Cosner v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SHAWN PAUL COSNER,
Plaintiff,
v. 	Civil Action No. 1:25-cv-57
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT
AND RECOMMENDATIONS [ECF NOS. 29, 38]
Pending 	before 	the 	Court 	are 	two 	Reports 	and 	Recommendations 	by
the 	Magistrate 	Judge. 	For 	the 	reasons 	discussed 	herein, 	they 	are
ADOPTED.
I. 	BACKGROUND AND REPORT AND RECOMMENDATION
On 	June 	20, 	2025, 	pro 	se 	Plaintiff, 	Shawn 	Paul 	Cosner 	(“Mr.
Cosner” 	or 	“Plaintiff”), 	filed 	a 	complaint 	for 	damages 	under 	the
Federal Tort Claims Act against Defendant United States of America
(“Defendant” or “Government”). ECF No. 1. Pursuant to 28 U.S.C. §
636 	and 	the 	local 	rules, 	the 	Court 	referred 	the 	action 	to 	United
States 	Magistrate 	Judge 	Michael 	J. 	Aloi 	(the 	“Magistrate 	Judge”)
for initial review. ECF No. 5.
On 	February 	5, 	2026, 	the 	United 	States 	filed 	a 	Motion 	to
Dismiss for Failure to State a Claim and Partial Motion to Dismiss
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for 	Lack 	of 	Jurisdiction. 1 	ECF 	No. 	24. 	Mr. 	Cosner 	responded 	in
opposition on February 27, 2026, [ECF No. 27], to which the United
States replied on March 5, 2026. ECF No. 28.
On 	June 	1, 	2026, 	the 	Magistrate 	Judge 	entered 	a 	Report 	and
Recommendation (“R&R”), [ECF No. 29], recommending the Court grant
the 	United 	States’ 	Motion 	to 	Dismiss. 	ECF 	No. 	24. 	The 	Magistrate
Judge further recommended Mr. Cosner’s Amended Complaint, [ECF No.
23], be dismissed without prejudice.2 Mr. Cosner accepted service
of 	the 	R&R 	on 	June 	1, 	2026, 	[ECF 	No. 	29-1], 	and 	filed 	timely
objections 	on 	June 	15, 	2026. 	ECF 	No. 	32. 	In 	addition 	to 	his
objections to the R&R, [ECF No. 32], Mr. Cosner filed a Motion for
Leave 	to 	Exceed 	Page 	Limitations, 	[ECF 	No. 	31], 	and 	a 	Motion 	for
Leave 	to 	File 	a 	Second 	Amended 	Complaint, 	[ECF 	No. 	33], 	each 	on
June 	15, 	2026. 	On 	June 	29, 	2026, 	the 	United 	States 	responded 	in
opposition 	both 	to 	Mr. 	Cosner’s 	objections 	to 	the 	R&R, 	[ECF 	No.
35], and his Motion for Leave to File a Second Amended Complaint.
ECF 	No. 	36. 	On 	July 	8, 	2026, 	Mr. 	Cosner 	replied 	to 	Defendant’s
response 	in 	opposition 	to 	his 	Motion 	for 	Leave 	to 	File 	a 	Second
Amended Complaint. ECF No. 37.
1 Defendant’s first Motion to Dismiss for Failure to State a Claim,
filed December 30, 2025, is DENIED AS MOOT following the Court’s Order
Granting Pro Se Plaintiff’s Motion to File First Amended Complaint,
filed January 26, 2026. [ECF No. 22].
2 	The R&R also recommended the Court DENY AS MOOT the United States’
first Motion to Dismiss for Failure to State a Claim, [ECF No. 16],
following the Court’s Order Granting Plaintiff’s Motion to File First
Amended Complaint.
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On August 7, 2026, the Magistrate Judge entered a supplemental
R&R, 	[ECF 	No. 	39], 	recommending 	Plaintiff’s 	Motion 	for 	Leave 	to
File Second Amended Complaint, [ECF No. 33], be denied. Plaintiff
accepted 	service 	of 	the 	supplemental 	R&R 	on 	August 	7, 	2026, 	[ECF
No. 	38-1], 	and 	filed 	timely 	objections 	on 	August 	21, 	2026, 	[ECF
No. 39], to which the United States responded on September 4, 2026.
ECF No 40.
