Roxanne Adams, Administrator of the Estate of Jamycheal M. Mitchell v. Naphcare, Inc. et al

Filing 174

OPINION entered 3/31/17 and filed 4/3/17: This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum in Support filed by Defendant Debra K. Ferguson {"Ferguson") on August 1, 2016. ECF Nos. 84 , 85 . The Plaintiff filed a Response on September 1, 2016, ECF No. 123 , and on September 13, 2016, Ferguson filed a Reply. ECF No. 130 . On September 20, 2016, Ferguson also filed a Request for Hearing. ECF No. 133 . On September 21, 2 016, this court referred the Motion to a United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, a nd to submit to the undersigned District Judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 134 . Having conducted a hearing regarding the Motion on October 19, 2016, ECF No. 139 , the Magistrate Judge filed the Report and Recommendation ("R&R") on February 21, 2017. ECF No. 162 . The Magistrate Judge recommended granting the Motion. R&R at 1. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See id. at 21-22. On March 7, 2017, the Plaintiff filed Objections to the R&R. ECF No. 167 . On March 21, 2017, Ferguson filed a Response to the Objec tions. ECF No. 171 . The matter has been fully briefed and is ripe for review. For the reasons (stated in this Opinion), the Plaintiff has plausibly stated claims of negligence, gross negligence, and willful and wanton negligence against Ferguson under Virginia law, and Ferguson is not protected from these claims by Eleventh Amendment immunity or state sovereign immunity. The Plaintiff's objection regarding the state law claims is SUSTAINED. At this juncture, Ferg uson cannot hide behind the doctrines of sovereign and qualified immunity, and/or claims of ignorance of what was going on in the agency for which she was ultimately in charge. Accordingly, the Plaintiff's Objections are SUSTAINED, the Magistrate Judge's R&R is REJECTED, and the Motion to Dismiss, ECF No. 84 , is DENIED, as outlined. (See Opinion and Foot Notes for Specifics) (Signed by Chief District Judge Rebecca Beach Smith on 3/31/17). Copies provided as directed 4/3/17.(ecav, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

Norfolk Division

ROXANNE ADAMS,

ADMINISTRATOR OP
MITCHELL,

THE ESTATE OF JAMYCHEAL M.

Plaintiff,

V.

CIVIL ACTION NO.

NAPHCARE,

INC.,

2;16cv229

et a l . ,

Defendants.

OPINION

This matter comes before the court on the Motion to Dismiss

("Motion")

Ferguson
Plaintiff

and Memorandum in Support filed by Defendant Debra K.

{"Ferguson")
filed a

September

20,

2016.

ECF Nos.

Response on September 1,

and on September 13,

On

on August 1,

2016,

2016,

2016,

Ferguson filed a Reply.

Ferguson

also

filed

a

84,

85.

ECF No.

The
123,

ECF No. 130.

Request

for

Hearing. ECF No. 133.

On September 21,

2016,

this court referred the Motion to a

United States Magistrate Judge, pursuant to the provisions of 28
U.S.C.

to

§ 636(b)(1)(B)

conduct

necessary,
proposed

and Federal Rule of Civil Procedure 72(b),

hearings,
and

to

findings

including

submit
of

fact,

to
if

the

evidentiary
undersigned

applicable,

and

for the disposition of the Motion. ECF No. 134.

hearings,
District

if
Judge

recommendations

Having

conducted

a

hearing

October 19,

2016,

Report

Recommendation

and

No. 162.

ECF No. 13 9,

the

("R&R")

the

Magistrate
on

on

Judge

filed

the

21,

2017.

ECF

February

to

file

written

the parties were advised of their

objections

to

the

recommendations made by the Magistrate Judge.
On March 7,
No.

Motion

The Magistrate Judge recommended granting the Motion.

R&R at 1. By copy of the R&R,
right

regarding

167.

2017,

21,

ECF No.

2017,

171.

Ferguson

filed

and

See id. at 21-22.

the Plaintiff filed Objections to the R&R.

On March

Objections.

findings

a

Response

to

ECF
the

The matter has been fully briefed and

is ripe for review.
I.

This action was brought by the Plaintiff in her capacity as
the

administrator

{"Mitchell"),

of

who

died

Roads Regional Jail
period

of

the
as

a

estate
pretrial

("HRRJ"). Compl.

pretrial

detention.

of

Jamycheal

detainee

in

Mitchell

the

Hampton

1, 20. During Mitchell's

Defendant

Ferguson

was

the

Commissioner of the Virginia Department of Behavioral Health and
Developmental Services

Office

of

Forensic

with disabilities

Id.

^

41.

Defendant

and

The

Services,

who are

Complaint

Ferguson:

wanton

("DBHDS"),

provides

services

to

involved in Virginia's

alleges

negligence,

negligence

a department which,

under

the
gross

Virginia

following

individuals

legal

system.

claims

against

negligence,

law

through an

(Count

and

willful

One),

id.

202-203,

205-211;

denial,

delay,

§ 1983

(Count Two),

under

42

deprivation

of

Indifference

-

In
Civil

the

civil

{Count

rights,

Supervisory

through

the

under 42 U.S.C.

Five),

with

id.

the

Liability,"

252-258;

heading

under

42

and

"Deliberate

U.S.C.

§ 1983

259-266.

instant Motion,

filed pursuant

12(b)(6),

claims

due

Ferguson
to

the

allegations

factual

for

to

seeks

of

Rule

dismissal

Plaintiff's

each

Federal

failure

these

of

of
the

to

show

counts.

Mot.

Ferguson also claims the protection of qualified immunity

for Counts Two,

Five,

and Six,

and absolute

Eleventh Amendment for Counts Two,

The Magistrate Judge,

immunity under the

Five, and Six. Id. at 2.

accepting the facts as alleged in the

Plaintiff's Complaint as true,

found that

to state claims under 42 U.S.C.

§ 1983,

Six,

rights

K1 212-223; deprivation of civil rights

1983

civil

id.

aforementioned

at 1.

id.

§

Procedure

plausible

of

and withholding of medical care,

U.S.C.

(Count Six),

deprivation

the

Plaintiff

in Counts Two,

because the Plaintiff failed to allege

facts

failed

Five,

and

showing that

Ferguson knew of a substantial risk of harm to the Plaintiff and
others like him,

R&R at

9-14.

entitled
§ 1983

to

in terms of their treatment by the DBHDS.

The Magistrate Judge also
the

claims,

protection

see

id.

at

of

14-16,

all of the Plaintiff's claims,

found

qualified
and

that

Ferguson is

immunity

to absolute

See

for

these

immunity for

under the Eleventh Amendment.

See

id.

at

16-20.

Plaintiff

failed

negligence,
law,

Finally,

and

the
state

to

Magistrate
claims

willful

and

wanton

Judge
of

found

that

negligence,

negligence

the

gross

under Virginia

because the Plaintiff failed to assert that Ferguson owed

Mitchell a duty of care. See id. at 20-21.
II.

Pursuant

Procedure,

entirety,

to

the

Rule

72(b)

court,

of

having

shall make a ^

the

Federal

reviewed

the

Rules

of

record

Civil

in

its

novo determination of those portions

of the R&R to which a party has specifically objected.

Fed. R.

Civ. P. 72{b). The court may accept, reject, or modify, in whole
or

in

part,

recommit
§

the

the

recommendation

matter

to

him

of
with

the

magistrate

judge,

instructions.

28

or

U.S.C.

636(b)(1)(C).

Pursuant

to

Federal

Rule

of

Civil

Procedure

12(b)(6),

a

complaint must be dismissed when a plaintiff's allegations fail
to state a claim upon which relief can be granted. Fed. R. Civ.
P.

12(b)(6).

sufficiency
contests

"A motion to dismiss under Rule 12(b)(6)

of

a

complaint;

surrounding the

importantly,

facts,

it

the merits of

does
a

tests the

not

claim,

resolve
or the

applicability of defenses." Republican Party of N.C. v. Martin,
980

F.2d

dismiss,

943,

a

952

(4th

complaint

accepted as true,

to

Cir.

must

1992) .

contain

"To

survive

sufficient

a

motion

factual

to

matter,

'state a claim to relief that is plausible

on

its

face.'"

Ashcroft

(quoting Bell Atl.
Facial

that

that

the

for

a

defendant

Id.

the

is

556

that

court

or

to

a

"mere[]

544,

draw

the

the

(2007)).
factual

reasonable

inference

alleged."

Id.

therefore, not enough

demonstrating

consist[ency]"

(2009)

570

misconduct

facts

678

pleads

"plaintiff

to

allege

662,

550 U.S.

for

liable

U.S.

550 U.S. at 556) . It is,

plaintiff

possibility"

means

allows

(citing Twombly,

Iqbal,

Corp. v. Twombly,

plausibility

content

v.

with

a

unlawful

"sheer

conduct.

(citing Twombly, 550 U.S. at 557).

The

Supreme

Court

has

offered

the

following

guidance

to

courts evaluating a motion to dismiss:

[A] court considering a motion to dismiss can choose
to begin by identifying pleadings that, because they
are no more than conclusions,

are not entitled to the

assumption of truth.
While legal conclusions can
provide the framework of a complaint, they must be
supported by factual allegations.
When there are
well-pleaded
factual
allegations,
a
court
should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id.

at

679.

complaint
favorable
Inc.,

417

That

as

is,

true

the

and

views

to the plaintiff.
F.3d

418,

420

court should not grant
"demonstrate[s]
defendant

court

has

more

those

See,

(4th

facts

e.g.,

Cir.

facts
in

alleged
the

Venkatraman v.

2005).

After

the defendant's motion if
than

violated

when accepted as true,

accepts

his
that

'a

sheer

rights,
'show'

light

the
most

REI Sys.,

doing

so,

the

the plaintiff

possibility'"
by

in

that

"articulat[ing]

the

facts,

that the plaintiff has stated

a claim entitling him to relief . .
588

F.3d

at 678)

186,

193

{4th

Cir.

.

Francis v.

2009)

(quoting

Giacomelli,

Iqbal,

556

U.S.

(as only quoting "a sheer possibility").
III.

The Plaintiff has submitted four
ECF

No.

167.

Specifically,

the

(4) objections to the R&R.

Plaintiff

has

objected

to

the

Magistrate Judge's finding that (1) the suit against Ferguson is
an

official

capacity

Amendment immunity;

against

Ferguson

(2)

suit

that

is

protected

by

the Plaintiff has failed to state claims

under

42

U.S.C.

§

1983;

(3)

Ferguson

entitled to qualified immunity from suit under 42 U.S.C.

and (4)
gross

is

§ 1983;

the Plaintiff has failed to state claims of negligence,
negligence,

and

willful

Ferguson under Virginia law.

entirety,
these

Eleventh

the

court

portions

and

specifically objected.

the

Fed.

negligence

against

Having reviewed the record in its

herein makes

of

wanton

R&R

R.

a

to

^

novo

which

Civ.

P.

determination of

the

72(b).

Plaintiff

The

court

has

will

address each of the objections in turn.
A. Eleventh Amendment Immunity

The Plaintiff asserts that the Magistrate Judge incorrectly

found

that Ferguson is entitled to absolute immunity from the

§ 1983 claims under the Eleventh Amendment.
R&R, the Magistrate Judge stated,

by Plaintiff,

Objs.

at 3.

In the

"despite the nomenclature used

(Ferguson] has been sued in her official capacity.

and therefore the absolute immunity defense is also applicable

here." R&R at 17. In particular, the Magistrate Judge found that
the

state was

at 18
U.S.

"the

(quoting
89,

101

real,

substantial

Pennhurst

(1984)),

is what played the

because "the

role

U.S.

The

"Plaintiff's

be

that,

Halderman,

4 65

'policy or custom'

(quoting Hafer v»

Magistrate

Jordan,

personal
and

415

that

U.S.

seeks

also

capacity
the

651

money

Melo,

502

found

the

this

a

she

Judge

to

from

distinction,

v.

because

transfer"

damages

considered

immaterial

Edelman

claim

v.

personally and not from the Virginia treasury,

[Ferguson]
must

{1991)).

id.

[DBHDS]'s

R&R at 18

25

interest,"

in preventing Mitchell's

Eastern State Hospital.
21,

in

& Hosp.

State Sch.

party

suit,"

to

Plaintiff's

(1974)

for

be

"reliance

that

point

an
on

is

entirely misplaced." R&R at 19. The Magistrate Judge stated that
"it matters
but

rather

not which pocket
the

substance

of

Plaintiff
her

seeks

claim,

to recover

which

is

based

from,
on

the

agency's alleged policy or custom failure." Id. at 19-20.

The
on

the

Plaintiff argues

that the Magistrate Judge's findings

Eleventh Amendment

misunderstanding
Ferguson.

See

of

Objs.

the

are,

nature

at 3-4.

first

of

The

and

the

foremost,

§

1983

Plaintiff

based on a

claims

states

against

that

these

claims are based on Ferguson's "woefully mismanaging the DBHDS's

available beds."
further states

Id.

that,

at 3

(citing Compl.

H 87).

because Defendant Hart was

The Plaintiff

also accused of

mismanaging beds,
under

but

§

1983,

the

immunity

comes

down

was

not

found

Magistrate
to

this:

to be

Judge's
when

a

commits a constitutional violation,

immune

"finding

from

claims

sovereign

state

low-level

of

employee

a claim against the employee

is not barred by sovereign immunity, but when a high-level state

employee commits a constitutional violation,

by sovereign immunity."

