# Smith v. West Virginia Division of Corrections and Rehabilitation

> District Court, S.D. West Virginia · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10731955

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** September 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10731955

## How later opinions describe it (automated extraction)

- holding that, even if defendants “provided [plaintiff] with sometreatment . . . , it does not follow that [defendants] have necessarily provided constitutionally adequate treatment”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
MIRANDA DAWN SMITH
on behalf of the Estate of
Alvis Ray Shrewsbury,
Plaintiff,
v. CIVIL ACTION NO. 5:23-cv-00210

WEST VIRGINIA DIVISION OF
CORRECTIONS AND REHABILITATION, and
AARON JOHNSON, individually as an employee
of the West Virginia Division of Corrections
and Rehabilitation, and
JOHAN RADOSEVICH, individually as an employee
of the West Virginia Division of Corrections
and Rehabilitation, and
ASHLEY TONEY, individually as an employee
of the West Virginia Division of Corrections
and Rehabilitation, and
NICHOLAS BURTON, individually as an employee
of the West Virginia Division of Corrections
and Rehabilitation, and
WEXFORD HEALTH SOURCES, INC., and
ERICA WADE, LPN, individually as an employee
of Wexford Health Sources, Inc., and
JOHN/JANE DOE WEXFORD EMPLOYESS, and
JOHN/JANE DOE CORRECTIONAL OFFICERS,

Defendants.

MEMORANDUM OPINION & ORDER
Pending are Defendants West Virginia Division of Corrections and Rehabilitation
(“the WVDCR”), Aaron Johnson, Johan Radosevich, Ashley Toney, and Nicholas Burton’s
(hereinafter, together “the WVDCR Defendants”) Motion for Summary Judgment [Doc. 276],
filed May 20, 2024, and Defendants Wexford Health Source, Inc. (“Wexford”) and Erica Wade’s
(hereinafter, together “the Wexford Defendants”) Motion for Summary Judgment [Doc. 284], filed
May 21, 2024. Also pending is Plaintiff Miranda Dawn Smith’s Motion for Partial Summary
Judgment [Doc. 280], filed May 21, 2024. The matters are ready for adjudication.
I.

A. Factual Background

On August 29, 2022, Alvis Ray Shrewsbury began serving a six-month term of
imprisonment at Southern Regional Jail (hereinafter “SRJ”) in Beaver, West Virginia. [Doc. 1 at
5 ¶ 28]. He was initially placed in C-pod Section 3 (“the quarantine unit”)for quarantine measures
due to the COVID-19 pandemic. [Doc. 289-3 at 4]. Despite the implications of its name, inmates
in the quarantine unit were permitted to leave their cells and interact freely with one another. [Id.].
While in the quarantine unit, Mr. Shrewsbury was repeatedly beaten by a group of inmates who
stole his daily food trays, bottles of drinking water, and personal commissary food. [Id. at 19–20].

According to fellow inmates, for several days, Mr. Shrewsbury complained of stomach pain and
bruising around his back, sides, and ribs. [Id.; Doc. 289-1 at 3]. Mr. Shrewsbury asked Defendant
Aaron Johnson, a correctional officer, if he could be moved to a new section because of the
continued thefts and beatings, but Defendant Johnson refused. [Doc. 289-3 at 19–20].
On September 6, 2022, during a routine medication pass, Nurse Hanna Corkrean
noted that Mr. Shrewsbury had a black eye. [Doc. 276-7 at 3]. When asked, Mr. Shrewsbury denied
being involved in an altercation and told Nurse Corkrean that he had simply fallen out of bed. [Id.].
Nurse Corkrean reportedly made the inmate an appointment to see the jail physician. [Id.].
The dark bruising around his left eye was also visible to family members who
participated in several video calls with Mr. Shrewsbury between September 6, 2022, and
September 10, 2022. [Doc. 289-3 at 6]. During these calls, Mr. Shrewsbury “indicated that his
ribs were injured or broken, he could hardly breathe, his urine had blood in it, and he was hurting
badly.” [Id.]. He also expressed his fear of not making it out of SRJ alive. [Id.].

On September 10, 2022, upon completing the mandatory quarantine period, Mr.
Shrewsbury was relocated to general population in C-pod Section 5 (“C-5”). [Doc. 276-7 at 3;
Doc. 289-3 at 6]. While in C-5, Mr. Shrewsbury’s health began to deteriorate. He continued to
complain of “stomach pain and hurting in his ribs and his side.” [Doc. 276-6 at 3]. On September
13, 2022, a chest x-ray was performed. [Doc. 276-4 at 7]. The x-ray came back “clear,” and a
physician exam was deferred. [Id.; Doc. 276-4 at 9].
Defendant Erica Wade, LPN, testified that shortly before12:29 p.m. on September
16, 2022, an officer escorted Mr. Shrewsbury to the medical unit. [Doc. 284-2 at 6–7]. According
to Defendant Wade, Mr. Shrewsbury “appeared to be detoxing.” [Id.]. She described him as

looking “sweaty” and “pale” with “snot coming from his nose.” [Id.]. Despite complaints of
“nausea, vomiting, [and] diarrhea,” because Mr. Shrewsbury’s vital signs were allegedly within
normal limits,1 Defendant Wade simply “reordered” Pepto-Bismol,2 and Mr. Shrewsbury was
escorted back to his cell. [Id.].

1 Although she testified that Mr. Shrewsbury’s vital signs were within normal limits,
Defendant Wade failed to document the encounter, and thus, she could not recall the exact
measurements she obtained. [Doc. 284-2 at 6–7]. However, she contended that if Mr.
Shrewsbury’s vital signs had been “abnormal,” she “would’ve contacted a provider immediately
or . . . housed [Mr. Shrewsbury] in medical for observation.” [Id.].
2 It appears Mr. Shrewsbury was also given Pepto-Bismol on September 12th, 13th, and
14th, although it is not clear from the record why it was ordered on these dates. [See Doc. 284-2
at 6].
At approximately 12:00 a.m. on September 17, 2022, Mr. Shrewsbury once again
“complained of not feeling well and need[ing] to have a bowel movement.” [Doc. 289-1 at 3].
According to his cellmate, Brandon Lambert, “Mr. Shrewsbury sat down on the commode, but
then suddenly stood up, collapsed on the floor, and began bleeding profusely from his rectum.”
[Doc. 1 at 13 ¶ 91]. Surveillance footage from that night shows Mr. Shrewsbury lying prostrate

with his “legs . . . at the entrance of [his] cell” at 12:04 a.m. [Doc. 289-1 at 3; Doc. 289-3at 7].
At approximately 12:05 a.m., staff responded to a call “asking for medical
assistance to the cell for an inmate who had passed out.” [Doc. 289-1 at 3]. According to several
staff Incident Reports completed that night, Defendant Johan Radosevich, Correctional Officer
Aiden Jarrell, and Nurse Staci Perry proceeded immediately to Mr. Shrewsbury’s cell while
Sergeant Jared Williams went to medical to retrieve Nurse Tiffany Mullins and a crash cart. [Doc.
289-3 at 16–19].
When Defendant Radosevich, Officer Jarrell, and Nurse Perry arrived at his cell,
Mr. Shrewsbury was “being held up on the toilet” by another inmate. [Doc. 289-3 at 16]. Although