The 	R&Rs 	informed 	the 	parties 	they 	had 	fourteen 	(14) 	days
from 	the 	date 	of 	service 	of 	the 	R&R 	to 	file 	“specific 	written
objections 	identifying 	the 	portions 	of 	the 	Report 	and
Recommendation to which objection is made, and the basis for such
objection.” 	It 	further 	warned 	“[f]ailure 	to 	timely 	file
objections . . . shall 	constitute 	a 	waiver 	of 	de 	novo 	review 	by
the District Court and a waiver of appellate review by the Circuit
Court of Appeals.” ECF 29 at 36–37; ECF 38 at 16–17.
II. 	OBJECTIONS AND STANDARD OF REVIEW
Mr. Cosner filed two sets of objections to the R&Rs: the first
in response to the R&R entered June 1, 2026, [ECF No. 29], and the
second in response to the supplemental R&R entered August 7, 2026.
ECF 	No. 	39. 	The 	court 	will 	address 	each 	set 	of 	objections
separately.
When reviewing a magistrate judge’s R&R, the Court must review
de 	novo 	only 	the 	portions 	to 	which 	an 	objection 	has 	been 	timely
made. 	28 	U.S.C. 	§ 	636(b)(1)(C). 	Otherwise, 	“the 	Court 	may 	adopt,
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without 	explanation, 	any 	of 	the 	magistrate 	judge’s
recommendations” to which there are no objections. Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby 	v. 	Davis, 	718 	F.2d 	198, 	199 	(4th 	Cir. 	1983)). 	Courts 	will
uphold portions of a recommendation to which no objection has been
made 	unless 	they 	are 	clearly 	erroneous. 	See 	Diamond 	v. 	Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
“When a party does make objections, but these objections are
so 	general 	or 	conclusory 	that 	they 	fail 	to 	direct 	the 	district
court to any specific error by the magistrate judge, de novo review
is 	unnecessary.” 	Green 	v. 	Rubenstein, 	644 	F. 	Supp. 	2d 	723, 	730
(S.D. 	W. 	Va. 	2009) 	(emphasis 	added) 	(citing 	Orpiano 	v. 	Johnson,
687 	F.2d 	44, 	47 	(4th 	Cir. 	1982)). 	“When 	only 	a 	general 	objection
is made to a portion of a magistrate judge’s report-recommendation,
the 	Court 	subjects 	that 	portion 	of 	the 	report-recommendation 	to
only 	a 	clear 	error 	review.” 	Williams 	v. 	New 	York 	State 	Div. 	of
Parole, 2012 WL 2873569, at *2 (N.D.N.Y. July 12, 2012).
A 	party 	waives 	any 	objection 	to 	an 	R&R 	that 	lacks 	adequate
specificity. See Mario v. P & C Food Markets, Inc., 313 F.3d 758,
766 	(2d 	Cir. 	2002) 	(finding 	that 	a 	party’s 	objections 	to 	the
magistrate 	judge’s 	R&R 	were 	not 	specific 	enough 	to 	preserve 	the
claim 	for 	review). 	Bare 	statements 	“devoid 	of 	any 	reference 	to
specific findings or recommendations . . . and unsupported by legal
authority, [are] not sufficient.” Mario, 313 F.3d at 766. Pursuant
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to 	the 	Federal 	Rules 	of 	Civil 	Procedure 	and 	this 	Court’s 	Local
Rules, “referring the court to previously filed papers or arguments
does not constitute an adequate objection.” Id.; see also Fed. R.
Civ. P. 72(b).
A. Objections 	One 	through 	Four 	to 	the 	first 	R&R, 	[ECF 	No. 	29],
are overruled.
Mr. 	Cosner 	raises 	four 	objections 	in 	response 	to 	the 	first
R&R: (1) the Magistrate Judge required a pleading standard greater
than 	necessary 	to 	satisfy 	Rule 	8 	of 	the 	Federal 	Rules 	of 	Civil
Procedure; 	(2) 	the 	R&R 	improperly 	resolved 	disputed 	questions
reserved for the factfinder; (3) the Magistrate Judge applied the
wrong 	standard 	in 	its 	analysis 	of 	Mr. 	Cosner’s 	claim 	for
Intentional Infliction of Emotional Distress (“IIED”); and (4) the
Magistrate 	Judge 	improperly 	dismissed 	Mr. 	Cosner’s 	conversion
claim and demanded facts uniquely within the VA Hospital’s control.
