Davis v. Wexford Health Sources, Inc.

Filing 15

MEMORANDUM OPINION & ORDER the referral of this matter to Magistrate Judge Tinsley is WITHDRAWN; finding that the 5 Complaint fails to state a claim upon which relief can be granted; granting the 13 MOTION to Dismiss; and the matter is DISMISSED without prejudice; in refiling, the plaintiff should be mindful of the pleading requirements and authority discussed herein. Signed by Judge Joseph R. Goodwin on 3/9/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RONALD C. DAVIS,
Plaintiff,
v.

Case No. 2:15-cv-09756

WEXFORD HEALTH SOURCES, INC.,
Defendant.
MEMORANDUM OPINION & ORDER
Pending before the court is the defendant Wexford Health Sources, Inc.’s
unopposed Motion to Dismiss [ECF No. 13]. By Standing Order, this matter was
referred to United States Magistrate Judge Dwane L. Tinsley for submission of
proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. §
636(b)(1)(B).

For reasons appearing to the court, the referral of this matter to

Magistrate Judge Tinsley is WITHDRAWN. Further, it is hereby ORDERED that
the defendant’s Motion to Dismiss [ECF No. 13] is GRANTED and that this matter
is DISMISSED without prejudice.
I.

The Plaintiff’s Allegations and Procedural History.

On July 9, 2015, the plaintiff, an inmate at the Mount Olive Correctional
Complex (“MOCC”), instituted this civil action by filing a Letter-Form Complaint
[ECF No. 1], alleging that prison officials have shown deliberate indifference to a
serious medical need because they have not provided him treatment for chronic

Hepatitis C. On October 13, 2015, the plaintiff filed a form Complaint [ECF No. 5],
using the form required by this court for Complaints brought by prisoners under 42
U.S.C. § 1983. 1 It is the form Complaint [ECF No. 5] (hereinafter “Complaint”) upon
which this matter is now proceeding.
The “Statement of Claim” in the Complaint asserts as follows [verbatim]:
I have got Hepatitis C and I’m ask just for treatment, for this disease is
a blood-borne virus that can lead to liver failure, liver cancer and death
without showing any symptoms.
Compl. 4 [ECF No. 5]. His request for relief simply states, “I want the court to get me
treatment.” Id. at 5.
On May 18, 2016, the court granted the plaintiff’s Application to Proceed
Without Prepayment of Fees and Costs [ECF No. 4] and ordered service of process on
Wexford. On June 15, 2016, Wexford Health Sources, Inc. (hereinafter “Wexford”),
by counsel, filed the instant Motion to Dismiss [ECF No. 13] and a Memorandum of
Law in support thereof [ECF No. 14]. The Motion and Memorandum assert that
Wexford is not a person pursuant to 42 U.S.C. § 1983 and that the allegations in the
Complaint fail to state a claim of deliberate indifference to a serious medical need
under the Eighth Amendment. The plaintiff has not responded to the Motion to
Dismiss.

The form Complaint named “Prison Medical Offices at Mount Olive Correctional Complex” as the
defendant in the style of the case. However, in the body of the Complaint, the plaintiff lists “Wexford
Health Services” as the sole defendant. The proper name of the contracted medical provider at the
Mount Olive Correctional Complex (“MOCC”) is “Wexford Health Sources, Inc.,” which was substituted
as the defendant herein.
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II.

Standard of Review.

Pro se complaints are held to less stringent standards than those drafted by
attorneys, and the court is obliged to construe liberally such complaints. However,
in Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed
that a case should be dismissed for failure to state a claim upon which relief can be
granted if, viewing the well-pleaded factual allegations in the complaint as true and
in the light most favorable to the plaintiff, the complaint does not contain “enough
facts to state a claim to relief that is plausible on its face.” While the complaint need
not assert “detailed factual allegations,” it must contain “more than labels and
conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at
555.
The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal,
556 U.S. 662 (2009). The Court wrote:
Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice. [Twombly, 550 U.S.] at 555, 127 S. Ct. 1955
(Although for the purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true, we “are not bound to accept
as true a legal conclusion couched as a factual allegation” (internal
quotation marks omitted). Rule 8 . . . does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id., at 556.
***
In keeping with these principles 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
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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.
556 U.S. at 678–79. The defendant’s motion will be reviewed under Rule 12(b)(6) of
the Federal Rules of Civil Procedure and the Twombly/Iqbal standards.
III.

