Quigley v. McCabe et al
OPINION & ORDER granting in part and dismissing in part 29 Motion to Dismiss for Failure to State a Claim; granting in part and dismissing in part 32 Motion to Dismiss for Failure to State a Claim. The Court GRANTS McCabe's Motion, Doc. 29, as to Counts I and II, and GRANTS Carter's Motion, Doc. 32. The Court thus DISMISSES Counts I and II as to McCabe, and DISMISSES Count II as to Carter. The Court DENIES McCabe's Motion as to Counts III and IV, which the Court CONSTRUES as stating a single claim. Signed by District Judge Henry C. Morgan, Jr on 11/15/17 and filed on 11/16/17. (tbro)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Civil Action No. 2:17cv70
ROBERT MCCABE, IMHOTEP
CARTER, AND JOHN DOE,
OPINION & ORDER
This matter is before the Court pursuant to two (2) Motions to Dismiss Plaintiff David
Quigley's ("Plaintiffs") Amended Complaint, Doc. 28: Defendant Robert McCabe's
("McCabe's") Motion to Dismiss Counts I through IV, Doc. 29 ("McCabe's Motion"), and
Defendant Imhotep Carter's ("Carter's") Motion to Dismiss Count II, Doc. 32 ("Carter's
Motion"). For the reasons set forth in the Court's Opinion and Order entered August 30, 2017,
Doc. 27, the Court GRANTS McCabe's Motion, Doc. 29, as to Counts I and II, and GRANTS
Carter's Motion, Doc. 32. For the reasons set forth below, the Court CONSTRUES Counts III
and IV as stating a single claim, and DENIES McCabe's Motion as to this claim.
This action arises in response to the alleged negligent medical treatment of Plaintiff
' "In considering a motion to dismiss, [the Court] accept[s] as true all well-pleaded allegations and view[s] the
complaint in the light most favorable to the plaintiff." Venkatraman v. REI Svs.. Inc.. 417 F.3d 418, 420 (4th Cir.
2005) (citing Mvlan Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir.1993)). The Court cautions, however, that
the facts alleged by Plaintiff are recited here for the limited purpose of deciding the instant Motion to Dismiss. The
recited facts are not factual findings upon which the parties may rely for any other issue in this proceeding.
during incarceration. Doc. 1, Ex. A ("Compl.") 11116-9. In early August 2013, Plaintiff was
incarcerated at the Norfolk City Jail. Id H5. On or about August 7, 2013, he fell from a bunk
bed and landed on his head and other parts of his body, falling unconscious and suffering severe
injuries that included multiple broken bones. Id. H6. He was taken to the medical ward of the
jail, where Defendant Carter and another doctor were responsible for his medical treatment. Id
H7. He "begged to be taken to the hospital," but they refused that request as well as any other
"reasonable medical care." Id. Carter once dangled two aspirins in front of Quigley and then
pulled them away without providing them to him. Id Defendants provided "little to nothing in
the way of medical services," resulting in "great pain of body and mind," subsequent medical
expenses to treat those injuries, and permanent bodily injury. Id H8. Upon his release on
August 21, 2013, Plaintiff walked to Sentara Norfolk Hospital to receive care. Id. H9.
Plaintiff filed his complaint in the Circuit Court for the City of Norfolk on December 22,
2016. Doc. 1. The Complaint names three Defendants: then Sheriff Robert McCabe, and facility
doctors Imhotep Carter and John Doe. The Complaint asserted three claims against all
Defendants: Count I for "Breaches of Virginia's Common Law and Statutory Duties," Count II
for "Violations of the Virginia Constitution," and Count V for "Breaches of the 8th and 14th
Amendments of the United States Constitution pursuant to 42 U.S.C. §§ 1983 and 1988."
Compl. at 1-4, 6-7. It asserted two additional claims against Defendant McCabe alone: Count
III for "Failure to Train" and Count IV for "Defacto Policy of Denying Inmates Health Care."
See id at 5. In the original Complaint, Counts III and IV were alleged as Virginia law claims.
McCabe removed the case to this Court on January 31, 2017. Doc. 1. McCabe filed a
Motion to Dismiss, Doc. 4, on February 1, 2017, and Carter filed a Partial Motion to Dismiss
Counts II and V, Doc. 15, on March 1, 2017. Plaintiff opposed both Motions. Docs. 10, 20.
Defendants each replied in further support of their respective Motions. Docs. 12, 21.
On August 30, 2017, the Court entered an Opinion and Order GRANTING McCabe's
Motion to Dismiss as to Counts I and II, GRANTING Carter's Partial Motion to Dismiss as to
Count II, and DENYING both Motions as to Count V.
