Reid v. Clarke et al

Filing 14

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 2/22/2017. (slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ELMO AUGUSTUS REID,

CIVIL ACTION NO. 7:16-cv-00547
Plaintiff,
MEMORANDUM OPINION

v.
HAROLD CLARKE ET AL.,

JUDGE NORMAN K. MOON
Defendants.

Plaintiff, a prison inmate, seeks an injunction mandating various prison officials
(“Defendants”) to give him appropriate medical treatment for his liver cirrhosis and Hepatitis C.
The legal basis for Plaintiff’s claim is a violation of the Eighth Amendment’s prohibition on
cruel and unusual punishment, brought against prison officials under 42 U.S.C. § 1983 and
seeking prospective injunctive relief under Ex Parte Young. Defendants have filed a motion to
dismiss on the grounds of qualified immunity and failure to state a claim by virtue of not
specifying the personal involvement of each Defendant in Plaintiff’s harm.
Qualified immunity is inapplicable here as Plaintiff is seeking injunctive relief against
Defendants in their official capacities. As to failure to state a claim, Defendants argue that
Plaintiff has not alleged the requisite personal involvement of each Defendant to state a claim
under: (1) the “special relation” requirement to abrogate Eleventh Amendment sovereign
immunity under Ex Parte Young; (2) 42 U.S.C. §1983; or (3) the Eighth Amendment deliberate
indifference standard. Plaintiff’s complaint, however, is sufficient to satisfy these standards with
respect to three Defendants at this stage of the litigation. In his complaint, Plaintiff directly

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alleges the role that three Defendants (Amonette, Booker, and Shipp) play in the refusal to give
him the medical care he seeks. The complaint, however, fails to allege that Defendant Clarke had
the awareness of Plaintiff’s medical condition necessary for a violation of the Eighth
Amendment. Thus, Plaintiff has adequately stated a claim against defendants Amonette, Booker,
and Shipp, but has not against Clarke. Defendants’ motion to dismiss will be granted in part and
denied in part.
I.

Facts as Alleged
Plaintiff is currently an inmate at Buckingham Correctional Center (“BCC”) and has been

incarcerated since 1988. (Dkt. 1 at ¶3). In 2013, Plaintiff was diagnosed with Hepatitis C and
stage 4 cirrhosis of the liver. (Id. at ¶10). Hepatitis C is a virus that harms the liver if left
untreated, and stage 4 is the most serious stage of liver cirrhosis. (Id. at ¶¶10, 12). Plaintiff
received treatment for his condition in 2014 and 2015, but did not improve significantly. (Id. at
¶11).
On June 9, 2015, Plaintiff was denied continuing treatment for Hepatitis C because tests
revealed his liver was functioning better than the Virginia Department of Corrections (VDOC)
threshold for treatment.1 (Id. at ¶12). However, no prison officials ever explained how this test
result showing a relatively healthy liver could be squared with his earlier stage 4 cirrhosis
diagnosis and subsequent failure to respond well to treatment. (Id.). Plaintiff was again informed
he was ineligible for Hepatitis C in August 2016, but this time because he was scheduled for a
parole hearing within six months. (Id. at ¶13). Plaintiff’s liver function has not been re-tested
since the below-threshold score in 2015. (Id.).

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Plaintiff’s liver function scored a 0.467 on a test known as the APRI. A score of 0.5 or
higher is required for treatment under VDOC guidelines. (Id. at ¶13).
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Plaintiff appealed the determination that he was ineligible for lack of treatment on
September 7, 2016. (Id. at ¶ 15). Defendant Shipp, the Health Authority at BCC, denied the
appeal because Plaintiff was “about to parole.” (Id. at ¶15). Plaintiff appealed Shipp’s
determination on September 19, 2016. (Id. at ¶16). Defendant Booker, the Warden at BCC,
denied this appeal on the grounds that “you must have at least 9 months remaining on your
sentence” to obtain treatment. (Id. at ¶16). Plaintiff brought another appeal, which was addressed
by Defendant Amonette, the Chief Physician at VDOC.2(Id. at ¶17). Amonette concluded that
the grievance was “founded” and that Plaintiff had exhausted his administrative remedies. 3 (Id.).
However, Plaintiff is still being denied treatment on the ground that the VDOC guidelines for
treatment of Hepatitis C are currently undergoing revision.4 (Id. at ¶18).
II.