Discussion.

In order to state a claim under 42 U.S.C. § 1983, the plaintiff must demonstrate
that a person acting under color of state law deprived him of rights guaranteed by
the United States Constitution or other federal laws. Rendall-Baker v. Kohn, 547
U.S. 830, 838 (1982). Wexford asserts that it is not a suable “person” under § 1983;
that there are no allegations in the Complaint that can plausibly establish that
Wexford, or any other person, has denied him treatment; or that Wexford has an
official policy or custom to deny treatment to inmates who have Hepatitis C. Wexford
further states:
Apparently, the plaintiff may be attempting to hold Wexford liable
under the theory of respondeat superior as the employer of the physician
or other medical staff at the facility. As there are no allegations against
Wexford involving alleged policies or customs of deliberate indifference,
respondeat superior does not apply to the private corporation and the
action should be dismissed. Paige v. Kerby [sic; Page v. Kirby], 414 F.
Supp.2d 619 [(N.D. W. Va. 2004)].
Mem. Supp. Mot. Dismiss 2 [ECF No. 14].
Wexford also argues that the Complaint should be dismissed because it wholly
fails to allege deliberate indifference or any other basis for a federal constitutional
claim. Rather, Wexford asserts that the Complaint simply states the plaintiff has
Hepatitis C and that he desires treatment. Wexford contends that the failure to allege

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that he has been denied treatment is fatal to the plaintiff’s Complaint. Id. at 3.
Federal courts are discouraged from interfering with the daily operations and
administration of state correctional facilities. See Bell v. Wolfish, 441 U.S. 520, 662
(1979) (warning courts against becoming “enmeshed in the minutiae of prison
operations”). Inquiry of federal courts into prison management must be limited to the
issue of whether a particular administrative action violates the federal Constitution.

Id.
In Farmer v. Brennan, 511 U.S. 825, 832 (1994), the Supreme Court held that
the Eighth Amendment to the Constitution “imposes duties on [prison] officials who
must provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must ‘take
reasonable measures to guarantee the safety of the inmates.’” This is a low standard.
The Supreme Court emphasized that “[p]rison conditions may be ‘restrictive and even
harsh.’” Id. at 833.
Claims concerning deliberate indifference to an inmate’s medical treatment
are generally addressed under the Eighth Amendment to the United States
Constitution. “In order to state a cognizable claim for denial of medical care under
the Eighth Amendment, an inmate must allege facts sufficient to demonstrate a
deliberate indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97,
104 (1976). “To establish that a health care provider’s actions constitute deliberate
indifference to a serious medical need, the treatment must be so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental

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fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990); see also Rogers v. Evans,
792 F.2d 1052, 1058 (11th Cir. 1986) (collecting cases).
“Serious medical needs” are those which have been diagnosed by a physician
as mandating treatment or that are so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention. Gaudreault v. Munic. of Salem, Mass.,
923 F.2d 203, 208 (1st Cir. 1990). It is well settled that:
A medical need serious enough to give rise to a constitutional claim
involves a condition that places the inmate at a substantial risk of
serious harm, usually loss of life or permanent disability, or a condition
for which lack of treatment perpetuates severe pain. See Farmer, 511
U.S. at 832–35; Sosebee v. Murphy, 797 F.2d 182–83 (4th Cir. 1986); Loe
v. Armistead, 582 F.2d 1291, 1296–97 (4th Cir. 1978).

