Insco v. Wexford Health Sources, Inc. et al

Filing 33

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants' 10 MOTION to Dismiss; insofar as Defendants claim Moore is entitled to qualified immunity, the Court grants the motion and dismisses Plaintiff's § 1983 claim with respect to Moore only; the Court denies the motion on all other grounds. Signed by Judge Thomas E. Johnston on 5/28/2020. (cc: counsel of record; any unrepresented party) (jsa)

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 1 of 22 PageID #: 147

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MICHAEL INSCO,
Plaintiff,
v.

CIVIL ACTION NO. 2:19-cv-00612

WEXFORD HEALTH SOURCES, INC.;
PAM MOORE and JOHN/JANE DOE,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is a motion to dismiss by Defendants Wexford Health Sources, Inc.
(“Wexford”) and Pam Moore (“Moore”). (ECF No. 10.) For the reasons discussed below, the
motion, (ECF No. 10), is GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND

Plaintiff Michael Insco (“Plaintiff”) initiated this action under 42 U.S.C. § 1983 against
Defendants Wexford, Moore, and unidentified John/Jane Doe Wexford employees (collectively,
“Defendants”). Plaintiff is an inmate in the custody of the West Virginia Division of Corrections
and Rehabilitation (“WVDOC”) and is presently incarcerated at St. Mary’s Correctional Center in
St. Mary’s, Pleasant County, West Virginia. (ECF No. 8 at 3 ¶ 4.) The Amended Complaint
alleges that Plaintiff has repeatedly sought to receive treatment for his chronic Hepatitis C with
Direct-Acting Antiviral (“DAA”) drugs through WVDOC’s institutional health care provider,
1

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 2 of 22 PageID #: 148

Wexford. (Id. at 3 ¶¶ 5–6.) Plaintiff contends that Defendants have refused to treat Plaintiff with
DAA drugs “as requested”, (id. at 4 ¶ 7), because “he was not sick enough to warrant treatment,”
(id. at 6 ¶ 17). Specifically, the Amended Complaint alleges that on May 15, 2019, Plaintiff was
taken to the medical unit and seen by Moore for his liver pain. (Id. at 4 ¶ 6.) Plaintiff claims that
Moore told him to “stop submitting sick calls” and made other inappropriate comments in the
presence of correctional staff. (Id.)
On the same day, Plaintiff filed a grievance to the unit manager. (Id. at 4 ¶ 6; ECF No. 9
at 1–2 (Inmate Grievance).) Plaintiff’s grievance was denied on May 17, 2019, on the basis that
Plaintiff was “not being denied treatment for any issue.” (ECF No. 9 at 3.) The unit manager
attached Moore’s medical report, which stated that Plaintiff was “very adamant” about being given
[H]arvoni.” (Id.) The report went on to state that Moore “[a]ttempted to educate [Plaintiff] on the
procedure for surveillance of the virus” but was “[u]nable to get [Plaintiff] to understand or
complete any education on the subject.” (Id.) Plaintiff subsequently appealed the denial of the
grievance to the warden and ultimately the commissioner of the WVDOC. (Id. at 1.) On June 3,
2019, Plaintiff received his grievance back from the commissioner’s office denying all relief. (Id.)
Plaintiff’s Amended Complaint asserts three claims for deliberate indifference under 42
U.S.C. § 1983 in violation of the Eighth Amendment, intentional/reckless infliction of emotional
distress under West Virginia state law, and injunctive relief that directs Wexford to provide
Plaintiff with available and necessary treatment for Hepatitis C and to implement policies
regarding such treatment. (ECF No. 8.) Plaintiff claims Defendants’ conduct is based on
Wexford’s “corporate policy and practice to refuse the use of DAAs unless the inmate is critically
ill.” (Id. at 6 ¶ 17.) Further, he asserts that this “watch and wait approach . . . is not the medically
2