1. Objection One to the first R&R is overruled.
Mr. 	Cosner’s 	first 	objection 	asserts 	the 	Magistrate 	Judge
required 	a 	pleading 	standard 	greater 	than 	necessary 	to 	satisfy
Rule 8 of the Federal Rules of Civil Procedure.
Federal 	Rule 	of 	Civil 	Procedure 	8(a)(2) 	requires 	a 	pleader
provide 	“a 	short 	and 	plain 	statement 	of 	the 	claim 	showing 	. 	. 	.
entitle[ment] 	to 	relief.” 	Fed. 	R. 	Civ. 	P. 	8(a)(2); 	Erickson 	v.
Pardus, 	551 	U.S. 	89, 	93 	(2007). 	Rule 	12(b)(6) 	correspondingly
permits 	a 	defendant 	to 	challenge 	a 	complaint 	when 	it 	“fail[s] 	to
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state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.” 	Fed. 	R. 	Civ. 	P.
12(b)(6).
The 	required 	“short 	and 	plain 	statement” 	must 	provide 	“fair
notice 	of 	what 	the 	. 	. 	. 	claim 	is 	and 	the 	grounds 	upon 	which 	it
rests.” 	Bell 	Atl. 	Corp. 	v. 	Twombly, 	550 	U.S. 	544, 	555 	(2007)
(internal quotation marks and citation omitted); McCleary-Evans v.
Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th
Cir. 2015). Additionally, the showing of an “entitlement to relief”
amounts 	to 	“more 	than 	labels 	and 	conclusions.” 	Twombly, 	550 	U.S.
at 	555. 	It 	is 	now 	settled 	that 	“a 	formulaic 	recitation 	of 	the
elements 	of 	a 	cause 	of 	action 	will 	not 	do.” 	Id.; 	McCleary-Evans,
780 	F.3d 	at 	585; 	Bing 	v. 	Brivo 	Sys., 	LLC, 	959 	F.3d 	605, 	616 	(4th
Cir. 	2020), 	cert. 	denied, 	209 	L. 	Ed. 	2d 	122, 	141 	S. 	Ct. 	1376
(2021); Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008).
The complaint need not “forecast evidence sufficient to prove
the 	elements 	of 	[a] 	claim,” 	but 	it 	must 	“allege 	sufficient 	facts
to 	establish 	those 	elements.” 	Walters 	v. 	McMahen, 	684 	F.3d 	435,
439 	(4th 	Cir. 	2012) 	(citing 	Robertson 	v. 	Sea 	Pines 	Real 	Est.
Companies, 	Inc., 	679 	F.3d 	278, 	291 	(4th 	Cir. 	2012)) 	(internal
quotation 	marks 	omitted). 	Stated 	another 	way, 	the 	operative
pleading 	need 	only 	contain 	“[f]actual 	allegations 	. 	. 	.
[sufficient] 	to 	raise 	a 	right 	to 	relief 	above 	the 	speculative
level.” Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (noting the opening pleading “does not require ‘detailed
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factual allegations,’ but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation”). In sum, the complaint
must 	allege 	“enough 	facts 	to 	state 	a 	claim 	to 	relief 	that 	is
plausible on its face.” Twombly, 550 U.S. at 570; Robertson v. Sea
Pines Real Estate Co., 679 F.3d 278, 288 (4th Cir. 2012).
As 	noted 	in 	Iqbal, 	the 	Supreme 	Court 	has 	consistently
interpreted 	the 	Rule 	12(b)(6) 	standard 	to 	require 	a 	court 	to
“accept 	as 	true 	all 	of 	the 	factual 	allegations 	contained 	in 	the
complaint.” 	Erickson 	v. 	Pardus, 	551 	U.S. 	89, 	94 	(2007) 	(citing
Twombly, 550 U.S. at 555-56); see also S.C. Dep’t of Health & Env’t
Control 	v. 	Com. 	& 	Indus. 	Ins. 	Co., 	372 	F.3d 	245, 	255 	(4th 	Cir.
2004) (citing Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).