Doc. 27 at 1. Plaintiff was given
LEAVE TO AMEND Counts III and IV, so as to state these as federal claims. Id
Plaintiff filed an Amended Complaint on September 15, 2017. Doc. 28. Despite the
Court's Order DISMISSING Count I as to McCabe and Count II as to McCabe and Carter, the
Amended Complaint re-alleged Counts I and II against all Defendants. S^ id.
1-20. Per the
Court's Order, the Amended Complaint re-stated Counts III and IV as federal claims,
specifically as violations of the 8th and 14th Amendments of the U.S. Constitution, through 42
U.S.C. §§ 1983 and 1988. ^
21-25. The Amended Complaint re-alleged Count V
without change from the original Complaint.
On September 28, 2017, McCabe and Carter filed the instant Motions. Docs. 29, 32.
Plaintiff did not respond to either Motion.
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss tests the sufficiency
of a complaint; it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses. Republican Party of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. labal. 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570 (2007)); see also Venkatraman.
417 F.3d at 420 ("In considering a motion to dismiss, we accept as true all well-pleaded
allegations and view the complaint in the light most favorable to the plaintiff.") (citing Mvlan
Labs.. 7 F.3d at 1134). A complaint establishes facial plausibility "once the factual content of a
complaint allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc.. 591 F.3d 250, 256
(4th Cir. 2009) (quoting labal. 556 U.S. at 678). Therefore, the complaint need not include
"detailed factual allegations" as long as it pleads "sufficient facts to allow a court, drawing on
judicial experience and common sense, to infer more than the mere possibility of misconduct."
Id. Although a court must accept as true all well-pleaded factual allegations, the same is not true
for legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Iqbal. 556 U.S. at 678.
In deciding the motion, a court may consider the facts alleged on the face of the
complaint as well as "'matters of public record, orders, items appearing in the record of the case,
and exhibits attached to the complaint.'" Moore v. Flaestar Bank. 6 F. Supp. 2d 496, 500 (E.D.
Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure
§ 1357 (1990)).
The court may look to documents attached to the complaint and those
incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for
S^ Pueschel v. United States. 369 F.3d 345, 353 n.3 (4th Cir. 2004)
Section 1983 holds liable for damages any "person" who deprives someone of
Constitutional rights while acting under color of state law. States and state officials who are
sued in their official capacity are not "persons" subject to liability under § 1983. Will v.
Michigan Dep't of State Police. 491 U.S. 58, 71 (1989). However, state officials sued in their
personal capacity are "persons" subject to liability, even if sued for actions of an official nature.
Hafer v. Melo. 502 U.S. 21, 31 (1991). In some circumstances, supervisors may be held liable
for constitutional injuries inflicted by their subordinates. Shaw v. Stroud. 13 F.3d 791, 798 (4th
Cir. 1994) (citations omitted). Supervisory liability is intended to "pinpoint the persons in the
decisionmaking chain whose deliberate indifference permitted the constitutional abuses to
continue unchecked." Id. (quoting Slakan v. Porter. 737 F.2d 368, 376 (4th Cir. 1984)) (internal
quotation marks omitted). The Fourth Circuit requires three elements to establish supervisory
(1) that the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed 'a pervasive and unreasonable risk' of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate as to show
"deliberate indifference to or tacit authorization of the alleged offensive
(3) that there was an "affirmative causal link" between the supervisor's inaction
and the particular constitutional injury suffered by the plaintiff.
Id. at 799 (citations omitted). Demonstrating "a pervasive and unreasonable risk" requires
evidence that the conduct is widespread or at least occurred on several occasions. Id.
Additionally, a plaintiff may allege a "policy or custom" violation in four ways:
(1) through an express policy, such as a written ordinance or regulation;
(2) through the decisions of a person with final policymaking authority;
(3) through an omission, such as a failure to properly train officers, that
"manifest[s] deliberate indifference to the rights of citizens;" or
(4) through a practice that is so "persistent and widespread" as to constitute a "custom or
usage with the force of law."
Lvtle V. Dovle. 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris. 164 F.3d 215, 218
(4th Cir. 1999)). "An official policy or custom . .. 'need not derive from municipal ordinances[,
but] may also be found in formal or informal ad hoc policy choices or decisions of municipal
officials authorized to make and implement municipal policy.'" Francis v. Woody. 2009 WL
1442015 (E.D. Va. May 22, 2009) (quoting Kirbv v. Elizabeth City. N.C.. 380 F.3d 111, 787
(4th Cir. 2004)).
Counts I and II
Counts I and II of Plaintiff s Amended Complaint reiterate the same claims from Counts I
and II of the original Complaint, and assert these claims against all Defendants. Compare Doc.
1-20, with Compl.
