Knouse v. Primecare Medical of West Virginia, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

HANNAH KNOUSE, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:18-cv-01014

PRIMECARE MEDICAL OF WEST VIRGINIA, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants Michael Toney and Jaburs Terry’s

Motion to Dismiss [ECF No. 110]. For the following reasons, the Motion is GRANTED

in part and DENIED in part.

I. Background

While awaiting trial, Dr. Charles Knouse was detained at South Central

Regional Jail (“SCRJ”) in Kanawha County, West Virginia, for various violations of

the Controlled Substances Act. At his detention hearing, Dr. Knouse explained to

Magistrate Judge Omar J. Aboulhosn his belief that the jail authorities at South

Central Regional Jail were not meeting his serious medical needs. Dr. Knouse was

apparently concerned that his heart would become arrhythmic if he did not receive

his heart medication. He also explained that withdrawal from a second medication

would render the first medication unable to control his heart rhythm, and he detailed

the great pain he was in because the Jail Authorities did not allow him to self-

catheterize the first few days of his detainment.

Perceiving a potential life-threatening situation, and choosing to err on the

side of caution until Dr. Knouse’s medical conditions could be verified, Magistrate

Judge Aboulhosn ordered the authorities at SCRJ “to immediately place and hold [Dr.

Knouse] in the medical unit . . . and to immediately resume [Dr. Knouse] on all of his

prescribed medications.” Order 2, , No. 1:17-mj-00046 (Aug.

4, 2017), [ECF No. 6]. A few days later, however, Dr. Knouse died while in custody.

Hannah Knouse, administrator of his estate, filed this lawsuit.

The plaintiff’s initial Complaint alleged, inter alia, that certain prison

personnel and medical provides at SCRJ were deliberately indifferent to Dr. Knouse’s

serious medical needs. On a Motion [ECF No. 32], the court dismissed most of the

Complaint for failure to state a claim but allowed the plaintiff’s § 1983 claim for

deliberate indifference in violation of the Fourteenth Amendment to move forward.

The court noted the plaintiff’s lack of factual matter, conclusory statements, and

inapposite legal theories. On October 23, 2018, by leave of court, the plaintiff filed an

Amended Complaint [ECF No. 71], largely ignoring the court’s guidance on pleading.

The Amended Complaint continues to include irrelevant state constitutional claims

with no factual basis, contains even more conclusory statements, and entails 275

pages of appended exhibits.

Against Defendants Toney and Terry, the Amended Complaint sounds in

negligence and state and federal constitutional claims. On November 27, 2018,

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Defendants Toney and Terry moved to dismiss the claims against them [ECF

No. 110]. On December 11, 2018, the plaintiff responded [ECF No. 118]. The Motion

is now ripe for review.

II. Legal Standard

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. , 521 F.3d 298, 302 (4th Cir. 2008).

Rule 8 requires that a pleading contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As the Supreme

Court stated in , that standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” 556 U.S. 662, 678 (2009) (quoting ,

550 U.S. 544, 555 (2007)). “[A] plaintiff's obligation to provide the ‘grounds’ of [her]

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do[.]” , 550 U.S. at 555.

A court cannot accept as true legal conclusions in a complaint that merely recite the

elements of a cause of action supported by conclusory statements. , 556 U.S. at

677–78.

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

at 678 (quoting , 550 U.S. at 570). To achieve facial plausibility, the plaintiff

must plead facts that allow the court to draw the reasonable inference that the

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defendant is liable, and those facts must be more than merely consistent with the

defendant's liability to raise the claim from possible to plausible.

III. Discussion

1. Section 1983 Qualified Immunity

The plaintiff alleges that Defendants Toney and Terry were deliberately

indifferent to Dr. Knouse’s serious medical needs in violation of the Fourteenth

Amendment’s Due Process Clause. The defendants assert that they are entitled to

qualified immunity and that the § 1983 claim therefore should be dismissed.

Officers are entitled to qualified immunity under 42 U.S.C. § 1983 unless (1)

they violated a federal statutory or constitutional right, and (2) the unlawfulness of

their conduct was “clearly established at the time.” , 566 U.S. 658,

664 (2012). “Clearly established” means that, at the time of the officer's conduct, the

law was “‘sufficiently clear’ that every ‘reasonable official would understand that

what he is doing’” is unlawful. , 563 U.S. 731, 741 (2011) (quoting

, 483 U.S. 635, 640 (1987)). In other words, existing law must

have placed the constitutionality of the officer's conduct “beyond debate.” at 741.