Id.

at

4.

draws a comparison to Scheuer v.

the claim

For support,

Rhodes,

barred

the

416 U.S.

Plaintiff

232

See Objs. at 5-7. The Plaintiff argues that Ferguson,
defendant

state

governor

in

Scheuer,

is

being

(1974).
like the

sued

for

her

personal actions, and that the Magistrate Judge's interpretation
of

Edelman

for

a

contrary

finding

is

mistaken.

See

Objs.

at 7-10.

Overall,

the Plaintiff contends that the § 1983 claims

against

Ferguson

are

because

the

high-ranking

Plaintiff

official,

Constitution."

The

Id.

Eleventh

provides:

not

barred

by

alleges

"personally

the

that

Eleventh

Amendment,

Ferguson,

violated

the

United

States

though

United

a

States

a t 10.

Amendment

of

the

Constitution

"The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,
prosecuted

against

one

of

the

United

States

by

commenced or
Citizens

of

another State, or by Citizens or S\abjects of any Foreign State."
U.S.

Const,

citizens

of

amend.

XI.

Virginia,

Because

the

the

language
8

Plaintiff

of

the

and

Ferguson

Eleventh

are

Amendment

does not itself apply, but,
its

terms

does

citizens,"

it

not

is

bar

"[w]hile the [Eleventh] Amendment by
suits

established

against

that

"an

a

State

by

own

State

unconsenting

its

is

immune from suits brought in federal courts by her own citizens
as

well

as

by

at 662-63;

s^

(explaining
shorthand

citizens

Alden

that
but

of

v.

another

Maine,

Eleventh

something

State."

527

Amendment
of

a

Edelman,

U.S.

706,

immunity

misnomer,

immunity of the States neither derives from,
the terms of the Eleventh Amendment").

mind,

it

is

also

established

that

Police, 491 U.S. 58, 66
not

named a

barred

by

Eleventh

(1999)

convenient

the

sovereign

With this nomenclature in

Eleventh Amendment

immunity

§ 1983 without

see Will v. Mich. Dep't of State

(1989), and that "even though a State is

party to the action,

the

U.S.

nor is limited by,

prevents claims against a state under 42 U.S.C.
the state's waiver of immunity,

713

"is

for

415

the

Amendment."

suit may nonetheless

Edelman,

415

U.S.

at

Although "the Eleventh Amendment provides no shield for a

be

663.

state

official confronted by a claim that he had deprived another of a
federal

right under the color of state law,"

at 237,

"relief sought nominally against an officer is in fact

against

the

sovereign if

latter."

Pennhurst,

373

57,

U.S.

other

words,

58

the

465 U.S.

(1963)

" [w] hen

decree
at 101

Scheuer,

416 U.S.

would operate against
(quoting Hawaii v.

Gordon,

(internal quotation marks omitted)).
the

suit

is

brought

only

the

against

In

state

officials,

a question arises as to whether that suit is a

suit

against the State itself." Id.

Thus,

when a

state official is sued for damages in his or

her official capacity under § 1983, the action should be treated

as one against the state, which is the "real party in interest,"
and Eleventh Amendment immunity applies.
However,

502 U.S.

at 25.

when a state official is sued for damages in his or her

individual
does

Hafer,

not

capacity under
apply,

and

the

§ 1983,
state

Eleventh
official

Amendment
remains

immunity

subject

to

liability. See id. at 23, 25-26.
In

the

instant

§ 1983 claims
individual

case,

the

Complaint

states

for damages are brought against

capacity,

considered a

while

Ferguson

contends

that

the

Ferguson in her

that

it

should

be

suit brought against her in an official capacity,

due to the "Plaintiff's claims that Ferguson did not fulfill her
statutory obligations as the Commissioner of DBHDS." Mem.

at

15.

However,

standard

for

this

Eleventh

argument

does

Amendment

not

reach

immunity

claims. As the Supreme Court has explained,
in their official capacities'
to

the

capacity

capacity
Hafer,

in

502

following

in

which
U.S.

at

which

applicable

regarding

§

1983

"the phrase 'acting

is best understood as a reference

the

state

officer

the

officer

26.

That xinderstanding

distinction:

the

Supp.

inflicts

"Personal-capacity
10

the
is

is

sued,

alleged

not

the

injury."

reflected in the

suits

seek

to

impose

personal
takes

liability upon

under

suits .

.

color

.

of

a

government

state

law,"

official

whereas

for

actions

he

" [o]fficial-capacity

'generally represent only another way of pleading an

action against
Kentucky v.

an

entity of

Graham,

473 U.S.

which

an officer

159, 165-66

is

(1985)

an agent.'"

(quoting Monell

V. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).
Whether Ferguson's

conduct was undertaken pursuant

to,

or

in contravention of, a state policy or custom has no bearing on

the

availability of

Eleventh Amendment

immunity

for

a

§

1983

claim. Although the Supreme Court in Hafer explained that "the

plaintiff

in

connection
U.S.

at

does

not

a

to

25

a

mean a

claim's

converts

Rather,

§ 1983,

governmental

(quoting Graham,

automatically
claim.

personal-capacity

Dodson,

official
have

454

U.S.

capacity suit,

played

a

part

(citations omitted)

in

claim

at 166),
a

establish

state

into

an

Hafer,

that

a

502

statement

policy or

official

custom

capacity

capacity claim under

personal capacity claim under § 1983,

473

312,

to

not

custom,'"

that an official

requires "the entity itself
Graham,

U.S.

relation

as opposed to a

deprivation."

need

'policy or
473

the

it means

suit

[to be]
U.S.

326

"the
the

at

a

'moving force'

166

(1981)).

(quoting
In

entity's
violation

(emphasis added).

11

other

Polk Cnty.
words,

'policy or
of

behind the

for

custom'

federal

law."

v.
an

must
Id.

The

§ 1983

burden

has

personal

no

of

proof

bearing

capacity suit

rejected

the

protects

"state

for

on

official

the

under

contention

§

definition
1983.

that

officials

capacity

from

or

Indeed,

suits

viability

under

of

a

Hafer explicitly

Eleventh

Amendment

personal

liability

immunity
for

acts

within their authority and necessary to fulfilling governmental

responsibilities."
from

personal

Hafer,

502 U.S.

at 28.

Rather,

liability based on such acts,

to be immune

an official must

have either absolute immunity from suit, because the official's
"special

functions

or

constitutional

status

requires

protection from suit," or qualified immunity. Id. at 29
Harlow

V.

Fitzgerald,

457

quotation marks omitted)).

U.S.

800,

807

(1982)

complete

(quoting
(internal

Eleventh Amendment immunity plays no

part.^

^ Although Ferguson has

argued that

she

"is entitled to

qualified immunity, as well [as] absolute immunity under the
Eleventh Amendment," Mem. Supp. at 5,
a
joint finding of
Eleventh Amendment immunity and qualified immunity for the
Plaintiff's
§
1983
claims
against
Ferguson
would
be
inconsistent,

because i t would mean that the claims were brought

against Ferguson both in an official capacity and a personal
capacity. See Graham, 473 U.S. at 166-67 ("When i t comes to
defenses to liability, an official in a personal-capacity action
may, depending on his position, be able to assert personal
immunity defenses, such as [absolute or qualified immunity]. In
an official-capacity action, these defenses are unavailable. The
only immunities that can be claimed in an official-capacity
action are forms of sovereign immunity that the entity, qua
entity,
may
possess,
such
as
the
Eleventh
Amendment.")
(citations omitted).
12

The

relevant

inquiry

for

Eleventh Amendment

opposed to absolute or qualified immunity,
is the real party of interest,
claim,

the

provide

the

therefore,
to

existence

hold

answer.

Ferguson
it

415

Treasury,

inquiry.
for

one
U.S.

323 U.S.

state

policy

of

for

or

Eleventh

failing

her

custom

Amendment

§ 1983

does

not

immunity,

at

the
663

recovery of
(quoting

459,

464

Supreme

Specifically,

from

an

damages

payment

of

compliance

state

in

determination."

the

money

beds,

from

or
are

v.

Edelman,

state."
Dep't

of

line

of

this

officials
seeks

that

may

as

with

a

415 U.S.

the

a

runs

afoul

as

nonetheless

substantive

of

relief

in many aspects

State,"

necessary

at 668.

federal suit

retroactive

indistinguishable

...

future

it

against

relief

funds

the

Co.

reinforced

state

when

"is in practical effect

prospective

of

Ford Motor

Court

against

immunity

seeking

statute,

the Court clarified that a

relief

of

a

{1945)).

that

award

follow

the sole question is whether "the action

for

Amendment

to

mismanagement

the

Edelman,

injunctive

Eleventh

liable

Instead,

in essence

In

is whether the state

and in the context of a

terms

addresses

non-starters.

Edelman,

In

a

as

the parties' arguments over whether this action seeks

whether

is

of

immunity,

opposed

to

"require[]

consequence

of

federal-question

However,

the Court did

not change the scope of Eleventh Amendment immunity for § 1983
claims,

which

remains

based

on

a

13

determination

of

whether

the

relief sought constitutes "damages against the State."
Quern

v.

Jordan

440

U.S.

332,

337

(1979)

("In

Id.;

Edelman

reaffirmed the rule that had evolved in our earlier cases

suit

in federal

court by private parties

liability which must

be

paid

from

seeking

public

funds

to
in

see
we

that a

impose a
the

state

treasury is barred by the Eleventh Amendment.").

This principle does not mean that the source of funds

is

always dispositive in suits brought against public officials in
federal court.

In other contexts, beyond claims for relief under

42

1983,

U.S.C.

substance

§

of

the

the

Fourth

claims

in

immunity. See Martin v. Wood,
("To identify the real,
examine
.

.

.

the

.").

substance

The court

when evaluating

the

Circuit

has

determining

focused

Eleventh

772 F.3d 192, 196 (4th Cir. 2014)

the

claims

stated

in Martin listed five

real

the

Amendment

substantial party in interest,
of

on

in

the

factors

party in interest,

we thus
complaint

to consider

including whether

the official's underlying conduct was inextricably tied to the
official's duties,

and whether that conduct was taken to further

personal interests distinct from the state. See id. However,
court
a

in Martin addressed Eleventh Amendment

claim under

§ 1983,

§ 1983
state

and

the

"the

claims,
officials

Fair Labor Standards

Fourth

likely
from

Circuit

because

personal

has

it

never

would

liability
14

Act,

immunity regarding
not

a

claim under

extended

^absolutely
for

the

acts

Martin

to

immunize

within

their

authority

and

necessary

to

responsibilities.'" Patterson v.

3922051, at *6

(E.D. Va.

on other grounds.
Hafer,

502 U.S.

Amendment

No.

at 28)

immunity

Lawhorn,

July 20,

16-1936

fulfilling

2016)

a

§

1983

2016 WL

17,

2016)

(quoting

the standard for Eleventh

claim

remains

reinforced by the Supreme Court in Edelman,
the damages sought come from public funds.
at

I:15cv477,

(Brinkema, J.), appealed

(4th Cir, Aug.

Accordingly,

in

No.

government

the

standard

requiring only that
See Quern,

440 U.S.

337.

Here,

the Plaintiff is seeking to hold Ferguson personally

liable for damages in a

§ 1983 action,

and no award of damages

^ Additionally, the plaintiff in Martin "candidly state[d]"
that "[she] took care in drafting the [c]omplaint . . . to avoid
sovereign immunity" by suing her supervisors at a state hospital
in their individual capacity, as opposed to suing the state
hospital itself. Martin, 772 F.3d at 195 (second alteration in
original). However, she sought damages from them "in the form of
'overtime compensation.'" Id. at 194 (emphasis added). In ruling
that
the
defendants
were
being
sued
in
their
official
capacities,
the Fourth Circuit noted that the plaintiff's
"complaint alleges that
[the defendants]
had authority to
authorize overtime pay (from state funds] and refused to do so
and that, if they had authorized overtime pay, it would have
been funded by [the state hospital] ." Id. at 196 (emphasis in
original), Accordingly, in Martin, the Fourth Circuit recognized
that
the
plaintiff
was
trying
to circumvent
the Eleventh
Amendment by attempting to recover monies
from the state
employees' personal pockets, which monies would actually be owed

to her ^

the state.

That is not

the case here,

as

there is

nothing to suggest in the Complaint that the damages sought from
Ferguson are actually owed to the Plaintiff by the state, and/or
that the claims against Ferguson are being drafted to circumvent
sovereign immunity.
15

against

Ferguson

Ferguson,

not

would

Virginia,

come

from

is

the

state

real

coffers.'

party

of

Therefore,

interest,

and

Eleventh Amendment immunity does not apply to the § 1983 claims
against Ferguson.

Accordingly,

the Plaintiff's objection to the

finding of Eleventh Amendment immunity, as to the § 1983 claims,
is SUSTAINED."

B. Sufficiency of the Plaintiff's § 1983 Claims

The

Plaintiff

the

Plaintiff has

that

under 42 U.S.C.

layers
first

of

§ 1983.

argument

review

objection

objects

the

to

to

Magistrate

Judge's

finding

failed to state claims against Ferguson
See Objs.

underlying

Magistrate

those

the

at 15-22.

this

objection,

Judge's

findings,

and

Given the numerous

the

court

findings,

the

Plaintiff's

Ferguson's

responses,

will

before

evaluating the objection itself.

'

Should

Virginia

have

an

agreement

with

Ferguson

to

indemnify her for this action, such an agreement would not cause
the action to run afoul of Eleventh Amendment immunity. See
Sales V. Grant, 224 F.3d 293, 298 (4th Cir. 2000) (explaining

that
"a state's promise of
indemnification cannot
invest
governmental officers, sued in their individual capacities, with
sovereign immunity that they would not otherwise enjoy") (citing
Beardsley v. Webb,

30 F.3d 524,

531

(4th Cir.

1994)).

