Lowe v. Frame

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

KEITH LOWE,

Plaintiff,

v. CIVIL ACTION NO. 2:25-cv-00272

SUPERINTENDENT JOHN FRAME, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Keith Lowe (“Plaintiff”) has been held in solitary confinement for over twelve

years at the Mount Olive Correctional Complex. The conditions of his confinement include being

held in a six-foot by ten-foot cell for almost the entirety of the day, being let out for “fresh air” in

an equally sized metal cage, and having his contact with others limited. An unhappy mixture of

Plaintiff’s existing mental infirmities and the imposed isolation led him to attempt suicide on April

6, 2025.

Following this tragic occurrence, Plaintiff filed this pending motion for a preliminary

injunction.1 (ECF No. 1–3 at 39–40.) Plaintiff seeks, inter alia, an injunction ordering his

transfer to William R. Sharpe Hospital to treat his risk of suicide. (Id. at 39.) For the following

reasons, the motion, (ECF No 1-3), is GRANTED IN PART.2 Defendants Superintendent John

1 As noted at the status conference held on May 1, Plaintiff’s motion for a temporary restraining order, (ECF No. 1-

3), was denied.

2 Although Plaintiff moved for a broader injunction prohibiting his return to solitary confinement after his time at a

Frame and Acting Commissioner Lance Yardley (“Defendants”) are ORDERED to effectuate

Plaintiff’s requested transfer forthwith.

I. BACKGROUND

A. Plaintiff’s conditions of confinement

In 2005, Plaintiff was convicted of first-degree murder and sentenced to life imprisonment

without the possibility of parole. (ECF No. 28-1 at 1–2.) Since that time, he has been

incarcerated at the Mount Olive Correctional Complex (“Mount Olive”). During Plaintiff’s time

at Mount Olive, Defendant John Frame has had multiple roles at the prison and in the corrections

system generally. Currently, Defendant Frame serves as the Superintendent of Mount Olive.

Unsurprisingly, Plaintiff and Defendant Frame have had numerous interactions with each other.

Plaintiff has been less than a model inmate while at Mount Olive, to say the least. He has

had over fifty substantiated disciplinary write ups levied against him since 2007. (ECF No. 28 at

4.) Notable among these write ups are three instances in which Plaintiff made significant escape

attempts. (Id. at 2.)

In 2007, Plaintiff pled guilty to an escape attempt where he and another inmate made a

grappling hook out of paperclips and trash bags. (Id.) Defendant Frame was the investigator

assigned to this incident. (Id.) In 2012, Plaintiff again attempted to escape. This time, he

rushed past a door, undeterred after being doused in pepper spray, and ultimately surrendered to

an armed guard while trying to climb a fence. (Id. at 2–3.) In 2020, curious circumstances led

Plaintiff to attempt to escape while in the recreational yard using a water hose. (Id. at 3.) For

psychiatric facility, the Court will not address that part of the motion in this order.

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each of these attempts, Plaintiff was given sixty-days punitive segregation and loss of privileges.3

(Id. at 2–3.)

At some point in 2012, it appears the correctional staff ran out of patience. As a result of

his extensive disciplinary history, Plaintiff was placed in a status known as “3D.” (ECF No. 10

at 3.) That has resulted in him being housed in “permanent” solitary confinement in the Quilliams

II unit at Mount Olive. (Id.) He has been held in this status and in solitary confinement since

that time.

The conditions of this solitary confinement are quite bleak. Plaintiff states he is held in a

six-foot by ten-foot cell4 for twenty-three to twenty-four hours per day. (Id. at 6.) For one hour

a day, Plaintiff is allowed to leave his cell to shower or go outside for “fresh air” in a metal cage

comparable in size to his cell, that neither gets direct sunlight, nor affords Plaintiff the ability to

exercise. (Id.) Plaintiff is also restricted from interacting with other inmates while he is outside

of his cell. (Id.) Defendants have not disputed Plaintiff’s description of his confinement.

Plaintiff’s mental illnesses have compounded his situation. Long before his incarceration,

Plaintiff suffered from a number of severe mental illnesses. These have included bi-polar

disorder, post-traumatic stress disorder, borderline personality disorder, anti-social disorder,

anxiety, ADHD, and paranoid schizophrenia. (Id. at 3–4.)

3 Plaintiff was also convicted of an “escape” when he “slipped a cuff” off, but then slipped his hand back into the cuff

and returned to his cell without incident. (See ECF No. 28 at 3–4.) At the preliminary injunction hearing, Plaintiff

seemed to concede that this was technically an escape, but also noted it was “plain foolishness.” In the Court’s view,

this incident stretches the word “escape” beyond recognition. If anything, it would be better characterized as poor

handcuffing by some unknown correctional officer.

4 For reference, the average parking spot is approximately nine-feet by eighteen-feet, or almost three times the size of

Plaintiff’s cell. See Thorpe v. Clarke, 37 F.4th 926, 931 (4th Cir. 2022).

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Defendants have known of these illnesses, not least because they knew of Plaintiff’s

treatment during his incarceration. (Id. at 4.) As part of that treatment, Defendants contract

services with PsiMed Corrections, LLC (“PsiMed”) to provide inmates like Plaintiff psychiatric

care. (Id. at 3.) Plaintiff further asserts that, even with the medications he takes, he continues to

suffer from depression and anxiety. (Id. at 4.)

In fact, Plaintiff avers that his mental health has worsened as a result of his prolonged

solitary confinement. (Id. at 7.) Such instances of deterioration include his reports to Defendants

that he hears voices in his head. (Id.) Plaintiff states that he has made Defendants aware of his

failing mental health through written requests, grievances, verbal statements, and lawsuits. (Id.)

