Insco v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

MICHAEL INSCO,

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00612

WEXFORD HEALTH SOURCES, INC.;

PAM MOORE and JOHN/JANE DOE,

Defendants.

MEMORANDUM OPINION AND ORDER

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

(“Wexford”) and Pam Moore (“Moore”). (ECF No. 10.) For the reasons discussed below, the

motion, (ECF No. 10), is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff Michael Insco (“Plaintiff”) initiated this action under 42 U.S.C. § 1983 against

Defendants Wexford, Moore, and unidentified John/Jane Doe Wexford employees (collectively,

“Defendants”). Plaintiff is an inmate in the custody of the West Virginia Division of Corrections

and Rehabilitation (“WVDOC”) and is presently incarcerated at St. Mary’s Correctional Center in

St. Mary’s, Pleasant County, West Virginia. (ECF No. 8 at 3 ¶ 4.) The Amended Complaint

alleges that Plaintiff has repeatedly sought to receive treatment for his chronic Hepatitis C with

Direct-Acting Antiviral (“DAA”) drugs through WVDOC’s institutional health care provider,

1

Wexford. (Id. at 3 ¶¶ 5–6.) Plaintiff contends that Defendants have refused to treat Plaintiff with

DAA drugs “as requested”, (id. at 4 ¶ 7), because “he was not sick enough to warrant treatment,”

(id. at 6 ¶ 17). Specifically, the Amended Complaint alleges that on May 15, 2019, Plaintiff was

taken to the medical unit and seen by Moore for his liver pain. (Id. at 4 ¶ 6.) Plaintiff claims that

Moore told him to “stop submitting sick calls” and made other inappropriate comments in the

presence of correctional staff. (Id.)

On the same day, Plaintiff filed a grievance to the unit manager. (Id. at 4 ¶ 6; ECF No. 9

at 1–2 (Inmate Grievance).) Plaintiff’s grievance was denied on May 17, 2019, on the basis that

Plaintiff was “not being denied treatment for any issue.” (ECF No. 9 at 3.) The unit manager

attached Moore’s medical report, which stated that Plaintiff was “very adamant” about being given

[H]arvoni.” (Id.) The report went on to state that Moore “[a]ttempted to educate [Plaintiff] on the

procedure for surveillance of the virus” but was “[u]nable to get [Plaintiff] to understand or

complete any education on the subject.” (Id.) Plaintiff subsequently appealed the denial of the

grievance to the warden and ultimately the commissioner of the WVDOC. (Id. at 1.) On June 3,

2019, Plaintiff received his grievance back from the commissioner’s office denying all relief. (Id.)

Plaintiff’s Amended Complaint asserts three claims for deliberate indifference under 42

U.S.C. § 1983 in violation of the Eighth Amendment, intentional/reckless infliction of emotional

distress under West Virginia state law, and injunctive relief that directs Wexford to provide

Plaintiff with available and necessary treatment for Hepatitis C and to implement policies

regarding such treatment. (ECF No. 8.) Plaintiff claims Defendants’ conduct is based on

Wexford’s “corporate policy and practice to refuse the use of DAAs unless the inmate is critically

ill.” (Id. at 6 ¶ 17.) Further, he asserts that this “watch and wait approach . . . is not the medically

2

accepted standard,” (id. at 6 ¶ 16), and that this policy “arises from the desire to cut costs and

expenses regarding the treatment of inmates,” (id. at 6 ¶ 17). Plaintiff also contends that Wexford

has failed to include his complaints of pain in his medical record “in an intentional attempt to

minimize his symptoms and the seriousness of his condition.” (Id. at 4 ¶ 6.) He alleges that he

suffered physical and mental pain and is currently experiencing “excruciating pain” near his liver.

(Id.) On December 16, 2019, Defendants filed the pending motion to dismiss. (ECF No. 10.)

Plaintiff filed a timely response, (ECF No. 15), and Defendants timely replied, (ECF No. 18). 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

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;

3

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

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

In their motion to dismiss, Defendants challenge the merits of Plaintiff’s claims and assert

qualified immunity on behalf of Defendant Moore. Each argument is addressed below.

