Graening v. Wexford Health Sources, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

TYLER HOWARD GRAENING

Plaintiff,

v. CIVIL ACTION NO. 1:20-00400

WEXFORD HEALTH SERVICES, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is the motion to dismiss of

defendants Dr. Servillano Garcia,1 Tara Morgan, and Wexford

Health Services, Inc. (ECF No. 13.) For the reasons that

follow, the court will grant the motion in part.

I. Background

Plaintiff, a state prisoner, commenced this § 1983 action

on June 11, 2020, against several defendants, including Wexford

Health Sources (“Wexford”), Dr. Servillano Garcia (“Dr.

Garcia”), and Tara Morgan (“Ms. Morgan”) (collectively,

“defendants”). He alleges that defendants have been

deliberately indifferent to his medical needs in violation of

1 The court notes that because the complaint names “Dr. Oscar

Garcia,” this is the name on the docket. The briefing, however,

refers to Dr. Servillano Garcia without noting that the name on

the docket should be corrected. The court will assume that Dr.

Servillano Garcia is the same person as the Dr. Oscar Garcia

named in the complaint.

the Eighth Amendment. Specifically, he says that defendants

refused to provide needed medical care to diagnose and treat

“pain in his ear, ringing, vertigo, and hearing loss,” which

began in September 2019. (ECF No. 3, at 3.)

He says that when his symptoms became more severe despite

Dr. Garcia’s prescription of antibiotics and vertigo medicine,

he asked to see an ear, nose, and throat specialist (“ENT”).

The attending nurse, Randall New (“New”), told him that Wexford

was not approving such requests “unless the inmate was dead or

dying.” (Id.) Dr. Garcia did not correct New’s statement, nor

did he refer plaintiff to an ENT. Plaintiff filed grievances,

appealed the denials, and eventually received a recommendation

from the Director of Correctional Healthcare for referral to an

ENT. As of May 18, 2020, an ENT had not evaluated him, and he

had stopped receiving any care for his symptoms.

He further alleges that Wexford’s goal is to “delay, delay,

delay” referrals to specialists. (Id.) Wexford automatically

denies referrals initially, forcing inmates to go through the

grievance process, and does not act until the grievance process

compels action. By that time, many inmates in need of referrals

have transferred or made parole.

On June 25, 2020, after completing an initial screening of

plaintiff’s complaint, Magistrate Judge Aboulhosn granted

plaintiff’s application to proceed without prepayment of fees

and ordered the Clerk to serve process on defendants.

On July 21, 2020, defendants filed this motion. They argue

that the facts alleged do not rise to the level of deliberate

indifference; all the facts describe is a difference of opinion

between patient and doctor regarding what the appropriate

“course of treatment” is. (ECF No. 14, at 5.) Further, Dr.

Garcia and Ms. Morgan argue that qualified immunity precludes

plaintiff’s claim against them because the right that plaintiff

alleges was not firmly established as part of the Eighth

Amendment. Finally, Wexford argues that the only fact alleging

a custom or practice is an off-hand statement by a low-level

employee of Wexford, which is insufficient to state a Monell

claim.

Plaintiff obtained counsel and opposed the motion.2

Plaintiff argues that his claim is about more than simply the

denial of a referral: It is about the refusal to provide him

with needed medical care. He argues that Dr. Garcia knew the

symptoms were getting worse, but did not complete any diagnostic

2 Plaintiff attached declarations to his opposition, which the

court will not consider in deciding this motion to dismiss. See

Jackson v. Sagal, 370 F. Supp. 3d 592, 598 (D. Md. 2019)

(explaining that courts have complete discretion whether to

accept outside material and convert motions to dismiss into

summary judgement motions or to not consider outside material).

tests to uncover the source of the problem. Further, he argues

that even if his claim were simply about the refusal to refer,

he would state a claim. He argues that refusal to provide the

evaluation that Dr. Garcia knew he needed has resulted in severe

pain and possibly permanent hearing loss.

Plaintiff further argues that neither Dr. Garcia nor Ms.

Morgan is entitled to qualified immunity because the right – to

receive medical treatment for a serious medical condition – “has

been clearly established for decades.” (ECF No. 21, at 6.)