Further, Defendants were aware of an instance in which Plaintiff attempted to take his life through

self-mutilation in 2023. (Id.) Despite all of this, Plaintiff remained in solitary confinement.

B. Plaintiff’s April 2025 suicide attempt

On February 5, 2025, Plaintiff met with a PsiMed therapist who completed a suicide risk

assessment of him. (Id. at 8.) The therapist noted that Plaintiff “states that he always thinks

about harming himself but has no intent or plan to do so at this time.” (Id.) He also stated that

“if he did have a plan he wouldn’t tell us [PsiMed].” (Id.) The notes further indicate Plaintiff

exhibited negative thoughts and has a number of known risk factors associated with suicidal

tendencies. (Id. at 8–9.)

In the months that followed, Plaintiff struggled to secure a meeting with his PsiMed

therapist. (Id. at 9.) Apparently sensing his own mental decline, Plaintiff made repeated efforts

to see a therapist. (Id.) On April 4, just two days before his attempted suicide, Plaintiff was

informed that he would be unable to meet with his therapist because the prison was short staffed.

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(Id.)

On April 6, 2025, Plaintiff attempted to take his own life again, this time by overdose.

(Id.) About an hour after he ingested the drugs, prison staff found Plaintiff slumped over and

unresponsive. (Id. at 10.) Fortunately, he was administered Narcan twice and revived. (Id.)

Plaintiff was then transferred to a local hospital, but then returned back to the prison shortly

thereafter. (Id.) Plaintiff was then placed on suicide watch, where he apparently made

statements to staff, including “I wish I could go to sleep and not wake up.” (Id.)

Approximately forty-eight hours after he attempted to take his life, Plaintiff was returned

to the same solitary confinement, where he has been kept alone, in a cage, for over a decade. (Id.

at 11–12.)

C. Plaintiff’s suit and procedural history

Plaintiff initially filed this instant suit in state court, but the case was removed to federal

court by PsiMed.5 In his Complaint, Plaintiff alleges a cause of action under 42 U.S.C. § 1983

because Defendants deprived him of his Eighth Amendment rights. (Id. at 13–14.) Specifically,

Plaintiff alleges Defendants exercised deliberate indifference to his serious medical needs. (Id.)

Contemporaneous with his Complaint, Plaintiff filed an Emergency Motion for Temporary

Restraining Order and Preliminary Injunction. (ECF No. 1-3 at 39–40.) Plaintiff sought relief

from the Court, including: “[a]n injunction requiring Defendants to file a petition to transfer

[Plaintiff] to a state psychiatric facility for treatment and stabilization, until such time as he is no

longer suicidal”; “[a]n injunction requiring Defendants to provide appropriate mental health care”

5 PsiMed was previously a defendant in this case until Plaintiff stipulated to voluntarily withdraw his claims against

PsiMed on May 21, 2025. (See ECF No. 36.)

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once he is returned to Mount Olive; “[a]n injunction forbidding Defendants from continuing to

house [Plaintiff] in a segregation unit; and “[a]ny other equitable relief the Court deems

appropriate.” (Id.)

At the May 1, 2025 status conference, the Court denied Plaintiff’s motion for a temporary

restraining order, but ordered Defendants to brief the motion for a preliminary injunction. (ECF

No. 11.) The parties filed respective briefs. (ECF Nos. 1-3, 27, and 28.) On May 14, 2025, the

Court heard testimony and argument from each side. At the conclusion of the hearing, Plaintiff’s

counsel only sought a ruling on the issue of his transfer to a psychiatric facility while leaving the

rest of his requested relief pending. The matter is now ripe for adjudication.

II. LEGAL STANDARD

Federal Rules of Civil Procedure 65 governs the issuance of a preliminary injunction. A

preliminary injunction issued under Rule 65 serves “as a means of preventing harm to one or more

of the parties before the court can fully adjudicate the claims in dispute.” Williams v. Rigg, 458

F. Supp. 3d 468, 473 (S.D. W. Va. 2020). Preliminary injunctions are “never awarded as of right.”

Id. (citing Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345 (4th Cir. 2009)). That is

because a preliminary injunction is an “extraordinary remed[y] involving the exercise of very far-

reaching power.” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001).

Accordingly, the Court should issue preliminary injunctions “sparingly and in limited

circumstances.” Id.

In order for the Court to issue this extraordinary remedy, the Court must find that Plaintiff

has satisfied the four factors set by the Supreme Court in Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008). First, the movant must sufficiently prove that he “is likely to

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succeed on the merits” of his underlying claim. Vitkus v. Blinken, 79 F.4th 352, 361 (4th Cir.

2023) (citing Winter, 555 U.S. at 20). Second, the movant must show that he “is likely to suffer

irreparable harm in the absence of preliminary relief.” Id. Third, the movant must demonstrate

“that the balance of the equities tips in his favor.” Id. Finally, the movant must show “that an

injunction is in the public interest.” Id. All four factors “must be established by a ‘clear

showing’” before a preliminary injunction can be issued. Imagine Medispa, LLC v.

Transformations, Inc., 999 F. Supp. 2d 862, 868 (S.D. W. Va. 2014) (quoting Real Truth About

Obama, 575 F.3d at 346). The movant bears the burden of providing a “sufficient factual basis”

for granting the injunction “beyond the unverified allegations in the pleadings.” Id. at 868–69

(citations omitted).

III. ANALYSIS

Defendants contend that Plaintiff cannot meet any of the Winter factors and, thus, is not

entitled to a preliminary injunction. (ECF No. 28.) The Court will analyze each factor in turn.

