Lowe v. Ames

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

KEITH W.R. LOWE,

Plaintiff,

v. Civil Action No. 2:22-cv-00434

SUPERINTENDENT DONALD AMES

and MAJOR RICHARD TONEY,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants Donald Ames and Richard Toney’s

Motion to Dismiss Second Amended Complaint. See ECF No. 40.

Plaintiff timely responded in opposition, see ECF No. 42, to

which defendants timely replied, see ECF No. 46. The motion is

fully briefed.

I. Background

a. Factual Background

The following allegations are drawn from the

plaintiff’s Second Amended Complaint, ECF No. 39 (“Sec. Am.

Compl.”), and are regarded as true for the purposes of the

motion to dismiss.

At all times relevant to this matter, plaintiff Keith

W.R. Lowe (“plaintiff” or “Lowe”) was a detainee incarcerated at

Mt. Olive Correctional Complex (“MOCC”) in Fayette County, West

Virginia, and under the custody of the West Virginia Department

of Corrections and Rehabilitation (“WVDCR”). Sec. Am. Compl. ¶

2, 3. Defendant Donald Ames (“Ames”) was, at all times relevant

herein, the Superintendent of MOCC, “tasked by law with the care

and custody” of all detainees at MOCC. Id. ¶ 4. Defendant

Richard Toney was, at all relevant times herein, a captain

employed at MOCC “responsible for the custody and care of

incarcerated individuals.” Id. ¶ 5.

Throughout the spring and summer of 2020, the COVID-19

pandemic spread “through West Virginia to devastating effect.”

Id. ¶ 9. By September 1, 2020, there had been 10,513 cumulative

cases of COVID-19 in West Virginia and 224 West Virginians had

died of the virus since reporting began on March 20, 2020. Id.

¶¶ 52, 53. On September 7, 2020, the “seven-day average”1 for

COVID-19 in West Virginia was 166 cases, 224 hospitalizations,

and three deaths.

1 “Seven-day average” means the average daily value of each

statistic, calculated “by averaging the values of that day, the

three days before, and the three next days.” Coronavirus

Resource Center: New COVID-19 Cases Worldwide, Johns Hopkins

Univ. Med. (last visited Apr. 17, 2024).

The virus was also “virulent in carceral facilities

across the state, again with devastating consequences.” Id. ¶

10. By “late summer 2020, COVID-19 was present in MOCC.” Id. ¶

11. On September 7, 2020, out of a population of 1,018 inmates,

MOCC had 134 known active COVID-19 cases (i.e., approximately

13.16% of the population tested positive on September 7, 2020).

Id. ¶ 56; see COVID-19 testing, W.Va. Division of Corrections

and Rehabilitation, W. Va. Dep’t Health & Hum. Servs. (Sept. 8,

2020), available at https://dhhr.wv.gov/COVID-

19/Documents/COVID19_DCR_2020_09-07.pdf, (last accessed April

17, 2024) (displaying data from Sept. 7, 2020, across multiple

WVDCR corrections facilities) (hereinafter, “WVDCR Sept. 7

Statistics”).2 “All positive inmates [were] placed in

isolation.” Id. Further, MOCC had 42 inmates in quarantine.

Id. By September 7, 2020, two inmates at MOCC had died due to

COVID-19. See Sec. Am. Compl. ¶ 57.

According to the WVDCR Sept. 7 Statistics, inmates in

“quarantine” were those who were “[not] showing symptoms but

[were] separated because they [were] new intakes, back from a

hospital for unrelated reasons, etc.” WVDCR Sept. 7 Statistics.

2 The court may consider the WVDCR Sept. 7 Statistics at this

stage because plaintiff cited it in his complaint, thereby

incorporating it by reference. See, e.g., Epcon Homestead, LLC

v. Town of Chapel Hill, 62 F.4th 882, 885 (4th Cir. 2023).

However, according to the second amended complaint, by late

summer 2020, “Pod 6 on the Quilliams 2 (Q2) Unit [of MOCC] was

being used as quarantine housing, where inmates who tested

positive for COVID-19 were housed.”3 Sec. Am. Compl. ¶ 12.

Additionally, “[n]ew intakes to MOCC were also placed on Pod 6

for a 14-day quarantine.” Id. ¶ 13. Prior to its use as a

COVID-19 quarantine unit, “Pod 6 had been designated as a

disciplinary unit.” Id. ¶ 14.

Pod 6 is a “row of cells enclosed by a glass wall

running parallel to these cells,” with approximately five feet

of room between the cell doors and the glass wall. Id. ¶ 15.

Because of that arrangement, Pod 6 “is colloquially referred to

as ‘behind the glass.’” Id. By late summer 2020, it was

“common knowledge that Pod 6 was being used as a quarantine

unit” and that “some inmates housed ‘behind the glass’ had

COVID-19.” Id. ¶ 16.

Prior to the events giving rise to this complaint,

defendants Ames and Toney had been made “aware of the danger of

placing . . . any inmate not positive for or suspected of having

3 Based off of the complaint’s use of “quarantine housing” as a

location that houses inmates who tested positive for COVID-19,

the court, accepting as true the allegations made in the

complaint for the purposes of this motion, will herein refer to

quarantine housing as the same.

COVID” on Pod 6. Id. ¶ 58. In late August 2020, two new

inmates, Terrel Davis and Robert Crabill III, arrived at MOCC

and were quarantined on Pod 6, though they allegedly did not

have COVID-19 at the time of their arrival. Id. ¶ 59. While on

Pod 6, “both men contracted or were exposed to COVID” and filed

grievances about their exposure to and contraction of the virus.

Id. ¶¶ 61-63. Crabill stated in his August 31, 2020, grievance

that he had been tested upon his arrival at MOCC, and Davis

stated in his September 1, 2020, grievance that he had been

tested prior to his arrival at MOCC; both men stated that those

tests were negative. Id. ¶ 62-63. Nonetheless, both men

separately complained that upon their placement “behind the

glass” (i.e., on Pod 6), they were exposed to other inmates who

had COVID-19. Id.