* The Magistrate Judge also applied the Eleventh Amendment
immunity finding to the state law claims against Ferguson. See
R&R at 16 n.2. Because the Eleventh Amendment immunity inquiry
for state law claims is distinct
from the above analysis
regarding § 1983 claims, see Pennhurst, 465 U.S. at 103-06, the
court's analysis above does not apply to the Plaintiff's state
law

claims.

The

court,

therefore,

will

determine

elsewhere

in

this Opinion whether Eleventh Amendment immunity applies to the
P l a i n t i f f ' s state

law claims.

See infra Part III.D.4.
16

In the R&R, the Magistrate Judge explained that for each of
the Plaintiff's § 1983 claims against Ferguson,
required to allege

the

part

of

constitutional

the Plaintiff is

"some independent knowledge or awareness on

[Ferguson]
rights

to

were

the

being

fact

that

violated,

and

Mitchell's

that

she

was

deliberately indifferent to these violations," R&R at 10. After
reviewing

the

applicable

legal

standards

for

each

of

the

Plaintiff's § 1983 claims against Ferguson,

the Magistrate Judge

stated

to

that

"the

salient

facts

necessary

constitutional claims must establish that
constitutional

violations

towards

Id.

"[i]t

them."
is

assert."

at

at

10-11.

facts

these
Id.

and

which

acted

The

assert

plausible

[Ferguson]

knew of the

deliberately

indifferent

Magistrate

Plaintiff's

Judge

found

Complaint

that

fails

to

11.

Specifically,

the

Magistrate

accepting Plaintiff's allegation that
failed

to

know'

that

filled

by

inmates

on

available
waiting

facts which establish that,

Judge

[Ferguson]

hospital

lists,

found

she

beds
has

that,

"even

'could not have
were

failed

not
to

being
allege

because they were on waiting lists,

such class of inmates were necessarily subject to

'a substantial

risk of

aware

of

U.S.

825,

fact."

serious
Id.

at

12

harm, '

and

(citing

that

[Ferguson]

Farmer v.

Brennan,

was
511

(1994)). The Magistrate Judge further explained:
an inmate may be improperly on a
17

this
837

"Merely because

waiting list does not lead to

the plausible

inference

him,

be

he

poses

will

'a

resulting

subject

serious
from

that,

or

the

but

to

a

for

the

deprivation

significant
challenged

F.3d 630,

634

Id.

(4th Cir.

in particular,"

that

any

inmates

.

.

'a

injury

substantial

Angelone,

330

was not aware of Mitchell

the

the

Plaintiff

waiting

"did not

list

allege

suffered

any

constitutional deprivation or other serious injury at all."

Although,

as

awareness

of

the

Magistrate

substantial

that all prisoners in
id.
that
all

(citing Farmer,
the

who

Magistrate Judge

explained,

can be

[Mitchell's]

never pled what
are

not

based on

"while

Id.

official's

their

knowledge

risk,"

the Magistrate Judge found
specific

transferred

concluded,

"an

situation face such a

511 U.S. at 842),

"Plaintiff

prisoners

Judge

risk

it

The Magistrate Judge noted that

(Ferguson]

on

that

exposure to the

(quoting De'Lonta v.

and stated that

other

transfer

emotional

or

.

to

extreme

or

conditions,'

2003)).

the Plaintiff "admits that

so

physical

risk of such serious harm resulting from
challenged conditions.'"

failure

substantial

face."

Id.

risk

Thus,

the

Commissioner Ferguson might

be aware that all prisoners who need to be transferred are not

being transferred.
was

aware

that

Plaintiff failed to allege facts showing she

all

serious

harm;

i.e.,

medical

care,

and

Magistrate

Judge

such

prisoners

abuse,
death."

found

faced

starvation,
Id.

that

at

"no
18

withholding of

12-13.

facts

substantial

In

were

other

pled

risk

specific

words,

to

of

the

establish

that it is 'obvious' that prisoners who do not get hospital beds
face
Id.

the
at

substantial harm Mitchell

is

alleged to have

faced."

13.

In sum,

the Magistrate Judge found that "it was incumbent

upon Plaintiff to allege facts asserting a plausible claim that
[Ferguson]

was

aware

that

the

class

of

inmates

transferred to hospitals with available beds

who

were

not

faced the extreme

deprivation which constituted a serious or significant physical
or emotional

Id.

injury resulting from

(citing De'Lonta,

concluded that

As a

the

final note,

by

F.3d at

634).

The

the Plaintiff failed to do so.

"Plaintiff's

suffered

330

the challenged conditions."

Magistrate Judge

Id.

the Magistrate Judge observed that,

allegations

Mitchell

go

of

far

constitutional

beyond

merely

while

deprivations

alleging

that

he

should have been treated in a hospital instead of at the HRRJ,"

the Plaintiff "only alleged that

[Ferguson] was aware of waiting

lists and empty beds," not that Ferguson was aware that inmates
in

Mitchell's

"beatings,
sanitary

denial
living

humiliations"

at 14.
stated,

class

would

of

suffer

food,

constitutional

clothing,

conditions,"

shoes,

and

harms

such

medication

"taunting

and

as

and
other

that Mitchell allegedly suffered at the HRRJ.

Id.

"Absent allegations of this nature," the Magistrate Judge
the

"Plaintiff

has

not

stated

§ 1983." I ^
19

a

claim

under

42

U.S.C.

The

Plaintiff

findings
that

for

objects

several

to

the

reasons.

Magistrate

Primarily,

the Magistrate Judge's findings

the

Judge's

Plaintiff

above
argues

are incorrect because the

Magistrate Judge "misperceives the legal standard applicable to
these claims." Objs.

at 16.

In particular,

the Plaintiff states

that the Magistrate Judge applied Farmer's standard for "serious
harm,"

when

standard

for

the
a

Magistrate

"serious

Judge

medical

should

need."

Id.

have

The

applied

Plaintiff

the

states

that "the Court in Farmer did not intend to replace the 'serious
medical

need'

standard

with

a

'substantial

risk

of

harm'

standard," and that "[b]oth tests are still alive and well;

simply apply

in different

that,

on

based

this

"serious

relevant inquiry here is
were,

in

the

opinion

receive treatment."
Plaintiff
answer it,

after a

Id.

medical

The

Plaintiff

need"

argues

standard,

the

a

medical

at 17.
"[t)o

professional,

required

In response to that inquiry,
ask

this

question

is

almost

to
the
to

because one's name is only added to the waiting list

diagnosis

that medical

care

is

mandated."

(emphasis in original).

were

them as
and

that

Id.

"whether inmates on the waiting lists

of

Id.

professional

Thus,
list

states

contexts."

they

"all

the

Plaintiff

there

because

argues,
a

"all

medical

inmates

on

professional

the

had

diagnosed

requiring medical care and advised the court of
inmates

on

the

waiting
20

list

had

a

waiting

'serious

such,"
medical

need'

that was not being met," Id. at 18. The Plaintiff further

argues

that,

although

the

Complaint does not permit

Magistrate

Judge

found

that

the

"the plausible inference that delays

in transferring inmates must necessarily,

delay, cause substantial harm," id.

by the nature of the

(quoting R&R at 13

(internal

quotation marks omitted)), the delay here satisfied the Fourth's
Circuit's test that it "exacerbated the injury or unnecessarily
prolonged an inmate's pain."

of

Corr.,

621

quotation
transfer

F.

marks
to

a

App'x

732,

omitted)).
hospital

Id.

(quoting Sharpe v.

734

The

is

(4th

Cir.

Plaintiff

delayed

2015)

states

simply

S.C.

(internal

that,

because

Dep't

"if

the

a

agency

charged with the transfer cannot get its paperwork straight, and
[Ferguson]
remedy

knows

it,

Moreover,

the
the

infer that a
for a

such

and

delay

is

Plaintiff

does

not

hardly

states

by

reasonable

'necessary.'"

that

"a

jury

steps

Id.

could

at

to
19.

reasonably

significant number of inmates who had been slated

court-ordered transfer to a

diagnosis

take

a

healthcare

serious medical need)

hospital after evaluation and

professional

(i.e.,

inmates

with

a

suffered pain and/or exacerbation of their

conditions because of the delay in receiving treatment." Id. The
Plaintiff

argues

incorrect

in finding

inference

that

harm.

that

those

the

that
on

Magistrate

Ferguson's
the

failures

waiting

I^
21

Judge,

list

therefore,

"was

do not

allow an

suffered

'serious

Finally,

as

to

that

the

Plaintiff has not sufficiently alleged Ferguson's knowledge,

the

Plaintiff draws a

Slakan

v.

the

Magistrate

Judge's

finding

comparison to the Fourth Circuit decision in

Porter,

737

at 19-22,

and

reasonable

factfinder

F.2d

argues

368

that
to

(4th

"there

infer

Cir.

is

that

1984),

ample

Ferguson

s^

ground

knew

Objs.
for

of

a

problems

with the waiting list." Id. at 22.

In response

that

the

limited,"
did

to the

factual

Plaintiff's objection,

allegations

and that it is

not

allege."

Specifically,

against

her

Ferguson states

are

"extremely

"important to consider what Plaintiff

Def.'s

Resp.

Ferguson states

that

to

Pl.'s

Objs.

at

"[t]here are no allegations

that Ferguson had knowledge of Mitchell,

his condition,

CRO issued by the Portsmouth General District Court,"
the

"Plaintiff

[Defendant

Gail

placed it

in a

also

does

Hart

not

allege

("Hart")]

had

3-4.

that

received

Ferguson

or the

and that
knew

Mitchell's

desk drawer without entering Mitchell

CRO

that
and

into the

system." Id. at 4.® Moreover, Ferguson states that "there are no
allegations that Ferguson knew Hart had placed any other CROs in
a

desk drawer without

are no allegations
over

HRRJ,

where

taking action on

that

the

them,"

and

Ferguson had authority or

allegedly

horrible

that

"there

jurisdiction

treatment

of

Mitchell

® During the relevant time underlying this action. Defendant
Hart

was

a

subordinate

of

Ferguson,

working

as

employee at Eastern State Hospital. See Compl. f 2.
22

an

admissions

occurred."

Id.

allegations,

at

4-5.

Ferguson

indifferent

to

challenges

the

citing

Fourth
841

in

thus

that

"was

needs."

argument

Farmer

Circuit's

F.3d 219,

described

she

medical

Plaintiff's

standard

Stansberry,

argues

Mitchell's

indifference

the

Having

does

recent

225-26

the

not

Id.

5.

the

apply

opinion

(4th Cir.

deliberately

at

that

not

Plaintiff's

Ferguson

deliberate

to

Count

in

Scinto

2016).

Two,

v.

Def.'s Resp.

to Pl.'s Objs. at 5. Ferguson asserts that, while the "Plaintiff
argues that all individuals who were on the waiting list to be
transferred to a
a

state mental health institution inherently had

serious medical need,"

Id.

at 6.

the instant case shows that is not so.

Ferguson states

that

"Mitchell was merely ordered to

have his competency restored so that he could be tried for his
crimes,"

and

that

"[t]here

is

nothing

that

is

inherently

medically serious about the need for competency restoration like
there

would

himself

be

or

for

someone

others."

Id.

who,

for

Ferguson

instance,

further

was

a

states

risk

that

to

"the

Complaint does not allege Ferguson was aware that all prisoners
such as Mitchell had a

serious medical need that was not being

met merely by virtue of being on a waiting list."
Ferguson
facilities
that

asserts
.

.

.

that

"[t]he

law

requires

that

Id.

Moreover,

all

prison

provide medical care to their prisoners,"

"tt]here is no reason to believe

that medical

and

care was not

being provided to those who happened to be on waiting lists to
23

be transferred to a state mental health facility."

reasons,

Ferguson argues,

inferences

that

can

Id.

For these

"the facts alleged and the reasonable

be

drawn

therefrom

do

not

satisfy

the

objective prong of the Farmer analysis." Id.

Additionally,
assumed

.

.

medical

need,

subjective
must

Ferguson

there

prong

of

are
the

no

"even

allegations

analysis,"

that

Ferguson

substantial risk of harm'

303

that,

if

were

that

under which
'subjectively

satisfy
the

the

"Plaintiff

recognized

and actually perceived the risk."

a

Id.

(quoting Parrish ex. rel. Lee v. Cleveland, 372 F.3d 294,

{4th Cir.

2004)).

that the

[official]

Resp.

Pl.'s

to

(second

is not

enough

should have recognized" such a risk,

Def.'s

Ferguson notes

Objs.

alteration

states that

at 7

in

that

" [i]t

(quoting Parrish,

original)

(emphasis

372
in

F.3d at

303)

Parrish),

and

"this is the argument Plaintiff makes by asserting

that

Ferguson is

liable because her department was

move

people

waiting

off

facilities." Def.'s Resp.
Ferguson
the

it

. that the Complaint alleges Mitchell had a serious

demonstrate

at 6-7

argues

asserts

facts

that

underlying

lists

and

into

state

failing

mental

to

health

to Pl.'s Objs. at 7. As a final point,

the
the

facts
Fourth

here

are

Circuit's

distinguishable
decision

in

from

Slakan,

upon which the Plaintiff relies. See id. at 9-10.

Overall,
Mitchell's

Ferguson contends that "Plaintiff's arguments that
incarceration

necessarily
24

would

result

in

constitutional violations are unsupported and not
allegations

against

Ferguson

in

the

found in the

Complaint."

Id.

at

8.