This demanding standard protects “all but the plainly incompetent or those who

knowingly violate the law.” , 475 U.S. 335, 341 (1986). The court's

“first task is to identify the specific right that [the plaintiff] asserts was infringed by

the challenged conduct, recognizing that the right must be defined at the appropriate

level of particularity.” , 106 F.3d 525, 530 (4th Cir. 1997) (en banc).

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As discussed previously by this court in this case, “[t]he right to be free from

deliberate indifference to serious medical needs is clearly established.”

, 333 F. Supp. 3d 584, 590 (S.D. W. Va. 2018);

, 841 F.3d 219, 236 (4th Cir. 2016). The next step is to consider whether

the plaintiff alleged sufficient factual matter to demonstrate a plausible claim of

deliberate indifference.

a. Deliberate Indifference

An officer is deliberately indifferent to a substantial risk of harm to a detainee

when that officer “knows of and disregards” that risk. ,

372 F.3d 294, 303 (4th Cir. 2004) (citing 511 U.S. 825, 837

(1994)). To be liable, “[d]eliberate indifference requires a showing that the defendants

actually knew of and disregarded a substantial risk of serious injury to the detainee

or that they actually knew of and ignored a detainee’s serious need for medical care.”

, 238 F.3d 567, 575–76 (4th Cir. 2001). Deliberate

indifference is “more than mere negligence,” but “less than acts or omissions [done]

for the very purpose of causing harm or with knowledge that harm will result.”

, 511 U.S. at 835; , 841 F.3d at 226. It “lies somewhere between

negligence and purpose or knowledge: namely, recklessness of the subjective type

used in criminal law.” , 58 F.3d 101, 105 (4th Cir. 1995)

(citing , 511 U.S. at 835).

Liability under this standard thus requires two showings: “First, the evidence

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must show that the official in question subjectively recognized a substantial risk of

harm. It is not enough that the officers recognized it; they actually must

have perceived the risk.” , 372 F.3d at 303 (citing 129 F.3d 336,

340 n.2 (4th Cir.1997)). Second, “the evidence must show that the official in question

subjectively recognized that his actions were ‘inappropriate in light of that risk.’”

“As with the subjective awareness element, it is not enough that the official should

have recognized that his actions were inappropriate; the official actually must have

recognized that his actions were insufficient.” (citing 240 F.3d

383, 390–91 (4th Cir. 2001)).

A plaintiff can make a prima facie case under this standard by showing “that

a substantial risk of [serious harm] was longstanding, pervasive, well-documented,

or expressly noted by prison officials in the past, and the circumstances suggest that

the defendant-official being sued had been exposed to information concerning the risk

and thus must have known about it.” , 511 U.S. at 842; , 372 F.3d

at 303. Similarly, a factfinder may conclude that the official’s response to a perceived

risk was so patently inadequate as to justify an inference that the official actually

recognized that his response to the risk was inappropriate under the circumstances.

, 372 F.3d at 303.

Deliberate indifference can be demonstrated by “prison doctors’ response[s] to

the prisoner’s needs or by prison guards [] intentionally denying or delaying access to

medical care or intentionally interfering with the treatment once prescribed.”

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, 429 U.S. 97, 104–05 (1976).

i. Defendant Toney

Defendant Toney argues that the plaintiff failed to allege enough factual

matter to state a claim against him. Specifically, he argues that the plaintiff did not

allege that he denied, refused, delayed, or interfered with Dr. Knouse’s medical

treatment once prescribed or was otherwise deliberately indifferent. I agree.

The factual allegations against Defendant Toney are missing. The only factual

allegations (excluding legal conclusions) pleaded in the Amended Complaint against

Defendant Toney are listed in paragraph 49. In full, paragraph 49 alleges that

[o]n August 4, 2017, at 1602 hrs. Tammy Davis, Judicial

Assistant to Federal Magistrate Judge Omar Aboulhosn,

emailed a copy of the Order Judge Aboulhosn entered at

the conclusion of the Initial Hearing for Mr. Knouse earlier

in the day to Defendant Sgt. Michael Toney. Defendant

Toney admitted he forgot to make a copy of the Order for

Dr. Knouse’s file and did not time-stamp [sic.] the Order

and copy it to the Court Order Log, Billing Clerk and

Counselors [sic.] but at 1926 hrs. Defendant Toney emailed

a copy of the aforementioned Order to his supervisor,

Defendant Lt. Jaburs E. Terry. This conduct by Defendant

Terry was a violation of correctional facilities standards

and violation [sic.] of Dr. Knouse’s 14th Amendment rights

in that it exhibited deliberate indifference to the medical

needs of the detainee.