Crabill noted in his grievance, that he “did[ not]

have [COVID-19] until [he] was placed behind the glass with

other people who had it.” Id. ¶ 62. On September 2, 2020,

Captain Toney responded to Crabill’s grievance by stating, “It

is impossible for me to know when or where you contracted the

virus. MOCC is taking the necessary precautions to prevent the

spread of the virus.” Id. ¶ 64. The same day, he responded to

Davis’s grievance, stating, “All inmates arriving at MOCC are

quarantined for 2 weeks upon arrival. All reasonable efforts

are being made to prevent spread of the virus.” Id. ¶ 65.

On September 9, 2020, Toney again responded to

Crabill’s grievance, stating, “You caused yourself to be housed

where you are due to your staff assault. If you did not assault

anyone . . . you would not have been housed there.”4 Id. ¶ 66.

On October 1 and 6, 2020, Toney responded to another, similar

grievance filed by Davis, stating, “You arrived on quarantine

from another facility. Your actions at ERJ5 placed you in the

cell you are in now. The free public has and is exposed to

persons that test positive for COVID.” Id. ¶ 67.

On September 7, 2020, plaintiff “allegedly tried to

escape from the rec area in the Q2 unit,” and he was taken to

the “security wing for holding.” Id. ¶ 17. While there, Toney

informed plaintiff that “he was being moved to Pod 6.” Id.

¶ 18. In response, plaintiff told Toney that he was negative

for COVID-19 and that Toney could not house him in Pod 6

alongside “inmates who were on quarantine or were positive for

COVID-19.” Id. ¶ 19. Toney replied that the fact that

4 The complaint offered no context or further information

regarding the “staff assault” referenced by Toney in his

response to Crabill’s grievance.

5 The court suspects that this refers to WVDCR’s Eastern Regional

Jail, but the complaint provides no clarifying information.

plaintiff was negative for COVID-19 did not matter and that

plaintiff “should have thought about that before [he] attempted

to escape.” Id. ¶ 20. Out of fear of exposure to and

contraction of the virus, plaintiff pleaded with Toney to not

place him “on the quarantine unit with individuals who had

COVID-19.” Id. ¶ 21. Toney then told Lowe that he would be

placed behind the glass on Pod 6 “one way or another,” whether

“voluntar[ily] or involuntar[ily].” Id. ¶ 22.

Under Toney’s orders and with defendant Ames’s

approval, “four officers physically moved [plaintiff] from the

security wing to the COVID unit6 on Pod 6.” Id. ¶ 23. Because

plaintiff was “forcefully relocated,” the relocation was filmed

“on a handheld video camera.” Id. ¶ 24. While he was “being

placed on Pod 6,” plaintiff pointed out to the video camera

operator that although “all the officers were dressed in

personal protective equipment (PPE)” and masked, plaintiff “was

not provided with a mask” or “any other protective gear.” Id. ¶

25. Plaintiff asked defendant Toney “numerous times for a

6 Plaintiff refers several times to the “COVID unit” on Pod 6.

Sec. Am. Compl. ¶ 23, 29, 32, 33, 46. It is unclear whether

this phrase is intended to refer to all of Pod 6 (i.e., all of

Pod 6 is the “COVID unit”) or a portion of Pod 6 specifically

designated as a “COVID unit” (separate from a new inmate

quarantine unit) and to which plaintiff was relocated.

protective facemask,” but Toney refused to provide one. Id. ¶

26.

At the time plaintiff was placed in his cell on Pod 6,

it “had not been cleaned or sanitized”: it was dirty, had “urine

and feces in the toilet,” and had “items belonging to the

previous resident.” Id. ¶ 27. Despite his requests, plaintiff

was not provided with cleaning supplies. Id. ¶ 28.

On or around September 10, 2020, approximately three

days after his initial placement on the “COVID unit of Pod 6,”

plaintiff began to feel “very unwell.” Id. ¶ 29. He

experienced “extreme diarrhea” for days and “became completely

unable to control his bowels,” which resulted in him “defecating

on himself multiple times.” Id. He further “experienced severe

body aches” and “suffered from an extreme headache” which made

him feel “as though his skull was pounding in time with his

heartbeat.” Id. ¶ 30. He also experienced “pulmonary

symptoms,” feeling “as though he was unable to catch his breath”

and experiencing “a large pressure in his chest” as though

“someone was sitting on him.” Id. ¶ 31. Plaintiff “fe[lt] as

though he were dying.” Id. ¶ 32. Based on the “combination of

symptoms,” plaintiff believed that he had contracted COVID-19 as

a result of being “placed in the COVID unit.” ID.

On September 10, 2020, plaintiff filed a “sick call

slip complaining about his diarrhea and troubles breathing” and

a grievance about “Toney placing him on the COVID unit with

inmates who had COVID.” Id. ¶ 33. The following day, plaintiff

completed a “Unit Team Request Form stating, ‘I am exhibiting

symptoms of Covid-19, I have had diaraha [sic] all day again,

and my bones and body are aching all over, I’ve had a pounding

headache all day. I have literally begged Capt. Toney and

medical personal [sic] to please give me a Covid-19 test.’” Id.

¶ 34. On September 12, 2024, a nurse came to plaintiff’s cell,

and he informed her of his symptoms and asked to be tested for

COVID-19. See id. ¶¶ 34, 35. However, the nurse “stated that

[plaintiff] would not be tested, per [Toney’s] orders” because

Toney “had stated that [plaintiff] was not to be tested due to

‘security reasons.’” Id. ¶ 36. Over the next few days,

plaintiff “continued to suffer from diarrhea and severe body

aches.” Id. ¶ 37.