Standard of Review
Defendants have filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6).5 When evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the

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The organizational structure of the VDOC does not reveal a position called “Chief
Medical Physician Manager,” which is how the complaint refers to Dr. Amonette. There is
however, a position entitled “Chief Physician.” See Virginia Department of Corrections
Operating Procedure 701.1, March 1, 2015. A review of other cases reveals that Mr. Amonette
has recently been the subject of suits under the title “Chief Physician.” See, e.g. Gordon v.
Schilling, No. 7:15-CV-00095, 2016 WL 4768846 (W.D. Va. Sept. 13, 2016); Obataiye-Allah v.
Clarke, No. 7:15CV00250, 2016 WL 4197607 (W.D. Va. Aug. 8, 2016).

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The complaint does not make clear the import of Dr. Amonette’s statement. Plaintiff
describes the grievance directed to Amonette as a “success,” but apparently it did not authorize
him to then obtain treatment. (See dkt. 1 at ¶ 18).
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The complaint does not specify the party who denied Plaintiff’s treatment under this
rationale.
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Defendants’ Eleventh Amendment argument may be more suitable for resolution under a
12(b)(1) motion to dismiss for lack of jurisdiction. Courts, however, have not been uniform in
their treatment of Eleventh Amendment immunity. See Fleming v. Virginia State Univ., No.
3:15CV268, 2016 WL 927186, at *1 n.4 (E.D. Va. Mar. 4, 2016), aff'd as modified, No. 16-1364,
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Court must accept as true all well-pleaded allegations. See Vitol, S.A. v. Primerose Shipping Co.,
708 F.3d 527, 539 (4th Cir. 2013); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and
quotation marks omitted). Stated differently, in order 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. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570).
III.

Discussion
Defendants have moved to dismiss Plaintiff’s complaint for failure to state a claim on two

grounds. First, Defendants assert they are entitled to qualified immunity in this suit. Second,
Defendants argue that Plaintiff has failed to allege the personal involvement of any of the
Defendants in the decision to refuse him treatment.
a. Qualified Immunity
The qualified immunity argument is easily resolved. The law is clear that qualified
immunity applies to bar suits for damages, but not for injunctive relief. See Lefemine v.
Wideman, 672 F.3d 292, 303 (4th Cir.), cert. granted, judgment vacated on other grounds, 133 S.
Ct. 9 (2012) (“Claims for declaratory and injunctive relief are not affected by qualified
immunity.”). The parties do not contest this point. Rather, Defendants have argued qualified
2016 WL 7030649 (4th Cir. Dec. 2, 2016). Regardless, Defendants’ facial attack on Plaintiff’s
jurisdiction would be subject to the same procedural protections under either 12(b)(1) or
12(b)(6). Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

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immunity on the grounds that Plaintiff sued each of the Defendants in their “personal” capacity,
thus potentially implicating personal liability. (See dkt. 1 at ¶8). Plaintiff, however, has clarified
in briefings that his complaint only seeks injunctive relief against Defendants in their official
capacities, although he reserves the right to amend his complaint to seek damages should facts
supporting an award of damages emerge. As there is no claim for personal damages currently
before the Court, qualified immunity is irrelevant and this argument may be disregarded.
b. Failure to State a Claim
Defendants’ failure to state a claim argument is based on the theory that Plaintiff must
sufficiently allege the personal involvement of each of the defendants. Defendants cite several
legal standards for the proposition that a defendant’s individual participation be implicated in the
complaint. These standards derive from: 42 U.S.C. § 1983, the Ex Parte Young exception to
sovereign immunity, and the Eighth Amendment’s prohibition on cruel and unusual punishment.
Each is considered in turn.
i.