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 3 of 22 PageID #: 149

accepted standard,” (id. at 6 ¶ 16), and that this policy “arises from the desire to cut costs and
expenses regarding the treatment of inmates,” (id. at 6 ¶ 17). Plaintiff also contends that Wexford
has failed to include his complaints of pain in his medical record “in an intentional attempt to
minimize his symptoms and the seriousness of his condition.” (Id. at 4 ¶ 6.) He alleges that he
suffered physical and mental pain and is currently experiencing “excruciating pain” near his liver.
(Id.) On December 16, 2019, Defendants filed the pending motion to dismiss. (ECF No. 10.)
Plaintiff filed a timely response, (ECF No. 15), and Defendants timely replied, (ECF No. 18). As
such, the motion is fully briefed and ripe for adjudication.
II.

LEGAL STANDARD

In general, a pleading must include “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep’t of
Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement
exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). To withstand a motion to
dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough
facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat’l Sec. Agency,
857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a
right to relief above the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th
Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are required;
3

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 4 of 22 PageID #: 150

labels, conclusions, and a “formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555; see also Ms. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016)
(“Bare legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to state a
claim.” (quoting Iqbal, 556 U.S. at 679)).
In evaluating the sufficiency of a complaint, the court first “identif[ies] pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556
U.S. at 679. The court then “assume[s] the[] veracity” of the complaint’s “well-pleaded factual
allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id.
Review of the complaint is “a context-specific task that requires [the court] to draw on its judicial
experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not
required to plead factual allegations in great detail, but the allegations must contain sufficient
factual heft to allow a court, drawing on judicial experience and common sense, to infer more than
the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447,
452 (4th Cir. 2017) (internal quotation marks omitted).
III.

DISCUSSION

In their motion to dismiss, Defendants challenge the merits of Plaintiff’s claims and assert
qualified immunity on behalf of Defendant Moore. Each argument is addressed below.
A. Section 1983 – Defendant Moore
Defendants assert that Defendant Moore is immune from liability under the doctrine of
qualified immunity 1 because there is no clearly established right to be treated with DAA drugs for

The pleading only refers to “defendants” generally and does not directly state whether Moore is being sued in her
individual or official capacity. (See ECF No. 8 at 5–8.) However, a plaintiff need not expressly plead the capacity in
which he or she is suing a defendant in order to state a cause of action under § 1983. To determine the nature of a §

1

4

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 5 of 22 PageID #: 151

Hepatitis C. (ECF No. 11 at 4–6.) “The doctrine of qualified immunity shields government
officials from liability for civil damages when their conduct does not violate clearly established
constitutional or other rights that a reasonable officer would have known.” Sims v. Labowitz, 885
F.3d 254, 260 (4th Cir. 2018) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Determining
whether a governmental official is entitled to qualified immunity involves a two-part inquiry: (1)
whether the facts alleged or shown demonstrate that a depravation of a constitutional right has
occurred; and (2) whether that right was clearly established at the time of the alleged violation.
See Pearson, 555 U.S. at 232; Meyers v. Baltimore Cty., Md., 713 F.3d 723, 731 (4th Cir. 2013).
“A law is clearly established if ‘the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.’” West v.
Murphy, 771 F.3d 209, 213 (4th Cir. 2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
In that regard, the standard does not require “a prior case be identical to the case at bar for fair
notice to be provided.” Id. at 216. Rather, a law is clearly established “so long as ‘existing
precedent [has] placed the statutory or constitutional question beyond debate.’” Id. (internal
citation omitted). Put simply, qualified immunity “protects all but the plainly incompetent or those
who knowingly violate the law.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (internal
quotation marks omitted); see also Raub v. Campbell, 785 F.3d 876, 882 (4th Cir. 2015).
The government official bears the burden of proof and persuasion when asserting a
qualified immunity defense. See Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003). Additionally,

1983 suit, the Court looks to “the substance of the plaintiff’s claim, the relief sought, and the course of proceedings.”
Biggs v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995). Here, Count I states that “Defendants, while acting under the color
of state law, violated Plaintiff’s constitutional rights.” (ECF No. 8 at 5 ¶ 16 (emphasis added).) Thus, the Court
construes this claim as one against Moore in her individual capacity.