Because this injunction respects prison conditions, the Court will also analyze the requested relief

in light of the requirements set forth in the Prison Litigation Reform Act (“PLRA”).

A. Plaintiff is likely to succeed on the merits of his deliberate indifference claim

The first Winter factor requires Plaintiff to make a clear showing that he is likely to succeed

on the merits of his underlying claim, which is an Eighth Amendment deliberate indifference

claim. (ECF No. 10 at 13–15.) The Eighth Amendment proscribes the infliction of “cruel and

unusual punishment.” U.S. Const. amend. VIII. More than just merely protecting against the

active infliction of pain, the Eighth Amendment requires prison officials to “provide humane

conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, the

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Constitution requires prison officials to provide “adequate food, clothing, shelter, and medical

care” to the inmates within their charge. Id. A prison official’s “deliberate indifference to [the]

serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain”

forbidden by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation

omitted).

For Plaintiff to make out a meritorious deliberate indifference claim, he must establish two

prongs. The first, “‘objective’ prong requires [him] to demonstrate that ‘the deprivation alleged

[was] objectively, ‘sufficiently serious.’’” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)

(citing Farmer, 511 U.S. at 834). In medical needs cases, the objective prong requires a showing

that the official exhibited “deliberate indifference to a ‘serious’ medical need that . . . ‘is so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention.’” Id. (citing

Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). The second “‘subjective’ prong” requires the

plaintiff to show “that prison officials acted with a ‘sufficiently culpable state of mind.’” Id.

(citing Farmer, 511 U.S. at 834). In medical needs cases, a plaintiff demonstrates this by showing

the official had “actual subjective knowledge of both the inmate's serious medical condition and

the excessive risk posed by [the official's] action or inaction.” Id. (citing Jackson v. Lightsey, 775

F.3d 170, 178 (4th Cir. 2014)).

1. The objective prong

The Fourth Circuit has recognized that a “substantial risk of suicide” is “the type of ‘harm’

that is contemplated by the [objective] prong” of an Eighth Amendment deliberate indifference

claim. See Short v. Hartman, 87 F.4th 593, 612 (4th Cir. 2023) (citing Brown v. Harris, 240 F.3d

383, 389 (4th Cir. 2001)). Indeed, Defendants do not and cannot dispute this legal point. (See

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ECF No. 28 at 9.)

Instead, Defendants appear to dispute whether Plaintiff’s risk of suicide is, in fact,

substantial. PsiMed, for instance, notes Plaintiff “credibly denied” having thoughts of self-harm

on multiple occasions following his suicide attempt. (ECF No. 27 at 25.) Defendants echo that

sentiment, noting that “Plaintiff concedes that he reported to a PsiMed employee that he was not

suicidal” as a fact mitigating the substantial risk. (ECF No. 28 at 10.) This argument is

unpersuasive.

To start, although Plaintiff said to PsiMed staff that he had no plan to commit suicide, he

also stated to staff that he would not tell them if he was planning on attempting suicide. (ECF

No. 10 at 8.) Further, Plaintiff’s expert, Dr. Stuart Grassian,6 testified at the preliminary

injunction hearing that individuals who deny suicidal ideation are at times the ones most at risk of

completing their attempts. Defendants have offered nothing to dispute that claim. Thus, it can

be simultaneously true that Plaintiff denies suicidal intentions and still maintains a substantial risk

of attempting suicide again.7 Further, Plaintiff himself indicated he had thoughts of suicide during

the hearing.

Accordingly, at this juncture, Plaintiff is at a substantial risk of suicide and made a

sufficient showing under the objective prong.

6 Dr. Grassian is a Board-certified psychiatrist and licensed medical practitioner in Massachusetts. He has extensive

experience in the psychiatric effects of prolonged solitary confinement and has given expert testimony on numerous

occasions to that effect. (See generally ECF No. 34-6 at 1, 19–29.) At the hearing, Defendants did not object to Dr.

Grassian being qualified as an expert in his field.

7 Indeed, Plaintiff testified and presented evidence at the preliminary injunction hearing that shows he continues to

engage in self-harm following his attempt in April. (See ECF No. 34-5 (image taken by Plaintiff’s counsel depicting

recent self-harm attempts).)

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2. The subjective prong

The next prong requires Plaintiff to demonstrate Defendants acted with a sufficiently

culpable state of mind. As previously indicated, that requires showing Defendants had (1) actual

subjective knowledge of his serious medical condition (here, his suicidal risk) and (2) actual

subjective knowledge of the excessive risk posed by their action or inaction. See Scinto, 841 F.3d

at 225. As the Supreme Court has noted in Farmer itself, the subjective prong of a deliberate

indifference claim involving injunctive relief “should be determined in light of the prison

authorities' current attitudes and conduct.” Farmer, 511 U.S. at 845 (citing Helling v. McKinney,

509 U.S. 25, 36 (1993)). It is within the discretion of the Court to allow Plaintiff to rely on

“developments that postdate the pleadings and pretrial motions,” just as the Court may allow

Defendants to “rely on such developments to establish that the inmate is not entitled to an

injunction.” Id. at 846. As discussed below, Plaintiff has provided enough evidence to meet both

components of the subjective prong.

i. Defendant’s knowledge of Plaintiff’s serious risk of suicide

Plaintiff contends that Defendants have actual subjective knowledge of his serious risk of

suicide. “Whether an official had the requisite knowledge is a question of fact subject to

demonstration in the usual ways, and a factfinder may conclude that the official knew of a

substantial risk from the very fact that it was obvious.” Farmer, 511 U.S. at 826. The

presentation of “direct evidence of a prison official's actual knowledge or circumstantial evidence

tending to establish such knowledge” can aid a plaintiff in meeting the subjective prong. See

Scinto, 841 F.3d at 226 (citations omitted).

