Bowers v. State of West Virginia

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

AT MARTINSBURG

JESSICA B. BOWERS,

Plaintiff,

v. CIVIL ACTION NO. 3:23-cv-00119

JEFF S. SANDY,

individually and in his official capacity as

the former Cabinet Secretary of the West Virginia

Department of Homeland Security, and

BETSY JIVIDEN,

individually and as a former employee of the West Virginia

Division of Corrections and Rehabilitation, and

DIDYMUS TATE,

individually and as an employee of the West Virginia

Division of Corrections and Rehabilitation, and

JOHN/JANE DOE UNKNOWN EMPLOYEES OR

AGENTS OF THE WEST VIRGINIA DIVISION

OF CORRECTIONS AND REHABILITATION,

individually and as employees or agents of the West

Virginia Division of Corrections and Rehabilitation, and

ASHLEY FISHER,

individually and as an employee of PrimeCare, and

LISA BEARD,

individually and as an employee of PrimeCare, and

KELSEY SHANK,

individually and as an employee of PrimeCare, and

CHRISTIN BELL,

individually and as an employee of PrimeCare, and

BRENDA EAGLE,

individually and as an employee of PrimeCare, and

CHRISTINA WAY,

individually and as an employee of PrimeCare, and

CHELSEA MCCRORK,

individually and as an employee of PrimeCare, and

MORTICIA MARSHALL,

individually and as an employee of PrimeCare, and

BRANDY SCOTT,

individually and as an employee of PrimeCare, and

ALFRED BALDERA,

individually and as an employee of PrimeCare, and

PRIMECARE MEDICAL, INC., and

PRIMECARE MEDICAL OF WEST VIRGINIA, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is a Motion to Dismiss [ECF 155], filed by Defendants Betsy Jividen, Jeff

A. Sandy, and Didymus Tate (collectively, the “Moving Defendants”) on January 6, 2025. Plaintiff

Jessica B. Bowers responded on January 21, 2025, [ECF 160], and Moving Defendants replied on

January 29, 2025, [ECF 161]. The matter is ready for adjudication.

I.

On March 10, 2022, Ms. Bowers was booked into the Eastern Central Regional Jail

(“ERJ”), a facility operated by the West Virginia Division of Corrections and Rehabilitation

(“WVDCR”) in Martinsburg. [ECF 107 at ¶¶ 1, 53]. PrimeCare, the medical service provider at

ERJ, began an opioid detoxification protocol on Ms. Bowers on March 13, 2022. [Id. at ¶¶ 84–86].

On March 24, 2022, Ms. Bowers began exhibiting strange behaviors, which

continued until March 28, 2022, when PrimeCare staff found Ms. Bowers lying contorted on the

floor of her cell, awake but unresponsive, and with a purple face. [Id. at ¶¶ 90–111]. PrimeCare

staff contacted the on-call physician, who directed that Ms. Bowers be sent to an emergency room

for evaluation. [Id. at ¶ 111]. Ms. Bowers was taken to Berkeley Medical Center (“BMC”), where

she was “intubated, placed on a ventilator, and admitted to the hospital ICU.” [Id. at ¶ 118]. BMC

records indicate that Ms. Bowers had “severe MRSA sepsis from skin lesions, a pulmonary

embolus, hepatitis C, abnormal liver functions and a brain injury pattern described as

leukoencephalopathy.” [Id. at ¶ 118]. A urine drug screen was positive for fentanyl, and BMC

records indicate Ms. Bowers had been poisoned by fentanyl or its analogues. [Id. at ¶¶ 118–19].

Ms. Bowers “was left with marked cognitive and physical incapacity” and can no longer care for

herself. [Id. at ¶ 120].

On September 16, 2022, Ms. Bowers instituted this action in the Circuit Court of

Berkeley County against the West Virginia Department of Military Affairs and Public Safety.

[ECF 1-2 at 2]. The West Virginia Department of Homeland Security (“WVDHS”) filed an answer

in October 2022, after which the WVDCR and Wexford Health Sources, Inc. were added as

Defendants. [Id. at 2–3]. On April 19, 2023, Ms. Bowers filed her First Amended Complaint,

adding PrimeCare as a Defendant. [Id. at 3]. WVDHS and WVDCR removed on May 4, 2023.

[ECF 1].