Finally, plaintiff argues that the statement from New is a

sufficient fact to ground a claim that Wexford has a de facto

policy of wrongfully withholding referrals to specialists.

On reply, defendants stress their argument that this case

is indistinguishable from a previous case in this district, and

there, the complaint was dismissed. Defendants urge the court

to reach the same result here. They also reiterate that the

statement by New is insufficient to show the requisite custom or

policy because it is only a single instance of the alleged

conduct, and New was a “low-level employee without policymaking

authority.” (ECF No. 24, at 5.) Defendants also argue that

plaintiff’s allegation of such a policy is inconsistent with

plaintiff’s allegation that Ms. Morgan said she would confer

with Dr. Garcia about a potential referral.

II. Legal Standard

“The purpose of a Rule 12(b)(6) motion is to test the

[legal] sufficiency of a complaint; importantly, [a Rule

12(b)(6) motion] does not resolve contests surrounding the

facts, the merits of a claim, or the applicability of defenses.”

Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.

1999) (citations and internal quotation marks omitted). A Rule

12(b)(6) defense asserts that even if all the factual

allegations in a complaint are true, they remain insufficient to

establish a cause of action. This court is also mindful that

“[w]hether a particular ground for opposing a claim may be the

basis for dismissal for failure to state a claim depends on

whether the allegations in the complaint suffice to establish

that ground, not on the nature of the ground in the abstract.”

Jones v. Bock, 549 U.S. 199, 215 (2007).

Related to this, Federal Rule of Civil Procedure 8(a)(2)

requires that “a pleading . . . contain a ‘short and plain

statement of the claim showing that the pleader is entitled to

relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677—78 (2009)

(citing Fed. R. Civ. P. 8(a)(2)). The purpose of Rule 8(a)(2)

is to ensure that “the defendant [receives] fair notice of what

the . . . claim is and the grounds upon which it rests.” Conley

v. Gibson, 355 U.S. 41, 47 (1957). A plaintiff must allege

“‘enough facts to state a claim to relief that is plausible on

its face’” and “‘raise a right to relief above the speculative

level.’” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

615 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

The United States Supreme Court has maintained that

“[w]hile a complaint . . . does not need detailed factual

allegations, . . . a plaintiff’s obligation to provide the

grounds of his 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.” Twombly, 550 U.S. at 555

(citations and internal quotation marks omitted). The court

need not “accept as true unwarranted inferences, unreasonable

conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D.

Assocs. Ltd P’ship, 213 F.3d 175, 180 (4th Cir. 2000). Courts

must also take care to avoid confusing the veracity or even

accuracy underlying the allegations that a plaintiff has leveled

against a defendant with the allegations’ likelihood of success.

While “the pleading must contain something more . . . than . . .

a statement of facts that merely creates a suspicion [of] a

legally cognizable right of action,” 5 C. Wright & A. Miller,

Federal Practice and Procedure § 1216, pp 235-36 (3d ed. 2004),

“assum[ing]” of course “that all the allegations in the

complaint are true (even if doubtful in fact),” Twombly, 550

U.S. at 555, it is also the case that “Rule 12(b)(6) does not

countenance . . . dismissals based on a judge’s disbelief of a

complaint’s factual allegations.” Neitzke v. Williams, 490 U.S.

319, 327 (1989). Therefore, courts must allow a well-pleaded

complaint to proceed even if it is obvious “that a recovery is

very remote and unlikely.” Scheuer v. Rhodes, 416 U.S. 232, 236

(1974).

“A document filed pro se is to be liberally construed, and

a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations

and quotation marks omitted).

III. Discussion

Plaintiff adequately states a claim for deliberate

indifference, but his claim falls within a gray area of the law;

accordingly, Dr. Garcia and Ms. Morgan are entitled to qualified

immunity. As to Wexford, plaintiff adequately states a Monell

claim.

a. Dr. Garcia and Ms. Morgan

1. Sufficient Facts to State a Claim

Defendants argue that plaintiff fails to state a claim

because the facts he alleges amount to no more than non-

actionable disagreement over a course of treatment. Because

plaintiff has sufficiently alleged exceptional circumstances

that would make such a claim actionable, and because it is

unclear at this stage whether the denial of the referral was

actually the product of medical judgment, the court disagrees.