he was still responsive, Mr. Shrewsbury looked “gray” and was “sweating profusely” while other
inmates poured water over his face. [Id.]. Defendant Radosevich instructed Officer Jarrell to
initiate lockdown protocol and clear the cell. [Id.].
Shortly thereafter, Sergeant Williams and Nurse Mullins reached Mr. Shrewsbury’s
cell. [Id.] Although Nurse Mullins reports that Mr. Shrewsbury was lying in his bunk when she
and Sergeant Williams arrived, [Id. at 18], Sergeant Williams reports that Mr. Shrewsbury was
lying “on a mat on the floor stating that he fell out [of his bunk],” [Id. at 17]. Mr. Shrewsbury
complained of chest pain and told staff “he felt as if he needed to have a bowel movement.” [Id.].
At approximately 12:08 a.m., Nurse Mullins and Nurse Perry took Mr. Shrewsbury’s vitals. [Id.].
While there is some discrepancy between reports, Nurse Mullins’s report indicates that Mr.
Shrewsbury’s blood pressure was 140/76 mmHg, his oxygen level was 76%, and his heart rate was
45bpm. [Id. at 18; but see id. at 17 (Sergeant Williams reporting Mr. Shrewsbury’s blood pressure
was 140/75 mmHg, his oxygen level was 86%, and his heart rate was 45 bpm)]. Because Mr.
Shrewsbury’s oxygen levels were low, Nurse Mullins recommended sending Mr. Shrewsbury to

the hospital. [Id. at 18]. Sergeant Williams instructed Officer Jarrell to retrieve a wheelchair so
Mr. Shrewsbury could first be taken to medical “where an EKG could be conducted.” [Id. at 17].
At approximately 12:14 a.m., Officer Jarrell returned with a wheelchair and
Sergeant Williams “stepped out of the section to talk with [Sergeant Blake] about the incident.”
[Doc. 289-3 at 9, 17; Doc. 289-4 at 2; Doc. 289-7 at 9]. Both Officer Jarrell and Defendant
Radosevichreport assisting Mr. Shrewsbury into the wheelchair. [Doc. 284-3 at 18–20; Doc. 289-
3 at 16–17]. However, several inmates who witnessed the incident reported hearing staff laughing
at and making fun of Mr. Shrewsbury while telling him to get in the wheelchair by himself. [Doc.
289-3 at 20–21, 26; Doc. 290-3 at 15].

While transferring to the wheelchair, “a copious amount of blood and fecal matter
came out of [Mr. Shrewsbury’s] pants” and down his legs. [Doc. 284-3 at 13, 20, 29]. Nurse
Mullins told Sergeant Williams that she believed Mr. Shrewsbury “has a possible GI bleed and
needed to be sent to the hospital urgently.” [Doc. 289-3 at 17]. Sergeant Williams reports telling
the nurses to call for an ambulance before going to medical to help Nurse Mullins locate the
appropriate paperwork. [Id.] At approximately 12:15 a.m., surveillance footage shows Sergeant
Williams and Nurse Mullins leaving the scene. [Id. at 9, 26]. She reports that at approximately
12:17 a.m., she ran to call the on-call doctor, “Dr. Rashid,” but he did not answer the phone. [Id.
at 18]. She then called Nurse Beth Waugh, who suggested Nurse Mullins call “the next doctor[,] .
. . Dr. Baldera.” [Id.]. Nurse Mullins called Dr. Baldera at 12:23 a.m., but there was no answer.
[Id.]. At 12:24 a.m., Nurse Mullins managed to get ahold of “Dr. Martin” who told her to send Mr.
Shrewsbury to the hospital. [Id.]. However, Nurse Perry had already contacted Emergency Medical
Services (“EMS”) at approximately 12:21 a.m. [Id. at 19].
At approximately 12:17 a.m., Defendant Radosevich and Officer Jarrell began

transporting Mr. Shrewsbury to the booking department to await the arrival of an ambulance. [Doc.
289-3 at 10; Doc. 291-1 at 2]. Upon entering the booking department, Sergeant Blake suggested
Defendant Radosevich take Mr. Shrewsbury to the shower and help him clean up. [Doc. 276-4 at
11; Doc. 289-3 at 17]. Mr. Shrewsbury, however, was too weak to stand in the shower, and
Defendant Radosevichwas “unable to hold him up” by himself. [Doc. 289-3 at 17]. At 12:24 a.m.,
Defendant Radosevich exited the bathroom to radio for help. [Id. at 11, 17]. Approximately three
minutes later, Defendant Radosevich and Officer Jarrell re-entered the bathroom and discovered
an unresponsive Mr. Shrewsbury. [Id. at 26; Doc. 280-3 at 17; Doc. 280-26 at 27; Doc. 284-3 at
23]. Defendant Radosevich then “called for Medical to respond to Booking.” [Doc. 289-3 at 17].

At approximately 12:28 a.m., Nurse Perry, Nurse Mullins, Sergeant Williams, and
Sergeant Blake entered the bathroom and saw Mr. Shrewsbury laying on the bathroom floor. [Doc.
289-3 at 13, 18, 26]. Sergeant Blake attempted to wake Mr. Shrewsbury by placing “ammonia
capsules” under his nose, but he did not respond. [Id. at 18]. Nurse Perry and Nurse Mullins then
took Mr. Shrewsbury’s vital signs. [Id.]. Both Mr. Shrewsbury’s pulse and oxygen level were
“lower than the last time.” [Id. at 17]. At approximately 12:40 a.m., “medical staff were unable to
get a pulse.” [Id.]. Sergeant Blake “instructed medical personnel that [Mr.] Shrewsbury needed
oxygen but the first tank brought to booking did not have the correct equipment.” [Id.]. Sergeant
Blake then initiated CPR while Nurse Mullins “utilized an Ambu bag.[3]” [Id.]. Sergeant Williams
“called 911 dispatch [to] inform[] them of the changes” to Mr. Shrewsbury’s condition. [Id.].
EMS arrived at approximately 12:41 a.m. and immediately began “life saving
measures.” [Doc. 280-3 at 5; Doc. 289-3 at 16]. At approximately 12:57 a.m., Mr. Shrewsbury
was placed on a stretcher and loaded into the back of the ambulance. [Doc. 280-3 at 17]. The

ambulance departed from SRJ at approximately 1:10 a.m., [Doc. 284-6 at 1], and arrived at the
emergency room at Beckley Appalachian Regional Hospital (“BARH”) at approximately 1:19
a.m., [Id.].
Medical staff at BARH were unable to resuscitate Mr. Shrewsbury, and he was
pronounced dead at 2:07 a.m. [Doc. 280-3 at 1; Doc. 284-7 at 20–22]. On October 1, 2022, an
autopsy was performed by Drs. John C. Hiserodt, M.D., and Rockefeller F. Cooper, II, M.D., of
Third Eye Forensic Consultancy, LLC. [Doc. 280-26 at 3]. In their Final Autopsy Report, they
opined as follows:
Mr. Shrewsbury died as a result of complications of hypertensive and
atherosclerotic disease. In this regard, the heart was enlarged (cardiomegaly), the
left ventricular free wall was thickened (concentric hypertrophy) and there was
significant, calcified atherosclerotic occlusion of the left coronary artery. The right
coronary ostium was anomalous and congenitally narrow. Anomalous coronary
artery syndrome is a well-known risk for sudden unexpected death in the forensic
literature. No fatal blunt force injuries were identified at autopsy and no evidence
of fatal internal bleeding was present. The immediate cause of death was an acute
myocardial infarct (heart attack) due to the above conditions.

[Doc. 220-2 at 2–3]. Drs. Hiserodt and Cooper also noted evidence of “blunt force trauma to the
head and right arm.” [Doc. 289-3 at 22].

