Williams v. West Virginia Division of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

CATHY WILLIAMS,

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00496

WEST VIRGINIA DIVISION

OF CORRECTIONS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is a motion to dismiss filed by Defendants Wexford Health Sources, Inc.

(“Wexford”), Craig Smith, Paula Tomlin, and Heidi Beegle (collectively, “Wexford Defendants”).

(ECF No. 7.) For the reasons discussed herein, the Court GRANTS IN PART and DENIES IN

PART the motion. (ECF No. 7.)

I. BACKGROUND

This action arises out of an alleged injury Plaintiff Cathy Williams (“Plaintiff”) sustained

while in the custody of the West Virginia Division of Corrections (“WVDOC”) at the Lakin

Correctional Center (“Lakin”). (ECF No. 1-2 at 1 ¶ 1.) Wexford is a third-party contractor that

provides health services for the WVDOC. (Id. ¶ 3.) At some time during her incarceration,

Plaintiff was being moved from a wheelchair to a bed with a Hoyer sling when the sling broke and

caused Plaintiff to fall to the floor and fracture her femur and hip. (Id. at 1 ¶ 1, 3 ¶ 13.)

On July 7, 2017, Plaintiff filed this action in the Circuit Court of Kanawha County, West

Virginia, asserting various state law claims against the WVDOC, Wexford, Mr. Smith, and John

Doe defendants. (ECF No. 1-1.) On May 10, 2019, Plaintiff filed an amended complaint

asserting additional claims against the original defendants and adding three defendants, Lori Nohe,

Paula Tomblin, and Heidi Beegle. (ECF No. 1-2.) The Amended Complaint asserts six causes

of action for deliberate indifference in violation of the Eighth Amendment under 42 U.S.C. § 1983,

Article III § 5 of the West Virginia Constitution, and Legislative Rules 95-1-1, et seq. (Count I);

reckless or negligent supervision, training, and hiring (Count II); negligent, reckless, and

intentional conduct (Count III); ordinary negligence (Count IV); vicarious liability (Count V); and

premises liability (Count VI). The Amended Complaint also asserts a claim for punitive damages.

On July 3, 2019, this case was properly removed to this Court on the basis of federal

question jurisdiction pursuant to 28 U.S.C. § 1331. (ECF No. 1.) On July 15, 2019, Wexford

and the Wexford Defendants filed the present motion to dismiss.1 (ECF No. 7.) Plaintiff timely

responded to the motion on August 16, 2019, (ECF No. 16), and Defendants filed a timely reply

on August 24, 2019,2 (ECF No. 17). As such, the motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

In general, a pleading must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep’t of

Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement

1 This Court previously entered an order on November 22, 2019, dismissing the WVDOC, Ms. Nohe, and any John

Doe defendants from this action. (See ECF No. 25.)

2 The Court previously granted a joint motion by the parties to extend the briefing deadlines associated with the

pending motion. (See ECF No. 15.) In accordance with that order, the response and reply are timely and in

compliance with Local Rule of Civil Procedure 7.1(a)(7).

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exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). To withstand a motion to

dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough

facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat’l Sec.

Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to

raise a right to relief above the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639,

647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are

required; labels, conclusions, and a “formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555; see also Ms. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.

2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to

state a claim.” (quoting Iqbal, 556 U.S. at 679)).

In evaluating the sufficiency of a complaint, the court first “identif[ies] pleadings that,

because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal,

556 U.S. at 679. The court then “assume[s] the[] veracity” of the complaint’s “well-pleaded

factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.”

Id. Review of the complaint is “a context-specific task that requires [the court] to draw on its

judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is

not required to plead factual allegations in great detail, but the allegations must contain sufficient

factual heft to allow a court, drawing on judicial experience and common sense, to infer more than

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the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d

447, 452 (4th Cir. 2017) (internal quotation marks omitted).