On June 26, 2024, Ms. Bowers filed the operative Amended Complaint,

substituting Moving Defendants for John/Jane Doe WVDCR employees. As to Moving

Defendants, Ms. Bowers asserts a claim pursuant to 42 U.S.C. § 1983, arguing that both her

conditions of confinement and Moving Defendants’ deliberate indifference to her serious medical

needs violated her right to be free from cruel and unusual punishment under the Fourteenth

Amendment. [ECF 107 at 31–36].

Moving Defendants now seek to dismiss Ms. Bowers’ Complaint under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. [ECF

155]. They also assert that they are entitled to qualified immunity. [Id.].

II.

A. Motions to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) requires that a pleader provide “a short and plain statement of the claim

showing . . . entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93

(2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The required

“short and plain statement” under Rule 8 must provide “fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and citation omitted); McCleary-Evans v. Md. Dep’t of Transp., State Highway

Admin., 780 F.3d 582, 585 (4th Cir. 2015). A showing of an “entitlement to relief” requires “more

than labels and conclusions,” and “a formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555; McCleary-Evans, 780 F.3d at 585; Bing v. Brivo Sys., LLC,

959 F.3d 605, 616 (4th Cir. 2020), cert. denied, 209 L. Ed. 2d 122, 141 S. Ct. 1376 (2021);

Giarratano v. Johnson, 521 F.3d 298, 304 (4th Cir. 2008).

The complaint need not “forecast evidence sufficient to prove the elements of [a]

claim,” but it must “allege sufficient facts to establish those elements.” Walters v. McMahen, 684

F.3d 435, 439 (4th Cir. 2012) (citing Robertson v. Sea Pines Real Est. Cos., 679 F.3d 278, 291

(4th Cir. 2012)) (internal quotation marks omitted) (emphasis added); Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (noting the opening pleading “does not require ‘detailed factual allegations,’ but

it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”);

Twombly, 550 U.S. at 555 (stating that the operative pleading need only contain “[f]actual

allegations . . . [sufficient] to raise a right to relief above the speculative level”). In sum, the

complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570; Robertson, 679 F.3d at 288.

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. A court considering a Rule 12(b)(6) motion to dismiss must “accept as true

all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (citing Twombly, 550 U.S. at 555-56); see also S.C. Dep’t of Health & Env’t Control v.

Com. & Indus. Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (citing Franks v. Ross, 313 F.3d 184,

192 (4th Cir. 2002)). The court is required to “draw[] all reasonable . . . inferences from those facts

in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. Assessing the claim is a “context-specific task

that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

III.

Moving Defendants seek dismissal on two grounds. First, they contend that Ms.

Bowers has failed to allege sufficient facts to support her claims. [ECF 155]. Next, they contend

that even were the Complaint factually sufficient to state a claim upon which relief can be granted,

they are, nonetheless, entitled to qualified immunity. [ECF 155 at 4].

A. Deliberate Indifference to Serious Medical Needs

Because the Eighth Amendment “has no application” where there has “been no

formal adjudication of guilt against [an incarcerated person] at the time [she] required medical

care,” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983), deliberate

indifference claims for pretrial detainees arise under the Due Process Clause of the Fourteenth

Amendment. Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023) (citing Kingsley v. Hendrickson,

576 U.S. 389, 398 (2015)). To state such a claim, a pretrial detainee must plead the following:

(1) they had a medical condition or injury that posed a substantial risk of serious

harm; (2) the defendant intentionally, knowingly, or recklessly acted or failed to act

to appropriately address the risk that the condition posed; (3) the defendant knew

or should have known (a) that the detainee had that condition and (b) that the

defendant’s action or inaction posed an unjustifiably high risk of harm; and (4) as

a result, the detainee was harmed.

Short, 87 F.4th at 611. A pretrial detainee need not “show that the defendant had actual knowledge

of the detainee’s serious medical condition and consciously disregarded the risk that their action

or failure to act would result in harm.” Id. Rather, “it is sufficient that the plaintiff show that the

defendant’s action or inaction was . . . objectively unreasonable: that is, the plaintiff must show

that the defendant should have known of that condition and that risk, and acted accordingly.” Id.

(cleaned up). However, “it is still not enough for the plaintiff to allege that the defendant

negligently or accidentally failed to do right by the detainee.” Id.