A. Section 1983 – Defendant Moore

Defendants assert that Defendant Moore is immune from liability under the doctrine of

qualified immunity1 because there is no clearly established right to be treated with DAA drugs for

1 The pleading only refers to “defendants” generally and does not directly state whether Moore is being sued in her

individual or official capacity. (See ECF No. 8 at 5–8.) However, a plaintiff need not expressly plead the capacity in

which he or she is suing a defendant in order to state a cause of action under § 1983. To determine the nature of a §

4

Hepatitis C. (ECF No. 11 at 4–6.) “The doctrine of qualified immunity shields government

officials from liability for civil damages when their conduct does not violate clearly established

constitutional or other rights that a reasonable officer would have known.” Sims v. Labowitz, 885

F.3d 254, 260 (4th Cir. 2018) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Determining

whether a governmental official is entitled to qualified immunity involves a two-part inquiry: (1)

whether the facts alleged or shown demonstrate that a depravation of a constitutional right has

occurred; and (2) whether that right was clearly established at the time of the alleged violation.

See Pearson, 555 U.S. at 232; Meyers v. Baltimore Cty., Md., 713 F.3d 723, 731 (4th Cir. 2013).

“A law is clearly established if ‘the contours of a right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’” West v.

Murphy, 771 F.3d 209, 213 (4th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

In that regard, the standard does not require “a prior case be identical to the case at bar for fair

notice to be provided.” Id. at 216. Rather, a law is clearly established “so long as ‘existing

precedent [has] placed the statutory or constitutional question beyond debate.’” Id. (internal

citation omitted). Put simply, qualified immunity “protects all but the plainly incompetent or those

who knowingly violate the law.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (internal

quotation marks omitted); see also Raub v. Campbell, 785 F.3d 876, 882 (4th Cir. 2015).

The government official bears the burden of proof and persuasion when asserting a

qualified immunity defense. See Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003). Additionally,

1983 suit, the Court looks to “the substance of the plaintiff’s claim, the relief sought, and the course of proceedings.”

Biggs v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995). Here, Count I states that “Defendants, while acting under the color

of state law, violated Plaintiff’s constitutional rights.” (ECF No. 8 at 5 ¶ 16 (emphasis added).) Thus, the Court

construes this claim as one against Moore in her individual capacity.

5

“[t]he Supreme Court has observed that the outcome of the ‘clearly established’ test depends

largely upon the level of generality at which the relevant legal rule is to be identified.” Smith v.

Gilchrist, 749 F.3d 302, 308 (4th Cir. 2014) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).

Therefore, “the right allegedly violated must be defined at the appropriate level of specificity

before a court can determine if it was clearly established.” Id. Here, Plaintiff disagrees with

Defendants’ definition of the right allegedly violated. While Defendants identify Plaintiff’s claim

as a disagreement over his course of treatment, Plaintiff contends that “he is in fact receiving no

drug or treatment” at all. (ECF No. 15 at 6.) Thus, as a preliminary matter, the Court must

determine the appropriate level of specificity to define the right allegedly violated.

1. The Right Allegedly Violated

As explained above, qualified immunity can be overcome only by clearly established law

governing the specific facts at hand. See Mullenix v. Luna, 136 S. Ct. 305, 308–09, 193 L.Ed.2d

255 (2015). The Supreme Court has repeatedly stressed “that courts must not define clearly

established law at a high level of generality, since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances that he or she faced.” D.C. v. Wesby, 138

S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018) (internal quotation marks and citation omitted). In

Wesby, the Supreme Court reemphasized that “[a] rule is too general if the unlawfulness of the

[defendant]’s conduct does not follow immediately from the conclusion that [the rule] was firmly

established.” Id. Here, Plaintiff frames the qualified immunity question in broad terms, asking

whether it is clearly established that denying treatment for a serious medical condition violates the

Eighth Amendment. (See ECF No. 15 at 6.) However, this formulation—which is essentially a

highly conceptualized version of the deliberate indifference standard—is the type of “broad

6

general proposition” that cannot overcome qualified immunity. See Mullenix, 136 S. Ct. at 308.

Rather, the proper inquiry is whether then-existing caselaw clearly established a

constitutional right to Hepatitis C treatment with DAA drugs. This specificity ensures that the

right was “sufficiently clear” so that “every reasonable official would have understood that what

he is doing violates that right.” West, 771 F.3d at 213. In this fact-intensive area of constitutional

law, a broader formulation would violate the Supreme Court’s instruction that the specific contours

of the right must be “sufficiently definite that any reasonable official . . . would have understood

that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).