Ex Parte Young

The Eleventh Amendment provides sovereign immunity to the states, preventing
individuals such as Plaintiff from pursuing suits that would subject an unwilling state to liability.
U.S. Const. amend. XI; see Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347 (1974).
Eleventh Amendment immunity also applies “state agents and state instrumentalities” such as
Defendants. Lee-Thomas v. Prince George's Cty. Public Schs., 666 F.3d 244, 248 (4th Cir.
2012). However, under Ex parte Young, 209 U.S. 123 (1908), suits are permitted to enjoin state
officers when there is an ongoing violation of federal law. There is a requirement under the Ex
Parte Young doctrine, as interpreted by the Fourth Circuit, that there be a “special relation”
between the allegedly unconstitutional act or law and the officer being sued. See S.C. Wildlife
Fed’n v. Limehouse, 549 F.3d 324, 332–33 (4th Cir. 2008); Waste Mgmt. Holdings, Inc. v.
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Gilmore, 252 F.3d 316, 331 (4th Cir. 2001); Lytle v. Griffith, 240 F.3d 404, 409 (4th Cir. 2001).
The requirement derives from the following language of Ex Parte Young:
In making an officer of the State a party defendant in a suit to enjoin the
enforcement of an act alleged to be unconstitutional it is plain that such officer
must have some connection with the enforcement of the act, or else it is merely
making him a party as a representative of the State, and thereby attempting to
make the State a party.
Ex Parte Young, 209 U.S. 123, 157 (1908) (emphasis added). This “connection” or special
relation “has served as a measure of proximity to and responsibility for the challenged state
action.” Limehouse, 549 F.3d at 333 (emphasis in original). The purpose of this requirement is to
“ensure that a federal injunction will be effective with respect to the underlying claim.” Id.
The challenged state action here is the denial of Plaintiff’s Hepatitis C treatment. Three
of the Defendants (Amonette, Booker, and Shipp) are directly responsible for the denial, having
decided through the grievance and appeals process that Plaintiff is not permitted to receive the
treatment he seeks. Further, there can be no doubt as to their proximity as they are officials
charged with the health and safety of inmates such as Plaintiff.6 This direct connection is
sufficient to satisfy the special relation requirement of Ex Parte Young.
Defendant Clarke’s connection, while not as direct, is nonetheless sufficient to pass the
special relation test for Ex Parte Young actions. See Scott v. Clarke, No. 3:12-CV-00036, 2012
WL 6151967, at *9 (W.D. Va. Dec. 11, 2012). As Director of the VDOC, Defendant Clarke has

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Each of the Defendants’ positions (Chief Physician, Warden, Health Administrator) has a
direct connection to the health of prisoners such as Plaintiff. According to VDOC operating
procedures, “[a]ll physicians will report to the Chief Physician clinically and to the Health
Authority administratively.” Virginia Department of Corrections Operating Procedure 701.1,
March 1, 2015. Wardens, also known as “Facility Unit Heads” are responsible for any grievances
related to prisoner healthcare. Virginia Department of Corrections Operating Procedure 720-1,
December 1, 2015. The Health Authority “is authorized and responsible for making decisions
about the deployment of health resources and the day-to-day operations of the medical services
program.” Virginia Department of Corrections Operating Procedure 701.1, March 1, 2015.
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the duty “[t]o supervise and manage the Department and its system of state correctional
facilities,” and the authority to “prescribe rules for . . . the health of prisoners in state correctional
facilities.” Va. Code §§ 53.1-10(2), 53.1-25. The Code of Virginia also provides that “[i]t shall
be the general purpose of the state correctional facilities to provide proper . . . medical and
mental health care and treatment,” among other things. Va. Code § 53.1-32(A). A defendant with
control over the department perpetrating the alleged unconstitutional act — and with a duty to
prevent the allegedly unconstitutional act occurring here — is sufficiently proximate to and
responsible for the act alleged here. See Limehouse, 549 F.3d at 333 (“As the administrative head
of the agency with responsibility for carrying out its policies and representing the agency in its
dealings with the federal government, the Director possesses a sufficient connection to the
alleged violation of federal law.”). Thus, Plaintiff’s claim against Defendant Clarke is not barred
by the Eleventh Amendment because the exception under Ex Parte Young applies.
ii.