A claim under § 1983 requires an independent violation of

federal law. See 42 U.S.C. 1983; Lambert v. Williams, 223 F.3d

257, 260 (4th Cir. 2000). When that federal law is the Eighth

Amendment, and the context is prison medical care, the facts

alleged must rise to the level of “deliberate indifference” to

the inmate’s serious medical needs. Jackson v. Lightsey, 775

F.3d 170, 178 (4th Cir. 2014). The objective and subjective

elements of deliberate indifference are, respectively, (1) the

existence of a serious medical condition afflicting an inmate;

and (2) a state actor’s knowledge of, and disregard for, “an

excessive risk to” the inmate’s “safety or health” arising from

that medical condition. Id. (quoting Farmer v. Brennan, 511

U.S. 825, 837 (1994)). If there is no deliberate indifference,

there is no “cruel and unusual punishment” under the Eighth

Amendment. See id.3

“Deliberate indifference is a high standard.” DePaola v.

Clarke, 394 F. Supp. 3d 573, 594 (W.D. Va. 2019); see also

Jackson, 775 F.3d at 178 (“exacting”); Formica v. Aylor, 739 F.

App’x 745, 755 (4th Cir. 2018) (“a high bar”); Grayson v. Peed,

3 Because defendants do not appear to dispute the objective

element, the court will assume that it is met for purposes of

this motion.

195 F.3d 692, 695 (4th Cir. 1999) (“very high”). The question

is not whether the state actor should have known of the risk,

but whether the state actor “had actual subjective knowledge of

both the inmate’s serious medical condition and the excessive

risk posed by the official's action or inaction.” Jackson, 775

F.3d at 178. Knowledge of facts from which an inference of

excessive risk could be drawn is not enough; the state actor

must actually draw such an inference. Farmer, 511 U.S. 825 at

837. This is because the Eighth Amendment protects against

punishments, not conditions. Id. at 838. Accordingly, unless

the state actor actually knows he is putting an inmate’s safety

or health at an excessive risk, and chooses to do so anyway, his

ultimately harmful action or inaction, “while no cause for

commendation,” is not “the infliction of punishment.” Id. “The

necessary showing of deliberate indifference can be manifested

by prison officials in responding to a prisoner’s medical needs

in various ways, including intentionally denying or delaying

medical care, or intentionally interfering with prescribed

medical care.” Formica, 739 F. App’x at 754 (emphasis in

original). Courts should be mindful of the different interests

that tort law and the Eighth Amendment serve. Farmer, 511 U.S.

at 838; see also Petties v. Carter, 836 F.3d 722, 736 (7th Cir.

2016) (Easterbrook, J., dissenting) (courts should not

“constitutionalize tort law”).

The default rule is that claims based on insufficient

diagnostic efforts are not within the ambit of the Eighth

Amendment because the scope of diagnostic efforts is a medical

judgment. See Estelle v. Gamble, 429 U.S. 97, 107 (1976). In

Estelle, the plaintiff injured his back when a heavy bale of

cotton fell on him. Id. at 99. Two months later, he was still

in too much pain to work, even when threatened with disciplinary

action. Id. at 100-01. In reversing the Fifth Circuit’s

determination that the insufficient diagnostic efforts violated

the Eighth Amendment, Justice Thurgood Marshall explained the

Court’s reasoning as follows:

The doctors diagnosed [Respondent’s] injury as a lower

back strain and treated it with bed rest, muscle

relaxants and pain relievers. Respondent contends

that more should have been done by way of diagnosis

and treatment, and suggests a number of options that

were not pursued. The Court of Appeals agreed,

stating: “Certainly an x-ray of (Gamble’s) lower back

might have been in order and other tests conducted

that would have led to appropriate diagnosis and

treatment for the daily pain and suffering he was

experiencing.” But the question whether an X-ray or

additional diagnostic techniques or forms of treatment

is indicated is a classic example of a matter for

medical judgment. A medical decision not to order an

X-ray, or like measures, does not represent cruel and

unusual punishment. At most it is medical

malpractice, and as such the proper forum is the state

court under the Texas Tort Claims Act. The Court of

Appeals was in error in holding that the alleged

insufficiency of the medical treatment required

reversal and remand. That portion of the judgment of

the District Court should have been affirmed.

Id. at 107-08 (citations omitted).