Plaintiff’s assertion that he is receiving no medical treatment or care is in direct conflict

with his own allegations. First, Plaintiff admits that Moore examined him in the medical unit after

he submitted medical service requests. (ECF No. 8 at 4 ¶ 6.) Although Plaintiff was not prescribed

medication, Moore’s medical chart reflects that she discussed with Plaintiff the procedure for

Hepatitis C surveillance at this time. (ECF No. 9 at 3.) See Phelps v. Wexford Health Sources,

Inc., No. ELH-16-2675, 2017 WL 528424, at *9 (D. Md. Feb. 8, 2017) (collecting cases standing

for the proposition that “[Hepatitis C] does not require [medicinal] treatment in all cases”); see

also Edmonds v. Robbins, 67 F. App’x 872, 873 (6th Cir. 2003) (“[T]he medical literature which

[plaintiff] filed with the court also establishes that medication is not always required for the

treatment of hepatitis C.”). Plaintiff also acknowledges that Wexford’s “watch and wait approach”

is a medical standard, albeit outdated. (ECF No. 8 at 6 ¶ 16.)

Additionally, many of Plaintiff’s arguments clearly state that Defendants’ refusal to treat

him with DAA drugs violated his constitutional rights. For example, the Amended Complaint

alleges that “[t]he refusal to treat plaintiff with DAA’s demonstrates deliberate indifference to a

7

serious risk of harm to plaintiff by virtue of their ongoing refusal to provide treatment as requested

. . . .” (Id. at 4 ¶ 7 (emphasis added).) The Amended Complaint also states that “Defendants have

repeatedly violated Plaintiff’s constitutional rights . . . [by] failing to treat plaintiff with any number

of DAAs.” (Id. at 7 ¶ 19 (emphasis added).) In fact, directly following the assertion that he is not

receiving any treatment, Plaintiff states in his response brief that “depriving plaintiff of [DAA

drugs] is deliberate indifference to [his] serious medical condition.” (ECF No. 15 at 6.)

This is compounded by the fact that the lion’s share of Plaintiff’s Amended Complaint and

Memorandum in Opposition to Defendant’s Motion to Dismiss are spent discussing the medical

benefits of DAAs. In particular, Plaintiff provided five pages of decisions from federal and state

courts that have recognized that the failure to treat inmates with DAA drugs can state a plausible

Eighth Amendment claim. (Id. at 7–11.) Thus, despite his contention otherwise, it is apparent that

Plaintiff’s deliberate indifference claim is based on the denial of DAA drug treatment.

2. Qualified Immunity

Now that the right allegedly violated has been appropriately defined, the Court considers

whether Moore is entitled to qualified immunity. The Court may address either prong of the

qualified immunity analysis discussed above first. See Pearson, 555 U.S. at 242. In this case, the

Court will consider the second prong first because Defendants assert that there is no clearly

established right to DAA drug treatment for Hepatitis C. (See ECF No. 11 at 4–6.)

In determining whether the law was clearly established at the time of the claimed violation,

the Court “ordinarily need not look beyond the decisions of the Supreme Court, [the Fourth Circuit

Court of Appeals], and the highest court of the state in which the case arose.” Edwards v. City of

Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999). Thus, “in gray areas, where the law is unsettled or

8

murky, qualified immunity affords protection to a government official who takes an action that is

not clearly forbidden–even if the action is later deemed wrongful.” Gilchrist, 749 F.3d at 307.

In the present case, the “crucial question” is whether the Defendants acted reasonably in

the “particular circumstances,” i.e., refusing to treat Plaintiff’s Hepatitis C with DAA drugs. See

Plumhoff, 572 U.S. at 779. This Court recently considered the “particular circumstances” faced

by Defendants here in Redden v. Ballard, No. 2:17-cv-01549, 2018 WL 4327288 (S.D. W. Va.

July 17, 2018) (Report and Recommendation), proposed findings and recommendation adopted,

2018 WL 4323921 (S.D. W. Va. Sept. 10, 2018), aff’d, 748 F. App’x 545 (4th Cir. 2019). There,

the Court held that Wexford was entitled to qualified immunity for monetary damages arising out

of a claim for failure to treat the plaintiff with DAAs for Hepatitis C.2 Id. at *8. Although this

holding was adopted and affirmed because no timely objections were filed, the Fourth Circuit

could have reversed for plain error3 if the court had wanted to establish a right to DAA drugs in

light of recent medical advancements. Nonetheless, as the appellate court declined to do so, the

magistrate judge’s findings are still applicable.

In Redden, the magistrate judge found Cunningham v. Sessions, No. 9:16-cv-1292, 2017

WL 2377838 (D.S.C. May 31, 2017) to be particularly instructive. In Cunningham, the plaintiff

was an inmate, who sought and was denied treatment for Hepatitis C with the new generation of

DAA drugs. Id. at *1. Consequently, the plaintiff filed a complaint alleging that the defendants

violated his right to be free from cruel and unusual punishment under the Eighth Amendment and

2 The Northern District of West Virginia came to the same determination in an identical case. See Taylor v. Wexford

Health Sources Inc., No. 5:17-cv-173, 2018 WL 4761621 (N.D. W. Va. July 30, 2018), report and recommendation

adopted sub nom., 2018 WL 4102818 (N.D. W. Va. Aug. 28, 2018).