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Here, Plaintiff puts forward direct evidence of Defendants’ knowledge. Plaintiff notes

that he made several requests to Defendants to obtain “relief from” the conditions in which he has

been kept. (ECF No. 10 at 7.) He notes that he has filed “countless written requests, written

grievances, made verbal requests, and even filed lawsuits documenting his mental health struggles,

his self-harm, his need for better mental health treatment, and his request to be removed from

permanent solitary confinement.” (Id.; see also generally ECF No. 34-3.) Although Defendant

Frame denies having seen a letter addressed to him directly, Plaintiff asserts that Defendant Frame

has had multiple interactions with him regarding his deteriorating mental health. (ECF No. 1-3

at 51.)

Plaintiff alleges the same of PsiMed. Plaintiff notes that PsiMed has been treating him

“for over ten years.” (ECF No. 1-3 at 51.) PsiMed does not dispute Plaintiff’s claim that he

indicated to its staff on February 5, 2025 that he had thoughts of self-harm. (ECF No. 10 at 8.)

It also does not dispute that Plaintiff told staff that “if he did have a plan [to act on those thoughts]

he wouldn’t tell [PsiMed staff].” (Id.) Instead, PsiMed staff simply “did not find [Plaintiff’s]

statement unusual or cause for concern” because he “always voiced having thoughts of suicide,”

but “disclaimed any plan or intention” to act on those thoughts. (ECF No. 27 at 6 (citations

omitted).) PsiMed repeatedly notes that Plaintiff “credibly” denied suicidal intention in the past

and—despite attempting suicide—continues to “credibly” deny it now, even after Plaintiff

indicated his thoughts of suicide to the Court during the preliminary injunction hearing. At this

point, PsiMed’s claims of “credible” denials seem debatable, at best.

Overall, it is evident from the record and verified complaint that the Defendants are

sufficiently aware of Plaintiff’s risk of suicide. It is uncontested that Defendants were aware of

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Plaintiff’s past suicide attempts, in addition to his deteriorating mental state. The grievances

alone have placed the Defendants on notice. If nothing else, Defendants became aware of

Plaintiff’s suicide attempt after he was found unconscious in his cell. (ECF No. 10 at 10.) This

second attempt places Defendants on notice of the substantial risk of attempting suicide again.

No matter the credibility of the denials, the risk of suicide remains apparent. Defendants

are clearly aware that Plaintiff attempted suicide in April. Indeed, his two previous attempts have

made it apparent that Plaintiff presents as a serious risk of taking his own life. Thus, Plaintiff has

sufficiently demonstrated that Defendants knew of his risk of suicide.

ii. Defendant’s Knowledge of the excessive risk posed by their actions and

inactions

In addition to establishing the Defendants’ knowledge of the risk of suicide, Plaintiff must

also establish that the Defendants knew their actions or inactions posed an excessive risk of that

harm. Plaintiff avers that the actions by Defendants were “insufficient to mitigate the risk” of

future suicide attempts. (ECF No. 1-3 at 51.) First, Plaintiff alleges that Defendants failed to

follow internal procedures by removing him from suicide watch after only two days. (Id. at 51–

52.) Beyond just a violation of policy, however, Plaintiff presented expert testimony8 that this

move back to solitary confinement was “clinically inappropriate for someone with [Plaintiff’s]

recent history and known” vulnerabilities. (Id. at 52.) At the hearing, Dr. Grassian’s testimony

corroborated that finding.

8 Prior to the hearing, Plaintiff’s expert was Dr. Sofia Sami, a Board-certified psychiatrist and licensed practitioner in

Illinois. (See ECF No. 1-3 at 59–61.) Her written report and declaration accompanied Plaintiff’s pending motion

when it was filed in state court.

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Plaintiff also notes that Defendants were aware of his risk of suicide prior to the April

attempt. Plaintiff claims that Defendant Frame failed to act despite his knowledge of Plaintiff’s

deteriorating mental state. Although Defendant Frame asserts he did not receive a letter from

Plaintiff explaining his failing mental condition, Plaintiff presents alternative information that

would have placed Defendant Frame on notice. For instance, Plaintiff notes that Defendant Frame

would have been aware that the April episode was his second suicide attempt in three years. (Id.)

Such an attempt was apparently documented by Defendants, (ECF No. 10 at 7), a point which

Defendants do not dispute. Plaintiff also made other repeated pleas to Defendants, (Id.), including

statements that he needed “real mental health help” beyond what was being provided to him.

(ECF No. 1-3 at 52.)

As Defendants put it, they are “not healthcare or mental health providers.” (ECF No. 28

at 11.) To provide those needs, they rely on PsiMed to treat Plaintiff’s mental health needs. (Id.)

However, Defendants cannot shirk responsibility for providing adequate medical care by

outsourcing such care to PsiMed. A contract between a prison and a third party to provide medical

care to inmates “does not relieve the government of its constitutional duty under the Eighth

Amendment to ensure the adequacy of the care.” Scott v. Clarke, 64 F. Supp. 3d 813, 821 (W.D.

Va. 2014) (collecting cases). Further, when the prison “effectively cedes final decision-making

authority with respect to the provision of or failure to provide medical care to a third-party

contractor, the contractor's policies and decisions effectively become and constitute the policies

and decisions of the [prison].” Id. Thus, when Defendants rely on the decisions made by PsiMed

in the treatment of Plaintiff, those decisions can be attributed to Defendants themselves.