The 	court 	is 	required 	to 	“draw[] 	all 	reasonable 	. 	. 	. 	inferences
from 	those 	facts 	in 	the 	plaintiff’s 	favor.” 	Edwards 	v. 	City 	of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Pursuant 	to 	W. 	Va 	Code 	§ 	55-7B-3(a), 	the 	necessary 	elements
to succeed on a medical negligence claim in West Virginia are “(1)
[t]he health care provider failed to exercise that degree of care,
skill 	and 	learning 	required 	or 	expected 	of 	a 	reasonable, 	prudent
health care provider in the profession or class to which the health
care provider belongs acting in the same or similar circumstances;
and 	(2) 	[s]uch 	failure 	was 	a 	proximate 	cause 	of 	the 	injury 	or
death.
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The Court overrules Mr. Cosner’s first objection to the R&R.
Mr. 	Cosner 	alleges 	the 	R&R 	required 	him 	to 	prove 	every 	single
element and make an “expert-style showing” at the pleading stage.
ECF No. 32, at p. 3. He further contends that by requiring him to
show the applicable standard of care with regard to Count One and
negligence, 	the 	magistrate 	judge 	also 	required 	him 	to 	prove 	the
elements 	of 	the 	claim 	in 	his 	pleadings. 	Id. 	Mr. 	Cosner 	is
misguided. A plaintiff is not required to make legal arguments at
the 	pleading 	stage 	but, 	in 	the 	same 	breath, 	cannot 	allege 	only
conclusory 	statements. 	In 	Mr. 	Cosner’s 	Amended 	Complaint, 	he
provides 	“VA 	medical 	personnel 	breached 	the 	standard 	of 	care 	by:
obtaining 	consent 	at 	4:49 	a.m. 	from 	a 	severely 	sleep-deprived
patient with a recent head injury; failing to treat insomnia that
was 	the 	reason 	Plaintiff 	sought 	help; 	allowing 	Plaintiff 	to 	lose
nine 	pounds 	in 	six 	days 	without 	intervention; 	and 	continuing
treatment in an environment that staff documented was harming the
patient.” ECF No. 23, at ¶ 43. The Amended Complaint was devoid of
any explanation of the standard of care or how it was breached; he
simply 	made 	conclusory 	statements 	about 	his 	condition. 	Moreover,
Mr. Cosner does not present enough facts to support the allegations
of medical negligence at this stage of the pleadings.
Accordingly, Mr. Cosner’s first objection to the first R&R is
OVERRULED.
2. Objection Two to the first R&R is overruled.
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Next, 	the 	Court 	overrules 	Mr. 	Cosner’s 	second 	objection 	to
the 	first 	R&R. 	Plaintiff’s 	second 	objection 	takes 	issue 	with 	the
R&R’s ruling as to Negligent Confinement (Count Two) and Negligent
Conditions 	of 	Confinement 	(Count 	Five). 	ECF 	No. 	32, 	at 	p. 	8.
Plaintiff 	alleges 	the 	Magistrate 	Judge 	decided 	questions 	of 	fact
which were to be determined by a jury. Id. Specifically, Plaintiff
states the Magistrate Judge determined Plaintiff’s condition “may
have warranted” confinement. Id.
Here, 	Mr. 	Cosner’s 	own 	statements 	about 	his 	condition 	were
enough 	to 	suggest 	a 	medical 	provider 	could 	place 	him 	in
confinement. 	Mr. 	Cosner 	claims 	to 	have 	experienced 	severe 	sleep
deprivation, 	insomnia, 	and 	other 	mental 	health 	problems. 	As
discussed in the Court’s analysis of Mr. Cosner’s first objection,
he 	fails 	to 	allege 	any 	facts 	which 	would 	point 	to 	a 	different
standard 	of 	care 	that 	could 	suggest 	a 	reasonable 	health 	care
provider would act in a different manner.
Plaintiff’s second objection to the first R&R is OVERRULED.
3. Objection Three to the first R&R is overruled.
To 	prevail 	on 	an 	IIED 	claim, 	a 	plaintiff 	must 	establish 	the
following:
(1) 	that 	the 	defendant's 	conduct 	was
atrocious, 	intolerable, 	and 	so 	extreme 	and
outrageous as to exceed the bounds of decency;
(2) 	that 	the 	defendant 	acted 	with 	the 	intent
to 	inflict 	emotional 	distress, 	or 	acted
recklessly 	when 	it 	was 	certain 	or
substantially 	certain 	emotional 	distress
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would 	result 	from 	his 	conduct; 	(3) 	that 	the
actions of the defendant caused the plaintiff
to 	suffer 	emotional 	distress; 	and, 	(4) 	that
the 	emotional 	distress 	suffered 	by 	the
plaintiff 	was 	so 	severe 	that 	no 	reasonable
person could be expected to endure it.