On September 14, 2020, plaintiff filed another Unit

Team Request Form, in which he stated, “Capt. Toney . . . you

told me I wouldn’t catch the [COVID] virus back here, now look

at me. You made me sick . . . I’ve never been that sick in my

life,” and in which he requested of Toney, “[G]et medical down

here and test me.” Id. ¶ 38. That same day, Toney did “a

walkthrough of Pod 6 with two members of the mental health

staff,” and plaintiff again asked Toney to allow him to be

tested for COVID-19. Id. ¶ 39, 40. Toney “refused to provide

[plaintiff] with access to medical staff or with a COVID-19

test,” expressing that plaintiff had been tested on August 28,

2020, and did not need to be tested again. Id. ¶ 41. Toney

made an additional statement “to the effect that” plaintiff was

“‘making a big deal out of nothing’ and that he would feel

better after 10 to 14 days.” Id. Also on September 14, 2020,

plaintiff filed a grievance related to being placed “on the

COVID unit.” Id. ¶ 46.

On September 15, 2020, Toney responded to plaintiff’s

Unit Team Request Form, stating “You placed yourself behind the

glass due to your recent behavior. It’s impossible to determine

where you contracted the virus. You were tested on 28 Sept. 2020

[sic] you will not be tested again.” Id. ¶ 42. Plaintiff notes

that he was tested on August 28, 2020, and that Toney miswrote

the date in this response. See id. n.1.

On or about September 16 or 17, 2020, Toney did

another “walkthrough of Pod 6,” during which plaintiff told him

that he could not deny plaintiff medical treatment. Id. ¶ 43,

44. Toney replied by “stat[ing] that [plaintiff] was

overreacting and making a big deal out of nothing,” and told

plaintiff to “put in a call slip, which” Toney would personally

take to medical staff. Id. ¶ 44. On or about September 16 or

17, plaintiff submitted another sick call slip. Id. ¶ 45.

On September 20, 2020, plaintiff filed yet another

grievance related to being placed “on the COVID unit.” Id. ¶

46. “[D]espite knowing that numerous inmates had contracted

COVID-19 after being placed on Pod 6,” defendants “maintained”

plaintiff’s placement thereon. Id. ¶ 47.

After plaintiff’s “presumed COVID-19 infection in

September 2020,” he has continued to “suffer from the symptoms

of ‘long COVID,’ including but not limited to headaches,

breathing problems, and brain fog. Id. ¶ 48. Anybody who

contracts COVID-19 may experience long COVID, which is “broadly

defined as signs, symptoms, and conditions that continue or

develop after acute COVID-19 infection,” and can “last weeks,

months, or years” after infection. Id. ¶ 49 (citing Long COVID

or Post-COVID Conditions, Cent. for Disease Control and

Prevention (July 20, 2023), available at

https://www.cdc.gov/coronavirus/2019-ncov/long-term-

effects/index.html (last visited Feb. 20, 2024). Symptoms of

long COVID can vary from person to person, but “the most

commonly reported symptoms include fatigue, post-exertional

malaise, chest pain, brain fog, headaches, sleep problems,

diarrhea, and joint or muscle pain.” Id. ¶ 51.

b. Procedural History

On October 5, 2022, plaintiff, proceeding pro se,

filed his original complaint. See ECF No. 1. Pursuant to the

Southern District’s Standing Order in Re: Assignment and

Referral of Civil Actions and Matters to Magistrate Judges, this

case was referred to the Magistrate Judge. See ECF No. 2. On

June 12, 2023, Plaintiff filed a Motion for Appointment of

Counsel. ECF No. 11. On July 20, 2023, defendants filed a

motion to dismiss, ECF No. 15, and plaintiff subsequently moved

to supplement his complaint, ECF No. 21, and responded in

opposition to defendants’ motion, ECF No. 22. The court denied

without prejudice defendants’ motion to dismiss. ECF No. 31.

On January 24, 2024, the Magistrate Judge granted

plaintiff’s Motion for Appointment of Counsel, see ECF No. 32,

and appointed counsel for him. Because plaintiff was no longer

pro se, this case became no longer referred to the Magistrate

Judge.

On February 21, 2024, plaintiff, with leave of the

court, filed the Second Amended Complaint from which the

foregoing allegations are taken. See ECF No. 39 (Sec. Am.

Compl.). Therein, pursuant to 42 U.S.C. § 1983, plaintiff

alleged one count of a violation of his Eighth Amendment right

to be free from cruel and unusual punishment when defendants

Toney and Ames, under the color of law, “acted with deliberate

indifference to a substantial risk of serious harm to Mr. Lowe’s

health and safety.” Sec. Am. Compl. ¶ 71. Plaintiff alleges

this violation occurred when defendants “intentionally housed

[plaintiff] on Pod 6 on the Q2 Unit for a non-medical or

epidemiological reason, despite knowing that Pod 6 was, at the

time, being used as a quarantine unit for those who were known

to or suspected of being exposed to or positive for the COVID-19

virus,” and refused plaintiff’s requests for masks or to be

tested for COVID-19 Id. ¶¶ 74, 75. Plaintiff named each

defendant in his official capacity for the purposes of seeking

injunctive and declaratory relief, and he names each defendant

in his individual capacity for the purpose of seeking monetary

relief. See id. ¶¶ 4, 5.

On March 6, 2024, defendants Ames and Toney jointly

filed the Motion to Dismiss Second Amended Complaint, ECF No. 40

(motion), 41 (memorandum of law) (hereinafter “Mot.”).

Plaintiff responded in opposition, ECF No. 42 (“Resp.”), to

which defendants have replied, ECF No. 46 (“Reply”).

II. Applicable Law

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires a pleading to contain “a short and plain statement of

the claim showing . . . entitle[ment] to relief.” Fed. R. Civ.

P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007). A party

may test the sufficiency of a pleading by moving under Rule

12(b)(6) to dismiss it for “failure to state a claim upon which

relief can be granted.” See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555-58 (2006).

In order to defeat a 12(b)(6) motion, a complaint must

contain “enough facts to state a claim that is plausible on its

face.” Twombly, 550 U.S. at 570. The court, at this early

stage, “must accept as true all of the factual allegations

contained in the complaint.” Erickson, 551 U.S. at 94 (citing

Twombly, 550 U.S. at 555-56). Further, all reasonable

inferences are drawn in favor of the plaintiff. E. I. du Pont

de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir.