3 The Supreme Court has defined plain error as: (1) an error; (2) that is plain; (3) that affects substantial rights; and

(4) seriously affects the fairness, integrity or public reputation of the judicial proceedings. See United States v. Olano,

507 U.S. 725, 732–37 (1993). Clearly, failing to recognize a constitutional right would satisfy these elements.

9

sought declaratory and injunctive relief, as well as monetary damages. Id. at *2. Although the

court concluded that the refusal to provide curative therapy for Hepatitis C could plausibly state a

claim under the Eighth Amendment, the defendants were granted qualified immunity based on the

“rapidly evolving legal and medical developments and the absence of any controlling Fourth

Circuit or Supreme Court authority.” Id. at *4.

This Court finds that the reasoning set forth in Cunningham and Redden is convincing and

applicable here. For a constitutional right to be clearly established, its contours must be sufficient

such that “it would be clear to a reasonable official that his conduct was unlawful in the situation

he confronted.” Raub, 785 F.3d at 882. In light of medical developments and the lack of legal

authority establishing that the unlawfulness of Defendants’ course of action in this case is apparent,

Moore would not have been on notice of a “clearly established” right of Plaintiff to be treated with

DAA drugs. Thus, Moore is entitled to qualified immunity. Accordingly, the Court GRANTS

Defendants’ motion to the extent it seeks qualified immunity with respect to Defendant Moore.

B. Section 1983 – Wexford

Defendants also contend that Wexford is entitled to dismissal from Plaintiff’s 1983 claim

because (1) no official policy or custom has violated any of Plaintiff’s rights under the Eighth

Amendment, and (2) Plaintiff has failed to state a claim because the allegations are nothing more

than a disagreement in regard to the course of treatment for Plaintiff’s Hepatitis C. (ECF No. 11

at 6–9.)

Section 1983 is not itself the source of any substantive rights. Rather, it provides a “method

for vindicating federal rights elsewhere conferred by those parts of the United States Constitution

and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). In order

10

to prevail on a § 1983 claim, a plaintiff must show “that they were deprived of a right secured by

the Constitution or laws of the United States, and that the alleged deprivation was committed under

color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999); 42 U.S.C. §

1983. 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. See Monell v. Dep’t of Social

Servs., 436 U.S. 658, 694 (1978); see also Rowe v. PrimeCare Med. of W. Va., Inc., 3:04-cv-1264,

2009 WL 3063429, at *2 (S.D. W. Va. Sept. 21, 2009).

Here, Defendants assert that Plaintiff’s 1983 claim must be dismissed because there is no

official policy or custom that has violated Plaintiff’s rights under the Eighth Amendment.

Specifically, Defendants claim that “there is no right under the Eighth Amendment of the United

States Constitution to be prescribed DAA drugs such as Havroni.” (ECF No. 11 at 7.)

Nonetheless, Plaintiff alleges that Wexford, “through deliberate indifference to his safety,

wellbeing, and personal needs,” has developed and maintained an unconstitutional policy that

denies him adequate medical treatment. (ECF No. 8 at 5–6 ¶¶ 16–17.) It is well-established that

“deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and

wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,

104 (1976) (internal citations omitted). Thus, Defendants’ first argument has no merit.

Next, Defendants argue that Plaintiff has failed to state a claim for deliberate indifference

because the allegations are nothing more than a disagreement in regard to the course of treatment

for Plaintiff’s Hepatitis C. (ECF No. 11 at 7.) Plaintiff counters that he has adequately pled a

claim for deliberate indifference because Wexford had specific knowledge of his serious medical

condition and failed to provide adequate treatment. (ECF No. 15 at 6.)

11

An Eighth Amendment claim based on deliberate indifference to serious medical needs has

two prongs, one objective and one subjective. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);

De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013). “Objectively, the inmate’s medical

condition must be ‘serious’—‘one that has been diagnosed by a physician as mandating treatment

or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.’” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Iko v. Shreve, 535

F.3d 225, 241 (4th Cir. 2008)). The subjective prong goes to culpability, and in “prison-conditions

cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer,

511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)).