III. DISCUSSION

A. Statute of Limitations

Defendants first argue that Plaintiff’s claims against Defendants Tomlin and Beegle are

barred by the applicable statute of limitations. In deciding a motion to dismiss based on the statute

of limitations, the Court should only grant the motion if it clearly appears on the face of the

complaint that the plaintiff's claims are time-barred. Goodman v. Praxair, Inc., 494 F.3d 458,

464 (4th Cir. 2007); Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005). The law

favors statutes of limitation and construes them liberally. See Johnson v. Nedeff, 452 S.E.2d 63,

66 (W. Va. 1994) (quotations omitted); see also Nasim v. Warden, Md. House of Correction, 64

F.3d 951, 955 (4th Cir. 1995) (stating, “a cause of action accrues when the plaintiff possesses

sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of

action.”). It is well-established that “[t]he applicable statute of limitations for an action filed

pursuant to 42 U.S.C. § 1983 is based upon the State’s limitations period applicable to a personal

injury action.” Green v. Rubenstein, 644 F. Supp. 2d 723, 746 (S.D. W. Va. 2009) (citing Owens

v. Okure, 488 U.S. 235, 249 (1989)). In West Virginia, a two-year statute of limitations applies

to personal injury cases. See id. (citing W. Va. Code § 55-2-12).

Here, the Amended Complaint does not specifically allege the date of the subject incident.

However, emails dated March 14, 2016, and attached to the Amended Complaint, reference the

subject incident, suggesting that Plaintiff’s alleged injury occurred on or before this date.3 (ECF

3 In ruling on the present motion to dismiss, this Court may consider the emails attached to the complaint since they

“are integral to the complaint” and the parties do not dispute their authenticity. Kensington Volunteer Fire Dep’t,

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No. 1-2 at 10–11.) Plaintiff’s claims against Tomlin and Beegle were not asserted until she filed

her Amended Complaint on May 10, 2019, more than one year after the two-year statute of

limitations elapsed with respect to her personal injury and § 1983 claims. (See ECF No. 1-1.)

Thus, Plaintiff’s claims with respect to Tomlin and Beegle are time barred unless they relate back

to her original pleadings.

Plaintiff argues that her claims against Tomlin and Beegle are not barred by the statute of

limitations by virtue of the relation back doctrine under Rule 15(c)(3) of the Federal Rules of Civil

Procedure. In particular, she contends that she learned Tomlin and Beegle had knowledge of the

faulty sling through discovery and, thus, sought leave to amend her complaint to substitute them

for the named John Doe defendants. (ECF No. 16 at 5–6.) Under Rule 15(c)(3), an amended

complaint that adds a defendant to an action can relate back to an earlier timely filed complaint if

the following requirements are satisfied:

(1) the claim in the amended complaint arose out of the same transaction that

formed the basis of the claim in the original complaint; (2) the party to be brought

in by the amendment received notice of the action such that it will not be prejudiced

in maintaining a defense to the claim; and (3) it should have known that it would

have originally been named a defendant ‘but for a mistake concerning the identity

of the proper party.

Goodman, 494 F.3d at 467; Fed. R. Civ. P. 15(c)(1)(B) (confining relation back to claims arising

out of the same “conduct, transaction, or occurrence set forth . . . in the original pleading.”).

It is self-evident that Plaintiff’s § 1983 claim is not stated in the original complaint.

Plaintiff does not dispute this but, rather, argues that this added claim arises out of the same facts

set forth in the original complaint. (ECF No. 16 at 6.) The Court agrees and finds that factual

support for Plaintiff’s § 1983 claim was alleged in her original complaint. While not artfully pled,

Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (internal citation omitted).

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the core facts asserted in the original complaint include allegations that Wexford employees

continued to use or authorize the use of a sling that was known to be defective and unsafe and took

no action to replace it. (ECF No. 1-1 at 4 ¶ 14, 5 ¶ 24.) Because the original complaint makes

statements sounding in deliberate indifference, (see infra III.C. (discussing requisite elements of a

deliberate indifference claim under § 1983)), Plaintiff’s § 1983 claim relates back to the initial

pleading so long as Tomlin and Beegle were put on notice and knew or should have known that

Plaintiff’s action would have been brought against them but for a mistake concerning their proper

identity. See Robinson v. Clipse, 602 F.3d 605, 609 (4th Cir. 2010) (explaining that the amending

party must satisfy the requirements set forth in both Rule 15(c)(1)(C)(i) and (ii)).