2011) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250 (4th Cir. 2009)). “Although for the purposes

of a motion to dismiss we must take all of the factual

allegations in the complaint as true, we are not bound to accept

as true a legal conclusion couched as a factual allegation.”

Iqbal, 556 U.S. at 678.

III. Discussion

Defendants make two arguments in their motion to

dismiss. See Mot. 4-6. First, defendants argue that this suit

must be dismissed because plaintiff’s complaint was filed after

the applicable statute of limitations expired. Second,

defendants argue that they are entitled to qualified immunity in

this matter solely because plaintiff does not have a clearly

established constitutional right “to be housed in any specific

facility or any specific unit within any facility.

a. Statute of Limitations

Defendants first argue that plaintiff’s complaint is

barred by the statute of limitations because the West Virginia

statute of limitations for § 1983 actions is two (2) years. See

Mot. 4; W. Va. Code § 55-2-12; Owens v. Okure, 488 U.S. 235,

249-50, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989) ("We

accordingly hold that where state law provides multiple statutes

of limitations for personal injury actions, courts considering

§ 1983 claims should borrow the general or residual statute for

personal injury actions."). Defendants assert that the

complaint pleads only that plaintiff’s claim accrued on

September 10, 2020, and the statute of limitations “ran on, or

before, September 10, 2022. Mot. 4. It is thus contended that

plaintiff’s complaint, filed with the Clerk on October 5, 2022,

is barred by the statute of limitations.

Plaintiff responds that, though plaintiff “believed,

by September 10, 2020, that something was amiss,” the complaint

alleges “ongoing, continuing” violations of plaintiff’s rights,

invoking the “continuing violation” doctrine, under which the

statute of limitations runs anew with each violation. See Resp.

6 (citing DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018)

(“[W]hen a harm has occurred more than once in a continuing

series of acts or omissions, a plaintiff under certain

circumstances may allege a ‘continuing violation’ for which the

statute of limitations runs anew with each violation.”)). In

DePaola, the plaintiff alleged that prison officials had been

deliberately indifferent to his medical needs where he

experienced severe and continuous symptoms and prison officials

were aware of his significant mental illnesses, “kept him

continuously in solitary confinement,” and “continue[d] to”

withhold treatment even after two suicide attempts. DePaola v.

Clarke, 884 F.3d 481, 484–85, 487 (4th Cir. 2018). The Fourth

Circuit held that the “continuing violation” doctrine applied to

§ 1983 claims of deliberate indifference to serious medical

needs, holding that, in order for the doctrine to apply, a

plaintiff “must (1) identify a series of acts or omissions that

demonstrate deliberate indifference to his serious medical

need(s); and (2) place one or more of these acts or omissions

within the applicable statute of limitations for personal

injury.” Id. at 487. When the doctrine does apply, the

applicable “statute of limitations runs anew with each

violation.” Id. at 486.

In their reply, defendants seek to distinguish DePaola

from the present case, arguing that plaintiff here has failed to

plead the required ongoing, continuous “deliberate indifference

to a serious, ongoing medical need.” DePaola, 884 F.3d at 487.

Defendants argue that they “had no knowledge that Plaintiff was

diagnosed with any medical condition and, further, it was not

readily apparent that there was a serious risk of harm to

[p]laintiff.” Reply 3.

To determine the statute of limitations applicable to

this § 1983 action, the court must “borrow the general or

residual statute for personal injury actions” in West Virginia.

Owens v. Okure, 488 U.S. 235, 249-50 (1989). In West Virginia,

that statute provides for a two-year statute of limitations. W.

Va. Code § 55-2-12. The parties appear to agree on this point.

Plaintiff contends that the “continuing violation”

doctrine applies in this matter and that his original complaint

was timely. Under the “continuing violation” doctrine, when

“defendants have violated and ‘continue to’ violate” a state

inmate’s rights, his § 1983 right of action accrues, and the

statute of limitations begins anew, on the date of the latest

allegation of constitutional injury. DePaola, 884 F.3d at 487-

88 (citing Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001)

(holding that “[e]very day” without treatment is a new

violation)).

As defendants point out, the holding of DePaola only

explicitly extends the “continuing violation” doctrine to claims

under § 1983 that prison officials were deliberately indifferent

to a prisoner’s medical needs. Id. Defendants thus argue that

its holding is inapposite in this case, where plaintiff has

alleged “deliberate indifference to a substantial risk of

serious harm,” Sec. Am. Compl. ¶ 74, to his health and safety.

See Mot. 4-5. The court is unpersuaded: language in DePaola

suggests its holding should be read to apply to all claims under

§ 1983 alleging “deliberate indifference,” not just those

alleging deliberate indifference to medical needs, and the court

arrived at its conclusion by relying on cases that use similarly

broad language. DePaola, 884 F.3d at 486-88 (citing, among

others, Siggers v. Campbell, 652 F.3d 681 (6th Cir. 2011)

(“suggesting that prisoner may state claim if he shows “one,

continuing harm and government indifference”)). Accordingly,

the court finds that, under DePaola, the “continuing violation”

doctrine may apply to claims under § 1983 alleging deliberate

indifference to an inmate’s medical needs or a serious risk to

an inmate’s safety.

The first question is thus whether plaintiff has pled

a “series of acts or omissions that demonstrate deliberate

indifference” to a serious risk to his health and safety within

the limitations period. See DePaola, 884 F.3d at 487. Prisoners

alleging “that they have been subjected to unconstitutional

conditions of confinement must” satisfy both an objective and a

subjective prong. Scinto v. Stansberry, 841 F.3d 219, 225

(2016)

The objective prong requires the plaintiff to

“demonstrate that the deprivation alleged was, objectively,

sufficiently serious.” Id. (quoting Farmer v. Brennan, 511 U.S.