To establish a constitutional violation, a prisoner must establish that, “a [prison official],

subjectively aware of the need and of its seriousness, nevertheless acted with ‘deliberate

indifference’ to it by declining to secure available medical attention.” Brice v. Va. Beach Corr.

Ctr., 58 F.3d 101, 104 (4th Cir. 1995) (citation omitted). Deliberate indifference is a “higher

standard for culpability than mere negligence or even civil recklessness, and as a consequence,

many acts or omissions that would constitute medical malpractice will not rise to the level of

deliberate indifference.” Jackson, 775 F.3d at 178. What is required is both awareness and

disregard of an “excessive risk” to inmate health or safety; “the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference.” Farmer, 511 U.S. at 837.

Whether a given prison official exhibits deliberate indifference is “a question of fact subject

to demonstration in the usual ways, including inference from circumstantial evidence.” Id. at 842;

see also White by White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (noting that a claim of

12

deliberate indifference “implies at a minimum that defendants were plainly placed on notice of a

danger and chose to ignore the danger notwithstanding the notice”). Where the evidence

demonstrates that an official “merely refused to verify ‘underlying facts that he strongly suspected

to be true,’ which, if verified, would have compelled him to realize that the claimant needed

immediate medical attention, or that he ‘declined to confirm inferences of risk that he strongly

suspected to exist,’” that official can be held liable notwithstanding his actual ignorance of the

medical need at issue. See id. (quoting Farmer, 511 U.S. at 843 n.8).

Under this standard, courts have emphasized that “[d]isagreements between an inmate and

a physician over the inmate’s proper medical care do not state a § 1983 claim unless exceptional

circumstances are alleged.” Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing

Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)); see also Jackson, 775 F.3d at 178. At the

same time, however, a prisoner need not be subjected to a total failure of medical treatment to state

a claim, and the fact that he received some treatment does not by itself doom an Eighth Amendment

claim. See De’Lonta, 708 F.3d at 526 (rejecting argument that the provision of some treatment for

the serious medical need at issue “necessarily” rendered the plaintiff’s claim of deliberate

indifference legally insufficient and stating that “just because [defendant officials] have provided

[the plaintiff] with some treatment . . . it does not follow that they have necessarily provided her

with constitutionally adequate treatment”); Jehovah v. Clarke, 798 F.3d 169, 181 (4th Cir. 2015)

(finding a § 1915A dismissal improper, even where the plaintiff received “extensive” treatment

from the doctor defendants, where the treatment provided was nonetheless “consistent with the

[plaintiff’s] allegation that his doctors ignored and failed to treat many of his symptoms”); Scott v.

Clarke, 64 F. Supp. 3d 813, 839 (W.D. Va. 2014) (finding a prison’s “failure to require or

13

undertake corrective action and its ‘hands-off’ attitude towards its medical care contractors,”

resulting in sub-standard medical care, sufficient to allow finding of deliberate indifference).

Ultimately, “[a] constitutional violation is . . . established when government officials show

deliberate indifference to those medical needs which have been diagnosed as mandating treatment,

conditions which obviously require medical attention, conditions which significantly affect an

individual’s daily life activities, or conditions which cause pain, discomfort or a threat to good

health.” Lynch v. Wexford Health Sources, No. 2:13-cv-01470, 2016 WL 2944688, at *7 (S.D. W.

Va. May 20, 2016) (internal citations omitted). At this stage in the litigation, Plaintiff has made

sufficient factual allegations to raise his right to relief above the speculative level and state a claim

for deliberate indifference to serious medical needs. As to the objective prong of the analysis,

Plaintiff specifically alleges that he has been diagnosed with chronic Hepatitis C, “a serious liver

disease, which if left untreated, can be terminal. (ECF No. 8 at 3 ¶ 4.) To this point, Defendants

do not disagree. (See ECF No. 18 at 1.)

With respect to the second prong, regarding the deliberate indifference of Wexford officials

towards Plaintiff’s serious medical needs, Plaintiff has similarly set forth sufficient factual

allegations to state an Eighth Amendment claim. Plaintiff alleges that Wexford’s policy of

refusing to treat Hepatitis C with drugs that are known to provide a cure has caused him to

experience “excruciating pain in the area of his liver.” (ECF No. 8 at 4 ¶ 6.) Additionally, Plaintiff

alleges that Wexford refused to follow guidelines from medical experts with the American

Association for the Study of Liver Disease and the Infectious Disease Society of America, which

recommend administering DAA drugs to all patients with chronic Hepatitis C infection. (Id. at 3

¶ 5.) According to the Amended Complaint, this standard of care has also been accepted by the

14

Centers for Disease Control and Prevention. (Id.) Further Plaintiff alleged that he was told that

“if [he] w[as] in the free world, [his] MD would refer [him] to a hepatologist.” (ECF No. 9 at 1.)