At oral argument at the Supreme Court, Mr. Gamble’s counsel

had argued that when a case involves “refusal to conduct a

subsequent diagnosis, and if necessary change the treatment, you

are not really talking about just diagreement [sic] with the

diagnosis, you are talking about a refusal to conduct a

subsequent diagnosis in the face of persisting symptoms.” Tr.

of Oral Arg. 28. The Supreme Court declined the invitation to

understand insufficient diagnostic efforts as distinct from

medical judgments and made clear that disagreement with such

medical judgments is the domain of tort law, not civil rights

law. Id. at 107.

The Estelle rule excluding claims that doctors should have

chosen different or additional diagnostic methods or treatment

plans from the domain of the Eighth Amendment remains good law.

See Jackson, 775 F.3d at 178 (“[W]e agree with the district

court that Jackson’s claim against Lightsey is essentially a

‘[d]isagreement[ ] between an inmate and a physician over the

inmate's proper medical care,’ and we consistently have found

such disagreements to fall short of showing deliberate

indifference.”) (quoting Wright v. Collins, 766 F.2d 841, 849

(4th Cir.1985)); Goodman v. Runion, 676 F. App’x 156, 160 (4th

Cir. 2017) (“Medical malpractice does not become a

constitutional violation merely because the victim is a

prisoner.”) (quoting Estelle, 429 U.S. at 106); Jackson v.

Sampson, 536 F. App’x 356, 357-58 (4th Cir. 2013) (“Jackson’s

dispute with Defendants’ decision not to authorize the

particular treatment program he requested, and the subsequent

course of monitoring he received, amounts to a disagreement with

his course of treatment that is not cognizable under the Eighth

Amendment.”); Goodman v. Johnson, 524 F. App’x 887, 889 (4th

Cir. 2013).

Courts have not understood this rule as absolute, however.

For example, in the Seventh Circuit, “A prison physician cannot

simply continue with a course of treatment that he knows is

ineffective in treating the inmate's condition.” Arnett v.

Webster, 658 F.3d 742, 754 (7th Cir. 2011). In the Tenth

Circuit, this kind of a claim is “actionable only in cases where

the need for additional treatment or referral to a medical

specialist is obvious.” Self v. Crum, 439 F.3d 1227, 1232 (10th

Cir. 2006). And, most importantly for the analysis here, the

Fourth Circuit has recognized that there is an exception to the

general rule for “exceptional circumstances.” Wright, 766 F.2d

at 849 (“Disagreements between an inmate and a physician over

the inmate’s proper medical care do not state a § 1983 claim

unless exceptional circumstances are alleged.”) (emphasis

added).

There are not bright lines for determining what constitutes

exceptional circumstances. However, the Fourth Circuit’s

opinion in De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013)

provides some insight. There, allegations that prison staff

willfully refused to let an inmate be evaluated for sex

reassignment surgery in the face of the inmate’s repeated

attempts to self-castrate were sufficient to state a claim. Id.

at 524-26. A hypothetical illustration that the court used

there is also instructive:

By analogy, imagine that prison officials prescribe a

painkiller to an inmate who has suffered a serious

injury from a fall, but that the inmate's symptoms,

despite the medication, persist to the point that he

now, by all objective measure, requires evaluation for

surgery. Would prison officials then be free to deny

him consideration for surgery, immunized from

constitutional suit by the fact they were giving him a

painkiller? We think not.

Id. at 526 (4th Cir. 2013)

Also, as a more general matter, we know that the provision

of some treatment does not preclude an Eighth Amendment

violation. Id. Rather, the treatment must be “constitutionally

adequate.” Id.

The unpublished decision of Formica is also helpful. From

that case we learn that when a dentist recommends that an inmate

be referred to an outside specialist, a nurse who “personally

witnessed the degeneration of the” tooth that needs treatment

can violate the Eighth Amendment by willfully refusing to

schedule the appointment. Formica, 739 F. App’x at 758.

There is persuasive authority from this district that when

a prisoner needs to see a specialist about his diagnosed skin

cancer, it may constitute an Eighth Amendment violation to

refuse to let the prisoner see the specialist. Lynch v. Wexford

Health Sources, No. 2:13-CV-01470, 2016 WL 2944688, at *8

(S.D.W. Va. May 20, 2016).