In order to establish notice under Rule 15(c)(1)(C)(i), the added party must receive within

the limitations period “not only notice of the institution of an action but also notice of the

possibility that the putative new defendant may be a defendant in that action.” W. Contracting

Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir. 1989). As for the knowledge requirement

under Rule 15(c)(1)(C)(ii), an amendment may “relate back only where there has been an error

made concerning the identity of the proper party and where that party is chargeable with

knowledge of the mistake, but it does not permit relation back where . . . there is a lack of

knowledge of the proper party.’” Id. at 1201.

Defendants have not offered evidence nor argued that they will suffer prejudice from the

addition of the new defendants. They only argue that they were not provided fair notice “because

the claims in the original complaint clearly arose out of the alleged negligent operation of the

Hoyer lift and the alleged negligent provision of medical care to the Plaintiff.” (ECF No. 17 at 5.)

Defendants’ assertion of ignorance is unpersuasive as the original complaint unequivocally

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advances claims against both Wexford and Wexford employees premised not only on their use of

the Hoyer lift but also for continuing to do so while knowing that it presented a danger to Plaintiff.

(ECF No. 1-2 at 2 ¶ 7.) Wexford certainly would be able to identify and inform Tomlin and

Beegle, who are both still employed with Wexford, of Plaintiff’s claims. Beegle is a registered

nurse, allegedly responsible for overseeing the use of the Hoyer lift, and Tomlin is an

administrative assistant, allegedly responsible for providing Wexford with information about

equipment replacement orders. In fact, emails attached to the Amended Complaint demonstrate

that Beegle reported this specific incident to risk management and Tomlin provided the WVDOC

with information about a replacement sling. (ECF No. 1-2 at 10–12.) These defendants are also

being represented by the same counsel that has represented Wexford and Defendant Craig Smith

throughout this litigation. Under these circumstances, the Court is persuaded that these

defendants had adequate notice within the limitations period and will not be prejudiced by the

passage of time between the original pleading and the Amended Complaint.

The Fourth Circuit has held that “when a person is provided notice within the applicable

limitations period that he would have been named in the timely filed action but for a mistake, the

good fortune of a mistake should not save him.” Goodman, 494 F.3d at 472; Evans v. Martin,

No. 2:12-CV-03838, 2014 WL 2591281, at *3 (S.D. W. Va. June 10, 2014) (noting that “in cases

involving the substitution of John Doe defendants, the notice requirement of Rule 15(c)(1)(C)

provides adequate protection to the new party.”). The Fourth Circuit reasoned that Rule

15(c)(1)(C)’s “emphasis on notice, rather than on the type of ‘mistake’ that has occurred, saves the

courts not only from an unguided and therefore undisciplined sifting of reasons for an amendment

but also from prejudicing would-be defendants who rightfully have come to rely on the statute of

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limitations for repose.” Goodman, 494 F.3d at 473. Further, the Supreme Court in Krupski v.

Costa Crociere S.p.A., 560 U.S. 538 (2010) held that “relation back under Rule 15(c)(1)(C)

depends on what the party to be added knew or should have known, not on the amending party’s

knowledge or its timeliness in seeking to amend the pleading.” Id. at 541. In light of this

precedent, Defendants’ opposition to the addition of Tomlin and Beegle to this action is meritless

despite Plaintiff’s late discovery of their identities. See Vitullo v. Mancini, 684 F. Supp. 2d 747,

754 (E.D. Va. 2010) (permitting the addition of a new plaintiff and new claims where there was a

clear factual nexus between the new claims and the claim in the original complaint and where the

defendant had notice and made no argument that he was prejudiced by the amendments). The

Court finds that the requirements are satisfied for relation back under Rule 15(c), and, accordingly,

DENIES Defendants’ motion to dismiss all claims against Tomlin and Beegle as barred by the

statute of limitations.

B. Failure to Exhaust Administrative Remedies

Defendants argue that all claims asserted against them must be dismissed because Plaintiff

did not exhaust her administrative remedies in accordance with 2 U.S.C. § 1997e(a). (ECF No. 9

at 6–8.) Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner bringing an action

with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust all available

administrative remedies. See 42 U.S.C. § 1997e(a); Germain v. Shearin, 725 F. App’x 225, 227

(4th Cir. 2018). Exhaustion is mandatory, and courts may not excuse this statutory duty. See id.