5

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 6 of 22 PageID #: 152

“[t]he Supreme Court has observed that the outcome of the ‘clearly established’ test depends
largely upon the level of generality at which the relevant legal rule is to be identified.” Smith v.
Gilchrist, 749 F.3d 302, 308 (4th Cir. 2014) (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)).
Therefore, “the right allegedly violated must be defined at the appropriate level of specificity
before a court can determine if it was clearly established.” Id. Here, Plaintiff disagrees with
Defendants’ definition of the right allegedly violated. While Defendants identify Plaintiff’s claim
as a disagreement over his course of treatment, Plaintiff contends that “he is in fact receiving no
drug or treatment” at all. (ECF No. 15 at 6.) Thus, as a preliminary matter, the Court must
determine the appropriate level of specificity to define the right allegedly violated.
1. The Right Allegedly Violated
As explained above, qualified immunity can be overcome only by clearly established law
governing the specific facts at hand. See Mullenix v. Luna, 136 S. Ct. 305, 308–09, 193 L.Ed.2d
255 (2015). The Supreme Court has repeatedly stressed “that courts must not define clearly
established law at a high level of generality, since doing so avoids the crucial question whether the
official acted reasonably in the particular circumstances that he or she faced.” D.C. v. Wesby, 138
S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018) (internal quotation marks and citation omitted). In
Wesby, the Supreme Court reemphasized that “[a] rule is too general if the unlawfulness of the
[defendant]’s conduct does not follow immediately from the conclusion that [the rule] was firmly
established.” Id. Here, Plaintiff frames the qualified immunity question in broad terms, asking
whether it is clearly established that denying treatment for a serious medical condition violates the
Eighth Amendment. (See ECF No. 15 at 6.) However, this formulation—which is essentially a
highly conceptualized version of the deliberate indifference standard—is the type of “broad
6

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 7 of 22 PageID #: 153

general proposition” that cannot overcome qualified immunity. See Mullenix, 136 S. Ct. at 308.
Rather, the proper inquiry is whether then-existing caselaw clearly established a
constitutional right to Hepatitis C treatment with DAA drugs. This specificity ensures that the
right was “sufficiently clear” so that “every reasonable official would have understood that what
he is doing violates that right.” West, 771 F.3d at 213. In this fact-intensive area of constitutional
law, a broader formulation would violate the Supreme Court’s instruction that the specific contours
of the right must be “sufficiently definite that any reasonable official . . . would have understood
that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).
Plaintiff’s assertion that he is receiving no medical treatment or care is in direct conflict
with his own allegations. First, Plaintiff admits that Moore examined him in the medical unit after
he submitted medical service requests. (ECF No. 8 at 4 ¶ 6.) Although Plaintiff was not prescribed
medication, Moore’s medical chart reflects that she discussed with Plaintiff the procedure for
Hepatitis C surveillance at this time. (ECF No. 9 at 3.) See Phelps v. Wexford Health Sources,
Inc., No. ELH-16-2675, 2017 WL 528424, at *9 (D. Md. Feb. 8, 2017) (collecting cases standing
for the proposition that “[Hepatitis C] does not require [medicinal] treatment in all cases”); see
also Edmonds v. Robbins, 67 F. App’x 872, 873 (6th Cir. 2003) (“[T]he medical literature which
[plaintiff] filed with the court also establishes that medication is not always required for the
treatment of hepatitis C.”). Plaintiff also acknowledges that Wexford’s “watch and wait approach”
is a medical standard, albeit outdated. (ECF No. 8 at 6 ¶ 16.)
Additionally, many of Plaintiff’s arguments clearly state that Defendants’ refusal to treat
him with DAA drugs violated his constitutional rights. For example, the Amended Complaint
alleges that “[t]he refusal to treat plaintiff with DAA’s demonstrates deliberate indifference to a
7