3 An “Ambu bag” is the proprietary name for a bag valve mask or manual resuscitator, a
hand-held device used to provide positive pressure ventilation to patients who are not breathing
adequately.
In addition to the autopsy conducted by Dr. Cooper, the Office of the Chief Medical
Examiner of the State of West Virginia ordered an autopsy be performed. [Id. at 2]. On October
27, 2022, Dr. Paul F. Mellen, M.D., a forensic pathologist, completed an autopsy and produced a
Report of Death Investigation and Post-Mortem Examination Findings. [Doc. 289-7 at 8]. In his
report, Dr. Mellen concluded that Mr. Shrewsbury’s died as a result of “acute and chronic upper

gastrointestinal bleeding,” with a contributory factor of “cardiomegaly.” [Id.].
Dr. Mellen’s autopsy report also notes that while Mr. Shrewsbury’s body showed
no signs of trauma, there was evidence of healing “racoon ecchymosis”4around Mr. Shrewsbury’s
left eye. [Doc. 289-1 at 3]. A toxicology report came back negative for alcohol or drugs. [Id. at 4].
B. Procedural History

On March 15, 2023, Ms. Smith instituted this action on behalf of Mr. Shrewsbury’s
estate against the WVDCR Defendants, the Wexford Defendants, Ashley Stroup,5 and Beth
Waugh,6 as well as various “John/Jane Does.” [Doc. 1]. The Complaint asserts the following
claims: Count I –Eighth Amendment Violations; Count II – Conspiracy to Commit “Fourteenth”
Amendment Violations; Count III – Failure to Intervene/Bystander Liability; Count IV –
Negligence; Count V – Medical Negligence; Count VI – Gross Negligence; Count VII–
Intentional Infliction of Emotional Distress (“ÍIED”); Count VIII – Common Law Civil
Conspiracy; Count IX – Negligent Hiring; Count X – Negligent Supervision and Training; and

4 “Racoon ecchymosis” or “raccoon eyes,” are large, dark bruises on and around the
eyelids.
5On December 4, 2023, the parties stipulated to the dismissal of Defendant Ashley Stroup
without prejudice pursuant to Federal Rule of Civil Procedure41(a)(1)(A)(ii). [Doc. 143].

6 On March 25, 2024, the parties stipulated to the dismissal of Defendant Beth Waugh
without prejudice pursuant to Federal Rule of Civil Procedure41(a)(1)(A)(ii). [Doc. 249].
Count XI – Negligent Retention. [Id.]. Ms. Smith seeks to recover “all damages permitted under
the law, including but not limited to, all damages recoverable under the West Virginia wrongful
death statute, [West Virginia Code section 55-7-5].”7 [Id.]
On May 20, 2024,the WVDCR Defendants moved for summary judgment, seeking
judgment as a matter of law on all claims asserted against the WVDCR and its employees. [Doc.

276]. Likewise, on May 21, 2024, the Wexford Defendants moved for summary judgment, seeking
judgment as a matter of law on all claims asserted against Wexford and Defendant Wade. [Doc.
284]. Ms. Smith responded to both Motions on June 4, 2024 [Docs. 289, 290]. Defendants filed
their respective replies on June 11, 2024 [Docs. 293, 296].
On May 21, 2024, Ms. Smith filed her own motion for partial summary judgment
[Doc. 280], to which Defendants responded on June 4, 2024 [Docs. 291, 292].
II.

Federal Rule of Civil Procedure 56 provides that summary judgment is proper
where “the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden is on the nonmoving
party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 246 (1986). “The nonmoving party must do so by offering ‘sufficient proof in

7 West Virginia Code section 55-7-5 provides,

Whenever the death of a person shall be caused by wrongful act, neglect, or default,
and the act, neglect or default is such as would (if death had not ensued) have
entitled the party injured to maintain an action to recover damages in respect
thereof, then, and in every such case, the person who, or the corporation which,
would have been liable if death had not ensued, shall be liable to an action for
damages, notwithstanding the death of the person injured, and although the death
shall have been caused under such circumstances as amount in law to murder in the
first or second degree, or manslaughter.
the form of admissible evidence’ rather than relying solely on the allegations of her pleadings.”
Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v.
Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)).The Court must “view the evidence in the
light most favorable to the [nonmoving] party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal
quotation marks and citation omitted); Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651,

659 (4th Cir. 2018).
When faced with cross-motions for summary judgment, the Court applies the above
standard and must consider “each motion separately on its own merits to determine whether either
of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir. 2003) (internal quotation marks omitted). “The court . . . cannot weigh the evidence or
make credibility determinations.” Jacobs v. N.C. Admin. Off. of the Courts, 780 F.3d 562, 569 (4th
Cir. 2015);see Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017).In general, if “an issue
as to a material fact cannot be resolved without observation of the demeanor of witnesses in order
to evaluate their credibility, summary judgment is not appropriate.” Fed. R. Civ. P. 56 advisory

committee’s note to 1963 amendment.
III.

A. Defendants’ Motions for Summary Judgment

Together, Defendants’ Motions seek summary judgment on all claims asserted
herein. Accordingly, the Court will address each Count in turn.
1. Count I

Count I asserts an Eighth Amendment claim for deliberate indifference pursuant to
42 U.S.C. § 1983 against the WVDCR Defendants and Defendant Wade [Doc. 1 at 15]. The
WVDCR Defendants contend they are entitled to summary judgment on Count I inasmuch as there
is no evidence demonstrating (1) the WVDCR Defendants had actual knowledge of an excessive
risk to Mr. Shrewsbury’s safety, or (2) any action or inaction of the WVDCR Defendants caused
or contributed to the death of Mr. Shrewsbury. [Doc. 277 at 6–8]. Defendant Wade contends she
is entitled to qualified immunity. [Doc. 281 at 16].

42 U.S.C. § 1983 governs actions against state officers for certain civil rights
violations as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law.

42 U.S.C. § 1983. A state actor sued in his individual capacity for monetary damages generally
qualifies as a suable “person” under Section 1983. Hafer v. Melo, 502 U.S. 21, 27 (1991). But he
may be entitled to qualified immunity. Qualified immunity is available only to those who do “not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)); Garrett v. Clarke, 74 F.4th 579, 583 (4th Cir. 2023). A clearly established
right is one that is “sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up);
see D.C. v. Wesby, 583 U.S. 48, 63 (2018); Garrett, 74 F.4th at 584. “To determine if the right in
question was clearly established, we first look to cases from the Supreme Court, th[e] Court of
Appeals, or the highest court of the state in which the action arose.” Thompson v. Virginia., 878
F.3d 89, 99 (4th Cir. 2017) (citing Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004));
Franklin v. City of Charlotte, 64 F.4th 519 (4th Cir. 2023). Absent “directly on-point, binding
authority,” courts may also consider whether “the right was clearly established based on general
constitutional principles or a consensus of persuasive authority.” Booker v. South Carolina Dep’t
of Corrections, 855 F.3d 533, 543 (4th Cir. 2017); Owens, 372 F.3d at 279. In sum, “existing
precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.
al–Kidd, 563 U.S. 731, 741 (2011).