Syl. 	Pt. 	3, 	Travis 	v. 	Alcon 	Lab'ys, 	Inc., 	504 	S.E.2d 	419 	(W. 	Va.
1998). 	The 	conduct 	must 	be 	“so 	outrageous 	in 	character, 	and 	so
extreme in degree, as to go beyond all possible bounds of decency,
and 	to 	be 	regarded 	as 	atrocious 	and 	utterly 	intolerable 	in 	a
civilized community.” Harless v. First Nat. Bank in Fairmont, 289
S.E.2d 692, 705 (W. Va. 1982).
Here, 	Mr. 	Cosner’s 	third 	objection 	must 	fail. 	Mr. 	Cosner
asserts 	the 	Magistrate 	Judge 	only 	analyzed 	whether 	or 	not 	the
healthcare 	providers 	acted 	with 	intent 	to 	inflict 	emotional
distress. 	ECF 	No. 	32, 	at 	p. 	10. 	This 	is 	incorrect. 	Instead, 	the
Magistrate 	Judge 	stated 	Mr. 	Cosner 	cannot 	meet 	either 	the 	intent
or 	recklessness 	prong 	of 	an 	IIED 	analysis. 	Mr. 	Cosner 	does 	not
allege any misconduct on behalf of any healthcare providers which
would rise to the standard required to succeed on a claim for IIED.
As 	pointed 	out 	by 	the 	Magistrate 	Judge, 	Mr. 	Cosner 	only
specifically 	alleges 	issues 	with 	food 	selection, 	visitor
availability, and the facility itself. ECF No. 23, at ¶ 37. While
Mr. Cosner clearly had an unpleasant experience during his hospital
stay, 	he 	fails 	to 	show 	how 	Defendant’s 	conduct 	goes 	beyond 	all
possible bounds of decency.
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Accordingly, Plaintiff’s third objection to the first R&R is
OVERRULED.
4. Objection Four to the first R&R is overruled.
Under 	West 	Virginia 	law, 	“[t]he 	tortious 	or 	unlawful 	taking
of 	personal 	property, 	and 	the 	exercise 	of 	ownership 	and 	dominion
over 	it, 	against 	the 	consent 	of 	the 	owner 	is 	... 	a 	conversion 	of
the 	property[.]” 	Mountaineer 	Fire 	& 	Rescue 	Equip., 	LLC 	v. 	City
Nat'l 	Bank 	of 	W. 	Va., 	244 	W.Va. 	508, 	854 	S.E.2d 	870, 	886 	(2020)
(citing 	Syl. 	pt. 	1, 	Arnold 	v. 	Kelly, 	4 	W. 	Va. 	642 	(1871)). 	“Any
distinct 	act 	of 	dominion 	wrongfully 	exerted 	over 	the 	property 	of
another, 	and 	in 	denial 	of 	his 	rights, 	or 	inconsistent 	therewith,
may 	be 	treated 	as 	a 	conversion 	and 	it 	is 	not 	necessary 	that 	the
wrongdoer apply the property to his own use.” Syl. pt. 17, Rodgers
v. Rodgers, 184 W.Va. 82, 399 S.E.2d 664 (1990) (citation omitted).
Of note, “[b]ad faith or evil motive” is not an element of proof.
Id. at 677.
Here, 	Mr. 	Cosner’s 	fourth 	objection 	to 	the 	first 	R&R 	is
overruled. Mr. Cosner’s argument for Conversion is murky at best.
He 	alleges 	in 	his 	Amended 	Complaint 	that 	hospital 	staff 	took 	his
personal 	Bible 	and 	personal 	notes 	and 	that 	the 	hospital 	staff
failed to return these items upon his discharge. ECF No. 23, at ¶¶
51-52. 	In 	his 	objection, 	Mr. 	Cosner 	argues 	he 	should 	not 	be
required 	to 	provide 	the 	“precise 	moment 	a 	VA 	employee 	took 	his
property or name the employee.” ECF No. 32, at 12. While Mr. Cosner
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is not required to name the exact moment a specific employee took
his Bible and personal notes, his pleadings are vague and provide
no 	clear 	explanation 	of 	how 	his 	belongings 	were 	converted 	or 	who
exercised 	control 	over 	such 	belongings. 	Plaintiff 	cannot 	simply
make vague allegations in order to get to discovery.