1-20. In the Opinion and Order entered August 30, 2017, the Court
DISMISSED Count I as to McCabe and DISMISSED Count II as to McCabe and Carter. S^
Doc. 27 at 9, 11, 17. Plaintiff has re-alleged both Counts against all Defendants without leave of
the Court. Accordingly, and for the reasons stated in the Court's previous Opinion and Order,
the Court GRANTS McCabe's Motion, Doc. 29, as to Counts I and II of the Amended
Complaint, and GRANTS Carter's Motion, Doc. 32. The Court DISMISSES Counts I and II as
to McCabe, and DISMISSES Count II as to Carter.
Count III of Plaintiff s Amended Complaint alleges former Sheriff McCabe's failure to
train the medical staff at the Norfolk City Jail, in violation of the 8th and 14th Amendments and
pursuant to 42 U.S.C. § 1983. Doc. 28
21-23. Plaintiff states that "Sheriff McCabe had a
duty to train the medical staff at the Norfolk City Jail so that an inmate with the plaintiffs
conditions ... would be taken to the hospital forthwith." Id K21. Plaintiff alleges that McCabe
breached this duty by failing to properly train the jail's medical staff, specifically, by "drastically
cut[ting] costs and discourag[ing] the taking of inmates to the hospital." Id H22. Plaintiff
further alleges that his injuries were a direct and proximate result of McCabe's failure to train the
jail's medical staff. Id. ^ 23.
McCabe argues that he was not personally responsible for training the medical staff in the
jail, and that even if he were. Plaintiff failed to allege "any prior incident that would have put
former Sheriff McCabe on notice that the training was inadequate, or that plaintiffs alleged
injury was 'bound to happen, sooner or later.'" Doc. 30 at 8 (quoting Carter. 164 F.3d at 218).
McCabe asserts that "Plaintiffs only specific allegations relate to the purported inadequate
medical care provided by Drs, Carter and Doe." Id at 9.
Plaintiff did not respond to McCabe's instant Motion to Dismiss, Doc. 29. However,
Plaintiffs response to McCabe's first Motion to Dismiss, Doc. 4, cites multiple cases in defense
of Plaintiffs § 1983 claims. S^ Doc. 10 at 6, 15-17. First, Plaintiff notes that in Vinnedee v.
Gibbs. 550 F.2d 926 (4th Cir. 1977), the Court found that "[i]t is the Sheriff who is immediately
responsible for the prisoner's medical needs" under Sections 53-168 and 53-175 of the 1974
Virginia Code. Doc. 10 at 6 (quoting Vinnedee. 550 F.2d at 928).
Those sections of the
Virginia Code no longer exist, but Section 15.2-1609 of the current Code conveys the same
responsibility: "The sheriff shall .... be charged with the custody, feeding[,] and care of all
prisoners confined in the county or city jail." Thus, McCabe was the legal custodian of all
prisoners confined in the Norfolk City Jail, and his argument that he was not responsible for the
proper training of the jail's medical staff in caring for the prisoners is unpersuasive.
Next, Plaintiff points to a more recent case before this Court allowing a cause of action
for failure to train medical staff to proceed against a sheriff. S^ Doc. 10 at 16-17 (citing Brown
V. Mitchell. 308 F. Supp. 2d 682 (E.D. Va. 2004)). In Brown, an inmate displayed clear signs of
a serious medical condition, yet prison guards and a doctor who witnessed these signs neglected
to send the inmate to the hospital or otherwise offer him the treatment he needed. S^ Brown.
308 F. Supp. 2d at 686-688. The inmate died, and the administrator of his estate brought a
Section 1983 claim against the sheriff in charge of the jail, for failure to train. S^id. at
The Court denied the sheriffs motion to dismiss this claim, finding that "the
Complaint alleges [the sheriff] was deliberately indifferent by failing to institute a proper
training program respecting the clear and recurrent Eighth Amendment right of inmates to have
their serious medical needs attended to."
Id at 706.
Essential to this holding, the Court
distinguished two types of failure-to-train cases: those "involving a pattern of constitutional
deprivations" and those "involving singular deprivations of more obvious rights." Id. (citing
City of Canton. Ohio v. Harris. 489 U.S. 378, 396 (1989)).
McCabe faults Plaintiff for failing to allege any prior incident that would have put
McCabe on notice of the alleged constitutional deprivation as to Plaintiff himself. However, as
in Brown, the Complaint here concerns "a clear constitutional duty implicated in recurrent
situations that a particular employee is certain to face," id (quoting Harris. 489 U.S. at 396), the
duty to attend to prisoners' serious medical needs. S^ Estelle v. Gamble. 429 U.S. 97, 104
(1976) (finding that "deliberate indifference to serious medical needs of prisoners" violates the
Because failure to train medical staff as to the proper handling of
prisoners' serious medical needs violates a clearly established constitutional duty. Plaintiff is not
required to allege a "pattern" of constitutional deprivations.