Stating "[t]here are no allegations that Ferguson was aware that

inmates

awaiting

transfer

when

beds

were

available

would

be

unconstitutionally punished due to the delay by being exposed to

beatings,

taunting,

medication,
not

under

and

denial

food,

and sanitary living conditions
her authority,"

Plaintiff

of

has

failed

clothing,

in state facilities

Ferguson ultimately argues

to

state

a

claim

shoes,

that

that

Ferguson

the
was

deliberately indifferent to Mitchell's serious medical needs or
conditions

of

confinement,

her should be dismissed.

and

Id.

that

the

§

1983

claims

against

a t 10.

Having thus reviewed the Magistrate Judge's findings on the
Plaintiff's

§

1983

claims

against

Ferguson,

as

well

as

the

Plaintiff's objection to those findings and Ferguson's response

to this objection, the court will now evaluate the § 1983 claims
de

novo

for

sufficient

the

purpose

to survive

the

For several reasons,
the

§

1983

claims

do not

of

determining

whether

they

are

instant Motion.

Ferguson's arguments for dismissal of
withstand

the

applicable

standard of

review.® To begin, it is true that the Plaintiff does not allege
that

Ferguson

unconstitutional

had

independent

deprivations

of

® See supra Part II.
25

knowledge
Mitchell's

of
civil

the

alleged

rights

that

occurred
medical

at

the

staff.

hands

It

is

of

HRRJ

also

true

administrators,
that

the

guards,

Plaintiff

and

does

not

allege Ferguson's knowledge of Mitchell's case in particular, or

even

Ferguson's

Ferguson's

direct

knowledge

subordinate,

Mitchell's

CRO

when

of

the

Defendant

it

was

sent

alleged

Hart,

from

the

District Court to Eastern State Hospital.

conduct

in

of

mishandling

Portsmouth

General

Ferguson treats these

omitted allegations as if they were dispositive of the Motion.
See Def.'s Resp.

to Pl.'s Objs.

at 7.

However,

the Plaintiff's

claims against Ferguson do not rely on any of these facts, which
relate

to

Plaintiff

other

has

Defendants

specifically

in

this

alleged

proceeding.

that

Ferguson

Instead,

herself

woefully mismanaging the DBHDS's available beds," Compl.
and

that

Ferguson herself

court

orders

H 173.

The

Mitchell's

regarding

the

Plaintiff
CRO,

restoration

"countless

Id.

U 84.

"was

H 87,

intentionally disregarded

specifically

but

disregarded by DBHDS."

"routinely

the

of

states
others,

The

competency."

that
were

Plaintiff

not

Id.

only

regularly

supports

this

contention by alleging that data from the DBHDS, as reported in
the Richmond Times-Dispatch,
of the Inspector General,
still

waiting

on

and a report from Virginia's Office

both show that the problem of inmates

hospital

beds,

despite

court-ordered

mental

health treatment and despite a broad availability of empty beds,

was not isolated with Eastern State Hospital and Defendant Hart.
26

See id.

at

85-87.

Indeed,

the Plaintiff alleges that "[t]he

failure to properly use available state mental hospital beds and
the failure

to properly transfer inmates under court order to

such facilities for restoration was persistent and widespread."

Id. H 88.
In

alleges

addition

to

these

allegations,

that Ferguson had a

the

Plaintiff

statutory duty

further

"to supervise and

manage the [DBHDS] and its state facilities," id. H 89 (quoting
Va.

as

Code § 37.2-304

a

statutory

(internal quotation marks omitted)), as well

duty

entered

a

provide

restorative

Code

CRO

to

for

transfer

mental

§ 19.2-169.2).

statute

DBHDS

requires

itself,

the

otherwise
Mitchell's
admit

Mitchell

competency." Id.

that

whom a

appropriate

treatment."
alleges

a

f 2, 41

statutory

CRO,

an

for

health

designate

alleges

"to

Commissioner,

treatment. See Compl.
Beyond

inmates

Plaintiff

The

the

to

assign

basis

not

a

hospital

has

hospital

Id.
that

court

to

(citing Va.
this

subordinate

appropriate

latter
or

for

the

such

(citing Va. Code § 19.2-169.2)."'
for

Ferguson

this
had

"to

properly

act

on

to

Eastern

State

a

duty,

the

Plaintiff

duty,

upon

receiving

the
for

CRO's
the

directives
restoration

to
of

173.

' As explained below,

the court does not agree with this

interpretation. See infra note 8. However,
Plaintiff's
argument
here
for
the
characterizing the instant allegations.
27

the court notes the
sake
of
properly

With

the

Plaintiff's

appropriately

framed,

Plaintiff

plausibly

§ 1983.

has

As

requires

the
some

medical needs.

Accordingly,
reasonable

Judge

whether

these

claims

Ferguson

Mitchell's

the

Ferguson under

each of
by

Ferguson

of
See

rights.

an
R&R

the Plaintiff was required to allege that

deliberately

indifferent

See Estelle v.

Gamble,

Plaintiff's

inference

against

noted,

of

against

considers

knowledge

deprivation

the

now

stated claims

independent

at 10. For Count Two,

was

court

Magistrate

unconstitutional

Ferguson

the

allegations

that

to

Mitchell's

429 U.S.

allegations

Ferguson

97,

105

must

acted with

a

serious
{1976) .

raise

the

"sufficiently

culpable state of mind." Scinto, 841 F.3d at 225 (4th Cir. 2016)
(quoting

Farmer,

511

U.S.

at

834

(internal

quotation

marks

omitted)).

The same standard applies to Count Five. See id.

Count Six,

alleging § 1983 supervisory liability,

the Plaintiff

must

plausibly

"deliberately

have

alleged

that

Ferguson

was

For

indifferent in the face of a pervasive and unreasonable risk of

harm"
the

through inaction that "bore an affirmative causal link to

harm

791,

802

knowledge

suffered by
(4th
is

subordinate's
risk'

Cir.

the plaintiff."
1994) .

"actual

or

For

such

Shaw v.

liability,

constructive

"conduct that posed

Stroud,
the

knowledge"

13

F.3d

requisite
of

a

'a pearvasive and unreasonable

of constitutional injury to citizens like the plaintiff."

Id. at 799

(quoting Slakan, 737 F.2d at 373).
28

Accepting the Plaintiff's allegations as true, and drawing
all

reasonable

finds

that

inferences

the

in

Plaintiff

favor

has

of

the

Plaintiff,

plausibly

the

alleged

court

Ferguson's

knowledge for each of the § 1983 claims. Although the Plaintiff
has not alleged facts

that show Ferguson's direct knowledge of

each of the Plaintiff's § 1983 claims arising from the systemic

problems in the DBHDS,
See Farmer,

the Plaintiff is not required to do so.

511 U.S. at 842

("Whether a prison official had the

requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways,
from circumstantial evidence

the Plaintiff has
two ways.

First,

.

.

inmates

In

other

substantial and widespread.

words,

who

required

that

this

Ferguson's

duties

though

court

the

in

based

on

the

See

Plaintiff's

the DBHDS was systematically failing to accommodate
in-patient

systematic

as
is

DBHDS
not

mental

health

See id.

restore their mental competence.
alleges

(emphasis added). Rather,

the Plaintiff has alleged that this problem of

nil 85-88.

allegations,

.")

sufficiently alleged Ferguson's knowledge

hospital bed mismanagement was

Compl.

.

including inference

Second,

failure

was

Commissioner.

of

to

the Plaintiff

directly

See

persuaded by part

treatment

id.
the

tied

H 173.

to

Even

Plaintiff's

statutory basis for this allegation,® the court is persuaded that

® Although the Plaintiff argues that the Virginia provision
regarding CROs mandates that Ferguson alone
29

is responsible for

the

Plaintiff

has

plausibly

alleged

Ferguson's

ultimate

responsibility for hospital placement of inmates subject to CROs
in Virginia. See id.

Thus,
be

the alleged systemic problem in bed allocation would

Ferguson's own

subordinates

them

for

allegations

health

of
for

Commissioner,

has

purpose.
a

plausibly

the

alleged

1983

failure

by her

she may have delegated to

to

the
problem

receive

Ferguson's

reasonable

duties
of

Accordingly,
knew

with

in-patient

inference

Ferguson

Plaintiff's

DBHDS

Ferguson's

Plaintiff

the

but did nothing in response.

mental

as

the

of

bed

DBHDS's

See Compl.

173.

Nevertheless,
§

any

state-wide

under

that

to

together,

the problem existed.

mismanagement of beds,
85-88,

Taken

ordered

falling

permit

that

that

substantial,

inmates

treatment,

knowledge

in addition

to perform duties

this

allocation

failing,

claims

that does not end the inquiry. To state these
against

performing this duty,

Ferguson,

the

Plaintiff

see Compl. flU 2, 41, 173

must

have

(citing Va. Code

§ 19.2-169.2), the court does not interpret the statute in this
manner. In relevant part, the statute requires that, upon a
finding of a defendant's incompetency to stand trial and a
finding that in-patient hospital treatment is required, "the
court

shall

order

that

the

defendant

receive

treatment

to

restore his competency . . . at a hospital designated by the
Commissioner . . . as appropriate for treatment of persons under
criminal charge." Va. Code § 19.2-169.2(A). This does not appear
to place an affirmative duty on the Commissioner, but, rather,
describes the kind of hospital to which such inmates must be
transferred, i.e., one that the Commissioner has designated "as
appropriate for treatment of persons under criminal charge." Id.
30

plausibly

alleged

systemic

problems,

presented

not

only

Ferguson's

also

substantial

a

but

risk

that
of

knowledge

these

harm

to

of

systemic

problems

Mitchell,

Ferguson was subjectively aware of this risk.

these

and

that

See Scinto,

841

F.3d at 225-26. Thus, the Plaintiff's allegations must plausibly

satisfy the two prongs of the Supreme Court's test in Farmer;
(1)

the

must

objective prong,

be

"objectively,

subjective prong,

under which

'sufficiently

the

alleged deprivation

serious,'"

and

(2)

the

under which Ferguson must have acted with a

"'sufficiently culpable state of mind.'" Farmer,

(quoting Wilson v. Seiter, 501 U.S. 294, 297-98

511 U.S. at 834

(1991)).

The court will address the objective prong first. As stated

above,
this

Ferguson argues that the Plaintiff has failed to satisfy
burden.

Specifically,

Ferguson

asserts

that

"[tjhere

is

nothing that is inherently medically serious about the need for

competency

restoration."

Additionally,

Def.'s

Resp.

to

Pl.'s

Objs.

at

6.

Ferguson asserts that because prisons are required

by law to provide medical treatment to inmates,
reason to believe

"[t]here is no

that medical care was not being provided to

those who happened to be on waiting lists to be transferred to a
state mental health facility." Id.

The court disagrees with these arguments.
assertion that
serious

about

First,

Ferguson's

"[t]here is nothing that is inherently medically
the

need

for
31

competency

restoration"

is

necessarily subject to factual dispute, and such a dispute would
have to be resolved by the fact finder,

not the court at this

stage of the proceeding.® Second, Ferguson's assertion regarding
mandatory medical care at prisons is overly broad.
is

true

inmates

Although it

that prisons are required by law to provide care

facing

serious

the

medical

Plaintiff's

§

needs,
1983

that

is

claims

not

the

against

for

issue

raised

by

Ferguson.

Rather,

the relevant question is whether serious medical needs

would arise for an inmate who is deemed by the state so mentally

incompetent
treatment

to
is

nevertheless
Stated

face

adjudication

required

remains

differently,

to

in
the

restore

prison
court

that
his

without
must

Plaintiff has plausibly alleged that a

would come

in-patient
competency,

the

medical
but

in-patient

determine

whether

who

care.
the

siibstantial risk of harm

to such an inmate solely by virtue of the inmate's

remaining in jail, without the court-ordered transfer.

Ferguson has anticipated this inquiry by arguing that

"the

Complaint does not allege Ferguson was aware that all prisoners
such as Mitchell had a

serious medical need that was not being

met merely by virtue of being on a
to Pl.'s Objs.

at 6.

However,

waiting list."

the court finds

Def.'s Resp.

this assertion to

® Although it does not resolve this factual dispute here,
the court notes that the Virginia legislature found a pretrial
detainee's inability to face adjudication due to mental health
to be a concern that is serious enough to warrant court-ordered
in-patient hospital treatment. See Va. Code § 19.2-169.2.
32

be overly broad, as well. Specifically, it is not true that the
Plaintiff must

allege

that

all

inmates

in Mitchell's category

were facing a substantial risk of harm due to serious medical
needs. Ferguson does not cite any law for that proposition, and
it would not be prudent for the court to follow it, as it would

result in a fallacy of composition.^" Indeed, if the court were
to find it wholly implausible that certain inmates in Mitchell's
category faced an unconstitutionally substantial risk of harm,

by virtue of

their remaining on a

waiting list,

that finding

would not mean that other inmates in this category did not face
such

a

risk.

particular
plausibly

Likewise,

inmate
faced

in

if

this

such a

the

court

category,

risk,

that

were

perhaps

finding

to

Mitchell

court

strict,

will

not

universal

subject

the

generalization

Plaintiff's
of

this

evaluate

they

permit

the

the

Plaintiff's
reasonable

See Ruggero J. Aldisert,

allegations

inference

as well.

category

to

that

Logic for Lawyers:

of

Instead,

that

Thus,
to

a

inmates,
the court

determine

Mitchell's

a

himself,

allegations

due solely to the possibility of exceptions.

will

that

would not mean

every inmate on a waiting list faced this risk,
the

find

whether
category

A Guide to Clear Legal

Thinking 215 (1989)
{"'The fallacy of composition consists of
reasoning improperly from a property of a member of a group to a
property of the group itself.' It is to argue that something is
true of a whole which can safely be said of its parts taken
separately.") {quoting Joseph Gerard Brennan, A Handbook of Logic 190
(1957)).