Accordingly, Plaintiff’s fourth objection to the first R&R is
OVERRULED.
The 	Court 	reviewed 	the 	remainder 	of 	the 	first 	R&R 	for 	clear
error and found none.
B. Objections 	One 	through 	Eight 	to 	the 	supplemental 	R&R, 	[ECF
No. 39], are overruled.
Mr. 	Cosner 	raises 	eight 	objections 	to 	the 	supplemental 	R&R:
(1) the R&R required evidentiary proof at the pleading stage; (2)
the 	Magistrate 	Judge’s 	finding 	of 	a 	repeated 	failure 	to 	cure 	is
unsupported 	by 	the 	record; 	(3) 	the 	R&R’s 	futility 	findings 	are
inconsistent; (4) Mr. Cosner’s Second Amended Complaint pleads an
objective 	standard 	of 	care; 	(5) 	the 	R&R 	misapplies 	the 	required
standards 	for 	IIED; 	(6) 	Mr. 	Cosner’s 	Second 	Amended 	Complaint
explained 	how 	his 	property 	was 	converted; 	(7) 	the 	R&R 	did 	not
assess 	each 	of 	Mr. 	Cosner’s 	claims 	for 	futility; 	and 	(8) 	the 	R&R
inappropriately 	dismisses 	the 	claims 	because 	of 	a 	“curable
pleading issue.” See ECF No. 39.
1. Plaintiff’s 	first 	objection 	to 	the 	supplemental 	R&R 	is
overruled.
Mr. 	Cosner’s 	first 	objection 	argues 	the 	Magistrate 	Judge
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“applies 	a 	proof 	standard, 	not 	a 	pleading 	standard.” 	ECF 	No. 	39,
at 	p. 	2. 	Mr. 	Cosner 	argues 	he 	need 	not 	“attach, 	authenticate, 	or
otherwise 	prove 	documents 	to 	survive 	Rule 	12(b)(6).” 	Id. 	It 	is
true 	Plaintiff 	is 	not 	required 	to 	prove 	allegations 	he 	makes 	at
the pleading stage, but he must show the Court there are some bases
for the allegations made. The Court is not requiring Mr. Cosner to
prove the accuracy of any records or claims at this stage. However,
Mr. 	Cosner 	simply 	cites 	direct 	quotations 	from 	different 	records
that 	he 	does 	not 	identify 	or 	attempt 	to 	explain 	in 	any 	way. 	This
does not help his attempted re-pleading of an IIED claim; rather,
he causes further confusion.
For these reasons, Plaintiff’s first objection to the second
R&R is OVERRULED.
2. Plaintiff’s 	second 	objection 	to 	the 	supplemental 	R&R 	is
overruled.
In his second objection, Mr. Cosner argues because his First
Amended Complaint was filed more than four months before the first
R&R was ordered and he has not been given the opportunity to file
a Second Amended Complaint, there has not been a “repeated failure
to 	cure” 	pleading 	deficiencies 	on 	Plaintiff’s 	part. 	Id. 	at 	2-3.
Essentially, 	Mr. 	Cosner 	argues 	he 	has 	not 	been 	given 	ample
opportunity to amend his pleadings.
Mr. 	Cosner’s 	objection 	carries 	no 	merit. 	First, 	he 	is 	not
automatically entitled to amend his pleadings once the Magistrate
Judge issues the R&R. Second, Mr. Cosner has already been given an
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opportunity to amend his pleadings once. Mr. Cosner himself stated
over 	four 	months 	elapsed 	between 	the 	time 	his 	Amended 	Complaint
was filed and when the Magistrate Judge issued his first R&R. Mr.
Cosner 	was 	perfectly 	able 	to 	amend 	his 	pleadings 	and 	cure 	any
deficiencies during that four-month period.
Accordingly, Plaintiff’s second objection to the supplemental
R&R is OVERRULED.
3. Plaintiff’s 	third 	and 	seventh 	objections 	to 	the
supplemental R&R are overruled.