Thus, Plaintiff alleges that Wexford had “no valid medical reason” to deny him DAAs other than

to avoid “incur[ring] the cost of said treatment.” (Id. at 5 ¶ 16.)

Defendants argue that this is merely a “disagreement with medical personnel regarding the

proper course of treatment,” and that Plaintiff is “essentially seeking a ruling that any and all

diagnosed Hepatitis C patients are constitutionally entitled to select the timeline and manner of

their treatment.” (ECF No. 18 at 3). The Court disagrees. Such allegations raise an inference that

the necessary medical treatment was not provided. To this, Defendants counter that not all cases

of Hepatitis C require treatment and cite caselaw to support. (ECF No. 18 at 2–3.) However, these

cases are easily distinguishable.

First, some cases Defendants cite involved inmates who were disqualified from receiving

treatment based on medical reasons. See, e.g., Johnson v. Wright, 412 F.3d 398, 400 (2nd Cir.

2005) (describing policy that recommended denying treatment with particular drugs if substance

abuse existed); Phelps, 2017 WL 528424, at *2 (“due to potential side effects of HCV antiviral

treatment, an inmate will not be considered for antiviral therapy if he or she is asymptomatic and

demonstrates an undetectable viral load.”). Second, some cases involved inmates whose Hepatitis

C was not advanced enough to receive treatment. See, e.g., Iseley v. Dragovich, 90 F. App’x 577,

581 (3rd Cir. 2004) (noting that the inmate did not dispute that his condition had not yet progressed

to point where such treatment would have been appropriate); Phelps, 2017 WL 528424, at *1

(noting that the inmate was asymptomatic with an undetectable viral load). Third, almost all the

cases noted that the inmate was at least being monitored regularly. See, e.g., id.

15

Whereas, in this case, Plaintiff has alleged that he has chronic Hepatitis C and the medical

treatment he received amounted to “no treatment.” (ECF No. 15 at 6.) In fact, rather than being

regularly monitored, Plaintiff alleges that he was told to “stop submitting sick calls.” (ECF No. 8

at 4 ¶ 6.) The result, according to Plaintiff’s allegations, ultimately left him in “excruciating pain.”

(Id.) Thus, if true, Wexford’s policy would demonstrate deliberate indifference towards Plaintiff’s

Hepatitis C. See McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (“A core principle of

Eighth Amendment jurisprudence in the area of medical care is that prison officials with

knowledge of the need for care may not, by . . . providing grossly inadequate care, cause a prisoner

to needlessly suffer the pain resulting from his or her illness.”); De’lonta, 708 F.3d at 525.

Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiff’s deliberate indifference

claim for failure to state a claim.

C. Failure to Exhaust Administrative Remedies

As a state prisoner, Plaintiff is bound by the mandatory requirements of the Prison

Litigation Reform Act (“PLRA”), which prohibits incarcerated individuals from the

commencement of a civil action regarding prison conditions and mistreatment without first

exhausting all available administrative remedies. See 42 U.S.C. 1997e(a) (“No action shall be

brought with respect to prison conditions under section 1983 of this title, or any other Federal law,

by a prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.”). The Supreme Court has explicitly held “that failure to

exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially

plead or demonstrate exhaustion in their complaints.” Jones v. Block, 549 U.S. 199, 216 (2007).

However, a prisoner’s complaint may be dismissed in the “rare case” where the prisoner’s failure

16

to exhaust is apparent from the face of the complaint. Wilcox v. Brown, 877 F.3d 161, 167 (4th

Cir. 2017) (quoting Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005)).

Similarly, the West Virginia Prisoner Litigation Reform Act (“WV PLRA”) requires an

inmate to exhaust the agency’s procedures before filing a civil action involving an ordinary

administrative remedy. See W. Va. Code § 25-1A-2(c). An “ordinary administrative remedy” is

defined as “a formal administrative process by which an inmate submits a grievance seeking

redress or presenting concerns regarding any general or particular aspect of prison life which does

not involve violence . . . An ordinary administrative remedy includes, but is not limited to, . . . staff

treatment or some other alleged wrong.” W. Va. Code § 25-1A-2(a). The WV PLRA provides:

An ordinary administrative remedy is considered exhausted when the inmate’s

grievance complies with duly promulgated rules and regulations regarding inmate

grievance procedures, has been accepted, fully appealed and has received a final

decision from the Commissioner of Corrections or the Commissioner’s designee,

or the Executive Director of the Regional Jail Authority, or the Director’s designee.