33

included

a

substantial

in that
Slakan,

sufficient

risk

reviewed

finds

provide

that

the

they

who

harm as

faced

to make

"specified source"

medical

happened

to be

Plaintiff's

do

assertion
care

to

of

prisons

are

not

placement

such harm.

an inmate

^

novo,

reasonable

are

"[t]here

is

inference.

required
no

to

to be

because
that

not

to

transferred

to a

to Pl.'s Objs.

they

the

being

treat
treat

were

state

Fourth

underlying

otherwise

Circuit

to

medical

medical

to

state

6,

waiting
the

them.

is

for
jail

prison.
for

a

problems,

that

they

If,

for

inmate will
given the

The court declines to hold that

serious

between

Although

problems.

serious surgery,

explained

distinction

at

determined

provided

inmates'
all

requires

limited resources of a
be

to

reason

likely be transferred to a hospital for the procedure,

would

the

there was every reason to believe that

was

required

designed

instance,

the

a

The inmates in question were on these

care

Thus,

care

a

prisons

Def.'s Resp.

precisely

could not provide.

medical

because

on waiting lists

court-ordered medical

it

such

care was not being provided to those who

unpersuasive on its face.

lists

allegations

such

inmates,

mental health facility,"

waiting

raise

that

believe that medical

are

inmates

737 F.2d at 373.

Ferguson's

such

of

unconstitutional

category an obvious,

Having
court

of

number

forty
the
34

issue

years
right

of

mental

ago,
to

health.

"[w]e

medical

see
care

As

no
for

physical ills and its psychological or psychiatric counterpart."
Bowring v.

Godwin,

the Supreme

Court

551

F.2d

has

some circumstances,

a

44,

47

(4th

acknowledged

Cir.

1977) .

the plain fact

Moreover,

that,

prison may not be capable of

under

treating a

mentally ill prisoner within its walls. See Vitek v. Jones,
U.S.

480,

mentally
meaning

495

ill
of

(1980)

and
the

("The

cannot

question

treated

which

facts

be

must

418,

429

(1979)).

agree with this notion,
for

in
be

psychiatrists and psychologists.'")
441 U.S.

whether

an

prison

individual

'turns

interpreted

on

by

445
is

the

expert

(quoting Addington v. Texas,

The Virginia legislature appears

to

given the very procedure at issue here

transferring mentally ill

inmates

to hospitals

for mental

health treatment. S^ Va. Code § 19.2-169.2. Accordingly, under
the facts of the Complaint,

it is plausible that the inmates on

these waiting lists were not being provided necessary medical
care, and that their serious medical needs were not being met.

Even so,

that

does

not

answer

the

instant question under

the objective prong,

which is whether the inmates'

these

gave

waiting

lists

rise

to

an unconstitutional

harm based on serious medical needs.
there

were

received
Ferguson's
85-91,

numerous

CROs

regularly
173.

individuals

pursuant

to

Va.

remaining on
of

The Plaintiff alleges that

on

Code

disregarding

risk

waiting

lists

§ 19.2-169.2,

those

orders.

who

based
See

had

on

Compl.

These orders were issued to inmates because they
35

had been deemed mentally incompetent by a court, upon review of
a

mental

See

health

Compl.

Code

t

professional's

44

defines

(citing Va.
incompetency

individual

Code

assessment

§ 19.2-169.1).

as

a

of

them.

The Virginia

defendant's

"lack[ing]

substantial capacity to understand the proceedings against him
or

to

assist

his

attorney

in

his

ovm

defense."

Va.

Code

§ 19.2-169.1. This was the finding made for Mitchell and others

for whom a CRO was issued by a court, pursuant to the procedure
in that provision. See Compl.

Based

on

the

62-63, 84-91.

definition

of

incompetency

Code provision cited in the Complaint,
defendant's

mental

mean

such

that

incompetency,
an

a

would

the

Virginia

court's finding of a

alone,

individual

in

does

not

necessarily

automatically

face

a

substantial risk of harm solely by virtue of remaining in jail.
On

the

other

individuals

hand,

it

subject

is

highly

to CROs would include

ill that they would face such a
necessary

likely

in-patient

mental

risk,

health

that

the

inmates

class

of

so mentally

if left in jail without

treatment.

The

allegations

regarding Mitchell himself are an example of such likely harm.
Before any alleged abuse occurred at the HRRJ,
the CRO was issued,
observed
that

only

rest

were

that

Mitchell was evaluated by a psychologist who

"Mitchell's

snippets
mumbled

and before

of

his

thought

processes

sentences

statements

that
36

could

made

no

were
be

so

confused

understood,

rational

sense,"

the
and

that

Mitchell

was

"hyperactive,"

head against the walls,

hour. Compl.

singing,

to

the

point

floor during the exam."

banging

his

and yelling for an entire half

^ 62. According to the Complaint,

also reported that Mitchell

of

the psychologist

"dropped his pants and spat on the

Id. Any contention that such a mentally

ill person would not be at risk of substantial harm to himself
or others by remaining in a

jail,

the regular jail population,

either in isolation or among

would itself far exceed the realm

of plausibility.

Based

on

Plaintiff

the

has

facts

as

plausibly

stated

alleged

in

the

that

Complaint,

Mitchell

was

substantial risk of harm throughout his detention at

regardless
received

of

at

Moreover,

any

the

alleged

hands

of

abuse
the

or

HRRJ

based on these facts,

mistreatment
employees

he

and

at

a

the HRRJ,

may

have

contractors.

the court may draw a

inference that the class of inmates

the

reasonable

to which Mitchell belonged,

as the recipient of a CRO based upon a psychological evaluation
reviewed by the court,

a

siabstantial

treatment.

class

of

risk

Indeed,

of
it

would

without
be

court-ordered

reasonable

to

infer

included

individuals

mental health than Mitchell,

but who,

like him,

alleged

in

may

harm

have

delayed

inmates

included individuals who were likewise at

receiving

mismanagement

in-patient
of

beds
37

hospital
by

the

in

in-patient
that

far

this

worse

were nonetheless

treatment
DBHDS.

due

to

Although

the
the

inability to understand proceedings and assist defense
serves

as

leaves

the

the

floor

ceiling

for

an

incompetency

undefined.

individuals brought into jails,
that

the

reasons,

ceiling

is

the

Given

counsel

determination,

the

vast

that

array

of

it would be reasonable to infer

height

of

mental

illness.

For

these

the Plaintiff has satisfied the objective prong.

The

requires

court

a

now

turns

determination

to

of

Farmer's

whether

second

Ferguson

'sufficiently culpable state of mind.'" Scinto,
(quoting Farmer,
established

prong,

"acted

which

with

a

841 F.3d at 225

511 U.S. at 834). Because the court has already

that

the

Plaintiff

plausibly

alleged

Ferguson's

knowledge of the systemic bed allocation problem for this set of

inmates,
has

the only remaining question

sufficiently

inaction posed

alleged

an

Ferguson's

"excessive

Jackson v. Lightsey,

is whether the

risk"

775 F.3d 170,

understanding

to

this

class

Plaintiff
that

of

her

inmates.

178 {4th Cir. 2014).

The Complaint states that Ferguson was the Commissioner of
the

Virginia

Department

of

Behavioral

Health

and

Development

Services, and is a licensed clinical psychologist. Compl. H 41.
Given

this

following:

information,

relevant

question

becomes

the

Is it reasonable to infer that the licensed clinical

psychologist
understood

the

who

that

a

ran

the

class of

state's

behavioral

inmates could

of harm by remaining in jail,

face

a

health

agency

substantial

risk

when a mental health professional
38

has

recommended,

these

inmates

mental

health

trial?

The

and

be

a

state

court

immediately

treatment

question

ordered,

transferred

due

answers

has

to

their

itself.

to

that

a

hospital

incompetency

Thus,

the

each

to

of

for

stand

Plaintiff

has

satisfied Farmer's subjective prong.
In

conclusion,

Plaintiff's

it

allegations

is

reasonable

that

inmates,

such as Mitchell,

despite

their availability.

there

was

to

a

infer

systemic

from

the

problem

of

not being placed in hospital beds,

Further,

because the Plaintiff has

alleged that Ferguson was the individual charged with managing
the

court-ordered

Virginia,

it

is

transfer

of

these

reasonable

to

inmates

infer

that

she

to

hospitals

must

have

in

known

about this systemic problem of bed assignment, since she was the
person

ultimately

Additionally,
allegations
hospital
mental

it
that

beds

health

without

that

clinical

responsible
is

reasonable

inmates

despite

Accordingly,

to

like

a

the

court

order
at

treatment,

and

that

charged

agency,

from

Mitchell,

were

health

management

infer

treatment,

psychologist

behavioral

for

would

for

a

have

Plaintiff's
waiting

immediate

Ferguson,

the Plaintiff's objection,

39

were

substantial

with

of the § 1983 claims against Ferguson,

who

the

a
the

appreciated

on

in-patient

risk

as

running

thereof.

of

harm

licensed
state's

that

risk.

based on the sufficiency
is SUSTAINED.

C. Qualified Immimity from the § 1983 Claims

The Plaintiff argues that the Magistrate Judge incorrectly
found

Ferguson

entitled

to

qualified

brought against her under 42 U.S.C.
the

Magistrate

qualified

Judge

noted,

immunity from

immunity

for

the

claims

§ 1983. See Objs. at 11. As

state

actors

such claims

are

entitled

"insofar as

to

their conduct

does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." R&R at 14

(quoting Harlow,

457 U.S.

at 818). Nevertheless,

the Magistrate

Judge found that the Plaintiff's allegations against Ferguson do
not

fall

under

that

exception,

and that

Ferguson

is

protected

from the § 1983 claims by qualified immunity. See id. at 14-16.

In so finding,

the Magistrate Judge explained:

seeks to hold

[Ferguson]

agency

by

caused

process
Judge

transfer
stated

the

liable for

failure

orders."

that

Id.

"absent

of
at
any

"Plaintiff

'systemic problems'
her

16.

subordinates
However,

authority

the

to

in her
timely

Magistrate

supporting

the

proposition that state agency heads can be personally liable for
'systemic

problems'

subordinates,

caused by

[Ferguson]

is

the

alleged misconduct

entitled

to

qualified

of

their

immunity,

since it was not clearly established that the agency head bore
such

responsibility

way,"
.

.

the

. it

for

Magistrate
was

clearly

her subordinates."

Judge

explained,

established
40

that

"it
the

Id.

"Stated another

cannot

be

said

Commissioner

that
of

a

state

agency

pretrial

would

violate

detainee

if

inmate transfers."

the

constitutional

Plaintiff

Ferguson
timely

argues

is

at 16) ,

but

finding

that

liable

process

this

to

employees

she

simply

"does

not

'her
Objs.

she

timely

claim

because

that

to

on qualified

transfers,'"

inmate

rather,

failed

of

a

Id.

In objecting

her

rights

immunity,

that

H 87).

The

Plaintiff

failed

to

(quoting

R&R

"Defendant

claims

11

Ferguson

was

woefully mismanaging the DBHDS's available beds."
Compl.

the

Defendant

employees
at

process

states

that

the

Id.

(quoting

allegation

is

"Ferguson knew or should have known that beds were needlessly

going unused and

that

persons

similarly situated

to Mitchell

would suffer constitutional injury because of that."

Id.Thus,

the Plaintiff frames the qualified immunity inquiry as "whether
the

Commissioner of

a

state

agency would have

could be held liable for personally
agency's]

the

available beds."

Magistrate
The

Judge's

court

bases

Id.

at 12.

statement
its

that

she

'woefully mismanaging
Moreover,

that

analysis

known

in response to

"absent
herein

[her

on

any
the

authority
facts

as

stated in the Complaint. See supra Part II. The Complaint
alleges that Ferguson "intentionally disregarded court orders

regarding

the

restoration of

competency,"

Compl.

H 173,

and,

specifically under the allegations for Count Six, that Ferguson
"had actual or constructive knowledge"
of the alleged bed

mismanagement.

Id.

^271.

In other words,

under Count Six,

if

Ferguson did not have actual knowledge of the bed mismanagement
problem, she should have known about it. See id. As an aside, a
supervisor cannot be "willfully blind" to a problem and then
claim lack of knowledge of it.
41

supporting

the

proposition

personally liable for
misconduct

of

that

such

their

authority

Porter,

737

subordinates,

in

F.2d

agency

'systemic problems'

qualified immunity," R&R at 16,
is

state

the

368

can

be

caused by the alleged

[Ferguson]

is

entitled

to

the Plaintiff states that there

Fourth

{4th

heads

Circuit

Cir.

case

1984),

of

and

Slakan

that

v.

Slakan

"disproves" the Magistrate Judge's finding. See Objs. at 13. The
Plaintiff

the

further

qualified

established

challenges

immunity

that

the

the Magistrate Judge's

issue

as

whether

Commissioner

of

a

"it

framing of

was

state

clearly

agency

would

violate the constitutional rights of a pretrial detainee if her
employees failed to timely process inmate transfers," R&R at 16,
arguing

that

the

inquiry

should

instead be

whether

Ferguson's

failure to address such systemic conduct by her employees would
violate
Objs.

the

constitutional

at 14-15.

Overall,

rights

the

person knows,

medical

of

reasonable

steps

has violated

to

to

response,

hold

adopts

Ferguson

the

address

about a
to

Id. at 15

argues

prisoners,

the

systemic

detainee.

that

and

"[wjhere

fails

problem,
and that

See
a

in the
to

that

take

person

Ferguson was

(internal footnote omitted).

Ferguson argues

liable

pretrial

*systemic problem'

'clearly established law,'"

such a person here.