Thus, resolving questions of qualified immunity at summary judgment requires a
two-pronged inquiry: (1) whether the alleged facts, when viewed in the light most favorable to the
party asserting the injury, demonstrate that the official’s conduct violated a federal right, and (2)
whether such right was “clearly established” at the time of the alleged violation. Tolan v. Cotton,
572 U.S. 650, 655–56 (2014); see also Halcomb v. Ravenell, 992 F.3d 316, 319 (4th Cir. 2021).
The second prong presents a “purely legal question . . . [that] is always capable of decision at the
summary judgment stage.” Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir. 2005) (internal
quotation marks omitted). While courts can choose the order in which to engage these two prongs,
“[i]f the answer to either question is no, then the official is entitled to qualified immunity.”

Halcomb, 992 F.3d at 319.
a. Deliberate Indifference to Serious Medical Need

“The Eighth Amendment, which is applicable to the States through the Fourteenth
Amendment, prohibits the infliction of cruel and unusual punishments.’” Anderson v. Kingsley,
877 F.3d 539, 543 (4th Cir. 2017) (quoting U.S. Const. amend. VIII). This proscription accords
inmates the right “to receive adequate medical care while incarcerated.” DePaola v. Clarke, 884
F.3d 481, 486 (4th Cir. 2018) (citing Scinto v. Stansberry, 841 F.3d 219, 236 (4th Cir. 2016)).
“This right . . . requires that government officials not be deliberately indifferent to any serious
medical needs of the detainee.” Tarashuk v. Givens, 53 F.4th 154, 163 (4th Cir. 2022) (internal
quotation marks omitted).
“A successful medicaldeliberate indifference claim has two components, objective
and subjective.” Phoenix v. Amonette, 95 F.4th 852, 859 (4th Cir. 2024) (internal quotation marks
omitted). “The objective component requires that the plaintiff’s medical condition be serious --
one that has been diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would easily recognize the necessity for a doctor’s attention.” Id. (cleaned up).
“The subjective component requires showing that the defendant had actual subjective knowledge
of both the [plaintiff’s] serious medical condition and the excessive risk posed by the official’s
action or inaction.” Id. (cleaned up). “A plaintiff can meet the subjective knowledge requirement
through direct evidence of a prison official’s actual knowledge or circumstantial evidence tending
to establish such knowledge, including evidence that a prison official knew of a substantial risk
from the very fact that the risk was obvious.” Scinto, 841 F.3d at 226 (internal quotation marks
omitted).
Deliberate indifference can be manifested by prison officials in various ways,

including intentionally denying or delaying medical care, or intentionally interfering with
prescribed medical care. See, e.g., Scinto, 841 F.3d at 236 (holding that it was clearly established
in 2005 that denying a prisoner his prescribed insulin can violate the Eighth Amendment); Jehovah
v. Clarke, 798 F.3d 169, 181–82 (4th Cir. 2015) (emphasizing that refusal to treat serious medical
needs can constitute deliberate indifference); Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009)
(explaining that delay in treatment can violate Eighth Amendment). “[M]ere disagreements
between an inmate and [prison staff] over the inmate’s proper medical care,” however, are
insufficient to establish deliberate indifference “absent exceptional circumstances.” Scinto, 841
F.3d at 225. Deliberate indifference is a “higher standard for culpability than mere negligence or
even civil recklessness, and as a consequence, many acts or omissions that would constitute
medical malpractice will not rise to the level of deliberate indifference.” Jackson v. Lightsey, 775
F.3d 170, 178 (4th Cir. 2014). “[T]reatment must be so grossly incompetent, inadequate or
excessive as to shock the conscience or to be intolerable to fundamental fairness.” Stevens v.
Holler, 68 F.4th 921, 933 (4th Cir. 2023)(internal quotation marks omitted).

“A prisoner’s right to adequate medical care and freedom from deliberate
indifference to medical needs has been clearly established by the Supreme Court and this Circuit
since at least 1976 and, thus, was clearly established at the time of the events in question.” Scinto,
841 F.3d at 236. Thus, the Court turns to whether the alleged facts, when viewed in the light most
favorable to Ms. Smith, demonstrate that Defendants’ conduct violated Mr. Shrewsbury’s right to
be free from deliberate indifference to his serious medical need.
As an initial matter, the Court finds Ms. Smith has put forth sufficient evidence to
demonstrate Mr. Shrewsbury suffered from an objectively serious medical condition such that
“even a lay person would easily recognize the necessity for a doctor’s attention.” Gordon v.

Schilling, 937 F.3d 348, 356 (4th Cir. 2019). Ms. Smith offered expert testimony of Dr. Edna
Wong Mckinstry, M.D., F.A.C.P., who concludes “[p]ictures of [Mr. Shrewsbury’s] cell, as well
as pictures from the Booking cell, had evidence of copious blood in and around the toilet bowl, on
the cell floor, on the mattress where [Mr. Shrewsbury] fainted, [and] on the floor of the Booking
cell.” [Doc. 289-1 at 3]. Witness reports also indicated that Mr. Shrewsbury appeared “gray” and
“complained of chest pain [and] trouble breathing.” Id. It does not take medical training to
recognize that someone who appears “gray” and is profusely bleeding from the rectal area may
need medical attention. This is precisely the kind of medical distress that even a lay person could
easily recognize. The evidence supports an inference that Mr. Shrewsbury’s medical need was
objectively serious. Therefore, Ms. Smith has satisfied the first prong of the deliberate indifference
inquiry.
Turning to the subjective prong of the deliberate indifference inquiry, Ms. Smith
has not adducedany evidence, and the Court cannot discern any, that Defendants Johnson, Toney,
or Burton had actual, subjective knowledge of Mr. Shrewsbury’s serious medical condition or that

they were present when the events in questions took place. In fact, the record establishes that
Defendant Burton was notified of the incident by phone after EMS arrived on scene and that “he
was on his way in” when he received the call. [Doc. 280-3 at 19–20].
There is evidence, however, Defendant Radosevich assistedMr. Shrewsbury on the
night in question and recognized the seriousness of Mr. Shrewsbury’s condition. [See, e.g., Doc.
289-4 at 1 (Radosevich testifying that he knew Mr. Shrewsbury “need[ed] to go to the hospital . . .
urgently,” and that “something bad [was] really, really happening to this guy.”)]. But deliberate
indifference requires more. The officer must have also had actual knowledge of the excessive risk
to the inmate’s health posed by his actions or inactions. Pfaller v. Amonette, 55 F.4th 436, 445 (4th

Cir. 2022) (“[A] plaintiff must show the prison official . . . recognized that his actions were
insufficient to mitigate the risk of harm to the inmate arising from his medical needs.” (internal
quotation marks omitted)); Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014)(“[I]t is not
enough that the defendant should have known of a risk; he or she must have had actual subjective
knowledge of both the inmate’s serious medical condition and the excessive risk posed by the
official’s action or inaction.”). In viewing the record in the light most favorable to Ms. Smith, the
Court finds that genuine issues of material fact exist as to whether Defendant Radosevich knew
that his actions or inactions were insufficient to mitigate the risk of harm to Mr. Shrewsbury.
The WVDCR Defendants further contend summary disposition is warranted
because Ms. Smith failed to show the alleged acts caused Mr. Shrewsbury’s death, as is required
to recover under the West Virginia wrongful death statute. This argument is foreclosed by the
Complaint itself, which repeatedly asserts “Plaintiff will seek to recover all damages permitted
under the law, including but not limited to, all damages recoverable under the West Virginia