825, 834 (1994)). “[T]o be ‘sufficiently serious,’ the

deprivation must be ‘extreme’ — meaning that it poses ‘a serious

or significant physical or emotional injury resulting from the

challenged conditions,’ or ‘a substantial risk of such serious

harm resulting from . . . exposure to the challenged

conditions.’” Id. (quoting De'Lonta v. Angelone, 330 F.3d 630,

634 (4th Cir. 2003)); see also Shakka v. Smith, 71 F.3d 162, 166

(4th Cir. 1995) (holding “a prisoner must produce evidence of a

serious or significant physical or emotional injury resulting

from the challenged conditions or demonstrate a substantial risk

of such serious harm resulting from the prisoner's unwilling

exposure to the challenged conditions” (internal citations

omitted)).

The subjective prong requires that the inmate allege

that “prison officials acted with ‘deliberate indifference.’”

Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019), as amended (May

6, 2019) (quoting Scinto, 841 F.3d at 225)). “To prove

deliberate indifference, plaintiff[] must show that ‘the

official kn[ew] of and disregard[ed] an excessive risk to inmate

health or safety.’” Id. (quoting Farmer, 511 U.S. at 837).

“Deliberate indifference is ‘more than mere negligence,’ but

‘less than acts or omissions [done] for the very purpose of

causing harm or with knowledge that harm will result.’” Scinto,

841 F.3d at 225 (quoting Farmer, 511 U.S. at 835, 114 S.Ct.

1970). “Put differently, ‘[a]n obvious risk of harm justifies

an inference that a prison official subjectively disregarded a

substantial risk of serious harm to the inmate.” Porter, 923

F.3d at 361 (quoting Schaub v. VonWald, 638 F.3d 905, 915 (8th

Cir. 2011)).

Here, plaintiff has pled sufficient facts to

preliminarily establish the objective prong of his claim. He

has pled that the conditions he has challenged – the defendants’

intentional placement of plaintiff in a unit used as a COVID-19

quarantine ward when he was not suspected of having COVID-19 and

the refusal to provide him with a mask or testing – are

“sufficiently serious” inasmuch as they pose a “substantial risk

of serious harm” from potential infection and complications.

Scinto, 841 F.3d at 225; see Hallinan v. Scarantino, 466 F.

Supp. 3d 587, 604-05 (E.D.N.C. 2020) (finding conditions that

permit “a significant outbreak” of COVID-19 satisfy the

objective prong). He has alleged the serious harms that

potentially befall persons infected with COVID-19, including

some symptoms associated with long COVID. See Sec. Am. Compl. ¶

48-51.

Plaintiff has further pled sufficient facts to allege

that defendants acted with deliberate indifference, satisfying

the subjective prong at this stage. He has alleged that

defendant Toney “kn[ew] of and disregard[ed]” the risk that

placing plaintiff, who did not have COVID-19, behind the glass –

the COVID-19 quarantine portion of the prison – would lead to

plaintiff catching the virus. Plaintiff has pled that prison

officials were aware of at least one inmate, Robert Crabill III,

who, in late August, had been negative for COVID-19 and then

developed COVID-19 sometime prior to August 31, 2020, only after

his placement behind the glass. Sec. Am. Compl. ¶ 58-69.

Plaintiff has thus alleged that defendants were acutely aware of

that risk. Further, plaintiff has pled that the virus had

befallen and indeed killed inmates at MOCC prior to his

placement behind the glass. Id. ¶¶ 52-57. Placing an inmate

who did not have the virus into the virus quarantine location is

“[a]n obvious risk of harm [that] justifies an inference that a

prison official subjectively disregarded a substantial risk of

serious harm to the inmate.” Porter, 923 F.3d at 361 (internal

quotations omitted).

Accordingly, plaintiff has satisfied the first element

necessary to invoke the “continuing violation” doctrine by

establishing that placing him in the COVID-19 quarantine ward,

Pod 6 (i.e., “behind the glass”), is an action that was

deliberately indifferent to his health and safety, and thus

violative of his Eighth Amendment rights.

The second question relevant to whether the

“continuing violation” doctrine applies here is whether

plaintiff has “place[d] one or more of [defendants’] acts or

omissions within the applicable statute of limitations for

personal injury.” DePaola, 884 F.3d at 487.

Plaintiff’s original complaint (“Og. Compl.”) was

dated and signed by plaintiff as being September 28, 2022, see

Og. Compl. 13, and filed on October 5, 2022, and it is

undisputed that the Second Amended Complaint relates back to at

least October 5, 2022, and at most September 28, 2022.7 See

generally Mot., Resp. The question is thus whether the Second

Amended Complaint alleges any continuing or ongoing deprivation

of plaintiff’s Eighth Amendment rights that occurred after

September 28, 2020, or October 5, 2020 – two years prior to the

date the complaint was filed. The answer is that it does not.

The Second Amended Complaint focuses on (1) the events

leading up to plaintiff’s forced placement on September 7, 2020,

in Pod 6 (“behind the glass”), Sec. Am. Compl. ¶¶8-28, 52-57,

58-65; (2) the events involving plaintiff that transpired

between September 7, 2020, and September 20, 2020, id. ¶¶ 29-46;

and (3) plaintiff’s long COVID symptoms, id. ¶ 48-51.

Even treating the complaint as filed on September 28,

2022, the complaint is fully devoid of any specific allegations

of actions or continued violations that occurred within the two-

year statute of limitations period. The latest specific

allegation in the complaint that plaintiff was on Pod 6 is that

7 The parties offer limited discussion as to whether September

28, 2022, or October 5, 2022, is the date upon which the

complaint should be deemed filed, see Mot. 4-5; Pl. Resp. 8 n.5.

However, given the specifics of this case, the difference is

immaterial to the disposition of the pending motion.

he “filed two additional grievances related to being placed on

the COVID unit on September 14 and September 20, 2020.” Sec.

Am. Compl. ¶ 46. Inasmuch as that allegation references a

violation that occurred more than two years before the complaint

was filed, plaintiff has failed to establish that the violation

alleged therein continued into the statute of limitations

period.