In

care

a

Plaintiff

or should know,

provision

of

under

the

that,

while

"Plaintiff

Fourteenth Amendment,

seeks

which

Eighth Amendment's prohibition on cruel and unusual
42

punishment

of

inmates

in

correctional

facilities,"

this

prohibition applies to "prison officials charged with providing
inmates

with medical

to Pl.'s Objs. at 12

care

and basic

human needs."

(citing Farmer,

Def.'s

Resp.

511 U.S. at 832). Ferguson

notes that she "is not a prison official and is not tasked with

providing inmates with medical care and basic human needs." Id.
Additionally,

Ferguson

states

that

pointed to one case that holds
agency,
held

the

that

"Plaintiff

the head of a

has

statewide

outside of the chain of correctional officials,

liable

for

the

alleged

deprivation

of

an

not

can be
inmate's

constitutional rights while that inmate is in prison," and that
the

that

"Plaintiff

could

has

not pointed to any clearly established law

impose

allegations

that

incarcerated

and

confinement."

Id.

liability on
Mitchell

Ferguson under

was

subjected

to

denied

the

medical

unconstitutional

Plaintiff's
care

while

conditions

of

Ferguson states that the "Plaintiff's attempt

to define Mitchell's rights at a high level of generality should
not

be

entertained,"

Ferguson

violated

a

but

clearly

the facts of this case."

548,

552

theory,

(2017)).
Ferguson

regardless

assertion

of

that

that

Id.

the

"Plaintiff

established

(citing White v.

Ferguson argues that
would

what

DBHDS

be

that

law

liable
error

for
was,

inefficiently
43

"under
every
if

it

managed

must

show

that

particularized
Pauly,

[the]

137 S.

the

Ct.

Plaintiff's

subordinate
falls

to

error,

within

assignment

the

of

beds."

Id.

Ferguson

while

"the

supervisory

knowledge

that

their

punish inmates
address

that

Ferguson

also

and

they

specific

that

she

Slakan,

F.2d

at

Slakan,

in
were

Plaintiff

using

failed

to

375-76).

that

Ferguson

.

.

to

policies

to

alleged

Id.

at

Ferguson

based on the allegations in the Complaint,

established

hoses

misconduct

address."

that

specific

water

not

of

Overall,

had

enact

has

knowledge

stating

Slakan

took no action to

the

subordinates
737

defendants

subordinates

issue,"

had

distinguishes

"that

of
13

her

{citing

states

that,

"it was not clearly

.

violated

Mitchell's

constitutional rights." Id.

"The
officials
conduct

doctrine
'from
does

constitutional
known.'"

Harlow,
'an

of

liability

not

rights

U.S.

immunity

liability,'"

of

from

immunity

civil

which

a

reasonable

555 U.S.

Importantly,

suit

rather

is

overstates

effectively

her

case

person
231

a

Id.

and

their

would

{2009)

mere

lost

as

statutory

"qualified

than

erroneously permitted to go to trial.'"

Ferguson

223,

government

insofar

established

818).

"'it

protects

damages

clearly

Callahan,

at

and

for

violate

Pearson v.

457

qualified

if

or
have

{quoting

immunity

is

defense

to

a

is

case

{quoting Mitchell v.

exaggerates

here.

The

point is not responsibility for every subordinate's error, but
responsibility for the oversight of the agency's mission of
placing inmates subject to CROs into hospitals for immediate and
necessary mental health treatment,
for which she allegedly
critically failed.
44

Forsyth,

472

U.S.

511,

526

(1985)).

For

this

reason,

courts

should resolve the issue of qualified immunity "at the earliest
possible

stage

502 U.S.

224,

in

227

"A qualified
12(b)(6)

Office,
the

motion."

litigation."

in

a

(quoting

Hunter v.

Bryant,

(1991)).

immunity defense
Owens

767 F.3d 379,

defense

Id.

v.

can be presented in a

Baltimore

City

State's

Rule

Attorneys

396 {4th Cir. 2014). However, when raising

Rule

12(b)(6)

motion,

the

defendant

official

"faces a

formidable hurdle" and "is usually not successful." Id.

(quoting

Field

191-92

(2d Cir.

12(b) (6)

LLC v.

2006)).

is

Cnty.

of

Suffolk,

463

only if

plausible on its

a

plaintiff

face."

Id.

fails

to

(citing

facing

a

claim

under

42

U.S.C.

§

state

Iqbal,

1983,

officials are not protected by qualified immunity,
allegations

underlying

violation of

a

federal

the

claim,

if

true,

if:

a

556

public
"(1)

substantiate

statutory or constitutional

right;

the
a
and

this violation was of a clearly established right of which a

reasonable person would have known."
738

167,

at 678)

When

(2)

F.3d

"This is so because dismissal under Rule

is appropriate

claim that
U.S.

Day,

F.3d

Governors

107,

118

Marshall

{4th Cir.
Univ.,

447

2013)
F.3d

Occupy Columbia v.
(quoting
292,

306

Ridpath v.
(4th

Cir.

Haley,
Bd.

of

2006)).

Because the first prong of this test has already been satisfied,
See supra Part II.
45

based on the court's ruling

that

the Plaintiff has plausibly

alleged the § 1983 claims against Ferguson,

the court need not

address the first prong any further,

beyond repeating that the

Plaintiff

Ferguson's

has

Mitchell's

plausibly

alleged

constitutional

rights

through

violation
her

deliberate

indifference to his serious medical needs.Therefore,

will now address the second prong,

of

the court

which requires determination

of whether a reasonable person would have known that Ferguson's

alleged conduct violated a clearly established right. See Occupy
Columbia,

738 F.3d at 118.

The

second

Fourth

prong

" [ordinarily]
Court,
in

of

the

which

the

case

(4th Cir.

F.3d

qualified

231,

251

arose."

2003)

that,

immunity

in

evaluating

analysis,

identical

conduct

qualified

immunity.'"

at 251) .

a

the

court

v.

Kittoe,

be

1999))
of

a

unlawful

Id.

at

does

holding

not

(quoting

F.3d

392,

City of Goldsboro,

(alteration

case

403

337

in original).

the

defendant's

prevent
Edwards,

denial
178

of

F.3d

This is because "qualified immunity was never intended

relieve

applying

Cir.

nonexistence

to

Wilson

(quoting Edwards v.

{4th

'the

"

stated

need not look beyond the decisions of the Supreme

"However,

to

has

this court of appeals, and the highest court of the state

402-403
178

Circuit

government

familiar

legal

officials

from

principles

See supra Part III.B.
46

to

the
new

responsibility
situations."

of
Id.

(quoting Trulock v.

Freeh,

275 F.3d 391,

405

(Michael, J., concurring)). At the same time,
liable

for

bad

guesses

in

gray

transgressing bright lines." Id.
937 F.2d 295,

(1993)).

298

Thus,

(4th Cir.

areas;

(4th Cir.

2001)

"officials are not

they

are

liable

for

(quoting Maciariello v. Sumner,

1992),

cert,

denied,

506 U.S.

1080

"[i]n deciding whether the right alleged to have

been violated was clearly established, the right must be defined
'at a high level of particularity,'"

Id.

(quoting Edwards,

178

F.3d at 250-51).

As

established

immunity

analysis,

treatment

of

under

at 104.

his

Based

define

the

address,

at

the

first

issue

serious

on

the

here

medical

as

qualified

See

right

Estelle,

to

429

U.S.

court

the

failure

to

will

correct,

or

despite court orders for their immediate,

173. Under this definition,
Ferguson's

alleged

established

medical care,
delay

the

Mitchell's

allegations,

Ferguson's

in-patient mental health treatment.

clearly

of

the known systemic problem of her agency's not placing

inmates in hospitals,

that

is

needs.

Plaintiff's

violation

prong

and

professional

necessary.

2,

41,

85-91,

a reasonable person would have known

conduct

right

See Compl.

to

was

a

timely

violation of

in-patient

Mitchell's

mental

health

as her alleged conduct created and resulted in the

denial

and

of

a

treatment

state

Accordingly,

at

court

this
47

that

another

judge

stage

had

of

mental

deemed

the

health

medically

proceeding,

Ferguson has not demonstrated that she is entitled to qualified
immunity for the § 1983 claims.

In

so

finding,

the

court

is

not

persuaded

by

Ferguson's

argument that she is protected by qualified immunity because she
was

"outside of

the

chain of

correctional officials."

See Def.'s

Resp. to Pl.'s Objs. at 12. Neither the Plaintiff's allegations,
nor any law that Ferguson has cited,

supports this contention.

According to the Complaint, a court had ordered that Mitchell be
given

immediate

mental

health

treatment

in

a

hospital

under

Ferguson's purview. See Compl. HI 63-64, Moreover, the Complaint
alleges that it was Ferguson's responsibility to ensure that the
timely transfer of Mitchell and other inmates subject to such a
court

order

occurred.

See

id.

2,

41,

173.

Therefore,

even

though Ferguson was not a state official within the HRRJ itself,

the

Complaint

alleges

charged with ensuring

that

Ferguson

was

the

state

official

that Mitchell and other inmates

received

the immediate medical care that a mental health professional and
state court had deemed necessary. This duty placed Ferguson in a

role that is indistinguishable from that of a

or

a

medical

administrator

within

the

jail administrator

correctional

system

charged with ensuring that necessary medical care is provided to
inmates

in

Ferguson's

the

jails

location

themselves.

in

a

To

different

find

otherwise,

building

and

based

on

governmental

division, would ignore a plain and reasonable inference from the
48

Plaintiff's

allegations.

of an empty formalism,

that
the

requires

such a

Moreover,

it

would permit

the

triumph

without any citation by Ferguson to law

limitation.

Although Ferguson argues

that

"Plaintiff has not pointed to one case that holds that the

head of a statewide agency, outside of the chain of correctional
officials,

can be held liable for the alleged deprivation of an

inmate's constitutional rights while that inmate is in prison,"
see Def.'s Resp.

to Pl.'s Objs.

at 12,

Ferguson has not cited a

single case that holds such a government official to be immune
from

suit,

pretrial

solely

despite

detainee's

by

virtue

administrative

position

broke

bearing

a

direct

responsibility

in-patient

mental

health

of

a

unique

structure.

"the

The

chain

of

position
key

medical

within

here

is

correctional

for

the

that

a

care,

state's

Ferguson's

officials,"

or

at

least inserted her into "the chain," because she was the link in

charge of assigning Mitchell
out of the jail. Once again,
the

defendant's

identical

to an in-patient medical facility
"the nonexistence of a case holding
conduct

to

prevent denial of qualified immunity."

be

unlawful

Wilson,

337

does

not

F.3d at 403

(quoting Edwards, 178 F.3d at 251).
The

court

is

also

not

persuaded by

Ferguson's

framing

of

the second prong of the qualified immunity analysis,

as "whether

it

of

was

clearly

established

that

the

Commissioner

a

state

agency would violate a pretrial detainee's constitutional rights
49

by relying on a

subordinate

{at one state facility out of many

that the Commissioner oversaw)

to

a

CRO."

Mem.

Supp.

at

mischaracterization

of

Plaintiff

allege

does

not

to process the detainee pursuant

13.

the

This

characterization

Plaintiff's

that

Ferguson

is

allegations.
violated

constitutional solely by "relying on a subordinate

a
The

Mitchell's

(at one state

facility out of many that the Commissioner oversaw)." Mem. Supp.
at 13. Although the Plaintiff did allege that one of Ferguson's
subordinates

at

one

state

facility

even placing them in a drawer,

regularly disregarded

see Compl.

H 2,

CROs,

the Complaint

does not rest on that allegation alone. Rather, as stated in the

second paragraph
that

of

"Ferguson

orders

issued

by

properly use

failure

H 88. Thus,
on

disregarded

judges

f

2

the

throughout

state

has

competency
the

(emphasis added),

available

Plaintiff

alleged

restoration

Commonwealth

of

and that "[t]he failure

mental

hospital

beds

and

the

to properly transfer inmates under court order to such

facilities

not

Complaint,

regularly

Virginia," Compl.
to

the

for

restoration was

persistent

and widespread."

Id.

the court bases its qualified immunity determination

Ferguson's

narrow view of

the

Plaintiff's

allegations,

but on the allegations themselves.

Having
Plaintiff's

that,

applied
facts

as

the

law

stated

of

in

the

qualified
Complaint,

at this stage of the proceeding,
50

immunity
the

to

court

the
finds

Ferguson is not entitled

to

qualified

Accordingly,

immunity
the

from

the

Plaintiff's

Plaintiff's

§

1983

objection based on the

claims.

finding of

qualified immunity for the § 1983 claims is SUSTAINED.

D. Sufficiency of the Plaintiff's State Law Claims

The
that

Plaintiff

objects

Plaintiff

failed

the

to
to

the

Magistrate

state

claims

Judge's

finding

relief

against

for

Ferguson based on negligence, gross negligence, and willful and
wanton negligence under Virginia law. See Objs. at 22-26. In the
R&R,

the Magistrate Judge found that the Plaintiff did not state

these

claims

because

the

Plaintiff

Ferguson owed a duty toward Mitchell.

failed

to

R&R at 20.

the Magistrate Judge found that "[i]t is not

assert

that

Specifically,

[Ferguson]

herself

who engaged in specific conduct which created a risk of harm to
Mitchell;

instead,

it

is

have proper procedures
Mitchell's

position

hospitals."

Id.

"[ajbsent

duty,

a

at

the

agency which allegedly

failed

to

in place to insure that individuals in

were
21.

timely

The

Plaintiff

transferred

Magistrate

Judge

has

to

failed

from

jails

concluded

state

a

to

that,

claim

for

negligence, gross negligence, or willful and wanton negligence."
Id.