(citing Ross v. Blake, ––– U.S. ––––, 136 S.Ct. 1850, 1856–57 (2016); Porter v. Nussle, 534 U.S.

516 (2002). An inmate’s failure to exhaust administrative remedies is an affirmative defense that

the defendant bears the burden of proving. See Jones v. Bock, 549 U.S. 199, 216–17 (2007).

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“[I]nmates are not required to specifically plead or demonstrate exhaustion in their complaints.”

Germain, 725 F. App’x at 227 (citing Jones, 549 U.S. at 216) (alteration in original). Rather,

“[a]n affirmative defense permits 12(b)(6) dismissal if the face of the complaint includes all

necessary facts for the defense to prevail.” Id. (citing Leichling v. Honeywell Int’l, Inc., 842 F.3d

848, 850–51 (4th Cir. 2016)); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (a complaint

may be dismissed on exhaustion grounds so long as the inmate is first given the opportunity to

address the issue).

Plaintiff responds that she is not subject to the exhaustion requirements because she was

not incarcerated at the time this action was filed in July 2017. (ECF No. at 16 at 7.) Plaintiff

submitted an affidavit stating she was discharged from Lakin in March of 2017, four months before

her original complaint was filed. (ECF No. 10-3 (Williams Affidavit).) Because Plaintiff was

no longer an inmate at the time she filed this action, the PLRA is not applicable. See Cantley v.

W. Virginia Reg’l Jail & Corr. Facility Auth., 728 F. Supp. 2d 803, 820 (S.D. W. Va. 2010) (citing

Cofield v. Bowser, 247 F. App’x 413, 414 (4th Cir. 2007) (holding that because the plaintiff “was

not a prisoner when he filed his complaint, the PLRA exhaustion requirement is not applicable to

his § 1983 action. A former inmate who has been released is no longer ‘incarcerated or detained’

for the purposes of § 1997e(h) and therefore does not qualify as a ‘prisoner’ subject to the PLRA”).

Even though the exhaustion requirements do not apply to Plaintiff’s claims, the Amended

Complaint categorically states that Plaintiff exhausted her administrative remedies. (ECF No. 1-

2 at 2–3 ¶ 8.) This allegation sufficiently withstands a Rule 12(b)(6) challenge. See Moore, 517

F.3d at 725 (stating, “inmates need not plead exhaustion, nor do they bear the burden of proving

it”). Accordingly, the Court DENIES Defendants’ motion on exhaustion grounds.

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C. Deliberate Indifference – Count I

Turning to their next argument, Defendants contend that Count I of the Amended

Complaint must be dismissed for failure to state a claim upon which relief may be granted. (ECF

No. 9 at 8–15.) In Count I, Plaintiff asserts a deliberate intent claim under 42 U.S.C. § 1983 for

violations of the Eighth Amendment. The Supreme Court held in Farmer v. Brennan, 511 U.S.

825, 832 (1994) that the Eighth Amendment to the Constitution “imposes duties on [prison]

officials who must provide humane conditions of confinement” to “ensure that inmates receive

adequate food, clothing, shelter, and medical care, and . . . ‘to guarantee the safety of the inmates.’”

In order to state an Eighth Amendment claim, a prisoner must allege sufficient facts to demonstrate

that a prison official “[knew] of and disregard[ed] an excessive risk to inmate health or safety.”

Id. at 837. Under the deliberate indifference standard, a prisoner must show that the official was

both “aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists,” that he actually drew that inference, and that he disregarded the risk by failing to

take “reasonable measure” to abate the risk. Id.

Here, Plaintiff alleges that the sling that caused her alleged injury was not properly

maintained and needed replaced, that it was unsafe and not suitable for moving Plaintiff, and that

the Wexford Defendants knew the sling was in disrepair yet failed to timely provide the necessary

information to procure a replacement. She also states that the Wexford Defendants continued to

authorize the use of the Hoyer lift despite having knowledge that it was in disrepair for

approximately six months and “that the conditions of the sling presented a danger to Plaintiff.”