Here, the Amended Complaint broadly restates the applicable law, with few facts

to support its conclusions. One of the most substantial allegations Ms. Bowers makes in support

of her constitutional claim is as follows:

The conduct of Defendants . . . in permitting persons to bring Fentanyl into the ERJ

and failing to protect Plaintiff, is a violation of standards applicable to correctional

facilities and was a proximate cause and/or contributing factor to the injuries

suffered by Jessica Bowers, because Plaintiff, Jessica Bowers, was a drug addict

who did not receive help to withdraw from her drug dependency in a manner that

complied with the basic standards applicable to all defendants.

[ECF 107 at ¶ 170]. However, this statement leaves a plethora of questions that the remainder of

the Amended Complaint fails to answer. Ms. Bowers fails to allege specific actions or inactions

by the Moving Defendants that could reasonably be construed as “permitting” Fentanyl to be

brought into the facility. In fact, Ms. Bowers does not even allege how or why the Moving

Defendants knew or should have known that Fentanyl had entered the facility or how Ms. Bowers

came into the possession of Fentanyl while detained. Ms. Bowers also fails to show how the

detoxification treatment Defendants administered was insufficient to “help to withdraw from her

drug dependency in a manner that complied with the basic standards applicable to all defendants.”

[Id. at ¶ ¶ 85-86, 170]. And although Ms. Bowers alleges that the Defendants “routinely failed to

promptly provide [her with] necessary and reasonable medical treatment,” [Id. at ¶ 174], she

provides no facts to support that contention. Additionally, it is unclear from Ms. Bowers’ Amended

Complaint what role, if any, the Moving Defendants specifically played in providing Ms. Bowers

with medical treatment.

Inasmuch as Ms. Bowers’ Amended Complaint consists primarily of unsupported

legal conclusions that fail to adequately demonstrate Moving Defendants’ alleged misconduct, the

Court finds that Ms. Bowers’ claim for deliberate indifference to serious medical needs under the

Fourteenth Amendment fails to state a claim upon which relief can be granted as to Moving

Defendants. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to that claim.

B. Conditions of Confinement

The Supreme Court has concluded that “under the Due Process Clause [of the

Fourteenth Amendment], a detainee may not be punished prior to an adjudication of guilt in

accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); see Matherly v.

Andrews, 859 F.3d 264, 274 (4th Cir. 2017); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).

Accordingly, “[i]n evaluating the constitutionality of conditions or restrictions of pretrial detention

that implicate only the protection against deprivation of liberty without due process of law, . . . the

proper inquiry is whether those conditions amount to punishment of the detainee.” Bell, 441 U.S.

at 535; see Short, 87 F.4th at 606 (“[T]he Fourteenth Amendment Due Process Clause protects

pretrial detainees from being punished at all. As a result, any pretrial detention conditions that

‘amount to punishment’ violate due process.”) (cleaned up). To establish that a condition of

confinement constitutes “punishment,” a pretrial detainee “must show either that [the condition]

was (1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate

nonpunitive governmental objective, in which case an intent to punish may be inferred.” Martin,

849 F.2d at 870 (quoting Bell, 441 U.S. at 538–40); see Kingsley, 576 U.S. at 398 (“[A] pretrial

detainee can prevail by providing only objective evidence that the challenged governmental action

is not rationally related to a legitimate governmental objective or that it is excessive in relation to

that purpose.”).

Here, too, Ms. Bowers’ claims are plagued by factually deficient allegations and

sweeping legal conclusions. For instance, Ms. Bower alleges as follows:

The actions of Defendants . . . violated the constitutional rights guaranteed to the

Plaintiff, under the Fourteenth Amendment to the United States Constitution by

depriving them of basic human necessities including safety, constituting

punishment without due process.

Defendants imposed and/or permitted these conditions despite said conditions not

being reasonably related to any legitimate non-punitive governmental or

penological objective.

[Id. at ¶¶ 155-157]. While Ms. Bowers alleges that Defendants deprived her of “basic human

necessities,” she wholly fails to aver what actions or inaction by the Moving Defendants resulted

in such a deprivation. [Id. at ¶ 155]. Similarly, Ms. Bowers states that “these conditions” were

“imposed and/or permitted” by Defendants without ever clarifying what those “conditions” were.

[Id. at ¶ 156]. Without more, it is impossible to analyze whether the alleged “conditions” could be

“reasonably related” to a “legitimate non-punitive governmental or penological objective.” [Id. at

¶ 156]. These broad allegations offer no insight into what exactly Moving Defendants did or did

not do, much less how any alleged conduct amounts to a constitutional violation.