In their opening brief and reply, defendants emphasize the

purported similarity of this case to Michael v. Gordon, No.

2:17-CV-04314, 2018 WL 8621208, at *8 (S.D.W. Va. June 15,

2018), report and recommendation adopted, No. 2:17-CV-04314,

2019 WL 1198736 (S.D.W. Va. Mar. 14, 2019). They say that this

case is Michael “all over again.” (ECF No. 24, at 3.) The

court must disagree. In Michael, the plaintiff was involved in

a minor car accident. Id. at 9. His claim was based on a five-

day delay in seeing a doctor (although he had been X-rayed after

only three days). Id. The X-rays were negative for fractures.

Id. The doctor told him to expect to be sore for several

months. Id. He complained of back and neck pain, and he was

given pain relievers. Id. He thought that he should get an

MRI, CT-scan, or referral to a specialist. Id. at 10. There is

no indication from the case that Michael had anything beyond

soft-tissue injuries. See id. at 9-10.

Thus, in Michael, it does not appear that the plaintiff

could even meet the objective part of the test for deliberate

indifference. There was no indication that the plaintiff in

Michael was in danger of permanent disability, such as the

alleged permanent hearing loss at issue here. A back injury is

exactly what was at issue in Estelle. There, the Fifth Circuit

had stated that the plaintiff should have been X-rayed. The

Supreme Court disagreed. Thus, given the result in Estelle, the

result in Michael makes perfect sense. Michael represents a

case similar to, and significantly weaker than, Estelle. There

were no exceptional circumstances to make the claim actionable.

In stressing the similarity to Michael, defendants overlook

other persuasive authority from this district. In Lynch, the

plaintiff alleged deliberate indifference to skin cancer,

curvature of the spine, and bone spurs. 2016 WL 2944688, at *1-

2. Specifically, he alleged that the defendants had wrongfully

“refused to follow instructions from outside specialists

regarding ongoing treatment procedures, refused to allow follow

up visits with area specialists, and refused diagnostic tests

and treatment that Plaintiff alleges was necessary.” Id. at *8.

One doctor allegedly “revoked [the plaintiff’s] shave slip and

required him to shave areas of his face that had been afflicted

by prior and reoccurring skin cancer, causing [him] ‘unnecessary

harm, pain, and self-mutilation.’” Id. (citation to record

omitted). The court noted that this revocation was the opposite

of the care that the plaintiff needed. Id. The court described

the failure to treat the plaintiff – including by referring him

– was “near total” and allowed the plaintiff’s claim to proceed.

Id.

In so doing, the court acknowledged the rule that doctor-

patient disagreements generally are not actionable:

It may very well turn out to be the case that such

claims, “on closer inspection, amount to nothing more

than a prisoner's disagreement with his diagnosis or

prescribed treatment;” however, it remains the case at

initial screening that “prison doctors violate the

Eighth Amendment if they decline to provide the level

of care they deem medically necessary or fail to

adequately address a prisoner's complaints that the

care he is receiving is not effective.”

Id. (quoting Goodman v. Johnson, 524 Fed. Appx. at 889).

Lynch was a stronger case than this one. The plaintiff

there had diagnoses of serious conditions. He also had

instructions from a specialist that the defendants allegedly

ignored. See Petties, 836 F.3d at 729 (“[I]t can be challenging

to draw a line between an acceptable difference of opinion

(especially because even admitted medical malpractice does not

automatically give rise to a constitutional violation), and an

action that reflects sub-minimal competence and crosses the

threshold into deliberate indifference. One hint of such a

departure is when a doctor refuses to take instructions from a

specialist.”) (emphasis added). And one defendant allegedly

made the callous decision to revoke the plaintiff’s shave slip.

While this case probably falls somewhere between Michael

and Lynch, it is closer to Lynch. The allegations are

exceptional enough to state a claim: Plaintiff had alarming

symptoms; they got worse, not better, with the treatment;

permanent hearing loss was potentially on the line; and months

allegedly went by with no additional efforts to find out what

was wrong with him. Construing plaintiff’s allegations

liberally, it appears that exceptional circumstances may cause

Estelle’s general rule not to apply. Moreover, it is unclear at

this stage that the decision to withhold referral to a

specialist was actually the product of Dr. Garcia’s medical

judgment.