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Plaintiff also explains that such healthcare is insufficient to mitigate the real risk of harm.

As Plaintiff puts it, PsiMed was made aware of Plaintiff’s risk of suicide by the statements he made

to staff. (See ECF No. 1-3 at 52–53.) Staff, however, found those risks not credible.

Nevertheless, Plaintiff did attempt suicide. Following that attempt, PsiMed and its staff

apparently continued to find the risk of suicide not credible. (Id. at 53.) To that extent, Plaintiff

has made a sufficient showing that PsiMed knew its inactions posed an excessive risk of harm to

Plaintiff.

Importantly, PsiMed did not order Plaintiff back to solitary confinement two days after his

suicide attempt, nor is there evidence that it was consulted on this decision.

With the above in mind, Plaintiff has made a clear showing that Defendants knew of the

excessive risk of their inaction. It is clear that Defendants knew of the risk posed to Plaintiff

following his suicide attempt in April. Despite this, Defendants continued to house Plaintiff in

the very condition that apparently spurred his attempt. This is not news to Defendants. They

were aware of Plaintiff’s past attempt, his repeated pleas about the effects of solitary confinement

on his mental health, and of his complaint about the inadequacy of the treatment he was receiving.

Even assuming that evidence was insufficient to establish the second half of the subjective

prong at the time this lawsuit was filed, the state of the current, undisputed record favors Plaintiff.

Despite this litigation, Defendants have not made any adjustments to Plaintiff’s confinement since

the filing of this suit or the testimony presented at the preliminary injunction hearing.9 The Court

urged the parties—strongly—to come to a solution that would moot the need for injunctive relief.

9 The Court does note for the record that it learned informally that Defendants did, at the request of the Court, return

some personal property to Plaintiff. However, the Court is unaware of any changes to Plaintiff’s housing designation.

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That time has passed. What is apparent now is the fact that the Defendants—having heard

uncontested expert testimony about the dangers of keeping Plaintiff in solitary confinement given

his present state of mind—ignored such warnings and persisted in keeping him in his condition of

confinement. Thus, it is apparent to the Court that the Defendants will continue with their inaction

unless the Court instructs them otherwise.

Given all of the above, the Court finds that Plaintiff has met his burden under the subjective

prong.

iii. The reasonableness of Defendants’ response

In an effort to thwart Plaintiff’s deliberate indifference claim, Defendants assert that, even

assuming they had subjective knowledge of the excessive risk, they are not liable because their

actions were reasonable. A plaintiff cannot establish an Eighth Amendment claim, even if the

official “actually [knows] of a substantial risk to inmate health or safety,” if a prison official

“responded reasonably to the risk.” Brown, 240 F.3d at 389.

Again, Defendants rely on the treatment provided to Plaintiff leading up to and after his

latest suicide attempt. Defendants draw the Court’s attention to the multiple visits by PsiMed

staff in the months leading up to the attempt, the administration of Narcan when Plaintiff was

discovered unconscious, the admission to the hospital, and his placement on—then removal

from—suicide watch. (ECF No. 28 at 10.) Defendants claim that they were “acting reasonably”

by “ensuring the Plaintiff has received adequate mental health care” through PsiMed following his

last suicide attempt. (Id. at 11.)

The argument that Defendants provided adequate mental health treatment following the

Plaintiff’s attempt, however, misses the mark. Plaintiff has shown, through undisputed expert

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testimony, that the combination of his serious mental health history, his extraordinary period of

solitary confinement with no end in sight, an actual attempt, and then sending him back to solitary

confinement only two days after a suicide attempt was not reasonable.

Staffing shortages were among the reasons Plaintiff was unable to meet with his therapist

just prior to his suicide attempt. That situation is understandable and reflects the unfortunate

circumstances many prisons face on a day-to-day basis. However, if Plaintiff cannot have access

to critical mental health services at a time in which he is vulnerable to committing suicide, then

that indicates WVDCR is not capable, even if it is willing, of treating Plaintiff for his suicidal risk.

Defendants’ efforts are simply inadequate to meet the moment in this particular case.

iv. Defendants’ shortcomings are beyond mere negligence

Defendants further characterize Plaintiff’s real complaint as negligence rather than

deliberate indifference. Under the subjective prong, proving a sufficiently culpable state of mind

requires Plaintiff to show that Defendants’ acts were “‘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). Thus, an inmate’s claim of

“mere negligence or malpractice does not violate the Eighth Amendment.” Miltier v. Beron, 896

F.2d 848, 851 (4th Cir. 1990) (overruled on other grounds) (citing Estelle, 429 U.S. at 106 (1976)).

Rather,

[d]eliberate indifference may be demonstrated by either actual intent or reckless

disregard. A defendant acts recklessly by disregarding a substantial risk of danger

that is either known to the defendant or which would be apparent to a reasonable

person in the defendant’s position.

Id. (internal citations omitted). “Likewise, disagreements between a health care provider and the

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inmate over . . . the proper course of treatment [is] not sufficient to support a deliberate indifference

claim, and questions of medical judgment are generally not subject to judicial review.” Insco v.

Wexford Health Solutions, Inc., 2021 WL 4782273, at *4 (S.D. W. Va. Oct. 13, 2021) (citing

Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985)).

Defendants believe that any complaint regarding the care given to Plaintiff is unactionable

negligence. They claim that “Plaintiff, at best, arguably states a claim of common negligence”

rather than a “violation of [his] Constitutional rights.” (ECF No. 28 at 11.) PsiMed notes that

Plaintiff’s expert opinion that its actions were arguably a deviation from the standard of care is

“certainly relevant to a claim of negligence, but not one for deliberate indifference.” (ECF No.