Ms. Bowers’ claims related to the conditions of confinement are fatally broad and

lacking in supporting factual allegations. For this reason, Moving Defendants’ motion is

GRANTED as to Ms. Bowers’ Fourteenth Amendment claim for conditions of confinement.

C. Supervisory Liability

In some instances, “supervisory officials may be held liable . . . for the

constitutional injuries inflicted by their subordinates.” Campbell v. Florian, 972 F.3d 385, 398

(4th Cir. 2020), as amended (Aug. 28, 2020) (quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.

1994)) (internal quotation marks omitted). Of course, “a supervisor may not prevent all illegal acts

by his subordinates.” Randall v. Prince George's Cnty., Md., 302 F.3d 188, 203 (4th Cir. 2002).

However, when that supervisor is “on notice of a subordinate's tendency to act outside the law,”

the supervisor is “obligated . . . to take steps to prevent such activity.” Id. “If a supervisory law

officer is deliberately indifferent to that responsibility, he then bears some culpability for illegal

conduct by his subordinates, and he may be held vicariously liable for their illegal acts.” Id. This

supervisory liability “is not premised upon respondeat superior but upon a recognition that

supervisory indifference or tacit authorization of subordinates misconduct may be a causative

factor in the constitutional injuries they inflict.” Shaw, 13 F.3d at 798 (quoting Slakan v. Porter,

737 F.2d 368, 372–73 (4th Cir. 1984)); see Campbell, 972 F.3d at 398. “Accordingly, a § 1983

plaintiff must show more than mere supervision.” Campbell, 972 F.3d at 398.

To establish a § 1983 supervisory liability claim, a plaintiff must show:

(1) that the supervisor had actual or constructive knowledge that his subordinate

was engaged in conduct that posed “a pervasive and unreasonable risk” of

constitutional injury to citizens like the plaintiff; (2) that the supervisor's response

to that knowledge was so inadequate as to show “deliberate indifference to or tacit

authorization of the alleged offensive practices,”; and (3) that there was an

“affirmative causal link” between the supervisor's inaction and the particular

constitutional injury suffered by the plaintiff.

Shaw, 13 F.3d at 799.

Ms. Bowers’ allegations against Moving Defendants for supervisory liability are as

follows:

170. The conduct of Defendants, Jividen, Sandy, Tate and John/Jane Does, in

permitting persons to bring Fentanyl into the ERJ and failing to protect Plaintiff, is

a violation of standards applicable to correctional facilities and was a proximate

cause and/or contributing factor to the injuries suffered by Jessica Bowers, because

Plaintiff, Jessica Bowers, was a drug addict who did not receive help to withdraw

from her drug dependency in a manner that complied with the basic standards

applicable to all defendants.

171. This conduct by Defendants, Jividen, Sandy, Tate and John/Jane Does, showed

deliberate indifference to the medical needs of Jessica Bowers and the unlawfulness

of this conduct by Defendants was sufficiently clear so that every reasonable public

official in their position would understand that what they were doing was unlawful.

172. Defendants, while acting under color of law and within the scope of their

employment, violated the Fourteenth Amendment right of pretrial detainees to be

free of punishment without due process.

173. The actions of Defendants, described hereinabove, violated the constitutional

rights guaranteed to the Plaintiff, under the Fourteenth Amendment to the United

States Constitution by acting with deliberate indifference to the serious medical

needs of inmates.

174. As described hereinabove, Defendants routinely failed to promptly provide

necessary and reasonable medical treatment to the Plaintiff.

175. Defendants were deliberately indifferent to, and willfully ignored, the serious

medical needs of the Plaintiff, as described hereinabove, by failing to establish,

monitor, and/or enforce policy directives and operational procedures to ensure that

inmates at ERJ receive prompt and reasonable treatment for their medical needs.

176. Defendant supervisors likewise exhibited supervisory indifference or tacit

authorization of the misconduct of subordinates and the constitutional injuries

committed by said subordinates.

177. Defendant supervisors had actual or constructive knowledge that their

subordinates were engaged in conduct that posed a pervasive and unreasonable risk

of constitutional injury and the Defendant supervisors’ response to said knowledge

was so inadequate as to show deliberate indifference or tacit authorization of these

constitutional injuries.

[ECF 107 at ¶¶ 170–77].

