# Graening v. Wexford Health Sources, Inc.

> District Court, S.D. West Virginia · March 15, 2021

URL: https://www.frixlaw.com/law-library/cases/10729553

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 15, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10729553

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729553. Public record. Not legal advice.