wrongful death statute. . . .” [Doc. 1 at 16–28 (emphasis added)]. Moreover, our Court of Appeals
has made clear that “[a]n actionable deliberate-indifference claim does not require proof that the
plaintiff suffered an actual injury. Instead, it is enough that the defendant’s actions exposed the
plaintiff to a substantial riskof serious harm.” Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 210
(4th Cir. 2017) (cleaned up); see also Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996)
(“[T]o recover more than nominal damages [in a § 1983 action], actual injury caused by the
constitutional violation must be proved by sufficient evidence.”). The record is sufficient for Ms.
Smith to introduce to a jury her claim that the actions or inactions of the WVDCR Defendants
“exposed” Mr. Shrewsbury “to a substantial risk of serious harm.” Heyer, 849 F.3d at 211. No

expert is needed where the jury is capable of an unaided understanding of the risks of delaying
emergency care to someone in Mr. Shrewsbury’s state. Accordingly, to the extent Count I alleges
a claim of deliberate indifference to serious medical needs, Defendant Radosevich is not entitled
to summary judgment.
The Court further finds that genuine issues of material fact exist with respect to
whether Defendant Wade was deliberately indifferent to Mr. Shrewsbury’s medical needs. At the
time of his encounter with Defendant Wade, Mr. Shrewsbury complained of nausea, vomiting, and
diarrhea, appeared sweaty and pale, and had mucus coming out of his nose. While Defendant Wade
renewed Mr. Shrewsbury’s prescription for Pepto-Bismol, a recognized treatment for temporary
digestive discomfort, evidence suggests Mr. Shrewsbury had been experiencing persistent
abdominal pain. See De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (holding that, even if
defendants “provided [plaintiff] with sometreatment . . . , it does not follow that [defendants] have
necessarily provided constitutionally adequate treatment”); see also Cesal v. Moats, 851 F.3d 714,
723 (7th Cir. 2017) (“Continuing an ineffective treatment plan . . . may evidence deliberate

indifference.”). The parties’ retained experts provide contradictory analyses of Defendant Wade’s
actions and whether she provided adequate treatment. [Doc. 290-1 at 48; Doc. 290-2 at 5; Doc.
290-3 at 1–2; Doc. 292-3 at 8, 14, 28]. Inasmuch as there is disputed evidence as to whether
Defendant Wade acted with deliberate indifference, qualified immunity, as a purely factual matter,
is inappropriate. Accordingly, the Wexford Defendants’ motion for summary judgment is denied
on Count I.
b. Duty to Protect

The Eighth Amendment’s prohibition on “cruel and unusual punishments” also
imposes certain duties on prison officials, including taking “reasonable measures to guarantee the
safety of the inmates.” Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (cleaned up).
“Specifically, corrections officers have a duty to protect prisoners from violence at the hands of
other prisoners, for being violently assaulted in prison is simply not part of the penalty that criminal
offenders pay for their offenses against society.” Id. (cleaned up); see also Farmer, 511 U.S. at
833 (“[G]ratuitously allowing the beating . . . of one prisoner by another serves no legitimate
penological objective, any more than it squares with evolving standards of decency.” (cleaned
up)); Thompson, 878 F.3d at 100 (“[C]ontrollingauthority clearly establishes an inmate’s right to
reasonable protection from malicious assault.”).
That said, “not every injury suffered by a prisoner at the hands of another translates
into constitutional liability for prison officials responsible for the victim’s safety.” Makdessi v.
Fields, 789 F.3d 126, 133 (4th Cir.2015) (internal quotation marks omitted). For liability to attach,
an inmate must satisfy a two-part test:
First, the inmate “must establish a serious deprivation of his rights in the form of a
serious or significant physical or emotional injury,” or a substantial risk thereof.
Danser v. Stansberry, 772 F.3d 340, 346–47 (4th Cir. 2014) (internal quotation
marks omitted); see Farmer, 511 U.S. at 834 . . . . This objective inquiry “requires
a court to assess whether society considers the risk that the prisoner complains of
to be so grave that it violates contemporary standards of decency to expose anyone
unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 . . . (1993).

Second, an inmate must show that the prison official had a “sufficiently culpable
state of mind,” which, in this context, consists of “deliberate indifference to inmate
health or safety.” Farmer, 511 U.S. at 834 . . . (internal quotation marks omitted).
This subjective inquiry requires “evidence suggesting that the prison official had
actual knowledge of an excessive risk to the plaintiff’s safety.” Danser, 772 F.3d
at 347. The defendant must “be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837 . . . (emphasis added). An inmate can, however,
prove an official’s actual knowledge of a substantial risk “in the usual ways,
including inference from circumstantial evidence.” Id. at 842 . . . . In other words,
“a factfinder may conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Id.

Raynor, 817 F.3d at 127–28.
Actual knowledge alone does not ineluctably result in liability. Rather, “prison
officials who actually knew of a substantial risk to inmate health or safety may be found free from
liability if they responded reasonably to the risk.” Id. at 128 (quoting Farmer, 511 U.S. at 844).
For example, courts have found that “prison guards have no constitutional duty to intervene in the
armed assault of one inmate upon another when intervention would place the guards in danger of
physical harm.” Id. (quoting Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995)); see also Winfield
v. Bass, 106 F.3d 525, 532 (4th Cir.1997) (en banc) (“[S]uch heroic measures are not
constitutionally required.”). “But ‘completely failing to take any action’ to stop an ongoing assault
on a prisoner can amount to deliberate indifference.” Raynor, 817 F.3d at 128 (quoting Winfield,
106 F.3d at 532); see also, e.g., Odom v. S.C. Dep't of Corr., 349 F.3d 765, 773 (4th Cir.2003)
(“[Correctional officers’] failure to act in response to [an inmate’s] requests to be removed from
the cage adjacent to his attackers constituted deliberate indifference to [the inmate’s] Eighth
Amendment rights . . . .”).

Absent from the evidentiary record is any indication that Defendants Burton,
Toney, or Radosevich knew Mr. Shrewsbury had been beaten by other inmates or was in jeopardy
of being harmed by other inmates. Assessing, however, the facts and reasonable inferences in Ms.
Smith’s favor, the Court finds that genuine issues of material fact exist with respect to whether
Defendant Johnson was deliberately indifferent to Mr. Shrewsbury’s right to reasonable protection
from violence at the hands of other inmates. Defendant Johnson’s deposition testimony is
inconsistent with inmate reports that he incited other inmates to “jump” Mr. Shrewsbury and
ignored Mr. Shrewsbury’s repeated requests to move sections. [Doc. 289-3 at 19–21; Doc. 289-8
at 1–3 ]. Accordingly, to the extent Count Ialleges a claim for failure to protect, summary judgment

is not warranted as to Defendant Johnson.
2. Count II
In Count II, Ms. Smith asserts a claim against the WVDCR Defendants and
Defendant Wadefor conspiring to violate “the constitutional rights guaranteed to Mr. Shrewsbury
under the Eighth Amendment to the United States Constitution.”[Doc. 1 at 17].8