Am. Compl. 12. While Defendant Toney was exposed to the contents of the first order,

the plaintiff did not allege any factual matter suggesting that Defendant Toney

actually recognized that his response to the risk was inadequate under the

circumstances, especially considering that he did forward the order to his supervisor.

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There are no facts alleging that Defendant Toney was responsible for Dr. Knouse’s

medical treatment, no facts alleging that he interfered with treatment once

prescribed, and no facts alleging that he intentionally denied or delayed access to Dr.

Knouse’s medical care. The § 1983 claim against Defendant Toney is DISMISSED.

ii. Defendant Terry

Defendant Terry also argues that the plaintiff failed to allege enough factual

matter to state a claim against him. He argues that even though the plaintiff asserts

that Dr. Knouse did not receive “his Suboxone because Terry failed to comply with

the Court order,” the plaintiff did not allege any facts suggesting that Defendant

Terry was licensed or authorized to administer “a scheduled narcotic” or otherwise

set forth any facts showing that Defendant Terry was deliberately indifferent.

As with Defendant Toney, factual allegations against Defendant Terry are

poorly pleaded. Paragraph 50 alleges that

Defendant Terry forwarded a copy of the aforementioned

Order to Donald Ames . . . at Central Office. Mr. Ames

instructed him to put Dr. Knouse in Medical and take him

to Booking when he is supposed to take the Suboxone, and

no other inmates should be out of their cell;’ … that way we

can show he was taking his medicine and not cheaking

(sic.) or anything like that…” Defendant Terry also called

SCRJ Administrator Anthony Leonard, who told him to

follow the court order to the letter, but Dr. Knouse did not

receive his Suboxone because Defendant Terry failed to

comply with the Court Order.”

Am. Compl. 12 (errors in original). Paragraph 55 alleges that Defendant Terry

“move[d] Dr. Knouse from C-4 into booking, in violation of court orders.” Yet, unlike

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against Defendant Tony, the plaintiff pleaded sufficient facts to state a claim against

Defendant Terry

At the motion to dismiss stage, for the first prong of deliberate indifference, it

is enough that the plaintiff alleged that Defendant Terry was exposed to and thus

knew of the risk to Dr. Knouse. The plaintiff alleges that Defendant Terry saw the

court order, discussed it with his superior, and shared it with multiple parties. It is

thus fair to infer on a motion to dismiss that Defendant Terry knew of the risk.

The plaintiff also alleges that Dr. Knouse did not receive his medication

because Defendant Terry failed to comply with the court order, and the plaintiff

alleges that Defendant Terry also moved Dr. Knouse out of the medical unit and into

booking in violation of court orders. This response, as pleaded, “justif[ies] an inference

that [he] actually recognized that his response to [Dr. Knouse’s serious medical needs]

was inappropriate under the circumstances.” , 372 F.3d at 303.

In regard to the plaintiff’s § 1983 claim for deliberate indifference against

Defendant Terry, the defendants’ Motion to Dismiss is DENIED.

2. State Law Qualified Immunity

The court will next examine the plaintiff’s state law claims. Against

Defendants Toney and Terry, the plaintiff seeks relief in state law negligence, and

despite criticism from the court, again alleges “a confused assortment of purported

[state] constitutional violations.” , 333 F. Supp. 3d at 589. The defendants

argue that they are entitled to state law qualified immunity for the plaintiff’s state

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law claims.

In West Virginia, “if a public officer is either authorized or required, in the

exercise of his judgment and discretion, to make a decision and to perform acts in the

making of that decision, and the decision and acts are within the scope of his duty,

authority, and jurisdiction, he is not liable for negligence or other error in the making

of that decision, at the suit of a private individual claiming to have been damaged

thereby.” Syl. Pt. 4, , 465 S.E.2d 374 (W. Va. 1995).

[T]he doctrine of qualified or official immunity bars a claim

of mere negligence against a State agency not within the

purview of the West Virginia Governmental Tort Claims

and Insurance Reform Act1 . . . and against an officer of

that department acting within the scope of his or her

employment, with respect to the discretionary judgments,

decisions, and actions of the officer.

at Syl. Pt. 6. “To determine whether the State, its agencies, officials, and/or

employees are entitled to immunity, a reviewing court must first identify the nature

of the governmental acts or omissions which give rise to the suit . . . .” Syl. Pt. 10,

, 766 S.E.2d 751 (W. Va. 2014).