In

support

Complaint's

Defendant
orders

of

this

allegation

objection,

that

the

"[d]uring

Plaintiff
the

notes

relevant

the

period,

Ferguson regularly disregarded competency restoration

issued

by

judges

throughout
51

the

Commonwealth

of

Virginia,"
"[t]he

Objs.

at 22

foregoing

{quoting Compl.

words

state

H 2),

precisely

and argues

the

failures

that

of

the

former Commissioner of DBHDS,

who was charged with the duty to

transfer

appropriate

individuals

to

an

restorative mental health treatment."

§

19.2-169.2).

The

Plaintiff

Id.

argues

hospital
at 23

that

sufficiently allege a duty by Ferguson,

to

provide

(citing Va.

Code

Complaint

does

the

based on her "critical

position" as DBHDS Commissioner and "statutory duty to act." Id.

at 25.

Specifically,

the Plaintiff argues that

'in such a position with regard to'
not

use

ordinary

injury'

care

to Mitchell."

260,

276

and

(2014)).

other

and
Id.

The

mentally

skill,

Mitchell that,
she

would

(quoting RGR,

Plaintiff

ill

"[Ferguson]

persons

'cause

LLC v.

further

who

that

been

'did

danger

Settle,

argues

had

if she

was

of

288 Va.
"Mitchell

subject

to

restoration orders issued by Virginia judges certainly comprise
individuals or a
owed

duties—and

agency

that,

hospitals."

class of persons
she

among

Id.

knew

she

other

at 26.

to which Defendant

owed duties—as

things,

Finally,

runs

the

head

state

Plaintiff

argues

cause of Mitchell's alleged mistreatment and death,
also

plausibly

alleged

gross

negligence,

wanton negligence, under Virginia law. See id.

52

the

mental

has plausibly alleged that Ferguson's conduct was

has

of

Ferguson

and

state

health

that

she

the proximate
and that she
willful

and

In response,

Ferguson argues that the

"Plaintiff is unable

to locate a recognized state law tort duty that Ferguson owed to

Mitchell."

Def.'s

Resp.

to

Pl.'s Objs.

that while

"Plaintiff now relies on a

at

15.

Ferguson states

supposed common law duty

to mankind to generally avoid negligent conduct[,]

[t]his common

law duty was not asserted in the Complaint." Id. Ferguson states

that

the

Virginia

Supreme

Court's

bearing on the instant case,
reality.

decision

see id.

in

at 16-17,

Settle

has

and that,

no

"[i]n

Plaintiff claims Ferguson had statutory duties as CEO

of DBHDS and consequently owed a duty to the public at large to
fulfill

those

statutory

obligations."

Id.

at

17.

Ferguson argues that "[t]he public duty doctrine .
action against
the public."
(1990);

(Va.

Id.

Cir.

Ct.
is

2002)).

Winston,

City of Portsmouth,

"More specifically,"

attempting

to hold Ferguson

while

was

happened

"[tjhis amounts

she

to strict

liability on that

basis

. bars any

is based on some alleged duty to

(citing Marshall v.

Rich-McGhie v.

"Plaintiff
that

Ferguson that

.

However,

the

315,

319

518,

525

Ferguson argues,

the

62 Va.

liable

Commissioner

liability of

a

239 Va.
Cir.

for

of

anything

DBHDS,"

and

public official,

and

is expressly prohibited by

the public

duty doctrine." Id. at 18 .
In prior filings,

Ferguson raised other arguments that were

not fully renewed in the Response to the Plaintiff's Objections.
15

See supra note 12 and accompanying text.
53

In the Memorandum in Support of the Motion to Dismiss,

Ferguson

asserted

a

through

that

her

which

an

statutory

duties

individual

may

did

sue

"not

in

create

tort,"

"Plaintiff is attempting to cure the lack of a

and

means

that

the

common law duty

by relying on generalized enabling statutes." Mem. Supp.

at 16.

Ferguson

for

statute

also

provided

relied

upon

Ferguson to place
see

id.

{citing

"generalized

an

by

the

inmates
Va.

Plaintiff

§

interpretation

to

in hospitals

Code

enabling

alternative

establish

duty

after CROs are

19.2-169.2),

statutes,"

a

stated

and,

that

by

issued,

regarding

the

a

the

"Plaintiff

cannot rely on such statutes to establish that Ferguson owed a

tort

duty."

Inc.,

273

Id.

Va.

(citing

605

Isbell

(2007)).

v.

Commercial

Moreover,

Inv.

Associates,

Ferguson argued

that,

"to

the extent Plaintiff seeks to invoke the doctrine of negligence

per se by somehow proving a

violation

[of

these statutes],

the

law does not permit her to do so," because "[i]t is well-settled
that
of

'the doctrine of negligence per se does not create a

action

where

none

otherwise

Williamson v. Old Brogue,

Thus,

for

several

Inc.,

232 Va.

reasons,

"Plaintiff has no claim against
negligence,
law

tort

willful

theory,"

exists."
350

that

at

18

(quoting

(1986)).

Ferguson

argues

that

Ferguson for negligence,

and wanton negligence,

and

Id.

Count One

or any other

the

gross
state

should be dismissed with

prejudice as to Ferguson. Def.'s Resp. to Pl.'s Objs. at 18.
54

cause

Having reviewed the findings of the Magistrate Judge on the
state

law

response,

claims,

the

Plaintiff's

objection,

and

Ferguson's

the court now turns to analyzing the state law claims

for sufficiency under Rule 12(b)(6) review.^®
1. Ordinary Negligence

Under Virginia law,
there

must

be

a

"[t]o constitute actionable negligence,

duty,

a

violation

thereof,

and

a

consequent

injury." Trimyer v. Norfolk Tallow Co., 192 Va. 776, 781 (1951).
A duty to exercise due care to avoid injuring others "is owed to
those

within

at 276.

Such

reach

a

of

a

duty

defendant's

arises

circumstances placed in such a
.

.

conduct,"

"[w]henever

Settle,

one

288

person

is

Va.

by

position with regard to another

. that if he did not use ordinary care and skill in his own

conduct

with

danger of

regard

to

those

circumstances,

he

would

injury to the person or the property of

Id.

(quoting S. States Grain Mktg. Coop, v. Garber,

761

cause

the other."

(1965)).

By

alleging

responsible

for

that

Ferguson,

the

management

placements based on CROs,

as
of

DBHDS

205 Va.

757,

Commissioner,

was

inmate

transfers

and that Mitchell was a

part of

and
that

class of inmates to whom Ferguson owed this particular duty,

see

Compl.

her

2,

41,

173-75,

203,

the

Plaintiff

has

burden of pleading Ferguson's duty toward Mitchell,

" See supra Part II.
55

satisfied

Ferguson
doctrine
claims.

incorrectly

as

a

Under

plaintiff

ground
the

claims

distinction

relies

to

dismiss

public

duty

negligence

must

be

on

drawn

Virginia's

the

Plaintiff's

doctrine

against

between

in

a

a

public

public

official to the citizenry at large and a

state

Virginia,

public

duty
law

when

official,

duty

owed

a
"a

by

the

special duty owed to a

specific identifiable person or class of persons," and "[o]nly a
violation of the latter duty will give rise to civil liability
of

the

official."

Virginia

Supreme

Marshall,

Court

239

"has

Va.

only

at 319.

applied

However,

the

public

the

duty

doctrine in cases when a public official owed a duty to control

the

behavior of

a

third party,

and

the

third party committed

acts of assaultive criminal behavior upon another." Commonwealth
v.

Burns,

273

allegations

do

not

on

based

Va.

14,

not

17

fall

(2007)

under

(emphasis

this

added).

category,

Ferguson's

failure

to

engaging in such behavior.

Rather,

the

The

because

control

instant
they are

third

parties

Plaintiff seeks to hold

Ferguson liable for her failure to place Mitchell in a hospital,

pursuant

to a

treatment.

court order for necessary mental

See Compl.

HI

2,

41,

173.

health medical

For this reason,

the public duty doctrine were extended,

even if

i t could not apply here,

because Ferguson's relationship to Mitchell was not as a

official

to a

identifiable

member of
person,

or

the public at
a

member
56

of

large.

an

public

Mitchell was

identifiable

class

"an
of

persons,

to

whom

from the duty .
239

Va.

at

the

.

defendant []

owed a

duty

distinguishable

. owed to the citizenry at large." Marshall,

319.

Indeed,

the

Plaintiff's

allegations

place

Mitchell in the class of persons to whom Ferguson actually owed
a

particular duty to provide immediate mental health treatment

upon court order. See Compl. HH 2, 41, 173. This circumstance is
far

different

sought

to

from

hold

releasing an

a

the

one

sheriff

in

Marshall,

and

inmate prior

to

jailer

the

where

liable

the

for

expiration of

plaintiff

negligently

his

sentence,

which inmate then robbed and murdered the plaintiff's decedent.
Marshall,

239 Va.

Next,
upon a

at 316-17.

Ferguson argues that the Plaintiff's allegations rely

statutory duty,

rather than a

Although the Plaintiff does cite a

to

place

Mitchell's

restorative

treatment,

alleges

common

a

173-75,

203.

It

law
is

class

of

inmates

for

2,

by

Not so.

statutory duty for Ferguson

see Compl.
duty

common law duty.

into

41,

173,

Ferguson,

this reason that

as

hospitals

for

the Complaint
well.

See

id.

the Complaint notes

that "Defendant Ferguson also had statutory duties to Mitchell."

Id.

H 173.

Thus,

the

Plaintiff

has

sought

liable for negligence claims based on a
on a duty arising under common law,

state
duty.

that

the

Complaint

Regardless,

the

relies
court

57

hold

Ferguson

statutory duty and also

and Ferguson is incorrect to

solely

has

to

on

found

the
that

former
the

kind

of

Plaintiff

plausibly
ordinary

alleged
care

that

toward

Ferguson

had

Mitchell,

a

and

common

that

duty

of

sufficient

is

law

to

overcome the instant stage of review.
Nevertheless,

the

court

must

also

determine

whether

the

Plaintiff has sufficiently pled that Ferguson's conduct was the

proximate cause of the alleged harm in this case, whether it was
foreseeable
harm,

to

Ferguson

that

her

alleged

conduct

would

and whether there was any superseding cause of

cause

the harm

that would relieve Ferguson from liability.

Under Virginia law,

"[t]he proximate cause of an event is

that act or omission which,

in natural and continuous sequence,

unbroken by an efficient intervening cause,
and

V.

Va.

without

519,

that

event

251 Va.

Payne,

which

122,

128

522

(1970)).

would

(1996)

not

produces the event,

have

occurred."

(quoting Beale v.

Furthermore,

Jenkins

Jones,

210

"tt]here may be more than one

proximate cause of an event." Id.

(citing Panousos v. Allen,

Va.

60,

"[i]n order for negligence to

be

actionable,

65

foreseen

(1993)).
a

Additionally,
defendant

the precise

*need

not

injury sustained,

but

have
it

anticipated
is

an ordinarily careful and prudent person ought,
or

similar

might

circumstances,

probably

result

Shipbuilding & Drydock,

(1990)

to

have

from

the

Co.,

Inc.,

(quoting New Bay Shore Corp.
58

anticipated

negligent
v.

v.

Scovel,

Lewis,

245

or

sufficient
under the

that

acts.'"
240 Va.

193 Va.

an

if

same

injury

Norfolk
472,

400,

476

409,

69

S.E.2d

320,

intervening

326

(1952)).

between

the

Finally,

defendant's

although

negligent

"negligence

act

and

the

injury" may "relieve a defendant of liability for his negligent
act,"
the

that

operation

without

any

slightest
(citing
Corp• ,
320,

intervening
of

degree,

221 Va.

causes
245

124,

"must

defendant's

contributing

Panousos,

324

the

negligence

Va.

131

by

injury."

at

65;

(1980);

Coleman

supersede
it

defendant

alone,
in

the

at

129

Blankenship

Oil

251 Va.

v.

City of Richmond v.

Gay,

103 Va.

(1905)).

Plaintiff

has

sufficiently alleged

proximate

foreseeable
relieves

the

that

Jenkins,

Having conducted a de novo review,

the

entirely

negligence

negligence
the

so

to

cause

of

Ferguson,

Ferguson

of

the court finds that the

that

Mitchell's

and

that

liability

Ferguson's

harm,

no

from

the

conduct

was

harm

was

that

superseding
claim

of

negligence
negligence.

Specifically, although Ferguson claims that "the alleged acts or
omissions of Ferguson were not a proximate cause of the alleged
mistreatment and death of Mitchell,"

court disagrees.

Mem.

Supp.

at

22 n.3,

the

The Complaint alleges that Ferguson separately

caused harm to Mitchell by systematically mismanaging the intake
system

for

inmates,

like

him,

subject

to

CROs

for

immediate

in-patient mental health treatment. See Compl.

HH 2,

173-75.

timely to assign

This mismanagement

led to the

failure

Mitchell to a bed at Eastern State Hospital.
59

See id.

41,

85-91,

88-91,

173-75,

195. Moreover,

while Ferguson claims that she "could not

have foreseen the acts or omissions attributed to third parties
responsible for Mitchell at HRRJ,"
that

Hart

would

not

process

the

and "could not have foreseen
CRO and

would result in Mitchell's demise,"
assertions
comport

the

of

unforeseeability

with the

Complaint,
Based

reasonable

as

on

facts

and

Supp.

at

such

this

stage

alleged

in

the

failure

causes

from

of

a

at 22 n.3,

superseding

inferences drawn

required

the

Mem.

that

the

the

these

do

not

facts

in

proceeding.