As to the claim against Ms. Morgan, the following passage

from Lynch is instructive:

For similar reasons, the Court finds sufficient

Plaintiff's claims against Defendant Anna Kincaid, a

former “Health Services Administrator for Wexford,”

who Plaintiff appears to allege was responsible for

administrative denials of Plaintiff's requests for

medical treatment. Although Plaintiff does not allege

that Ms. Kincaid treated him directly, he does allege

that he made Ms. Kincaid aware of his serious medical

needs through multiple grievances. Nonetheless,

Plaintiff alleges, Ms. Kincaid failed to review

Plaintiff's medical file or offer any other assistance

to remedy the problem and “made the deliberate

intentional decision to flatly refuse any assistance

to Plaintiff.”

2016 WL 2944688, at *9 (citation omitted). The situation here

is similar. Defendants characterize plaintiff’s claim against

Ms. Morgan as a failure to compel Dr. Garcia to make the

referral. This assumes that only Dr. Garcia could make the

referral and that Ms. Morgan had no authority to advance the

referral process. Plaintiff’s grievance, initially submitted to

the Unit Manager, was referred to Ms. Morgan as the appropriate

individual to address it.

At this stage, plaintiff gets the benefit of a reasonable

inference that Morgan had some meaningful degree of influence

over the situation, even if not ultimate authority to make a

referral or to otherwise provide plaintiff with the evaluation

and treatment that he alleges he needed.

Therefore, the court finds that plaintiff alleges

sufficient facts to state a claim under § 1983 against Dr.

Garcia and Ms. Morgan.

b. Qualified Immunity

Although plaintiff sufficiently alleges a constitutional

violation, the doctrine of qualified immunity protects Dr.

Garcia and Ms. Morgan from liability because they did not have

fair notice that their alleged conduct, in these particular

circumstances, would amount to cruel and unusual punishment

under the Eighth Amendment.

“Unless the plaintiff’s allegations state a claim of

violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the

commencement of discovery.” Adams v. Ferguson, 884 F.3d 219,

226-27 (4th Cir. 2018). Courts must frame the right at issue

“with specificity,” and not “at a high level of generality.”

City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (quoting

Kisela v. Hughes, 138 S. Ct. 1148, 1152, 200 L. Ed. 2d 449

(2018)). There need not be an exact match in existing

precedent. Kisela, 138 S. Ct. at 1152. But “[t]ime and again,

the Supreme Court has reiterated that for a right to be clearly

established, ‘existing precedent must have placed the statutory

or constitutional question beyond debate.’” Adams, 884 F.3d at

230 (quoting Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).

Unless the law is clear enough to put every reasonable official

on notice that certain conduct is illegal, such conduct does not

violate a clearly established right. Mullenix v. Luna, 577 U.S.

7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664

(2012)).

“The dispositive question is whether the violative nature

of particular conduct is clearly established.” Id. at 12

(citations and internal quotation marks omitted). Courts are to

“consider whether a right is clearly established ‘in light of

the specific context of the case, not as a broad general

proposition.’” Adams, 884 F.3d at 227 (quoting Mullenix, 136

S.Ct. at 308). “Put simply, qualified immunity protects ‘all

but the plainly incompetent or those who knowingly violate the

law.’” Mullenix, 577 U.S. at 12 (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)).

In Emmons, the Supreme Court stated,

The Court of Appeals should have asked whether clearly

established law prohibited the officers from stopping

and taking down a man in these circumstances.

Instead, the Court of Appeals defined the clearly

established right at a high level of generality by

saying only that the ‘right to be free of excessive

force’ was clearly established. With the right

defined at that high level of generality, the Court of

Appeals then denied qualified immunity to the officers

and remanded the case for trial.

139 S. Ct. at 503. This “formulation of the clearly established

right was far too general.” Id.

Here, defendants frame the constitutional right narrowly:

“a particular preferred course of treatment,” in the form of, “a

referral to an outside ENT specialist.” (ECF No. 14, at 10.)

Plaintiff, by contrast, defines the right broadly: “adequate

treatment for serious medical needs.” (ECF No. 21, at 6.)