“To the extent that governmental acts or omissions . . . fall within the category

of discretionary functions, a reviewing court must determine whether the plaintiff

has demonstrated that such acts or omissions are in violation of clearly established

statutory or constitutional rights or laws of which a reasonable person would have

known or are otherwise fraudulent, malicious, or oppressive in accordance with

1 The parties do not dispute that the plaintiff’s claims against the Prison Defendants do not fall

within the West Virginia Governmental Tort Claims and Insurance Act.

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, 424 S.E.2d 591 (W. Va. 1992).” at Syl. Pt. 11. “In absence of

such a showing, both the State and its officials or employees charged with such acts

or omissions are immune from liability.”

a. Negligence

The defendants argue that that the plaintiff failed to plead facts sufficient to

establish that they did not engage in any discretionary acts, and the plaintiff did not

respond otherwise. In West Virginia, correctional officers’ functions “are

characterized as discretionary, requiring the use of discretionary judgments and

decisions.” , 766 S.E.2d at 768. Because “[a] public officer is entitled to qualified

immunity for discretionary acts, even if committed negligently,” the defendants are

not liable for mere negligence. , 781 S.E.2d 936, 949 (W. Va. 2015);

, No. 16-0090, No. 12-0092, 2017 WL 383779, at *6 (W. Va.

2017) (“[S]imple assertions of negligence . . . as explained in syllabus point 7 of

are barred . . . .”). As such, the claims of negligence against the defendants are

DISMISSED.

b. State Constitutional Claims

The plaintiff, again, alleges that the defendants “violated Dr. Knouse’s

constitutional rights guaranteed under Article III, Sections 1, 5, 10, and 14, and

Article XII, Section 1 of the West Virginia Constitution—five constitutional violations

in one paragraph.” , 333 F. Supp. 3d at 593; Am. Compl. 20;

Compl. 11 [ECF No. 1]. “To prove that a clearly established right has been infringed

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upon, a plaintiff must do more than allege that an abstract right has been violated.

Instead, the plaintiff must make a ‘particularized showing’ that a ‘reasonable official

would understand that what he is doing violated that right’ or that ‘in the light of

preexisting law the unlawfulness’ of the action was ‘apparent.’”

, 479 S.E.2d 649, 659 n.11 (W. Va. 1996) (quoting

483 U.S. 635, 640 (1987)). Because a “particularized showing” is inherently lacking,

the plaintiff has failed to allege enough facts to state a claim to relief on any of his

state constitutional claims.

While the plaintiff’s state constitutional claims fail because they lack a

particularized showing, Article III, Sections 1, 5, and 10 also fail as a matter of law.

First, Article III Section 1 does not independently give rise to a cause of action.

, No. 2:13-cv-15798, 2017 WL 4849113, at * 8 (S.D. W. Va. Oct.

26, 2017) (Goodwin, J). Second, “if a constitutional claim is covered by a specific

constitutional provision, . . . the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of substantive due

process.” , No. 2:16-cv-0178, 2017 WL 440733, at *6 (S.D. W.

Va. Feb 1, 2017) (applying this federal standard to the West Virginia Constitution).

Thus, the plaintiff’s claim under Section 10 is properly analyzed under Section 5’s

prohibition against “cruel and unusual punishment.” , 2017 WL 4849113,

at *8. Under Section 5, however, money damages are unavailable.

, No. 3:17-1300, 2017 WL 3841894, at *4 (S.D. W. Va. Sept. 1, 2017)

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(collecting cases); accord Murray, 2017 WL 4849113, at * 8 (Goodwin, J.); cf Syl. Pt.

A, Harrah v. Leverette, 271 S.E.2d 322, 324 (W. Va. 1980) (listing the kinds of relief

available under Article III, Section 5). Because the plaintiff strictly seeks monetary

damages under the West Virginia Constitution, his claim under Section 5 must fail.

Accordingly, the state constitutional claims are DISMISSED.

IV. Conclusion

For the foregoing reasons, the Defendants’ Motion to Dismiss [ECF No. 110] is

GRANTED in part and DENIED in part. As to Defendant Toney, the claim against

him for deliberate indifference in violation of the Fourteenth Amendment is

DISMISSED without prejudice, and the remaining claims against him are

DISMISSED with prejudice. Additionally, except for the § 1983 deliberate

indifference claim against him, all other claims against Defendant Terry are

DISMISSED with prejudice. The court DIRECTS the Clerk to send a copy of this

Memorandum Opinion and Order to counsel of record and any unrepresented party.

ENTER: January 17, 2019

Ip

G 6G

oem STATES DISTRICT JUDGE

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