W. Va. Code § 25-1A-2(d).

Claims that have not been administratively exhausted may be dismissed under the standard

of Federal Rule of Civil Procedure 12(b)(6). See, e.g., Baker v. Hammons, No. 2:15-cv-13849,

2016 WL 538481, at *2–3 (S.D. W. Va. Feb. 9, 2016) (granting defendant’s motion to dismiss for

failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) and W. Va. Code § 25-1A-

2). Additionally, where “a prisoner’s complaint contains a mix of exhausted and unexhausted

claims, the Court may not consider the unexhausted claims.” Stohl v. E. Reg’l Jail, No. 1:14-cv-

109, 2015 WL 5304135, at *4 (N.D. W. Va. Sept. 8, 2015) (citing Jones, 549 U.S. at 220–21).

Here, Defendants argue that Plaintiff has failed to exhaust his administrative remedies for

alleged treatment that occurred before May 1, 2019. (ECF No. 11 at 12.) Defendants explain that,

17

“[w]hile the Amended Complaint makes specific reference only to a single incident,” it

nonetheless alleges that Plaintiff’s particular requested Hepatitis C treatment was “denied [] on a

number of occasions.” (Id.) Plaintiff’s May 15, 2019 grievance is the only grievance referenced

in Plaintiff’s Amended Complaint. Thus, Defendants argue that Plaintiff has failed to exhaust his

administrative remedies “for alleged treatment denials which occurred before May 1, 2019,” (id.),

the length of the fifteen-day grievance period prior to his actual grievance filing. See W. Va. Code

R. § 90-9-4.1 (providing that an inmate may file a grievance using forms provided by the prison

“within fifteen (15) days of any occurrence that would cause him/her to file a grievance.”).

Defendants’ argument misrepresents the basis of Plaintiff’s claims. Plaintiff does not

challenge each instance of treatment as Defendants’ suggest. Rather, he claims that Wexford

maintained an unconstitutional policy or practice “to refuse the use of DAAs unless the inmate is

critically ill.” (ECF No. 8 at 6 ¶ 17.) In that regard, Plaintiff’s May 15, 2019 grievance complained

that he was “deni[ed] [] access to a hepatologist” and was told that “if [he] w[as] in the free world,

[his] MD would refer [him] to a hepatologist.” (ECF No. 9.) Plaintiff further alleged he was

“denied medical treatment” for his Hepatitis C despite his expressed “emotional duress, pain in

side, [and] loss of sleep.” (Id. at 2.) Thus, Plaintiff sufficiently grieved the implementation and

application of the Wexford policy that purportedly refused the use of DAAs unless the inmate was

critically ill.

The PLRA’s exhaustion requirement was designed to afford prison officials a chance to

address inmate complaints internally, prior to the filing of federal litigation. See Porter v. Nussle,

534 U.S. 516, 517 (2002); see also Wilcox, 877 F.3d at 167 n.4 (explaining that a grievance alerts

“the prison to the nature of the wrong for which redress is sought”). In other words, the purpose

18

of the grievance is to provide prison officials a “fair opportunity” to address an inmate’s complaint.

See Woodford v. Nero, 548 U.S. 81, 81 (2006); Anderson, 407 F.3d at 682.

Plaintiff’s May 15, 2019 grievance certainly provided the institution with a “fair

opportunity” to respond to Plaintiff’s complaints about his medical treatment, or lack thereof.

More importantly, this grievance alerted prison officials to the alleged problem in the healthcare

unit and permitted prison officials (who knew that Wexford was the healthcare contractor for the

prison) to examine whether Wexford’s policies or practices were the cause of Plaintiff’s

complaints regarding his treatment. For these reasons, the Court finds that Plaintiff’s May 25,

2019 grievance was sufficient to exhaust his claim against Defendants. Accordingly, Defendants’

motion is DENIED insofar as it seeks to dismiss any portion of Plaintiff’s Amended Complaint

for failure to exhaust administrative remedies.

D. Intentional/Reckless Infliction of Emotional Distress

Next, Defendants argue that Plaintiff has failed to state a claim for intentional infliction of

emotional distress because the alleged conduct was not outrageous. (ECF No. 11 at 9–11.)

Plaintiff’s state law tort claim for the intentional infliction of emotional distress is based on the

same facts giving rise to his § 1983 claim. (See ECF No. 8 at 7–8.) This Court will exercise its

supplemental jurisdiction over this state tort claim, as it forms part of the same case or controversy

as the federal claim. See 28 U.S.C. § 1367(a).