42 U.S.C § 1983

Defendant cites several Fourth Circuit cases for the proposition that “[i]n order for an
individual to be liable under § 1983, it must be affirmatively shown that the official charged
acted personally in the deprivation of Plaintiff’s rights.” See Garraghty v. Va. Dep’t of Corr., 52
F.3d 1274, 1280 (4th Cir. 1995); see also Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985);
Barrow v. Bounds, 498 F.2d 1397 (4th Cir. 1974). However, the context of these cases make
clear that the principle is not as broad as Defendants suggest. For one thing the “liability” in the
cases cited is personal monetary damages from government officials. See, e.g. Wright, 766 F.2d
at 844. Additionally, the cases cited addressed whether individual officers could be held
personally liable under a theory of respondeat superior in a § 1983 case. View in this context,
the cited authority stands for the principle that supervisors may not be held liable for damages

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under a theory of respondeat superior in a § 1983 case — not that there is a heighted personal
involvement pleading standard for § 1983 cases generally.
More generally, the § 1983 cases cited by Plaintiff were all cases in which the Plaintiff
sought personal monetary liability from state officers, rather than injunctive relief from
defendants in their official capacities. Plaintiff, however, cites no authority for the proposition
that § 1983 cases seeking only broad injunctive relief are subject to the same pleading
requirements. Indeed, the Fourth Circuit has previously held that they are not. See D.T.M. ex rel.
McCartney v. Cansler, 382 F. App’x 334, 338 (4th Cir. 2010) (“[W]here injunctive, as opposed
to monetary relief is sought, no ‘direct and personal’ involvement is required in order to hold
high-level officials responsible for the actions of subordinates and to subject them to the
equitable jurisdiction of the court.” (quoting Ogden v. United States, 758 F.2d 1168, 1177 (7th
Cir. 1985))). Other courts have similarly held that no direct personal involvement is required to
sue a state official in an Ex Parte Young case. See Luckey v. Harris, 860 F.2d 1012, 1015 (11th
Cir. 1988) (“Personal action by defendants individually is not a necessary condition of injunctive
relief against state officers in their official capacity.”); Maioriello v. N.Y. State Office for People
with Developmental Disabilities, No. 1:14-CV-0214 GTS/CFH, 2015 WL 5749879, at *20
(N.D.N.Y. Sept. 30, 2015) (collecting cases).
That is not to say, however, that there is no requirement that plaintiffs plead a causal
connection between defendants and their harm. 42 U.S.C. § 1983 allows a cause of action against
an individual acting under color of law who “subjects, or causes to be subjected” another
individual to a deprivation of rights. Thus, there is a requirement that there be a causal

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connection between the Defendant and the alleged harm.7 Accordingly, Defendants are correct
that Plaintiff must allege some sort of causal connection between each Defendant and the denial
of Plaintiff’s medical benefits, but incorrect in asserting that Plaintiff must allege the personal
involvement of each official under § 1983.
Under the standard articulated above, Plaintiff has adequately stated a claim that will
allow him to proceed past the Rule 12(b)(6) stage. The Court may infer from the complaint that
each of the Defendants is causally connected to the alleged deprivation: either through their
actions in denying Plaintiff medical treatment or their positions as prison officials responsible for
his medical care. Thus, Defendants’ motion will be denied to the extent it alleges a failure to
state a claim under § 1983.
iii.

Eighth Amendment

Plaintiff’s cause of action is based on Defendants’ deliberate indifference to his serious
medical needs in violation of the Eighth Amendment. See generally Estelle v. Gamble, 429 U.S.
97 (1976). A violation under this theory has both objective and subjective components.
Objectively, the medical issue must be “sufficiently serious,” meaning that it is “one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” See Iko v. Shreve, 535 F.3d
225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).
Subjectively, a defendant must be “deliberately indifferent,” which occurs when he “knows of
and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,

