                              UNPUBLISHED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Vacated and remanded in part; affirmed in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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

                                              2
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




                                          3
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.



                                             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.                   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



                                                  7
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,

                                           8
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                            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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