory of the case, the other p ossibility 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 Petiti oner’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 follow s:

* * *

In light of the following findings of fact and con clusions 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 supp ort for the allegation that the Petitioner’s rights under the E ighth Amendment were violated by the deliberate indifference of med ical staff at the

Huttonsville Correctional Center. The medical staff at the

Huttonsville Correctional Center examined the Petit ioner on several occasions after receiving complaints from the Petit ioner 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 complain ts.

The Petition and the Amended Petition allude to th e fact that the medical staff may not have run every conceivabl e test to
determine whether or not the Petitioner was sufferi ng from the alleged vibrations. This Court finds that it is wit hin the sound

discretion of the medical staff at a correctional f acility to determine what tests are reasonable in light of the circumsta nces of each inmate complaint. Disagreements between healthcare providers and the inmate over diagnosis and the course of treatme nt are not
sufficient to maintain a deliberate indifference cl aim.[ 4 ]

3 In supplemental pleadings, petitioner also asserte d 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 addre ssed the merits of this claim but also argue that the scope of psychiatric treatment and whether eith er petitioner or the psychologist failed to keep appointments were never part of the complaint in th is Section 1983 action. Notwithstanding the parties’ various arguments, however, this Court wil l resolve this issue on alternate grounds as will

be discussed infra.

4 As Dr. Proctor wrote in response to a letter by pe titioner: “As you are quite aware, there is no test3 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 REM EDIES

REGARDING MENTAL HEALTH REFERRALS

Petitioner asserts that if the respondent official s believed that petitioner has a mental disorder, they should have followed up on the menta l health referrals. “The plain language of W. Va. Code § 25-1A-2(a) (2000) (Repl. Vol. 2004) dire cts that ‘[a]n inmate may not bring a civil action until the administrative remedies promulgate d 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 appendi x he filed. In the first grievance, petitioner wrote that “[he] advised the nurse that I had a vib ration 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 du ring a surgery at CAMC Hospital in Charleston, West Virginia.” There is no mention tha t the respondent officials should have followed up on the mental health referrals. Therefo re, based upon the documents in the appendix petitioner’s counsel filed, this Court finds that p etitioner did not exhaust his administrative remedies regarding the issue of the mental health r eferrals. Accordingly, this Court concludes that petitioner “may not” raise this issue in the instan t civil action. 5 See Syl. Pt. 3, White

.

WHETHER THE CIRCUIT COURT PROPERLY DISMISSED

PETITIONER’S ACTION

Petitioner asserts that contrary to the circuit co urt’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 re cite 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 grant ing 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 con ducted 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 origin al).”

5 The circuit court did not address exhaustion of ad ministrative remedies. However, “[t]his Court may, on appeal, affirm the judgment of the lower co urt 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 ju dgment.” 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 i s a frivolous claim. Therefore, this Court conclude s 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 dismis sing 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