Complaint,

it

is

reasonable to infer that Ferguson could have foreseen that harm
would

come

to

inmates

health

treatment,

mental

health

Plaintiff's

as

who

were

ordered

professional,

allegations

by

not
a

given

court

pursuant

that

the

to

and

a

conduct

of

as

event.

Jenkins,

See

at 65).

can
251

be
Va.

multiple
at 128

of

mismanaging
the state,

the

Defendants,

the hospital
in a

proper

failure.

other

other

proximate

(citing

Ferguson

by

Moreover,

relieve

Based on the Plaintiff's allegations,

actions

under

there

mental

recommended

CRO.

proximately caused harm to Mitchell do not
liability,

in-patient

a

the

Defendants
Ferguson of

causes

Panousos,

of
245

an
Va.

separate from the

was

intake of mentally ill

universally

inmates across

systematic failure of her duties to place them

care,

Compl.

and

harm

2,

41,

befell

85-91,

See supra Part II.
60

Mitchell

173-75.

because

of

Accordingly,

this

the

Plaintiff has sufficiently stated a claim of negligence against
Ferguson.
2.

In Virginia,
showing

Gross Negligence

gross negligence

indifference

to

prudence that amounts

another

to a

is

"a degree of negligence

and

an

complete neglect of

such other person." Elliott v. Carter,
(quoting Cowan v.

(2004)

utter

disregard

the safety of

292 Va. 618,

Hospice Support Care,

Inc.,

of

622

268 Va.

(2016)

482,

487

(internal quotation marks omitted)). Gross negligence "is

a heedless and palpable violation of legal duty respecting the

rights

of

others

which

amounts

to

the

absence

diligence, or the want of even scant care." Id.
V.

City of

negligence

Va.

Beach,

"requires

fair-minded persons,
willful

a

186,

of

190

(quoting Chapman

(1996)).

negligence

slight

Indeed,

that

gross

would

shock

although demonstrating something less
Id.

quotation marks

gross

Va.

degree

recklessness."

(internal
whether

252

of

negligence

fact to be decided by a

(quoting

omitted)).
has

been

Cowan,

268

Va.

"Ordinarily,

the

established

jury," but

is

a

than

at

487

question

matter

of

"when persons of reasonable

minds could not differ upon the conclusion that such negligence
has
Id.

not been established,
(quoting

Frazier

v.

it

is

City

the
of

(1987)) .

61

court's

Norfolk,

duty to
234

Va.

so rule."
388,

393

Ferguson
negligence
Plaintiff

seeks

claim.
has

not

dismissal

of

Specifically,
alleged

the above standards,
employee—Defendant

the

Ferguson

facts

against

argues

Ferguson

gross

that

that

the

satisfy

because "the allegations are that a single
Hart—failed

to

process

instead placed it in a desk drawer." Mem.

adds,

Plaintiff's

Mitchell's

Supp.

at 21.

CRO and
Ferguson

"[ejxpecting that an employee of DBHDS would do their job

without

any

reason

to

believe

otherwise

does

not

constitute

negligence, much less gross negligence." Id.

The Plaintiff's allegations are to the contrary. See Compl.
2,

41,

85-91,

173-75.

of Hart's conduct.

The Plaintiff does not merely complain

Instead,

the Plaintiff alleges

herself personally failed to address a
transferring

inmates

to hospitals

for

that Ferguson

systemic problem of not
in-patient mental health

care, despite court orders for such necessary medical treatment.
At this stage of the proceeding,
begun,

reasonable

minds

can

before discovery has even

differ

over

whether

Ferguson's

conduct amounted to an "utter disregard of prudence that amounts
to

a

complete

Elliott,

292

Accordingly,

neglect
Va.
the

at

of
622

the

safety

(quoting

Plaintiff

has

of

Cowan,

such

other

268

sufficiently

Va.

person."
at

pled

negligence against Ferguson to survive the instant Motion.

62

487) .
gross

3. Willful and Wanton Negligence

In
taken

Virginia,
in

conscious

reckless
aware,

"[w]illful
disregard

indifference
from

conditions,

and

his

to

of

that

is

rights,
the

action

or

with

defendant

existing

circumstances

from

conduct

injury to another." Kaltman v. All American Pest Control,

Inc.,

540,

545

494

(2011)

his

and
cause

483,

result

is

and

281 Va.

probably

of

negligence

another's

consequences

knowledge

would

wanton

(quoting Alfonso v.

Robinson,

257 Va.

(1999)).

Ferguson argues
plausible

claim

of

that

the

willful

Plaintiff has
and

wanton

failed

to state a

negligence,

"[w]ithout knowledge of Mitchell or the CRO,

because

Ferguson could not

have consciously disregarded Mitchell's rights or intended that
the

CRO

not

be

implemented."

Ferguson argues that

Mem.

Supp.

at

22.

Moreover,

"the alleged acts or omissions of Ferguson

were not a proximate cause of the alleged mistreatment and death
of

Mitchell,"

acts

or

Mitchell
at

22

and

omissions
at

and

for

to

the

could
third

not

have

parties

conduct

of

foreseen

the

responsible

for

Defendant

Hart.

Id.

n.3.

allege

case.

"Ferguson

attributed

HRRJ,"

Ferguson's
not

that

that

Instead,

disregarded

arguments

are

Ferguson's

the

the

failures

Plaintiff

whole

unpersuasive.

class

were

alleges
of
63

The

Plaintiff

does

limited to Mitchell's

that

inmates

Ferguson consciously
to

which

Mitchell

belonged,

and

systematic
waiting

that

this

failure

list

class

within

for

of

inmates,

Ferguson's

hospital

beds,

due

agency,

despite

to

a

known

remained

court

on

orders

a
for

immediate in-patient mental health medical treatment. See Compl.
2,

do

41,

not

85-91,

rely

on

173-75.

the

Moreover,

conduct

of

the

other

Plaintiff's

allegations

Defendants,

but

on

the

conduct of Ferguson herself. See id. H 2, 41, 173. Additionally,
the

court

has

Defendants,

as

already
described

found
in

the

that

the

Complaint,

conduct
has

of

not

other

provided a

superseding cause of harm for Ferguson.^®
At this stage of the proceeding,
begun,

reasonable

minds

conduct amounted to a

can

before discovery has even

differ

over

whether

Ferguson's

conscious disregard of Mitchell's rights,

or reckless indifference to consequences that Ferguson was aware
would

probably

result

at 494. Accordingly,
and

wanton

from

her

conduct.

See

Kaltman,

281

Va.

the Plaintiff has sufficiently pled willful

negligence

against

Ferguson

to

survive

the

instant

Motion.

4.

The

gross

Eleventh Amendment and State Law Immunity

Plaintiff

negligence,

has

plausibly alleged claims

and

willful

Ferguson under Virginia

determine

whether

these

law.

and

Nevertheless,

claims

See supra Parts III.B,

wanton

are

IIl.D.l.
64

barred

of

negligence,

negligence
the

by

court

a

against

must

next

doctrine

of

immunity.
law

In the R&R,

claims

against

the Magistrate Judge found that the state

Ferguson

are

barred by

Eleventh Amendment

immunity. See R&R at 16-20. As stated above, that finding relied
on analysis that applies to the Plaintiff's § 1983 claims,
not to the Plaintiff's state law claims.^® Thus,
address

whether

Amendment
must

these

immunity

address

state

on

whether

law

another
the

claims

basis.

claims

are

are

but

the court must

barred by

Additionally,
otherwise

Eleventh

the

barred

court
by

a

doctrine of immunity, beyond the Eleventh Amendment.

The analysis

in Part III.A of

to Eleventh Amendment

immunity for

Pennhurst,

465 U.S.

a

claim

against

based

on

§

1983

capacity,
damages

against

is

However,

necessarily

these state

at 103-06. Specifically,

a

a

state

official

determination

the state,

to those raised by a

See id.

this Opinion does not apply

that

law claims.

See

the availability of
sued

the

in

suit

a

personal

is

not

for

is determined by concerns xanrelated

state law claim against a

state official.

that does not mean Eleventh Amendment immunity

inapplicable.

In

Pennhurst,

the

Supreme

Court

barred a

state law claim because of Eleventh Amendment immunity,

holding

that

"federal

petitioner state

of"

courts

institutions

the state law in question.

Supreme

Court

reasoned

that

lacked

jurisdiction

and state officials

on

to

enjoin

the basis

Id. at 124-25. In so holding,
"neither

See supra note 4.
65

pendent

the

jurisdiction nor

any

other

basis

Amendment,"

id.

litigants'

in

of

jurisdiction

at 121,

and

may

override

that

policy

the

Eleventh

concerns

about

necessarily bifurcating state and federal law claims

actions

against

state

constitutional concern.

officials

See id.

do

not

override

this

a t 121-23,

Pennhurst's Eleventh Amendment concerns are inapplicable to
the state law claims here.

In Pennhurst,

the district court had

entered an injunction ordering state officials to conform their
conduct

to a

individuals.
judgment

claims,
basis

state

See id.

the

because "a federal

of

state

law

relief

the

itself."

State

instant

the

at 92-95.

and remanded

here—the

the

law for

treatment of

The Supreme Court reversed this

case

for

Id.

dismissal

of

the

state

law

suit against state officials on the

contravenes

sought

mentally disabled

the

Eleventh

and ordered has
at

117.

allegations.

The

an

Amendment

impact

That holding does
Plaintiff

when—as

directly on
not

alleges

apply to

state

law

negligence claims against Ferguson in her personal capacity, not

in

her

official

"operate

against

Ferguson herself.

capacity,
the

and

State,"

any

id.

In other words,

federal court's direct intrusion,

operation

of

a

state

agency,

relief

at

granted

107, but,

this

would

rather,

case does not

by way of injunction,

as

result in damages against the state.

in

Pennhurst;

Instead,

nor

not

against

involve a

into the

would

it

this case involves

the pursuit of damages against a state official in her personal
66

capacity for negligent conduct. Contrast id. at 108

("The named

defendants had nothing to gain personally

from

they

willfully

were

not

negligently.")

found

to

have

acted

state

official

Cir.

Hughes,

based

1990).

the

because

on

official]"

for

the

However,

Fifth

the

the

Eleventh

Hughes

Circuit

"pendent

was

No

Amendment

902 F.2d 376, 377-79

unhelpful

claim

Louisiana

statute

law

directly

exists

to

here

that

on
to

the

this

court

declines

bars

state

law

the

Supreme

to

claims

hold
of

Court

that

or

Eleventh

negligence

[the

the

the

1997)
this

(unpublished
circuit

and

table
sets

40,

1997

opinion)

brought

forth

a

applicable to the case at hand.").

" See supra Part III.D.l.
67

("Hughes
narrow

absent a

Amendment

is

immunity

against

WL 775162,

F.3d

to

Fourth Circuit,

State

132

id.

state

and,

See Taormina v.

Cal.,

See

this court is not

official in her personal capacity.
of

state

liability

state.

bind

In

immunity

placed

bound by the Fifth Circuit's decision in Hughes,

by

Ferguson.

against

Ferguson's alleged misconduct.^" Regardless,

contrary holding

immunity

Eleventh Amendment

negligence

based on a

such

is

applied

underlying negligence

at 378-79.

even

claim of negligence against

holding in Pennhurst. See Hughes v. Savell,
(5th

or

(emphasis added).

The Fifth Circuit has barred a
a

their conduct;

at

Corr.
*3

not

holding

a

state
Dep't,

(9th

Cir.

binding

that

is

on
not

Beyond Eleventh Amendment
the

state

Judge

law claims

sua

sponte,

not

by

immunity,

which was

Ferguson,

see R&R at

but

16 n.2,

by

raised

the

for

Magistrate

Ferguson has

otherwise

argued, in a single sentence, that she is "entitled to sovereign
immunity" for the state law claims. See Mem. Supp. at 15. While
Ferguson made
argue

that

this

such

conclusory

immunity

is

statement,

proper

in

she

did not

further

the multiple briefings

before this court or during the hearing on this matter.

Virginia

law,

the

party

raising

a

plea of

Under

sovereign immunity

bears the burden of

"presenting distinct issues of fact which,

if proved,

bar to the plaintiff's right of recovery."

Pike

V.

create a

Hagaman,

conclusory

292

Va.

statement

209,

does

215

not

(2016).

meet

this

Here,

Ferguson's

burden.

Although

Ferguson may raise a plea of sovereign immunity at a later time,
she has not satisfied her burden of pleading sovereign immunity
in

the

instant Motion.

The court declines

extend

state

immunity

claims

against

sovereign

Ferguson.

However,

argument for sovereign immunity,
later

to

if

the

the
it

at

this

juncture to

Plaintiff's

court

will

state

consider

law

an

is properly raised at a

time.

For

claims of

the

reasons

negligence,

above,

the

Plaintiff has plausibly stated

gross negligence,

and willful and wanton

negligence against Ferguson under Virginia law,
not protected from

these

and Ferguson is

claims by Eleventh Amendment
68

immunity

or state sovereign immunity. The Plaintiff's objection regarding
the s t a t e law claims

is

SUSTAINED.
IV.

At this juncture,

Ferguson cannot hide behind the doctrines

of sovereign and qualified immunity,

and/or claims of ignorance

of what was going on in the agency for which she was ultimately
in

charge.

SUSTAINED,

Accordingly,
the

Magistrate

Motion to Dismiss,

The

Clerk

the

is

ECF No.

Plaintiff's

Judge's
84,

DIRECTED

R&R

is

REJECTED,

IS

to

send a

copy of

SO ORDERED.

REBECCA BEACH SMITH
CHIEF JUDGE

March 31,

and

are
the

is DENIED.

counsel for all parties.
IT

Objections

2017

69

this

Opinion to