Plaintiff states that this right “has been clearly established

for decades.” (Id.) Accordingly, plaintiff contends that

plaintiffs were on notice that providing no treatment or

inadequate treatment would violate the Eighth Amendment. The

court understands the right at issue to be the right to receive

medical care in the form of referral for an alternative

diagnosis under the particular circumstances alleged.

Courts are free to “skip ahead to the question whether the

law clearly established that the [defendant’s] conduct was

unlawful in the circumstances of the case.” DePaola v. Clarke,

394 F. Supp. 3d 573, 590 (W.D. Va. 2019) (quoting Adams v.

Ferguson, 884 F.3d 219, 226 (4th Cir. 2018)). Whether a right

is clearly established is a question of law. Ray v. Roane, 948

F.3d 222, 228 (4th Cir. 2020). In deciding it, this court is to

consider the Supreme Court, Fourth Circuit, and Supreme Court of

Appeals of West Virginia precedent first. See id. at 229. If

those sources do not provide the answer, this court is

authorized to consider whether “general constitutional

principles or a consensus of persuasive authority” had

established the right. See id. Accordingly, “neither a state

trial court nor a federal district court opinion is likely to be

found to provide controlling authority” under the second prong

of the qualified immunity analysis. Garrett v. Clarke, No.

3:19CV835, 2021 WL 622434, at *4 n.4 (E.D. Va. Feb. 17, 2021).

In essence, plaintiff’s claim is that defendants provided

plainly inadequate evaluation of his alarming symptoms,

including progressively worsening hearing loss. And because the

evaluation was inadequate, so was the treatment. Plaintiff does

not allege that he was diagnosed with a serious condition; the

problem was that he did not have a proper diagnosis. The course

of treatment was not helping him, and the general practitioner

had reached the limits of his diagnostic abilities. The

seriousness of his condition was based solely on plaintiff’s

description of his symptoms. He had not sustained an injury.

His symptoms were not obvious. The question is whether the

state of the law, as it stood at the time, had put defendants on

adequate notice that, in such a situation, willful failure to

evaluate a prisoner more aggressively (such as by referral to a

specialist) is a violation of the Eighth Amendment. It had not.

As discussed in the previous section, the court must

evaluate this case against the backdrop of Estelle.

Accordingly, there must be exceptional circumstances for the

claim to be cognizable. Fourth Circuit precedent offers some

guidance. There is conflicting persuasive authority in this

district, with this case appearing to fall somewhere between

cases coming out different ways. The tie goes to the plaintiff.

The allegations appear to describe exceptional circumstances

such that the willful failure to refer for diagnosis may be

actionable.

But because it is a close call whether the allegations

support an Eighth Amendment violation, it follows that the law

was not clearly established. The allegations describe

deliberate indifference at its outermost boundaries. Plaintiff

does not show otherwise in opposition to this motion. Plaintiff

frames the right broadly, citing Estelle, but does not attempt

to distinguish this case from Estelle itself.

Plaintiff also cites Scinto v. Stansberry, where the court

“define[d] the right in question as the right of prisoners to

receive adequate medical care and to be free from officials’

deliberate indifference to their known medical needs.” 841 F.3d

219, 236 (4th Cir. 2016) (emphasis added). It is true that in

this general context, the Fourth Circuit has tended to apply a

broad definition of the right. See Formica v. Aylor, 739 F.

App’x 745, 758 n.8 (4th Cir. 2018) (citing Scinto to dismiss a

nurse’s claim of qualified immunity out of hand); Iko v. Shreve,

535 F.3d 225, 243 (4th Cir. 2008) (“Neither can the officers

succeed in showing that this right was not clearly established.

The right to adequate medical care had already been carefully

circumscribed in the caselaw, with its objective and subjective

components spelled out to ensure that only the most wanton

indifference goes punished.”)