Plaintiff contends that the complaint’s allegation

that defendants “maintained [plaintiff’s] placement on Pod 6” is

sufficient to establish a violation that occurred within the

limitations period. See Pl. Resp. 7-8. Plaintiff notes that

the date upon which he was removed from the COVID-19 unit is an

issue of fact, not to be determined at the motion to dismiss

stage. Id.

While plaintiff is correct as to the procedural

context, he must at least plead “enough facts to state a claim

that is plausible on its face.” Twombly, 550 U.S. at 570. He

has not done so here, where he has failed to “place one or more

of [defendants’ violations] within the statutory limitation

period.” DePaola, 884 F.3d at 487. In DePaola, for example,

the court held the continuing violations doctrine applied

because plaintiff alleged present, ongoing, and current

violations, specifically citing to present-tense verbiage in the

complaint. See id. 487-88. The plaintiff in DePaola had pled

that he had “‘repeatedly’ sought ‘help’” for his “ongoing”

mental illness, that “defendants have violated and ‘continue to’

violate his rights by failing to provide” treatment, and that he

“continues to” experience extreme symptoms. Id. at 488.

Conversely, here, plaintiff’s sole allegation that defendants

“maintained” him on Pod 6 is past tense, implies that he was at

some point removed from Pod 6, and does not provide any date on

which plaintiff was on Pod 6 inside the limitations period.

Accordingly, even under the continuing violations

doctrine, plaintiff has failed to allege any violation within

the applicable statutory limitations period, and his complaint

is untimely.

b. Qualified Immunity

Defendants assert that they are entitled to qualified

immunity inasmuch as “[p]laintiff has no [c]onstitutional right

to be housed in any specific facility or any specific unit

within any facility.” Mot. 5. They cite to Sandin v. Conner,

515 U.S. 472, 482 (1995), for the contention that federal courts

must “afford appropriate deference” to “state officials trying

to manage a volatile environment,” and to Hayes v. Thompson, 726

F.2d 1015, 1016-1017 (4th Cir. 1984), to argue that the

placement and assignment of inmates into particular units are

discretionary and not subject to review unless state or federal

law places limits on such discretion. See also Curtis v.

Ozmint, 2011 WL 635302, at *8-9 (D.S.C. Jan. 5, 2011)

(collecting the above cases). The court notes that all of these

cases relied upon by defendants are inapposite to this case.

Each of those cases deals with questions of whether moving an

inmate to a unit deprives them of due process under the

Fourteenth or Fifth Amendments; none of them address whether

such movement could constitute an Eighth Amendment violation in

a situation similar to the present case.

Defendants contend that because prison officials

“believe[d] that [p]laintiff had been caught in an attempt to

escape” from his prior unit, “the decision was made to place

[p]laintiff on Pod 6” in order to “plac[e] another security door

between [p]laintiff and the general public.” Mot. 6.

Plaintiff responds that defendants have failed to

argue that they are entitled to qualified immunity for the

violations of the Eighth Amendment actually alleged, inasmuch as

plaintiff’s claim is that defendants were deliberately

indifferent by placing him in the COVID-19 quarantine unit while

he did not have the virus, not that defendants were deliberately

indifferent by simply placing him in a different unit. Resp. 8-

10.

Defendants reply by simply reiterating their argument

that their decision to move plaintiff to Pod 6 was

“discretionary” and valid “due to [p]laintiff (sic) high risk of

harm and potential to escape.” Reply 4. Defendants add that,

“quite simply, the allegations of a continued exposure to Covid-

19 are speculation at best and not something a reasonable person

would know requires immediate medical attention.” Id.

Inasmuch as a qualified immunity defense is only

applicable to a claim against an official in his or her

individual capacity, this defense is inapplicable to plaintiff’s

claims for declaratory and injunctive relief against defendants

in their official capacities. See Wall v. Wade, 741 F.3d 492,

498 n.9 (4th Cir. 2014).

When a government official is sued in their individual

capacity, they are shielded by qualified immunity “insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” King v. Riley, 76 F.4th 259, 264-65 (4th Cir. 2023)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To

overcome qualified immunity, a plaintiff must typically show (1)

that the government official violated a statutory or

constitutional right and (2) that right was clearly established

at the time of the challenged conduct.” Id.

Beginning with the first prong, defendants’ placement

of plaintiff on Pod 6, previously a disciplinary unit that was

now being used as a quarantine ward where inmates who tested

positive for COVID-19 were housed, when plaintiff did not

previously have COVID-19 or symptoms thereof was deliberately

indifferent to a significant risk to his health and safety, and

thus violative of his Eighth Amendment rights. See supra.

The court turns to whether the right was clearly

established. “To start, it bears emphasizing that ‘the lodestar

for whether a right was clearly established is whether the law

gave the officials ‘fair warning’ that their conduct was

unconstitutional.” Pfaller v. Amonette, 55 F.4th 436 (4th Cir.

2022) (quoting Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.

2008)).

As defendants note, the court must define the right

with specificity. See City and Cnty. of San Francisco, Calif.

v. Sheehan, 575 U.S. 600, 613 (2015). The question of whether a

right was clearly established examines not whether “the very

action in question has previously been held unlawful,” but

whether, “in light of pre-existing law[,] the unlawfulness” was

“apparent.” Wilson v. Layne, 526 U.S. 603, 615 (2009).

“To determine if a constitutional right was clearly

established,” the court must examine “controlling authority,”

which includes “the decisions of the Supreme Court, [the Fourth

Circuit], and the highest court of the state in which the case

arose.” Dean for & on behalf of Harkness v. McKinney, 976 F.3d

407 (4th Cir. 2020) (quoting Owens ex rel. Owens v. Lott, 372

F.3d 267, 279 (4th Cir. 2004)). “If ‘there are no such

decisions from courts of controlling authority, we may look to a

consensus of cases of persuasive authority from other

jurisdictions if such exists.’” Id. (quoting Booker v. S.C.