8 Because Mr. Shrewsbury was a “post-conviction inmate,” the WVDCR Defendants
contend that summary judgment is warranted as to Count II because “any claims . . . brought on
behalf of Mr. Shrewsbury must be analyzed through the specific provisions and analysis of the
Eighth Amendment and not the general due process provisions of the Fourteenth Amendment.”
[Doc. 277 at 9]. Although the title of Count II is “Conspiracy to Committ [sic] Fourteenth
Amendment Violations,” the numbered allegations under Count II repeatedly and unambiguously
allege a conspiracy to violate Mr. Shrewsbury’s “Eighth Amendment” rights. [Doc. 1 at 17–18].
To establish a civil conspiracy under § 1983, a plaintiff “must present evidence that
the [defendants] acted jointly in concert and that some overt act was done in furtherance of the
conspiracy which resulted in [the] deprivation of a constitutional right [of the plaintiff].” Hinkle v.
City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). “While [a plaintiff need] not produce direct
evidence of a meeting of the minds, [she]must come forward with specific circumstantial evidence

that each member of the alleged conspiracy shared the same conspiratorial objective.” Id. “In other
words, to survive a properly supported summary judgment motion, [the] evidence must, at least,
reasonably lead to the inference that [defendants] positively or tacitly came to a mutual
understanding to try to accomplish a common and unlawful plan.” Id.
Ms. Smith’s evidence fails in this regard. She did not produce any evidence, either
direct or circumstantial, that any of the named Defendants acted in concert to violate Mr.
Shrewsbury’s Eighth Amendment rights. The evidence did not disclose any communication
between Defendants or others that might give rise to an inference of an agreement to commit any
acts, wrongful, or otherwise. Nor does the evidence give rise to an inference that the alleged

conspirators shared the same conspiratorial objective. Inasmuch as the evidentiary record is
insufficient to raise a reasonable inference of a conspiracy, summary judgment is appropriate.
Accordingly, Count II is DISMISSED.
3. Count III

Count III, against the WVDCR Defendants and Defendant Wade, asserts a claim of
“Bystander Liability” pursuant to 42 U.S.C. § 1983. [Doc. 1 at 18]. The WVDCR Defendants
contend they are entitled to summary judgment on Count III because “the record is bare of any
WVDCR Defendant knowing that anyone was violating Mr. Shrewsbury’s constitutional rights,
having an opportunity to intervene, and choosing not to act.” [Doc. 277 at 9–10].
Generally, “a law officer may incur § 1983 liability only through affirmative
misconduct.” Randall v. Prince George’s Cnty., 302 F.3d 188, 202 (4th Cir. 2002). However, our
Court of Appeals has recognized liability when a plaintiff demonstrates that a “bystanding” officer
“(1) knows that a fellow officer is violating an individual’s constitutional rights, (2) has a

reasonable opportunity to prevent the harm, and (3) chooses not to act.” Id. at 204 (footnote
omitted).
The Court agrees that the record is devoid of any evidence showing Defendants
Burton, Toney, or Johnson, knew a fellow officer was violating Mr. Shrewsbury’s constitutional
rights and failed to exercise a reasonable opportunity to intervene. However, the Court finds that
genuine issues of material fact exist as to whether Defendant Radosevich knew prison staff were
being deliberately indifferent to Mr. Shrewsbury’s medical needs and failed to intervene.
Accordingly, with respect to bystander liability, Defendants Burton, Toney, and
Johnson are entitled to summary judgment. Count III is DISMISSED to that extent.

4. Count IV

With respect to the negligence claim asserted in Count IV, the WVDCR Defendants
contend summary judgment is appropriate because under the common law doctrine of qualified
immunity, “public officials and employees are immune for acts or omissions arising out of the
exercise of discretion in carrying out their duties, so long as they are not violating any known law,
rule, regulation or standard or acting maliciously, fraudulently or oppressively.” [Doc. 277 at 10].
Tosucceed on a negligence claim, a plaintiff must establish by a preponderance of
the evidence that (1) “the defendant owes [the plaintiff] a duty,” (2) “there was a negligent breach
of that duty,” and (3) “injuries received by the plaintiff resulted proximately from the breach of
the duty.” Jones v. Logan Cnty. Bd. of Educ., 247 W. Va. 463, 462, 881 S.E.2d 374, 383 (2022).
The Supreme Court of Appeals of West Virginia has held:
In the absence of an insurance contract waiving the defense, the doctrine of
qualified or official immunity bars a claim of mere negligence against a State
agency not within the purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W. Va. Code § 29–12A–1, et seq., and against an officer of
that department acting within the scope of his or her employment, with respect to
the discretionary judgments, decisions, and actions of the officer.

Syl. Pt. 7, Jarvis v. W. Va. State Police, 227 W. Va. 472, 473, 711 S.E.2d 542, 543 (2010).
Accordingly, in determining whether qualified immunity bars a claim of
negligence against a state official or employee, the Court must first decide whether the alleged acts
or omissions of the officer are discretionary. If yes, then “a reviewing court must determine
whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly
established statutory or constitutional rights or laws of which a reasonable person would have
known or are otherwise fraudulent, malicious, or oppressive.” Syl. Pt. 11, W. Va. Reg’l Jail &
Corr. FacilityAuth. v. A.B., 234 W. Va. 492, 497, 766 S.E.2d 751, 756 (W. Va. 2014). A state, its
agencies, and its officials are entitled to immunity from liability in the absence of such a showing.
Id.
If, however, the plaintiff identifies a clearly established right which has been
violated, then “the court must determine whether such acts or omissions were within the scope of
the public official or employee’s duties, authority, and/or employment.” Id. at Syl. Pt. 12. “To the
extent that such official or employee is determined to have been acting outside of the scope of his
duties, authority, and/or employment, the State and/or its agencies are immune from vicarious
liability, but the public employee or official is not entitled to immunity . . . .” Id. “If the public
official or employee was acting within the scope of his duties, authority, and/or employment, the
State and/or its agencies may be held liable . . . along with the public official or employee.” Id.9
As an initial matter, inasmuch as Ms. Smith has failed to adduce evidence of any
conduct by Defendants Toney and Burton which might have breached any purported duty of care
owed Mr. Shrewsbury, she cannot sustain a negligence claim against them. Anderson, 477 U.S. at

256 (“[To] defeat a . . . properly supported motion for summary judgment,” the opposing party
must produce “concrete evidence from which a reasonable juror could return a verdict in his
favor.”).
With respect to Defendants Radosevich and Johnson, the Court finds that the
alleged acts and omissions of these Defendants were discretionary. See W. Va. Reg’l Jail & Corr.
Facility Auth. v. A.B., 234 W. Va. 492, 509, 766 S.E.2s 751, 768 (2014) (holding that “general
functions [of] a correctional officer . . . are broadly characterized as discretionary, requiring the
use of [the officer’s] discretionary judgments and decisions”). However, as discussed, there
remains genuine issues of material fact respecting whether these Defendants violated clearly

established constitutional rights. A jury could also reasonably find that the conduct in question was
within the scope of employment.
Accordingly, the WVDCR Defendants’ motion for summary judgment on Count
IV is denied with respect to Defendants Johnson and Radosevich.
5. Count V

Defendant Wexford and Defendant Wade contend they are entitled to judgment as
a matter of lawon the medical negligence claim asserted in Count V because “the record does not

9The Court notes that Count IV is brought against the WVDCR Defendants in their
individual capacities only. [Doc. 1 at 19]. Accordingly, the is no claim for vicarious liability
against the WVDCR.
support a claim that any purported violation of any articulated standard of care proximately caused
Mr. Shrewsbury’s death.” [Doc. 286 at 5].
In West Virginia, the Medical Professional Liability Act (“MLPA”), W. Va. Code
§§ 55-7B-1 to -12, governs all “medical professional liability” actions “resulting from the death or
injury of a person for any tort or breach of contract based on health care services rendered, or

which should have been rendered, by a health care provider or health care facility to a patient.” Id.
§ 55-7B-2(i) (emphasis added). This includes “other claims that may be contemporaneous to or
related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering
health care services.” Id.; see also State ex rel. W. Va. Univ. Hosps., Inc. v. Scott, 246 W. Va. 184,
193, 866 S.E.2d 350, 359 (2021).
“The failure to plead a claim as governed by the [MLPA] does not preclude
application of the Act.” Syl. Pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 702, 656 S.E.2d
451, 453 (2007). “Where the alleged tortious acts or omissions are committed by a health care
provider within the context of the rendering of ‘health care’ as defined by [the MLPA10], the Act