Rush v. VanDevander, No. 7:08cv00053, 2008 WL 495651, at *1 (W.D. Va. Feb. 21,
2008); Banks v. Green Rock Corr. Ctr. Med. Dep’t, No. 7:07cv00456, 2007 WL
2903673, at *1 (W.D. Va. Oct. 3, 2007); see also Johnson v. Quinones, 145 F.3d 164,
168 (4th Cir. 1998).
An inmate must also sufficiently allege the subjective component of deliberate
indifference.
Deliberate indifference may be demonstrated by either actual intent or
reckless disregard. See Benson v. Cady, 761 F.2d 335, 339 (7th Cir.
1985). A defendant acts recklessly by disregarding a substantial risk of
danger that is either known to the defendant or which would be
apparent to a reasonable person in the defendant’s position. See id.
Nevertheless, mere negligence or malpractice does not violate the
Eighth Amendment. See Estelle, 429 U.S. at 106.

Miltier, 896 F.2d at 851–852. Disagreements between a health care provider and the
inmate over a diagnosis and the proper course of treatment are not sufficient to
support a deliberate indifference claim, and questions of medical judgment are not
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subject to judicial review. Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985); Russell

v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975). As noted by the Fourth Circuit, an
inmate is not entitled to unqualified access to health care; treatment may be limited
to what is medically necessary and not “that which may be considered merely
desirable” to the inmate. Bowring v. Godwin, 551 F.2d 44, 47–48 (4th Cir. 1977).
The Complaint, even when read liberally, contains insufficient allegations that
any person has exhibited a deliberate indifference to the plaintiff’s serious medical
needs in violation of his Eighth Amendment rights. Because Wexford is a contracted
medical provider for the West Virginia Division of Corrections, a state agency with
oversight of MOCC, the deliberate indifference standard is applicable to Wexford’s
conduct and its employees’ conduct. West v. Atkins, 487 U.S. 42 (1998) (explaining
that a private entity which contracts with the state to provide medical services acts
“under color of state law”). However, “[a] private corporation is liable under § 1983

only when an official policy or custom of the corporation causes the alleged
deprivation of federal rights.” Austin v. Paramount Parks, Inc., 195 F.3d 715, 728
(4th Cir. 1999) (emphasis in original).
While a diagnosis of chronic Hepatitis C may be a serious medical need, the
plaintiff has not sufficiently alleged facts to support a claim of deliberate indifference
concerning treatment for the disease. The plaintiff’s allegations against Wexford are
too conclusory to establish a plausible claim of deliberate indifference and the
Complaint does not at all allege that Wexford has any official policy or custom that
has caused a deprivation of his constitutional rights.

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Rather, the plaintiff’s

threadbare allegations are nothing more than a disagreement over treatment that he
speculates to be medically necessary, which is not actionable under § 1983. Wright,
766 F.2d at 849; Russell, 528 F.2d at 319. As noted by the Fourth Circuit, an inmate
is not entitled to unqualified access to health care; treatment may be limited to what
is medically necessary and not “that which may be considered merely desirable” to
the inmate.” Bowring, 551 F.2d at 47–48.
IV.

Conclusion.

For the reasons stated herein, and pursuant to the standards set forth in

Twombly and Iqbal, the court FINDS that the Complaint [ECF No. 5] fails to state a
claim upon which relief can be granted. Accordingly, the court ORDERS that the
Motion to Dismiss [ECF No. 13] is GRANTED and the matter is DISMISSED without
prejudice. 2 In refiling, the plaintiff should be mindful of the pleading requirements
and authority discussed herein.
The court DIRECTS the Clerk to send a copy of this Memorandum Opinion
and Order to counsel of record and any unrepresented party.
ENTER:

March 9, 2017

“While the district court need not inform the [pro se] plaintiff that he should amend his complaint,
where no opportunity is given to amend the complaint, the dismissal should generally be without
prejudice.” Cosner v. Dodt, 526 F. App’x 252, 253 (4th Cir. 2013) (per curium).
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