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 8 of 22 PageID #: 154

serious risk of harm to plaintiff by virtue of their ongoing refusal to provide treatment as requested
. . . .” (Id. at 4 ¶ 7 (emphasis added).) The Amended Complaint also states that “Defendants have
repeatedly violated Plaintiff’s constitutional rights . . . [by] failing to treat plaintiff with any number
of DAAs.” (Id. at 7 ¶ 19 (emphasis added).) In fact, directly following the assertion that he is not
receiving any treatment, Plaintiff states in his response brief that “depriving plaintiff of [DAA
drugs] is deliberate indifference to [his] serious medical condition.” (ECF No. 15 at 6.)
This is compounded by the fact that the lion’s share of Plaintiff’s Amended Complaint and
Memorandum in Opposition to Defendant’s Motion to Dismiss are spent discussing the medical
benefits of DAAs. In particular, Plaintiff provided five pages of decisions from federal and state
courts that have recognized that the failure to treat inmates with DAA drugs can state a plausible
Eighth Amendment claim. (Id. at 7–11.) Thus, despite his contention otherwise, it is apparent that
Plaintiff’s deliberate indifference claim is based on the denial of DAA drug treatment.
2. Qualified Immunity
Now that the right allegedly violated has been appropriately defined, the Court considers
whether Moore is entitled to qualified immunity. The Court may address either prong of the
qualified immunity analysis discussed above first. See Pearson, 555 U.S. at 242. In this case, the
Court will consider the second prong first because Defendants assert that there is no clearly
established right to DAA drug treatment for Hepatitis C. (See ECF No. 11 at 4–6.)
In determining whether the law was clearly established at the time of the claimed violation,
the Court “ordinarily need not look beyond the decisions of the Supreme Court, [the Fourth Circuit
Court of Appeals], and the highest court of the state in which the case arose.” Edwards v. City of
Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999). Thus, “in gray areas, where the law is unsettled or
8

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 9 of 22 PageID #: 155

murky, qualified immunity affords protection to a government official who takes an action that is
not clearly forbidden–even if the action is later deemed wrongful.” Gilchrist, 749 F.3d at 307.
In the present case, the “crucial question” is whether the Defendants acted reasonably in
the “particular circumstances,” i.e., refusing to treat Plaintiff’s Hepatitis C with DAA drugs. See
Plumhoff, 572 U.S. at 779. This Court recently considered the “particular circumstances” faced
by Defendants here in Redden v. Ballard, No. 2:17-cv-01549, 2018 WL 4327288 (S.D. W. Va.
July 17, 2018) (Report and Recommendation), proposed findings and recommendation adopted,
2018 WL 4323921 (S.D. W. Va. Sept. 10, 2018), aff’d, 748 F. App’x 545 (4th Cir. 2019). There,
the Court held that Wexford was entitled to qualified immunity for monetary damages arising out
of a claim for failure to treat the plaintiff with DAAs for Hepatitis C. 2 Id. at *8. Although this
holding was adopted and affirmed because no timely objections were filed, the Fourth Circuit
could have reversed for plain error 3 if the court had wanted to establish a right to DAA drugs in
light of recent medical advancements. Nonetheless, as the appellate court declined to do so, the
magistrate judge’s findings are still applicable.
In Redden, the magistrate judge found Cunningham v. Sessions, No. 9:16-cv-1292, 2017
WL 2377838 (D.S.C. May 31, 2017) to be particularly instructive. In Cunningham, the plaintiff
was an inmate, who sought and was denied treatment for Hepatitis C with the new generation of
DAA drugs. Id. at *1. Consequently, the plaintiff filed a complaint alleging that the defendants
violated his right to be free from cruel and unusual punishment under the Eighth Amendment and
The Northern District of West Virginia came to the same determination in an identical case. See Taylor v. Wexford
Health Sources Inc., No. 5:17-cv-173, 2018 WL 4761621 (N.D. W. Va. July 30, 2018), report and recommendation
adopted sub nom., 2018 WL 4102818 (N.D. W. Va. Aug. 28, 2018).
3
The Supreme Court has defined plain error as: (1) an error; (2) that is plain; (3) that affects substantial rights; and
(4) seriously affects the fairness, integrity or public reputation of the judicial proceedings. See United States v. Olano,
507 U.S. 725, 732–37 (1993). Clearly, failing to recognize a constitutional right would satisfy these elements.
2