10 The MLPA defines “health care” as follows:
(1) Any act, service or treatment provided under, pursuant to or in the furtherance
of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis
or treatment;

(2) Any act, service or treatment performed or furnished, or which should have been
performed or furnished, by any health care provider or person supervised by or
acting under the direction of a health care provider or licensed professional for, to
or on behalf of a patient during the patient's medical care, treatment or confinement,
including, but not limited to, staffing, medical transport, custodial care or basic
care, infection control, positioning, hydration, nutrition and similar patient services;
and

(3) The process employed by health care providers and health care facilities for the
appointment, employment, contracting, credentialing, privileging and supervision
of health care providers.
applies regardless of how the claims have been pled.” Id. However, if “the action in question was
outside the realm of the provision of [‘health care,’] the statute does not apply.” Id. at 707, 656
S.E.2d at 458 (alteration in original) (quoting Gray v. Mena, 218 W. Va. 564, 570, 625 S.E.2d 326,
332 (2005)).
Ms. Smith alleges Wexford employees failed to properly evaluate, diagnose, treat,

and medically manage Mr. Shrewsbury’s condition, ignored Mr. Shrewsbury’s repeated requests
for medical attention, and failed to recognize a life-threatening medical emergency and act
appropriately and expeditiously. [Doc. 1 at 20] These allegations unquestionably relate to the
provision of “health care.” Because Count V is grounded in medical negligence, it is covered by
the MLPA. Accordingly, the medical negligence claim in Count V requires these footings:
[T]he health care provider failed to exercise that degree of care, skill, and learning
required or expected of a reasonable, prudent health care provider in the profession
or class to which the health care provider belongs acting in the same or similar
circumstances; and (2) such failure was a proximate cause of the injury or death.
W. Va. Code § 55-7B-3.
Under West Virginia law, “[i]t is the general rule that in medical malpractice cases,
negligence or want of professional skill can be proved only by expert witnesses.” Syl. Pt. 2, Roberts
v. Gale, 149 W.Va. 166, 167, 139 S.E.2d 272, 273(1964); see also W.Va. Code § 55-7B-7 (“The
applicable standard of care and a defendant’s failure to meet the standard of care, if at issue, shall
be established in medical professional liability cases by the plaintiff by testimony of one or more
knowledgeable, competent expert witnesses if required by the court.”). Experttestimony, however,
is not required “where the lack of care or want of skill is so gross as to be apparent, or the alleged
breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay

W. Va. Code § 55-7B-2(e).
jurors by resort to common knowledge and experience. Farley v. Shook, 218 W. Va. 680, 629
S.E.2d 739, 746 (2006).
Defendant Wexford and Defendant Wade challenge the admissibility of certain
opinions of Dr. McKinstry as unreliable pursuant to Federal Rule of Evidence 702. [Doc. 285 at
7–9]. The Court need not decide at this juncture whether the challenged opinions are admissible.

Assuming in arguendo the challenged testimony is inadmissible, Plaintiff offers expert Rebekah
Price, DNP, MSN, APRN, FNPC, who opined that the acts of assessment and treatment “violated
the standard of care . . . in a manner that contributed to his continuing of suffering and contributed
to his death.” [Doc. 290-3 at 11–12]. The disagreement between the parties’ experts produces a
genuine dispute of material fact. Accordingly, summary judgment as to Count V is DENIED.
6. Count VI

Count VI asserts a claim for gross negligence against the WVDCR Defendants,
Defendant Wexford, and Defendant Wade. [Doc. 1 at 21]. As previously noted, there remains
genuine issues of material fact that preclude the Court from finding Defendants Radosevich and
Johnson are entitled to qualified immunity on the negligence claims. As to Defendants Wexford
and Wade, inasmuch as the allegations contained in Count VI are within the purview of the MLPA,
the Court concludes Count VI is duplicative of Count V.
7. Count VII

Count VII asserts a claim against the WVDCR Defendants, Defendant Wexford,
and Defendant Wade for the West Virginia tort of outrage, otherwise known as the intentional
infliction of emotional distress (“IIED”). [Doc. 1 at 22]. Defendants contend summary judgment
is appropriate on Count VII inasmuch asDefendants’ actions were neither extreme nor outrageous
and the record is devoid of evidence that any named Defendant or Wexford personnel acted with
the intent to inflict emotional distress or acted recklessly when it was certain such distress would
result. [Doc. 277 at 11– 12; Doc. 285 at 9–11]. To prevail on an IIED claim, a plaintiff must show:
(1) that the defendant’s conduct was atrocious, intolerable, and so extreme and
outrageous as to exceed the bounds of decency; (2) that the defendant acted with
the intent to inflict emotional distress, or acted recklessly when it was certain or
substantially certain emotional distress would result from his conduct; (3) that the
actions of the defendant caused the plaintiff to suffer emotional distress; and, (4)
that the emotional distress suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.

Syl. Pt. 11, Zsigray v. Langman, 243 W. Va. 163, 166, 842 S.E.2d 716, 719 (2020) (quoting Syl.
Pt. 3, Travis v. Alcon Lab’ys, Inc., 202 W. Va. 369, 369, 504 S.E.2d 419, 421 (1998)); see also
Hines v. Hills Dep’t Stores, Inc., 193 W. Va. 91, 98, 454 S.E.2d 385, 392 (1994) (Cleckley, J.,
concurring) (per curiam) (first proposing this four-part formulation of the tort of
outrage).“Whether the alleged conduct may be reasonably considered outrageous is a threshold
question for the court. Whether the conduct is in fact outrageous is a question for the jury.” Gilco
v. Logan Cnty. Comm’n, No. 2:11–cv-00032, 2012 WL 3580056, at *5 (S.D. W. Va. Aug. 17,
2012) (Copenhaver, J.) (cleaned up) (citing Syl. Pt. 4, Alcon Lab’ys, Inc., 202 W. Va. at 369, 504
S.E.2d at 421).
Inasmuch as Ms. Smith has failed to adduce evidence of any conduct by Defendants
Toney and Burton causing Mr. Shrewsbury emotional distress, her IIED claim fails. See Anderson,
477 U.S. at 256. The Court is, however, satisfied that a reasonable person may consider the conduct
of Defendants Radosevich, Johnson, and Wade, as well as other Wexford personnel, to be plainly
“outrageous” for purposes of establishing that element of the claim. The Court is also satisfied
that a reasonable jury could determine that emotional distress is a natural and substantially certain
result of repeated assaults and a flagrant disregard for one’s well-being during a life-threatening
medical emergency.
Accordingly, summary judgment on Count VII is denied with respect to Defendants
Johnson, Radosevich, Wexford and Wade.
8. Count VIII

Count VIII asserts a common law civil conspiracy claim against the WVDCR
Defendants, Defendant Wexford, and Defendant Wade. [Doc. 1 at 23].
A common law civil conspiracy requires “a combination of two or more persons by
concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself

unlawful, by unlawful means.” Syl. Pt. 3, Jane Doe-1 v. Corp. of Pres. of Church of Jesus Christ
of Latter-day Saints, 239 W. Va. 428, 432, 801 S.E.2d 443, 448 (2017) (quoting Syl. Pt. 8, Dunn
v. Rockwell, 225 W. Va. 43, 46, 689 S.E.2d 255, 258 (2009)). Civil conspiracy is not an
independent basis for recovery but instead a doctrine for assigning liability to “people who did not
actually commit a tort themselves but who shared a common plan for its commission with the
actual perpetrator(s).” Id. at Syl. Pt. 4 (quoting Syl. Pt. 9, in part, Dunn, 225 W. Va. at 46, 689
S.E.2d at 258). In addition to proving an underlying tort, a plaintiff proceeding on a civil
conspiracy claim “must produce at least circumstantial evidence that each member of the alleged
conspiracy shared the same conspiratorial objective and mutual agreement.” Jane Doe-1, 239 W.
Va. at 461, 801 S.E.2d at 476.