Because 	Mr. 	Cosner’s 	third 	and 	seventh 	objections 	are
substantially 	related, 	the 	Court 	will 	address 	them 	together. 	Mr.
Cosner contends the supplemental R&R incorrectly held his proposed
amendments 	were 	futile 	for 	two 	reasons. 	First, 	he 	argues 	the
Magistrate Judge’s characterization of the proposed amendments as
both 	“considerable 	in 	scope” 	and 	lacking 	any 	substantive 	change
are “difficult to reconcile.” ECF No. 39, at 3. Second, he argues
futility 	must 	be 	assessed 	“claim 	by 	claim” 	and 	complete 	futility
cannot stand if one of those claims is plausible. Id. at 7.
The 	idea 	the 	proposed 	amendments 	are 	considerable 	in 	scope
and 	lacking 	any 	substantive 	change 	are 	not 	mutually 	exclusive.
Here, none of the proposed amendments change Mr. Cosner’s original
pleadings 	in 	any 	substantial 	way. 	He 	fails 	to 	elaborate 	on 	any
prior allegations and his claims remain inviable. His objection is
therefore OVERRULED.
As for Plaintiff’s seventh objection, the Court struggles to
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discern Mr. Cosner’s argument. Mr. Cosner maintains futility must
be 	assessed 	“claim 	by 	claim.” 	This 	Court 	is 	satisfied 	with 	the
Magistrate 	Judge’s 	careful 	analysis 	of 	each 	of 	the 	claims, 	which
are 	reflected 	clearly 	in 	the 	R&Rs 	adopted 	herein. 	All 	claims 	are
evaluated 	individually; 	the 	issue 	appears 	to 	lie 	with 	the
sufficiency 	of 	the 	pleadings, 	rather 	than 	the 	Magistrate 	Judge’s
failure to assess each individual claim.
Accordingly, 	Plaintiff’s 	third 	and 	seventh 	objections 	are
OVERRULED.
4. Plaintiff’s 	fourth 	objection 	to 	the 	supplemental 	R&R 	is
overruled.
Mr. 	Cosner’s 	fourth 	objection 	to 	the 	second 	R&R 	takes 	issue
with the Magistrate Judge’s recommendation that W. Va. Code §§ 27-
4-3 and 27-4-4, as well as 38 C.F.R. § 17.32, do not apply in this
case. 	W. 	Va. 	Code 	§§ 	27-4-3 	and 	27-4-4 	cover 	releases 	of
voluntarily 	admitted 	patients, 	while 	38 	C.F.R. 	§ 	17.32 	covers
informed consent. Mr. Cosner’s attempts at employing the statutes
and regulation to establish a standard of care fail; rather, they
only establish procedures for releasing certain patients. Nothing
Mr. 	Cosner 	offers 	here 	cures 	the 	defects 	previously 	summarized
regarding the negligence standard.
Plaintiff’s fourth objection is OVERRULED.
5. Plaintiff’s 	fifth 	objection 	to 	the 	supplemental 	R&R 	is
overruled.
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In 	his 	fifth 	objection, 	Mr. 	Cosner 	asserts 	the 	Magistrate
Judge inappropriately determined that the proposed amendments fail
to show outrageous behavior on the part of the hospital staff. ECF
No. 	39, 	at 	5. 	Mr. 	Cosner 	argues 	such 	a 	determination 	can 	only 	be
made by the jury. Id.
In West Virginia,
a court must determine whether the conduct was
atrocious, 	intolerable, 	and 	so 	extreme 	and
outrageous as to exceed the bounds of decency:
In 	evaluating 	a 	defendant's 	conduct 	in 	an
intentional 	or 	reckless 	infliction 	of
emotional 	distress 	claim, 	the 	role 	of 	the
trial court is to first determine whether the
defendant's conduct may reasonably be regarded
as so extreme and outrageous as to constitute
the 	intentional 	or 	reckless 	infliction 	of
emotional 	distress. 	Whether 	conduct 	may
reasonably be considered outrageous is a legal
question, 	and 	whether 	conduct 	is 	in 	fact
outrageous 	is 	a 	question 	for 	jury
determination.
Syl. Pt. 4, Travis, 504 S.E.2d at 419 (emphasis added). While Mr.