Dep't of Corr., 855 F.3d 533, 538-39 (4th Cir. 2017) (internal

quotations omitted)). However, “[t]hat there is little

precedent imposing liability under these specific circumstances

does not necessarily mean that an officer lacks notice that his

conduct is unlawful.” Id. (citing Browder v. City of

Albuquerque, 787 F.3d 1076 (10th Cir. 2015) (“[S]ome things are

so obviously unlawful that they don't require detailed

explanation and sometimes the most obviously unlawful things

happen so rarely that a case on point is itself an unusual

thing.”).

With this framework in mind, the court must determine

here whether it was clearly established that plaintiff had a

right to not be placed and then kept in the disciplinary portion

of the prison that was being used as a quarantine ward for newly

admitted inmates and those afflicted with COVID-19 – then a

novel and potentially deadly pathogenic virus – when he was

previously not infected but had attempted to escape from the

prison’s recreational area. The court finds that in September

of 2020, which is alleged by plaintiff as “early in the

pandemic,” Sec. Am. Compl. ¶ 52, that right was clearly

established.

As an initial matter, neither any federal court nor

the Supreme Court of Appeals of West Virginia had, prior to

September 2020, ruled directly that an inmate has a right to not

be placed in a cell or unit wherein prison officials know others

have COVID-19. However, four circuit courts of appeals have

analyzed whether qualified immunity protects a prison official

who is deliberately indifferent by exposing an inmate who did

not have COVID-19 to inmates that did. Three of those circuits

– the Second, Sixth, and Ninth – found that qualified immunity

did not apply, and the fourth – the Tenth Circuit – found that

qualified immunity did apply, but only because the plaintiff

failed to establish deliberate indifference (in other words, the

Tenth Circuit did not address whether the right was clearly

established). See Nazario v. Thibeault, No. 22-1657, 2023 WL

7147386 (2d Cir. Oct. 31, 2023); Gordon v. Burt, No. 23-1775,

2024 WL 1842873 (6th Cir. Apr. 24, 2024); Hampton v. California,

83 F.4th 754 (9th Cir. 2023), cert. denied sub nom. Diaz v.

Polanco, No. 23-722, 2024 WL 2116277 (U.S. May 13, 2024);

Anderson v. Long, No. 23-1050, 2023 WL 8543932 (10th Cir. Dec.

11, 2023), cert. denied, 144 S. Ct. 1377 (2024). Of the three

circuit courts that have analyzed whether the right was clearly

established, all three have found that it was.

In Nazario, the Second Circuit analyzed an Eighth

Amendment claim of deliberate indifference to plaintiff’s

medical needs.8 2022 WL at *2. As relevant, “at the beginning

of April” of 2020, prison officials forced the plaintiff-inmate

to move into E-Block, a set of cells that “had no windows and

had bar doors that were open to the hallway” and which defendant

knew housed “inmates that [] were COVID-19 positive and

symptomatic.” Nazario v. Thibeault, No. 3:21-CV-216-VLB, 2022

WL 2358504, at *2 (D. Conn. June 30, 2022), aff'd, No. 22-1657,

2023 WL 7147386 (2d Cir. Oct. 31, 2023); see Nazario v.

Thibeault, No. 22-1657, 2023 WL 7147386, at *1 (2d Cir. Oct. 31,

2023) (“We assume the parties’ familiarity with the underlying

8 Though the Second Circuit on appeal analyzed this case as a

medical needs question, the district court’s decision denying

qualified immunity did so on the basis of serious risk to the

inmate’s health and safety. See Nazario v. Thibeault, No. 3:21-

CV-216-VLB, 2022 WL 2358504, at *8 (D. Conn. June 30, 2022),

aff'd, No. 22-1657, 2023 WL 7147386 (2d Cir. Oct. 31, 2023).

facts, the procedural history of the case, and the issues on

appeal.”).

The Second Circuit held that defendant was not

entitled to qualified immunity because he failed to follow

Department of Correction policies, “including policies regarding

the quarantine of inmates with Covid-19 housed in E-Block”;

failed to provide plaintiff proper protective equipment for his

laundry job; and “knew of Covid-19 positive and/or symptomatic

inmates in E-Block and disregarded the risk associated with

[plaintiff’s] transfer there.” 2023 WL, at *2. The Second

Circuit based this holding on Helling v. McKinney, 509 U.S. 25,

33 (1993), wherein the Supreme Court held that prison officials

may not “be deliberately indifferent to the exposure of inmates

to a serious, communicable disease” based on the lack of present

symptoms. Id.; see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d

Cir. 1996) (recognizing “correctional officials have an

affirmative obligation to protect inmates from infectious

disease”); Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981)

(holding that the failure to adequately screen newly arrived

inmates for communicable diseases would violate the Eighth

Amendment “since it represents an ‘(omission) sufficiently

harmful to evidence deliberate indifference to serious medical

needs’” (quoting Estelle, 429 U.S. at 106)).

In Helling v. McKinney, a prisoner was assigned to a

cell with an inmate who smoked five cigarette packs per day.

509 U.S. at 36. The court held that the prisoner stated a valid

“conditions of confinement” claim under the Eighth Amendment due

to prison official’s deliberate indifference to an unreasonably

high amount of environmental tobacco smoke, posing an

unreasonable risk of serious damage to his future health. 509

U.S. at 35. In so finding, the court relied on dicta that

““infectious maladies such as hepatitis and venereal

disease . . . was one of the prison conditions for which the

Eighth Amendment required a remedy,” and that prison officials

may not “be deliberately indifferent to the exposure of inmates

to a serious, communicable disease on the ground that the

complaining inmate shows no serious current symptoms.” Id. at

32 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978), abrogated

on other grounds by Dep't of Agric. Rural Dev. Rural Hous. Serv.

v. Kirtz, 601 U.S. 42 (2024)).

In Gordon, the Sixth Circuit analyzed an Eighth

Amendment claim of deliberate indifference to risk of harm where

defendant prison officials on July 27, 2020, moved inmates, who

had close contact with an inmate who had tested positive for

COVID-19, to the plaintiff’s unit. See Gordon v. Burt, No.