In West Virginia, “[o]ne who by extreme and outrageous conduct intentionally or

recklessly causes severe emotional distress to another is subject to liability for such emotional

distress . . . .” Syl. pt. 6, Harless v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 694 (W. Va.

1982). The West Virginia Supreme Court of Appeals has set forth the following elements

19

necessary to establish intentional infliction of emotional distress:

(1) That 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 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 Labs., 504 S.E.2d 419, 425 (W. Va. 1998). This claim requires conduct

that is “more than unreasonable, unkind or unfair; it must truly offend community notions of

acceptable conduct.” Id. at 425 (citation omitted). In fact, “it is not enough that the defendant

acted with a tortious intent” or even that “the defendant’s conduct could be characterized as

malicious.” Philyaw v. E. Associated Coal Corp., 633 S.E.2d 8, 14 (W. Va. 2006) (internal

citations omitted). Rather, liability depends upon whether the conduct has been so extreme and

outrageous “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va. 1990)

(emphasis removed). Alleged “conduct that is merely annoying, harmful of one’s rights or

expectations, uncivil, mean-spirited, or negligent does not constitute outrageous conduct.”

Courtney v. Courtney, 413 S.E.2d 418, 423–24 (W. Va. 1991) (internal citations omitted).

Defendants argue that Plaintiff’s allegations “cannot reasonably constitute the level of

outrageous conduct necessary to satisfy the first element of the Travis test.” (ECF No. 11 at 11.)

The Court disagrees and finds that the allegations support an inference that Defendants’ actions

amounted to extreme and outrageous conduct or exceeded “all possible bounds of decency.”

Travis, 504 S.E.2d at 425. Plaintiff alleged that Defendants knew of his medical issue and the

substantial risk of harm Hepatitis C poses. Instead of providing him treatment, Plaintiff alleges

20

that he was told to stop submitting sick calls and has suffered from pain as a result. Taken as true,

the conduct alleged here is certainly more than “merely annoying” or “uncivil.” It therefore

follows that Plaintiff’s claim is sufficiently pled. Accordingly, the Court DENIES Defendants’

motion to dismiss Plaintiff’s intentional/reckless infliction of emotional distress claim for failure

to state a claim.

E. Injunctive Relief

Finally, Defendants argue that Plaintiff’s claim for injunctive relief must be dismissed as

moot because “the condition which forms the basis of the Plaintiff’s Complaint occurred at

Northern Correctional Facility,” but “[Plaintiff] is presently incarcerated at St. Mary’s Correctional

Center.” (ECF No. 11 at 14.)

To be sure, under well-established Fourth Circuit precedent, the transfer or release of an

inmate from the facility where he suffered the challenged conditions “moots his claims for

injunctive and declaratory relief” pertaining to his imprisonment. Incumma v. Ozmint, 507 F.3d

281, 286–87 (4th Cir. 2007). But, the Fourth Circuit has explained that this is because a plaintiff’s

release from prison “le[aves] [the court] without a ‘case or controversy’ to decide.” United States

v. Hardy, 545 F.3d 280, 284 (4th Cir. 2008); see also Powell v. McCormack, 395 U.S. 486, 496

(“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the out-come.”); see also DeFunis v. Odegaard, 416 U.S. 312, 316

(1974) (per curiam) (stating that federal courts are “without power to decide questions that cannot

affect the rights of litigants in the case before them”).

Whereas, in the present case, the parties still have “a legally cognizable interest in the

outcome,” and this Court still has the “power to decide questions that [can] affect the rights of the

21

litigants.” In an identical case, the Northern District of West Virginia reasoned, “the plaintiff's

claims relate to Wexford,” and “[b]ecause Wexford provides medical care at all WVDOC

facilities,” plaintiff's transfer does not make his claim moot. Taylor v. Wexford Health Sources

Inc., No. 5:17-cv-173, 2018 WL 4761621, at *1 n.1 (N.D. W. Va. July 30, 2018). Accordingly,

for these reasons, the Court DENIES Defendants’ motion to dismiss Plaintiff's claim for

injunctive relief.

IV. CONCLUSION

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

Defendants’ Motion to Dismiss. (ECF No. 10.) Insofar as Defendants claim Moore is entitled to

qualified immunity, the Court GRANTS the motion and DISMISSES Plaintiff's § 1983 claim

with respect to Moore only. The Court DENIES the motion on all other grounds.

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: May 28, 2020

Et _

THOMAS E. JOHNSTON, CHIEF JUDGE

22