Cosner is correct, a determination of outrageousness is a question
for the jury, he fails to plead any facts which rise to the level
of 	outrageousness 	as 	a 	matter 	of 	law. 	It 	is 	a 	court’s 	duty 	to
determine whether conduct may reasonably be considered outrageous.
Here, Mr. Cosner only provides direct quotations from unidentified
records, which do not supplement any previously lacking claims of
outrageous 	behavior 	on 	the 	part 	of 	the 	hospital 	staff. 	For 	the
same reasons established by the Magistrate Judge, this Court finds
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Mr. Cosner failed to provide any facts which rise to the level of
reasonably outrageous conduct.
Accordingly, Plaintiff’s fifth objection to the supplemental
R&R is OVERRULED.
6. Plaintiff’s 	sixth 	objection 	to 	the 	supplemental 	R&R 	is
overruled.
Mr. 	Cosner’s 	sixth 	objection 	argues 	his 	proposed 	amendments
cure 	the 	deficiencies 	of 	his 	conversion 	claim. 	ECF 	No. 	39, 	at 	6.
Mr. Cosner argues his amendments explain “the conversion occurred
at 	discharge, 	when 	property 	remaining 	in 	Plaintiff’s 	room 	on 	the
locked 	unit 	passed 	into 	exclusive 	possession 	and 	control 	of 	VA
staff.” Id.
Mr. 	Cosner’s 	proposed 	amendments 	as 	to 	his 	conversion 	claim
do nothing to cure the deficiencies identified in the initial R&R.
After the Amended Complaint was filed, it was unclear who exercised
control 	over 	Mr. 	Cosner’s 	personal 	belongings 	and 	when 	they
exercised 	that 	control. 	Plaintiff’s 	amendments 	do 	not 	get 	any
closer to answering those questions. His amendments merely provide
he lost control of his belongings at discharge and never got them
back. 	Plaintiff 	does 	not 	provide 	sufficient 	allegation 	about 	any
handling of personal property by one without legal right to handle
it.
Accordingly, Plaintiff’s sixth objection to the supplemental
R&R is OVERRULED.
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7. Plaintiff’s 	eighth 	objection 	to 	the 	supplemental 	R&R 	is
overruled.
Mr. Cosner’s eighth objection to the supplemental R&R asserts
the R&R inappropriately dismisses the claims because of a “curable
pleading issue.” See ECF No. 39. This objection must be overruled
because 	it 	is 	not 	clear 	any 	adjusted 	pleadings 	would 	cure 	the
issues 	laid 	out. 	Plaintiff 	argues 	“denying 	leave 	would 	convert 	a
curable pleading issue into a practical bar.” ECF No. 39, at p. 7.
First, 	the 	Court 	has 	already 	given 	Plaintiff 	an 	opportunity 	to
amend his pleadings. See ECF No. 22. Second, and most importantly,
the Second Amended Complaint proposed by Mr. Cosner would not cure
the pleading issues previously highlighted. Plaintiff does not add
anything substantive to his proposed Second Amended Complaint.
Accordingly, Plaintiff’s eighth objection to the supplemental
R&R is OVERRULED.
The Court reviewed the remainder of the supplemental R&R for
clear error and found none.
III. CONCLUSION
For 	these 	reasons, 	the 	Court 	ADOPTS 	the 	first 	R&R 	[ECF 	No.
29] 	and 	the 	supplemental 	R&R 	[ECF 	No. 	38] 	in 	their 	entirety 	and
OVERRULES 	both 	sets 	of 	Plaintiff’s 	objections 	[ECF 	Nos. 	32, 	39].
Plaintiff’s 	Motion 	for 	Leave 	to 	File 	a 	Second 	Amended 	Complaint
[ECF No. 33] is DISMISSED. All other pending motions are DENIED AS
MOOT. 	Plaintiff’s 	Amended 	Complaint 	is 	DISMISSED 	WITH 	PREJUDICE
and 	the 	Court 	DIRECTS 	the 	Clerk 	to 	strike 	this 	case 	from 	the
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Court’s active docket.
It is so ORDERED.
The 	Clerk 	shall 	transmit 	copies 	of 	this 	Order 	to 	counsel 	of
record 	via 	email 	and 	the 	pro 	se 	Plaintiff 	via 	certified 	mail,
return receipt requested.
DATED: September 30, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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