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Of course, there is also a requirement that Plaintiff establish causation in order to have
standing to bring this case. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130,
2136, 119 L. Ed. 2d 351 (1992). As the causation necessary for standing is subsumed within this
discussion and not directly raised by the parties, it need not be addressed separately.
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837; see also id. (“[T]he official must both be aware of the facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
The Parties do not appear to contest that Plaintiff’s medical needs is “sufficiently serious”
to plead a case under the Eighth Amendment. Regardless, Plaintiff’s complaint alleges an injury
sufficient to meet this requirement. Plaintiff has alleged an infection with Hepatitis C and
resulting stage 4 liver cirrhosis. (Dkt. 1 at ¶ 10). Such an infirmity is “so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” Iko, 535 F.3d at 241.
The parties do contest, however, whether Plaintiff has alleged the requisite “deliberate
indifference” constituting the subjective portion of an Eighth Amendment violation. For
defendants in a purely supervisory positions, such as the Defendants here, there must be a
showing that: “(1) the supervisory defendants failed promptly to provide an inmate with needed
medical care; (2) that the supervisory defendants deliberately interfered with the prison doctors’
performance; or (3) that the supervisory defendants tacitly authorized or were indifferent to the
prison physicians’ constitutional violations.” Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990)
(internal citations omitted).
Plaintiff has adequately alleged deliberate indifference against three of the defendants:
Amonette, Booker, and Shipp. Awareness of Plaintiff’s alleged medical needs and purposeful
failure to remedy them may constitute deliberate indifference. See, e.g., Motto v. Corr. Med.
Servs., No. CIV.A. 5:06-CV-00163, 2007 WL 2897854, at *4 (S.D. W. Va. Sept. 27, 2007)
(finding Plaintiff had stated a claim where Defendants were “aware of his need for surgery
through his filing of grievance letters, and that they were deliberately indifferent to his claims,
which caused him to suffer additional pain and suffering”); Young v. Wexford Health Sources,
No. 10 C 8220, 2012 WL 621358, at *5 (N.D. Ill. Feb. 14, 2012) (“Where, as here, Plaintiff

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informed correctional officials that he was being denied access to the health care unit, those
officials may be liable under 42 U.S.C. § 1983 for their purported inaction.”). Additionally, a
supervisor may be liable so long as they fall within “the decisionmaking chain whose deliberate
indifference permitted the constitutional abuses to continue unchecked.” Slakan v. Porter, 737
F.2d 368, 373 (4th Cir. 1984).
Defendant alleges three acts that could constitute deliberate indifference on the part of the
three aforementioned Defendants: (1) failing to retest him when there was an inconsistency
between the test denying him treatment and his earlier stage 4 liver cirrhosis diagnosis; (2)
denying him treatment for the non-medical reason of his upcoming parole hearing; and (3)
denying him treatment for the non-medical reason of the guidelines being revised, despite a
ruling that his grievance was “founded.” Plaintiff thus alleges that each of the three Defendants
had knowledge of his serious medical condition and took an action that prevented him from
getting needed treatment for non-medical reasons. These allegations sufficiently state that each
of the three defendants knew of and disregarded the serious risk to his health. See Farmer v.
Brennan, 511 U.S. at 837.
At the motion to dismiss stage, such allegations are sufficient to plead deliberate
indifference. The determination of supervisory liability for deliberate indifference is “generally is
one of fact, not law,” and better suited for resolution at summary judgment in this case. Slakan,
737 F.2d at 373 (quoting Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir. 1981)).
Defendants’ motion to dismiss with respect to Defendants Amonette, Booker, and Shipp will be
denied.
As to Clarke, Plaintiff has failed to adequately state a claim of deliberate indifference
because he does not allege facts that allow the inference that Clarke had knowledge of Plaintiff’s

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medical condition. The only allegation regarding Clarke is that he is the Director of VDOC.
Under Farmer v. Brennan, a deliberate indifference claim in this context must be premised on
the fact that the defendant knew of the plaintiff’s condition. See Farmer 511 U.S. at 837 (holding
that deliberate indifference liability attaches when a defendant “knows of . . . an excessive risk to
inmate health or safety” and that “the official must . . . be aware of the facts from which the
inference can be drawn” that a risk of serious harm exists.) Without alleging that knowledge or
awareness here, Plaintiff has failed to state a claim and defendant Clark will be dismissed from
the case.
IV.

Conclusion
Defendants’ motion to dismiss will be granted in part and denied in part. Defendants’

qualified immunity argument is inapplicable as Plaintiff is not seeking individual monetary
damages. Further, Plaintiff has adequately stated a claim to satisfy the requirements of Ex Parte
Young and 42 U.S.C. § 1983. However, Plaintiff has failed to adequately allege deliberate
indifference in violation of the Eighth Amendment as to Defendant Clarke. Without properly
alleging an underlying constitutional violation, Plaintiff’s § 1983 claim against Clarke cannot
succeed. Thus, Defendants’ motion to dismiss for failure to state a claim will be granted as to
Defendant Clarke, but denied as to the other three defendants. An appropriate order will issue.
The Clerk of the Court is directed to send a certified copy of this Memorandum Opinion
to all counsel of record.
22nd
Entered this ____ day of February, 2017.

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