(ECF No. 1-2 at 2 ¶ 4, 4 ¶ 16, 5 ¶ 20.) Accepting Plaintiff’s allegations as true, the Court finds

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that the Amended Complaint adequately states a deliberate indifference claim against the Wexford

Defendants.

With respect to Wexford, Plaintiff argues that Count I must be dismissed because the

Amended Complaint only makes a conclusory allegation that “Wexford has demonstrated a pattern

and practice of not expending the necessary funds to meet the needs of inmates.” (Id.) Because

Wexford is the alleged contracted medical provider for the WVDOC, a state agency, the deliberate

indifference standard is applicable to the conduct of Wexford and its individual employees, who

may be considered to be acting under color of state law. See West v. Atkins, 487 U.S. 42 (1998)

(explaining that a private entity which contracts with the state to provide medical services acts

“under color of state law”). However, “[a] private corporation is liable under § 1983 only when

an official policy or custom of the corporation causes the alleged deprivation of federal rights.”

Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999) (emphasis in original). While

the Court agrees that the assertion that Wexford has a pattern and practice of not expending

necessary funds is devoid of any factual enhancement, the Amended Complaint also alleges that

Wexford’s “pattern and practice of failing to provide timely intervention to inmates” caused

Plaintiff’s injury. (ECF No. 1-2 at 5 ¶ 22.) Plaintiff supports this assertion with factual

allegations that Wexford was responsible for providing the WVDOC with replacement information

and that it repeatedly delayed in providing such information with respect to replacement

components for the Hoyer lift. (Id. at 2 ¶ 4.) Although discovery may prove otherwise, at this

stage, Plaintiff has adequately alleged an improper custom or practice to proceed with her

deliberate indifference claim against Wexford.

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Plaintiff also claims in Count I that Defendants’ alleged conduct violated Article III § 5 of

the West Virginia Constitution and Legislative Rules 95-1-1, et seq. Plaintiff clarifies that these

state laws were referenced in the Amended Complaint simply to support her assertion that

Defendants had notice of their alleged duties imposed under clearly established law. (ECF No.

16 at 8.) The Amended Complaint does not assert a state constitutional claim, and to the extend

it does, this claim is dismissed based on Plaintiff’s concessions.4 Accordingly, the Court

DENIES Defendants’ motion to dismiss Count I.

D. Premises Liability – Count VI

Next, Defendants move to dismiss Plaintiff’s premises liability claim asserted in Count VI

of the Amended Complaint. Specifically, Defendants argue that this count fails to state a claim

upon which relief can be granted because neither Wexford nor the Wexford Defendants are owners

of the premises or the Hoyer device that is the subject of this litigation. (ECF No. 9 at 15–17.)

In order to state a negligence claim based on premises liability in West Virginia, a plaintiff must

allege that the owner or occupier of property owed a duty to a person injured, that the duty was

breached, and that the breach of duty caused an injury. See Hoschar v. Appalachian Power Co.,

906 F. Supp. 2d 560, 564 (S.D. W. Va. 2012), aff’d, 739 F.3d 163 (4th Cir. 2014) (citing Senkus

v. Moore, 535 S.E.2d 724, 727 (W. Va. 2000)). Importantly, “a defendant [generally] cannot be

held liable for a defective or dangerous condition of property which it does not own, possess or

control.” Conley v. Stollings, 679 S.E.2d 594, 598 (W. Va. 2009) (citations omitted).

4 Plaintiff also states that her negligent training and supervision claim asserted in Count II of the Amended Complaint

is brought against Wexford only, not Tomlin and Beegle. (ECF No. 16 at 10.) Therefore, Defendants’ motion to

dismiss Count II, insofar as it asserts a claim against Tomlin and Beegle, (ECF No. 9 at 17), is DENIED as moot.

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Here, Plaintiff makes no assertion that Wexford owned or controlled the premises (i.e.