As noted, Ms. Smith has produced no evidence uponwhich areasonable factfinder
could conclude that any of the named Defendantsformed an agreement to accomplishcommit any
acts, wrongful, or otherwise with respect to Mr. Shrewsbury. Accordingly, Defendants are entitled
to summary judgment on Count VIII.
9. Counts IXand XI

Counts IX and XI assert claims against the WVDCR and Defendant Wexford for
negligent hiring and retention. [Doc. 1 at 24, 27].
The Supreme Court of Appeals has formulated the following standard for claims of
negligent hiring or retention:
[W]hen the employee was hired or retained, did the employer conduct a reasonable
investigation into the employee’s background vis a vis the job for which the
employee was hired and the possible risk of harm or injury to co-workers or third
parties that could result from the conduct of an unfit employee? Should the
employer have reasonably foreseen the risk caused by hiring or retaining an unfit
person?

McCormick v. W. Va. Dep’t of Pub. Safety, 202 W. Va. 189, 193, 503 S.E.2d 502, 506 (1998). The
analysis is the same in the case of an employee or an independent contractor. See Thomson v.
McGinnis, 195 W. Va. 465, 465 S.E.2d 922 (1995).
With respect to Defendant Wexford, Ms. Smith presented no evidence that would
permit a jury to find that Defendant Wexford was negligent in hiring or retaining any of its
employees. There is no evidence that, at the time they were hired, Defendant Wexford knew or
ought to have known that the employees involved in Mr. Shrewsbury’s care had a history of
misconduct or had engaged in prior bad acts. Likewise, there is no evidence that any employee
involved in Mr. Shrewsbury’s care had engaged in misconduct, known to Defendant Wexford prior
to the events alleged herein, for which they should have been terminated. Accordingly, Defendant
Wexford’smotion for summary judgment as to the claimsfor negligent hiring and retention should
be granted.
One the other hand, there is evidence that Defendant Johnson was dismissed from
five separate “basic training” classes before the WVDCR forced to him resign. [Doc. 289-7 at 5].
Ms. Smith is entitled to the inference that basic training is integral to understanding the duties and
expectations of a correctional officer, including the knowledge and skills necessary to respond
appropriately to reports of inmate violence. And a reasonable jury could conclude that at the time
Defendant Johnson was hired and retained, it was reasonably foreseeable that he would engage in
the type of misconduct alleged in this case. Accordingly, the WVDCR’s motion for summary

judgment on Ms. Smith’s state law negligent hiring and retention claims is DENIED.
10. Count X

Count X charges Defendants the WVDCR and Defendant Wexford with negligent
supervision and training. [Doc. 1 at 24–27].
Under West Virginia law, to state a claim for negligent supervision or training, a
plaintiff must show that “the [employer] failed to properly supervise [or train its employee] and,
as a result, [the employee] proximately caused the [plaintiff’s] injury.” Taylor v. Cabell
Huntington Hosp., Inc., 208 W. Va. 128, 135, 538 S.E.2d 719, 725 (2000). “[C]laims for negligent
training or supervision cannot succeed absent an underlying claim for employee negligence.”
Davis v. Dish Network, LLC, No. 3:18-cv-1415, 2019 WL 5406241, at *8 (S.D.W. Va. Oct. 22,
2019).
First, the WVDCR contends the claim fails because Ms. Smith has not made “a
showing of a negligence claim against a WVDCR employee . . . .” [Doc. 277 at 13]. This argument
is unavailing at this juncture because, as discussed above, there is a genuine and material factual
dispute respectingwhether Defendants Radosevich and Johnson violated Mr. Shrewsbury’s clearly
established constitutional rights.
As to negligent supervision, Ms. Smith has adduced no evidence to causally link a
lack of supervision to the alleged injuries. Ms. Smith’s expert opined, “The [WVDCR] and SRJ
failed to have an adequate number of staff on duty to provide adequate supervision of the inmate
population, which caused harm to Mr. Alvis Shrewsbury . . . .” [Doc. 289-7 at 6]. However,
whether the WVDCR adequately supervised its inmate population is an issue separate and apart
from a claim that the WVDCR negligently supervised its employees. And while there is some
evidence that Sergeant Williams did not receive relevant training before being promoted to a

supervisory position, Ms. Smith has failed show how any inadequate supervision by Sergeant
Williams caused injury to Mr. Shrewsbury.
As to negligent training, however, for reasons discussed above, a reasonable jury
could conclude that the WVDCR failed to ensure Defendant Johnson successfully completed his
basic training requirements before entrusting him with overseeing its inmate population, and
Defendant’s Johnson lack of training was a proximate cause of injuries alleged herein.
Accordingly, the WVDCR is not entitled to summary judgment on the claim.
As to Defendant Wexford, the Court finds a genuine and material factual dispute as
to whether employees were negligently trained and whether the alleged negligent training caused

Mr. Shrewsbury’s death. There is evidence that Wexford employees were inadequately trained on
“Chest Pain Protocol” and that proper training could have altered the tragic outcome here. [See
Doc. 290-3]. There is also evidence that Wexford employees lacked proper supervision the night
Mr. Shrewsbury collapsed and died, and that sufficient supervision may have reduced the
likelihood of Mr. Shrewsbury’s death. [Doc. 290-4 at 3]. Accordingly, Defendant Wexford is not
entitled to summary judgment on Count X.
B. Plaintiff Miranda Smith’s Motion for Partial Summary Judgment

Ms. Smith filed her own Motion for Partial Summary Judgment. [Doc. 280]. The
Court concludes that genuine issues of material fact are extant. Consequently, Ms. Smith’s Motion
for Partial Summary Judgment [Doc. 280] is DENIED.
IV.

Based upon the foregoing discussion, the Court ORDERS as follows respecting
the pending motions:
1. The WVDCR Defendants’ Motion for Summary Judgment [Doc. 276] is GRANTED
IN PART and
a. Counts II and VII are DISMISSED WITH PREJUDICE in their entirety;
b. Counts I, I], IV, VI, and VII are DISMISSED WITH PREJUDICE as to
Defendants Burton and Toney; and
c. Count III is DISMISSED WITH PREJUDICE as to Defendant Johnson.
2. The Wexford Defendants’ Motion for Summary Judgment [Doc. 284] is GRANTED
IN PART and
a. Counts II, VIII, [X, and XI are DISMISSED WITH PREJUDICE in their
entirety.
3. Plaintiff's Motion for Partial Summary Judgment [Doc. 280] is DENIED.
The Clerk is directed to send a copy of this written opinion and order to counsel of
record and to any unrepresented party.
ENTER: September 30, 2024

C9
2 | ex Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10731955. Public record. Not legal advice.