Plaintiff has alleged a serious medical condition. Plaintiff alleges that he "was rendered
unconscious, suffered a brain injury, had blurred vision, suffered a broken collar bone, a broken
wrist, and weakness in his legs," and had "begged to be taken to the hospital." Doc. 28
He has fiorther alleged that his serious medical condition was not properly treated—^he was
neither taken to the hospital nor given any pain medication, although he was allegedly taunted by
Dr. Carter with two aspirin. Id ^ 7. Finally, Plaintiff has alleged that the failure of Drs. Carter
and Doe to provide him with reasonable medical care was a result of Sheriff McCabe's failure to
train the medical staff at the jail so that an inmate with Plaintiffs conditions would be taken to
the hospital. Id
21-22. The Court FINDS, as this Court did in Brown, that Plaintiff has
sufficiently alleged deliberate indifference by former Sheriff McCabe, through McCabe's
"fail[ure] to institute a proper training program respecting the clear and recurrent Eighth
Amendment right of inmates to have their serious medical needs attended to." Brown. 308 F.
Supp. 2d at 706. Accordingly, the Court DENIES McCabe's Motion as to Count III.
In Count IV, Plaintiff briefly alleges that "Sheriff McCabe had a de facto policy which
discouraged his staff to take inmates who were in the plaintiffs condition to the hospital." Doc.
28 H 24. Plaintiff further alleges that the injuries detailed in the Complaint were a direct and
proximate result of this policy, which Plaintiff claims is in violation of the 8th and 14th
Amendments of the U.S. Constitution. Id.
In his Motion, McCabe argues for dismissal of this claim, "[a]ssuming this claim is an
official capacity claim." Doc. 30 at 9. The Court cannot accept this assumption, for the same
reasons as stated in its August 30, 2017 Order. S^ Doc. 27 at 14. In that analysis, the Court
observed that while it is true that Plaintiff alleges the constitutional deprivation that he suffered
was a result of an official policy, the allegedly unconstitutional policy is not one that McCabe
was obliged to follow by virtue of his office. See id. Rather, Plaintiff alleges that the source of
that policy was former Sheriff McCabe himself.
Thus, McCabe cannot avoid this claim by
characterizing it as one targeting his official capacity, when Plaintiff has clearly alleged
McCabe's personal involvement in establishing the policy. Cf Francis v. Woody. 2009 WL
1442015, at * 6 (E.D. Va. May 22, 2009) ("Francis has alleged that Sheriff Woody 'personally'
acted with indifference to Francis's medical condition by failing to properly train and supervise
his agents, and also by failing to create/implement policies at the Jail to ensure the provision of
Francis's medical care. Therefore, because granting Francis leave to amend would permit him to
state a claim against Sheriff Woody in his individual capacity under § 1983, leave to amend will
Count IV does, however, strongly resemble Count III. Both Counts allege violations of
the 8th and 14th Amendments, pursuant to 42 U.S.C. §§ 1983 and 1988.
In Count III, Plaintiff states as part of the failure-to-train claim that McCabe "discouraged the
taking of inmates to the hospital." Id ^ 22. The policy claim in Count IV similarly states that
McCabe "discouraged his staff to take inmates who were in the plaintiffs condition to the
hospital." Id H 24. Indeed, the Supreme Court has characterized failure-to-train claims like the
Plaintiffs Count III as a subset of "official policy or custom" claims. S^ Harris. 489 U.S. at
388-89 ("Only where a municipality's failure to train its employees in a relevant respect
evidences a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming be
properly thought of as a city 'policy or custom' that is actionable under § 1983."). Accordingly,
the Court CONSTRUES Counts III and IV as stating a single claim for McCabe's failure to train
the jail's medical staff in the proper care of prisoners with serious medical conditions,
specifically through the maintenance of an official policy or custom of discouraging said staff
from sending inmates with such conditions to the hospital. For the reasons stated in Section III.B
above, the Court DENIES McCabe's Motion as to this failure-to-train claim.
For the reasons set forth herein, the Court GRANTS McCabe's Motion, Doc. 29, as to
Counts I and II, and GRANTS Carter's Motion, Doc. 32. The Court thus DISMISSES Counts I
and II as to McCabe, and DISMISSES Count II as to Carter. The Court DENIES McCabe's
Motion as to Counts III and IV, which the Court CONSTRUES as stating a single claim.
The Clerk is REQUESTED to deliver a copy of this Order to all counsel of record.
It is so ORDERED.
Henry Coke Morgan, Jr.
Senior United States District Judge h //
HENRY COKE MORGAN, JR.;- \
SENIOR UNITED STATES DISTRICT JUDGE
Norfolk, VA ^
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