27 at 23.) In any event, PsiMed claims that their actions in the immediate aftermath of Plaintiff’s

attempt comported with that standard. (Id. at 23–24.)

Because of the truncated briefing schedule, Plaintiff was unable to respond to this point

directly. Nevertheless, the arguments presented by Plaintiff sufficiently demonstrate Defendants’

actions were more than mere negligence. Defendants know of the risks Plaintiff faces while being

kept in solitary confinement. They first know of this risk because the undisputed testimony of

Dr. Grassian indicated as much. However, Defendants really did not need an expert to reveal that

risk to them anyways. They have seen Plaintiff’s risk of suicide play out right in front of them.

First, Plaintiff states he is depressed and has thoughts of self-harm. (ECF No. 10 at 8.) Then,

PsiMed determines that the risk is not credible. (See id.; see also ECF No. 27 at 5–6.) Finally,

as Plaintiff remains in solitary confinement, he eventually acts on those suicidal thoughts. (ECF

No. 10 at 9–10.)

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It appears that the cycle has started again. (See id. at 11 (“Since being returned to the

segregation unit, Mr. Lowe has continued to feel hopeless and depressed and continues to have

panic attacks.”).) PsiMed may think the risk is credibly denied, (See ECF No. 27 at 11–12), but

neither PsiMed nor Defendants have adequately explained why this instance is different as opposed

to the other, evidently not credible, denials of suicidal intent in the past. If this action was a claim

for retrospective relief, then the past actions of Defendant could potentially be characterized as

negligence. Given that this is prospective relief, however, Defendants actually have the benefit

of hindsight. Failing to act on the information they now possess is the kind of “disregard [of] an

excessive risk to inmate health or safety” that Farmer proscribes. 511 U.S. at 837. “[P]rison

officials may not simply bury their heads in the sand and thereby skirt liability.” Makdessi v.

Fields, 789 F.3d 126, 133 (4th Cir. 2015). Accordingly, Defendants may not “skirt liability” here

by simply claiming it is merely “negligent” for them to not act on the known risks.

v. Defendants’ legitimate penological interest in keeping Plaintiff in solitary

confinement

Defendants claim that keeping Plaintiff in solitary confinement as opposed to transferring

him to Sharpe Hospital is reasonable in light of the security risk Plaintiff poses. (Id. at 11–12.)

In considering an Eighth Amendment claim as this one, the Court must also “consider [a]

Defendants’ penological justification” for keeping an inmate in solitary confinement. Porter v.

Clarke, 923 F.3d 348, 362 (4th Cir. 2019).10 Thus, “the presence of a legitimate penological

10 Defendants cite Johnson v. Jabe, 2010 WL 3855217, at *5 (W.D. Va. Aug. 24, 2010) for the proposition that a four

factor balancing test guides the Court’s assessment of the legitimate penological interests of the prison. However,

that case is in the context of exercising First Amendment rights in prisons. Porter, on the other hand, does not indicate

that such a balancing test is required.

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justification” can “undermine[] the notion that [an official] acted with deliberate indifference.”

See Yates v. DeGeare, 2024 WL 1482398, at *4 (E.D. Va. Feb. 27, 2024).

Defendants assert that keeping Plaintiff in solitary confinement serves such a purpose.

They note that placing Plaintiff “in a less secure setting creates an escape risk.” (ECF No. 28 at

15–16.) The three escape attempts by Plaintiff stand as a testament to that risk. (Id. at 2–3.)

While Plaintiff could be removed from solitary confinement, Defendants assert that he “simply

fails to stay out of administrative trouble long enough to demonstrate that he would be a good

candidate for less-secure detention.” (Id. at 16.) Thus, Defendants believe that the only practical

solution—even despite his suicide attempts—is for them to engage in the “appropriate exercise of

executive authority” and keep Plaintiff in solitary confinement at Mount Olive. (Id.)

However, the state of the record makes these justifications seem a bit puzzling. For

instance, it is uncontested that Plaintiff’s last serious attempted escape was in 2020. Five years

have since passed, leading the Court to question what future risk of escape Plaintiff poses.

Further, the Court was left with the impression after the hearing that Plaintiff’s propensity for

escape seems to have receded recently. Perhaps more troubling, though, is the fact that Defendant

Frame indicated that a gap in write ups would be helpful to getting Plaintiff assigned out of solitary

confinement. Yet it was uncontested that Plaintiff had no write ups since 2022.11 The state of

the record now makes it seem less like the legitimate pursuit of penological interest and more akin

to arbitrary decisions by prison staff. Based on the record before the Court now, it seems that

Plaintiff has established enough evidence to overcome Defendants’ challenge.

11 The Court notes that Plaintiff was written up for obtaining the drugs he used to attempt suicide. While Defendants

call this “appropriate discipline” for violations of prison policy, the Court is not holding this latest write up against

Plaintiff.

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Thus, under the first Winter factor, the Court finds that Plaintiff is likely to succeed on the

merits.

B. Plaintiff is likely to suffer irreparable harm absent injunctive relief

The next Winter factor requires Plaintiff to demonstrate he will suffer irreparable harm

unless he is granted injunctive relief. Plaintiff notes that his “serious mental illness, very recent

and serious suicide attempt, and the well-recognized dangers of long-term solitary confinement”

all indicate that he is at risk of attempting suicide again. (ECF No. 1-3 at 54.) He notes that

keeping him in solitary confinement pending adjudication on the merits places him “at [a] high

risk of another, upcoming, potentially lethal suicide attempt.” (Id. (quotation omitted).)