To satisfy Shaw’s first element, “a plaintiff must show the following: (1) the

supervisor’s knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a

pervasive and unreasonable risk of constitutional injury to the plaintiff.” Shaw, 13 F.3d at 799

(quoting Slakan, 737 F.2d at 373). “Establishing a “pervasive” and “unreasonable” risk of harm

requires evidence that the conduct is widespread, or at least has been used on several different

occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm

of constitutional injury.” Id. (citing Slakan, 737 F.2d at 373–74).

Ms. Bowers’ Amended Complaint fails to allege any facts to demonstrate that the

Moving Defendants, as supervisors, had actual or constructive knowledge of the conduct of their

subordinates. Instead, Ms. Bowers merely recites the governing standard without any facts to

support her claims and relies on the Court to fill the gaps. That is insufficient. See Iqbal, 550 U.S.

at 679 (stating that a plaintiff’s allegations must be sufficient to “permit the court to infer more

than the mere possibility of misconduct” based upon “its judicial experience and common sense”).

Accordingly, Ms. Bowers’ legal conclusions and “formulaic recitation” of the first element are

insufficient to support her claim. Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d

206, 214 (4th Cir. 2016).

In meeting Shaw’s second element -- “that the supervisor's response to that

knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the

alleged offensive practices,’” Shaw, 13 F.3d at 799 -- our Court of Appeals has concluded that,

a plaintiff ‘[o]rdinarily . . . cannot satisfy his burden of proof by pointing to a single

incident or isolated incidents . . . for a supervisor cannot be expected . . . to guard

against the deliberate criminal acts of his properly trained employees when he has

no basis upon which to anticipate the misconduct.’

Randall, 302 F.3d at 206 (4th Cir. 2002) (quoting Slakan, 737 F.2d at 373). “Recognizing that

supervisory liability can extend to the highest levels of state government, [our Court of Appeals]

[has] noted that liability ultimately is determined by pinpointing the persons in the decisionmaking

chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.”

Shaw, 13 F.3d at 798 (quoting Slakan, 737 F.2d at 373) (internal quotation marks omitted). In other

words, “[t]he supervisor’s own response to the knowledge of a risk of constitutional injury must

be ‘so inadequate as to show deliberate indifference to or tacit authorization of the alleged

offensive practices.’” Campbell, 972 F.3d at 398 (quoting Randall, 302 F.3d at 203).

Here, too, Ms. Bowers’ allegations amount to a conclusory regurgitation of the

deliberate indifference standard without any factual underpinnings. Ms. Bowers alleges that

“Defendant supervisors . . . exhibited supervisory indifference or tacit authorization of the

misconduct of subordinates and the constitutional injuries committed by said subordinates.” [ECF

107 ¶ 176]. But Ms. Bowers is wholly silent as to how she came to that conclusion. Because this

is no more than a “[t]hreadbare recital[]” of the applicable standard, it is insufficient to prove the

second element has been met. Iqbal, 556 U.S. at 678.

To prove the third element, causation, a plaintiff must establish an “affirmative

causal link between the supervisor’s inaction and the harm suffered by the plaintiff.” Shaw, 13

F.3d at 799 (quoting Slakan, 737 F.2d at 376). According to Ms. Bowers,

[a]s a direct and proximate result of Defendants’ unlawful, unjustified, and

unconstitutional actions, [she] suffered a deprivation of their [sic] Constitutional

rights and physical harm, and will seek compensatory and nominal damages for,

inter alia, physical pain and discomfort; the physical effects of her neurocognitive

damages; the development of associated medical conditions; and consuming illegal

drugs that were smuggled into the jail where she was housed.

[ECF 107 at § 184]. Ms. Bowers broadly alleges that Defendants’ actions are the “direct and

proximate” cause of her injuries. However, she fails to make any showing beyond this generalized

statement as to what action or maction on the part of the Moving Defendants caused those injuries.

In sum, Ms. Bowers fails to allege a successful Fourteenth Amendment claim

against Moving Defendants. The only allegations against Moving Defendants are precisely the

type of “unadorned, the-defendant-unlawfully-harmed-me accusation[s]” and “legal conclusions”

that /gbal forbids. Iqbal, 556 U.S. at 678.

IV.

For the foregoing reasons, the Court GRANTS the Motion to Dismiss [ECF 155]

filed by Defendants Betsy Jividen, Jeff A. Sandy, and Didymus Tate.

The Clerk is DIRECTED to send a copy of this written opinion and order to all

counsel of record and any unrepresented parties.

ENTER: July 16, 2025

Sank Va

Ne a Bes LPAMR I Four

“Tame Chief United States District Judge

13