Lakin), the Hoyer lift, or any of its components. To the contrary, the Amended Complaint

affirmatively states that the “WVDOC owned and provided the Hoyer lift.” (ECF No. 1-2 at 9 ¶

43.) Further, Plaintiff alleges that the WVDOC contracted with Wexford to simply provide health

services at its correctional institutions. (Id. at 1 ¶¶ 2–3.) The only inference that can be drawn

from these allegations is that the WVDOC owned, operated, and controlled the Hoyer lift at issue

and the Lakin facility where Plaintiff was allegedly injured. Plaintiff cites Carroll v. W. Va. Reg’l

Jail & Corr. Facility Auth., No. 3:14-cv-17012, 2015 WL 1395886 (S.D. W. Va. Mar. 25, 2015)

in attempt to rehabilitate her claim. However, Carroll simply stands for the proposition that the

owner of a jail where an inmate is housed—in that case, the Regional Jail Authority—can be liable

for premises liability. See id. at *6 (stating, “one ‘who takes charge of a third person’ is ‘under a

duty to exercise reasonable care to control’ that person to prevent him from causing reasonably

foreseeable ‘bodily harm to others.’” (internal citation omitted)). Plaintiff relies on her claim

that Wexford “played a role in properly maintaining the lift,” (ECF No. 16 at 9), but no facts are

offered in the Amended Complaint to support this assertion. Indeed, the emails attached to the

Amended Complaint demonstrate that Wexford simply provided replacement requests and

information to the WVDOC for procurement. (ECF No. 1-2 at 12, 1–2 ¶ 4.) Further, while it is

alleged that Wexford’s employees were authorized to use the Hoyer lift, this fact alone does not

support an inference that Wexford had control over or possessed a duty to maintain the device.

(See ECF No. 1-2 at 10 (stating that the WVDOC possessed the sling).) Accordingly, the Court

GRANTS Defendants’ motion to dismiss Plaintiff’s premises liability claim.

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E. Punitive Damages

As a final matter, Defendants move to dismiss Plaintiff’s claim for punitive damages

asserted in the “Wherefore” paragraph of her Amended Complaint. Defendants argue that

Plaintiff has not stated a plausible claim of “recklessness” or “malice” to warrant punitive damages

in this case. (ECF No. 9 at 18; ECF No. 18 at 15–16.) In West Virginia, punitive damages “may

be awarded ‘in actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless

conduct or criminal indifference to civil obligations affecting the rights of others appear.’” Harris

v. Kenan Advantage Grp., Inc., No. 2:18-cv-01264, 2018 WL 6182693, at *2 (S.D. W. Va. Nov.

27, 2018) (citing Lawson Heirs Inc. v. Skyway Towers, LLC, No. 2:17-cv-2198, 2018 WL 3381411

(S.D. W. Va. July 11, 2018) and syl. pt. 4, Mayer v. Frobe, 22 S.E. 58 (W. Va. 1895)). Further,

the West Virginia Supreme Court of Appeals has stated that reckless conduct occurs when “the

actor has intentionally done an act of an unreasonable character in disregard of a risk known to

him or so obvious that he must be taken to be aware of it, and so great as to make it highly probable

that harm would follow.” Id. (citing Holsten v. Massey, 490 S.E.2d 864, 877 (W. Va. 1997)).

Here, Plaintiff has demonstrated a sufficient factual basis for a claim of recklessness. In

particular, she alleges that Defendants acted with recklessness by continuing to use and authorize

the use of the Hoyer lift that they knew was defective and presented a safety risk. The Court

cannot conclude, at this juncture, that Plaintiff has failed to state a plausible claim for punitive

damages. See Durbin v. Ball Corp., No. 5:07-cv-115, 2008 WL 2704587, at *2 (N.D. W. Va.

July 3, 2008) (stating that “claims for punitive damages must not be dismissed unless ‘it is beyond

doubt that the plaintiff could prove no set of facts’ entitling him to such relief.” (citing Norris v.

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Detrick, 918 F. Supp 977 (N.D. W. Va. 1996))). Accordingly, the Court DENIES Defendants’

motion with respect to punitive damages.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the

motion. (ECF No. 7.) The Court GRANTS Defendants’ motion with respect to Count VI and

DISMISSES Plaintiff's premises liability claim against Wexford. The Court DENIES the

motion insofar as it seeks dismissal of any other remaining claim.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: February 13, 2020

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