Plaintiff’s expert, Dr. Grassian, corroborates as much. As a general matter, Dr. Grassian notes

that those in solitary confinement are at a significantly increased risk of suicide. (ECF No. 38-6

at 9.) After observing Plaintiff testify at the preliminary injunction hearing, Dr. Grassian further

indicated that Plaintiff himself has a substantial risk of completing a suicide attempt while he

remains in solitary confinement.

Once again, Defendants cite the fact that “Plaintiff himself reports that he is no longer

suicidal” as a reason he cannot demonstrate irreparable harm. (ECF No. 28 at 7.) Similarly,

PsiMed characterizes Plaintiff’s complaint as “speculation” and “no more than a personal

disagreement with his doctors.” (ECF No. 27 at 26 (citation omitted).) As such, it claims that

the harm here is speculative because Plaintiff “has not attempted suicide again.” (Id. at 26–27.)

PsiMed notes that it “remains able to provide [Plaintiff] with appropriate mental health care.” (Id.

at 27.)

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The fact that Plaintiff has not attempted suicide again, however, is not relevant. A party

“does not have to await the consummation of threatened injury to obtain [injunctive] relief.”

Friends of the Earth, Inc. v. Gaston Copper Recycling Co., 204 F.3d 149, 160 (4th Cir. 2000)

(citing Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979)). The threat

of suicide here is more than mere speculation. Plaintiff’s past suicide attempts demonstrate that

the threat is real. Beyond that, Dr. Grassian indicated at the hearing that Plaintiff’s continued

confinement in the conditions he challenges is likely to cause him to attempt again. By “[s]imply

returning [Plaintiff] to segregation without meaningful intervention,” Plaintiff’s “acute risk [of

suicide]” is not mitigated. (ECF No. 1-3 at 54 (citing id. at 59).)

As discussed previously, Plaintiff’s denials are of no moment either. Defendants have not

rebutted Dr. Grassian’s testimony, which indicated that denial of suicidal intent by someone in

Plaintiff’s situation heightens, rather than abates, the risk of completing suicide. Although

Defendants may characterize their own efforts as sufficient, Defendants do not fully grapple with

the testimony presented. Dr. Grassian’s testimony indicated that Plaintiff’s relationship with his

PsiMed therapist was helpful, but ultimately inadequate for the immediate threat he presently

faces. Without lifting the underlying condition until the risk of suicide subsides, Plaintiff’s risk

of suicide will continue to loom. On the record presently before the Court, Plaintiff has made a

sufficient showing of a likelihood of irreparable harm. Therefore, the second Winter factor

weighs in Plaintiff’s favor.

C. The balance of equities and the public interest tip in Plaintiff’s favor

When the government is the party opposing a preliminary injunction, Winter factors three

and four merge. See Pierce v. North Carolina State Board of Elections, 97 F.4th 194, 225 (4th

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Cir. 2024) (“Plaintiffs must show ‘that the balance of equities tips in [their] favor’ [Winter factor

three] and ‘that an injunction is in the public interest.’ [Winter factor four] . . . These ‘factors merge

when the Government is the opposing party.’”) (citations omitted). Here, Plaintiff argues that

these factors weigh in his favor. As to the balance of the equities, Plaintiff argues that his long-

term placement in solitary confinement puts him at risk of “not merely attempting suicide, but

eventually succeeding” at those attempts. (ECF No. 1-3 at 54–55.) He further states that he is

“totally reliant” on Defendants to respond appropriately to his serious mental health issues. (Id.)

This, he asserts, they have not done. (Id.) The harm to him is “potentially fatal,” while

Defendants will suffer “no injury” from him being placed at Sharpe Hospital. (Id.) Sharpe

Hospital, which also houses other violent criminals, would not be burdened either. (Id.) Plaintiff

also asserts that the public interest is served by preventing an inmate death and by “promot[ing]

constitutional conditions of confinement” within the West Virginia penal system.

Defendants do not dispute the need to provide Plaintiff with adequate medical care, but do

dispute that those needs tip the balance of the equities in his favor. (ECF No. 28 at 12.)

Defendants voice their concern that “facility staff, the public at large, and the Plaintiff himself”

would be placed at risk if he were transferred to a facility like Sharpe Hospital. (Id.) They are

concerned that Plaintiff cannot be deterred from an escape from Sharpe Hospital since “there is no

practical legal deterrent to prevent him from attempting to escape” from that facility. (Id. at 8.)

The facility is not as secure as Mount Olive, making Plaintiff’s “propensity for violence” and

escape a significant risk. (Id. at 12.) Finally, they continue to assert that “PsiMed, [WVDCR’s]

service provider, can adequately address the Plaintiff’s mental health problems.” (Id. at 13.)

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The Court takes seriously the fact that it should not ordinarily “immerse [itself] in the

management of state prisons or substitute [its] judgment for that of the trained penological

authorities charged with the administration of such facilities.” Taylor v. Freeman, 34 F.3d 266,

268 (4th Cir. 1994). When “extraordinary circumstances” arise, however, the Court does act

within its bounds. Cf. id. As the Court has already found, the efforts made by Defendants to

mitigate the risk of harm falls short of what is necessary to meet the immediate need. Cf.

Halliman v. Scaratino, 466 F. Supp. 3d 587, 609 (E.D.N.C. 2020) (denying a preliminary

injunction on the third and fourth Winter factors because prison officials acted reasonably in their

response to COVID-19). By failing to adequately address the underlying factors associated with

the increased risk of suicide—i.e. unending solitary confinement combined with serious mental

illness—Plaintiff remains at that risk without injunctive relief.

The Court is not insensitive to Defendants’ legitimate concerns over the safety of the

public. A risk of inmate escape is a serious concern that a Court must soberly consider.