Even assuming that the articulation of the right in Scinto

is the correct one for this case (which seems doubtful), the key

word is “known.” Here, as in Estelle, we are talking about

unknown medical needs, and insufficient efforts to determine

what they were. Fourth Circuit precedent had not made it clear

to every reasonable official in the circumstances at issue that

failure to take additional diagnostic steps would amount to

cruel and unusual punishment. This court is to consider whether

the law was clearly established in light of the particular

circumstances alleged. Having done so, the court finds that the

law was not clearly established.

c. Wexford

The Supreme Court has held that, in § 1983 actions,

municipalities are not liable solely by virtue of respondeat

superior, but are liable for the results of their unlawful

policies or customs. Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691, 694 (1978). In Powell v. Shopco Laurel Co., the

Fourth Circuit made the limits of Monell applicable to private

corporations acting under color of state law. 678 F.2d 504, 506

(4th Cir. 1982). Thus, to state a claim against a private

corporation under § 1983, a plaintiff must plausibly allege that

a “policy or custom” of the defendant caused of the unlawful

conduct at issue. Monell, 436 U.S. at 694; Insco v. Wexford

Health Sources, Inc., No. 2:19-CV-00612, 2020 WL 2770419, at *5

(S.D.W. Va. May 28, 2020) (“[A] private corporation is liable

under § 1983 only when an official policy or custom of the

corporation causes the alleged deprivation of federal rights.”).

The policy, custom, or practice must be “persistent and

widespread” such that policymakers knew or should have known of

it. Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379,

402 (4th Cir. 2014). And the policymakers’ failure to correct

it must be the result of deliberate indifference. Id. The

policy must be “fairly attributable” to the corporation. Jordan

by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).

“An official policy often refers to ‘formal rules or

understandings . . . that are intended to, and do, establish

fixed plans of action to be followed under similar circumstances

consistently and over time,’ and must be contrasted with

‘episodic exercises of discretion in the operational details of

government.’” Semple v. City of Moundsville, 195 F.3d 708, 712

(4th Cir. 1999) (citations omitted). “Outside of such formal

decisionmaking channels, a municipal custom may arise if a

practice is so ‘persistent and widespread’ and ‘so permanent and

well settled as to constitute a ‘custom or usage’ with the force

of law.’” Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).

Although proving a policy or custom under Monell is quite

difficult, pleading one is less so. Owens, 767 F.3d at 403. A

plaintiff need not “detail the facts underlying his claims, or .

. . plead the multiple incidents of constitutional violations

that may be necessary at later stages to establish the existence

of an official policy or custom and causation.” Jordan, 15 F.3d

at 339. In this context, as in others, “[t]he recitation of

facts need not be particularly detailed, and the chance of

success need not be particularly high.” Owens, 767 F.3d at 403.

Hearsay will not suffice to defeat summary judgment. Pyles v.

Fahim, 771 F.3d 403, 412 (7th Cir. 2014). But the pleading

stage is not as demanding, and the court must assume the truth

of plaintiff’s allegations.

Plaintiff’s Monell allegations are essentially two: (1)

Nurse New stated, in the presence of Dr. Garcia, that Wexford

was withholding referrals to specialists for all but life-

threatening illnesses; (2) as of the time plaintiff filed his

complaint, he had been seeking a referral unsuccessfully for

over six months despite alarming symptoms. Defendants argue

that this is not enough. The court disagrees.

It does not matter that New was a low-level employee.

Plaintiff is not saying that New came up with this policy, only

that his statement reveals its existence. While only one

allegation, it is a fairly powerful one. If it is true that New

said it, as the court must assume, then it is plausible that

Wexford had a policy of wrongfully withholding referrals to

inmates.

This fact, together with the currently unexplained delay in

plaintiff’s case, is sufficient to state a claim under Monell.4

Defendants arguments to the contrary, such as that New’s comment

4 Though the point is largely semantic, plaintiff’s claim of a de

facto policy, however, is perhaps better understood as a claim

of “custom.” Lollie v. Johnson, No. 14-CV-4784 SRN/HB, 2015 WL

3407931, at *4 (D. Minn. May 27, 2015) (“Rather than flatly

rejecting theories of de facto policies, courts have assessed

these theories under a Monell “custom” analysis.”).

“is devoid of any context to indicate that the [he] has any

actual knowledge of whether such a policy exists, or is merely

speculating,” (ECF No. 24, at 5-6.), are arguments for the

summary judgment stage.

The court finds that plaintiff states a Monell claim

against Wexford.

Iv. Conclusion

For the foregoing reasons, the motion to dismiss is granted

in part. The court GRANTS the motion as to Dr. Garcia and Ms.

Morgan and DENIES the motion as to Wexford.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to counsel of record.

IT IS SO ORDERED this 15th day of March, 2021.

BNTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

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