1:21-CV-415, 2023 WL 4409200 (W.D. Mich. May 3, 2023), report

and recommendation adopted, No. 1:21-CV-415, 2023 WL 3914934

(W.D. Mich. June 9, 2023), vacated and remanded, No. 23-1775,

2024 WL 1842873 (6th Cir. Apr. 24, 2024). Plaintiff alleged

that defendants “failed to isolate the close-contact prisoners

from the non-close-contact prisoners who already resided [in

plaintiff’s unit]” and that the close-contact prisoners were

allowed to access the same areas as the non-close-contact

prisoners. Id.

Like the Second Circuit, the court relied on Helling

to find that “a reasonable prison official would have understood

that she could not exhibit deliberate indifference to the risk

to inmate safety presented by the COVID-19 pandemic” and that

“purposefully commingling infected prisoners with uninfected

prisoners” violated the Eighth Amendment. Gordon, 2024 WL, at

*3 (6th Cir. Apr. 24, 2024).

In Hampton, the Ninth Circuit reviewed an Eighth

Amendment allegation of deliberate indifference to a substantial

risk of serious harm to an inmate. Hampton, 83 F.4th at 765-66.

There, prison officials had been made aware that transfers

between prisons “carr[y] [a] significant risk of spreading

transmission of [COVID] between institutions” and of the

significant risk of the virus. Id. at 759. Nonetheless, prison

officials transferred 122 inmates on May 30, 2020, from one

prison to another, some of whom exhibited symptoms and “most of”

whom “had not been tested for COVID-19 for over three weeks,”

and “instead of quarantining the inmates upon their arrival” at

the receiving prison, defendants had them share space and

equipment with other inmates at the receiving prison. Id. The

plaintiff was the surviving spouse of an inmate who was already

at the receiving prison, became ill with COVID-19 after the

transfer, and died.

The Ninth Circuit found that defendants’ actions

violated the Eighth Amendment, and further found that defendants

were not entitled to qualified immunity. Id. at 769. Stating

that the plaintiff was “not required to point to a prior case

holding that prison officials can violate the Eighth Amendment

by transferring inmates from one prison to another during a

global pandemic,” the court relied on Helling in holding that it

was clearly established that “[t]he Eighth Amendment requires

[prison officials] to reasonably protect inmates from exposure

to serious diseases.” Id. at 770. The court then relied on

Ninth Circuit precedent to find that Helling’s broad prohibition

on such conduct was properly applied to the specifics of the

COVID-19 pandemic. Id.

As the Ninth Circuit did in Hampton, the Fourth

Circuit has similarly applied broadly worded protections against

cruel and unusual punishment to determine whether qualified

immunity precluded claims of deliberate indifference. See

Pfaller, 55 F.4th at 454-56; Mays v. Sprinkle, 992 F.3d 295,

301-02 (4th Cir. 2021). In Pfaller, for example, the court

found that the Eighth Amendment’s broad prohibition of

deliberate indifference to a prisoner’s serious medical needs

was clearly established in finding that a prison doctor who knew

of but did not act upon a prisoner’s hepatitis C diagnosis was

not entitled to qualified immunity. Pfaller, 55 F.4th at 454.

There, the court explicitly rejected the doctor’s contention

that his actions must be analyzed by specifically determining

whether it was clearly established that his denial of a

“specific type of follow-up test” for the patient’s diagnosis

violated the Eighth Amendment. Id. at 453 (citing Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (declining to inquire whether

“the very action in question has previously been held” to

violate the Eighth Amendment and rejecting qualified immunity

because “the risk of harm is obvious”). Instead, the court

found that the broad Eighth Amendment standard – that a prisoner

has a right to be free from deliberate indifference to his

serious medical needs – was clearly established, and thus that

the doctor “was on notice that he could not refuse necessary

medical care to” the prisoner. Id. at 453.

In Anderson, the Tenth Circuit found that prison

officials who “fail[ed] to implement a policy of providing

single-person prison cells to medically vulnerable inmates” were

entitled to qualified immunity. 2023 WL, at *2. The court

based this decision purely on plaintiff’s failure to establish a

constitutional violation – it did not reach the question of

whether any such right was clearly established. Id.

Here, the complaint alleges that by September 7, 2020,

prison officials were well aware of the “serious, communicable”

nature of COVID-19 and of the risk that it posed if contracted

by inmates, including plaintiff. As the Fourth Circuit did in

Pfaller, the court analyzes whether the Eighth Amendment’s broad

protections for prisoners against deliberate indifference to

their health and safety was clearly established in the context

of dangerous, highly contagious diseases. The circuit courts

which have addressed a nearly identical question respecting

COVID-19 have found, under Helling, it was clearly established

as of September 7, 2020. Defendants in this case were thus on

notice that it was impermissible to deliberately expose an

inmate, whom they knew to be otherwise uninfected, to COVID-19.

Though defendants in this matter placed plaintiff

“behind the glass” allegedly due to security considerations

rather than on the premise “that the complaining inmate shows no

serious current symptoms,” it was nonetheless clearly

established under Helling that purposefully and knowingly

exposing an otherwise healthy inmate to a “serious,

communicable,” and deadly disease constituted deliberate

indifference. Helling, 509 U.S. at 32.

Accordingly, because it was clearly established that

plaintiff had a right to be free from deliberate indifference to

the substantial risk of harm to his health allegedly caused by

defendants knowingly exposing him to inmates who are positive

for COVID-19, plaintiff has adequately alleged that defendants

are not shielded by qualified immunity.

IV. Conclusion

For the foregoing reasons, the court finds that,

though defendants are not entitled to qualified immunity,

plaintiff has failed to state a claim upon which relief can be

granted by virtue of the applicable statute of limitations.

Accordingly, the court GRANTS defendants’ motion to dismiss and

ORDERS that this case be DISMISSED from the docket.

The Clerk is directed to transmit copies of this order

to all counsel of record and to any unrepresented parties.

ENTER: June 28, 2024

sl lanl ea

Jo . Copenhaver, Jr.

Senior United States District Judge

39