However, this case has mitigating circumstances that reduces that immediate concern. First, there

is a notable gap between Plaintiff’s last significant escape attempt and his last suicide attempt.

Second, it appears from the record that other dangerous criminals are also housed at Sharpe

Hospital with apparently little incident. (See ECF No. 1-3 at 55.) Third, until his suicide attempt,

there appears to have been a significant gap in write ups—one of the criteria that Defendant Frame

himself indicated would assist Plaintiff in getting out of solitary confinement permanently.

Finally, these past escape attempts are not exactly of the caliber of Andy Dufresne.12 They

represent, as Defense counsel agreed at the preliminary injunction hearing, a situation more akin

12 See The Shawshank Redemption (Castle Rock Entertainment 1994).

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to attempts, and in the Court’s view, not very promising ones. The facts of this case simply do

not seem to outweigh the legitimate risk to life that Plaintiff faces without relief. Thus, the third

and fourth Winter factors tip in Plaintiff’s favor.

D. The scope of the preliminary injunction is consistent with the PLRA

Having found that Plaintiff made a clear showing under the Winter factors, the Court turns

next to the requirements it must follow under the PLRA. Preliminary injunctions respecting

prison conditions must comport with the provisions set forth in 18 U.S.C. § 3626(a)(2). That

provision of the PLRA states that, when confronted with a civil action respecting prison conditions,

any “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to

correct the harm the court finds requires preliminary relief, and be the least intrusive means

necessary to correct that harm.” Id. In considering those factors, “[t]he court shall give

substantial weight to any adverse impact on public safety or the operation of a criminal justice

system caused by the preliminary relief and shall respect the principles of comity set out in

paragraph (1)(B) in tailoring any preliminary relief.” Id.

First, the Court has exercised restraint in not ruling on all of Plaintiff’s requested relief at

this time. By only addressing the immediate harm Plaintiff presently faces, the Court is taking

every effort to avoid overbreadth. The Court has narrowly drawn its ordered relief by only

requiring Defendants to do their part in effectuating the transfer of Plaintiff to Sharpe Hospital for

stabilization. The Court has not fashioned any remedy relating to the ultimate question of the

constitutionality of Plaintiff’s possible future solitary confinement. Given that Sharpe Hospital

also houses other inmates convicted of serious offenses, it would not be more “intrusive” than

necessary to have Plaintiff housed there pending stabilization.

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Further, the Court has given appropriate weight to the legitimate safety and operational

concerns of Defendants. As indicated above, the Court has considered Plaintiff’s past escape

attempts and the arguments Defendants made regarding them. The Court appreciates the

seriousness of those concerns. As previously stated, however, the Court does not find that the

present record supports the conclusion that these past instances are sufficient to outweigh the

immediate risk to life posed to Plaintiff.

Finally, the Court has considered the interests of comity in fashioning its remedy. As

Plaintiff explains, state law establishes a system where by Defendant Frame can effectuate the

transfer of Plaintiff in accordance with this order. (See ECF No. 1-3 at 55 (citing W. Va. Code §

27-5-2(b).) Thus, the Court’s order does not require Defendant Frame “exceed his . . . authority

under [West Virginia] law.” 18 U.S.C. § 3626(a)(1)(B).

The direction of this injunction is limited by the PLRA. According to the statute,

“[p]reliminary injunctive relief shall automatically expire on the date that is 90 days after its entry,

unless the court makes the findings required under subsection (a)(1) for the entry of [final]

prospective relief” before expiration of the preliminary injunction. 18 U.S.C. § 3626(a)(2).

The scope of this relief respects only Plaintiff’s request for an injunction ordering that he

be sent to a psychiatric facility, such as Sharpe Hospital. This order does not address the other

requests for preliminary injunctive relief. Thus, such relief remains pending before the Court and

may be addressed later should the need arise. While this order may expire within ninety days of

its entry, the Court can and will decide on the remaining relief sought in the motion for a

preliminary injunction if it must. Further, the Court will decide on a permanent injunction if it

finds it necessary to do so. Perhaps it will not come to that. If the parties find a solution that

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obviates the need for the Court’s involvement, that would of course be preferred. The Court hopes

it will find itself in such a situation within ninety days. If not, then it will continue to give the

relief necessary.

IV. CONCLUSION

Plaintiff is convicted of a heinous crime, and the Court was left with the impression after

the preliminary injunction hearing that Plaintiff is a thorn in the side of the administration of Mount

Olive. Even so, this is the United States of America and we have a Constitution that sets certain

minimum standards for the treatment of inmates, even disagreeable or dangerous ones. The

Plaintiff came to this Court with largely undisputed evidence compelling this Court’s findings

herein and the relief it grants on this record. In response, the Defendants came to this proceeding

armed with, well, not much.

For all the reasons stated above, Plaintiff’s motion for a preliminary injunction is

GRANTED IN PART to the extent that it requires Defendants to effectuate his transfer to a state

psychiatric facility. (ECF No. 1-3 at 39–40.) The Court ORDERS that Defendants accomplish

this FORTHWITH.

In light of the Court’s findings regarding the absence of any meaningful harm to

Defendants related to this injunction, as well as the likelihood that Plaintiff will succeed on the

merits of his claim, the Court ORDERS that the security required by Federal Rules of Civil

Procedure 65(c) be set at ZERO. See, e.g., Doe v. Pittsylvania, 842 F. Supp. 2d 927, 937 (W.D.

Va. 2012).

IT IS SO ORDERED.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: May 23, 2025

teh

THOMAS E. JOHNSTON

UNITED STATES DISTRICT JUDGE

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