9

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 10 of 22 PageID #: 156

sought declaratory and injunctive relief, as well as monetary damages. Id. at *2. Although the
court concluded that the refusal to provide curative therapy for Hepatitis C could plausibly state a
claim under the Eighth Amendment, the defendants were granted qualified immunity based on the
“rapidly evolving legal and medical developments and the absence of any controlling Fourth
Circuit or Supreme Court authority.” Id. at *4.
This Court finds that the reasoning set forth in Cunningham and Redden is convincing and
applicable here. For a constitutional right to be clearly established, its contours must be sufficient
such that “it would be clear to a reasonable official that his conduct was unlawful in the situation
he confronted.” Raub, 785 F.3d at 882. In light of medical developments and the lack of legal
authority establishing that the unlawfulness of Defendants’ course of action in this case is apparent,
Moore would not have been on notice of a “clearly established” right of Plaintiff to be treated with
DAA drugs. Thus, Moore is entitled to qualified immunity. Accordingly, the Court GRANTS
Defendants’ motion to the extent it seeks qualified immunity with respect to Defendant Moore.
B. Section 1983 – Wexford
Defendants also contend that Wexford is entitled to dismissal from Plaintiff’s 1983 claim
because (1) no official policy or custom has violated any of Plaintiff’s rights under the Eighth
Amendment, and (2) Plaintiff has failed to state a claim because the allegations are nothing more
than a disagreement in regard to the course of treatment for Plaintiff’s Hepatitis C. (ECF No. 11
at 6–9.)
Section 1983 is not itself the source of any substantive rights. Rather, it provides a “method
for vindicating federal rights elsewhere conferred by those parts of the United States Constitution
and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). In order
10

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 11 of 22 PageID #: 157

to prevail on a § 1983 claim, a plaintiff must show “that they were deprived of a right secured by
the Constitution or laws of the United States, and that the alleged deprivation was committed under
color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999); 42 U.S.C. §
1983. 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. See Monell v. Dep’t of Social
Servs., 436 U.S. 658, 694 (1978); see also Rowe v. PrimeCare Med. of W. Va., Inc., 3:04-cv-1264,
2009 WL 3063429, at *2 (S.D. W. Va. Sept. 21, 2009).
Here, Defendants assert that Plaintiff’s 1983 claim must be dismissed because there is no
official policy or custom that has violated Plaintiff’s rights under the Eighth Amendment.
Specifically, Defendants claim that “there is no right under the Eighth Amendment of the United
States Constitution to be prescribed DAA drugs such as Havroni.”

(ECF No. 11 at 7.)

Nonetheless, Plaintiff alleges that Wexford, “through deliberate indifference to his safety,
wellbeing, and personal needs,” has developed and maintained an unconstitutional policy that
denies him adequate medical treatment. (ECF No. 8 at 5–6 ¶¶ 16–17.) It is well-established that
“deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and
wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,
104 (1976) (internal citations omitted). Thus, Defendants’ first argument has no merit.
Next, Defendants argue that Plaintiff has failed to state a claim for deliberate indifference
because the allegations are nothing more than a disagreement in regard to the course of treatment
for Plaintiff’s Hepatitis C. (ECF No. 11 at 7.) Plaintiff counters that he has adequately pled a
claim for deliberate indifference because Wexford had specific knowledge of his serious medical
condition and failed to provide adequate treatment. (ECF No. 15 at 6.)
11

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 12 of 22 PageID #: 158

An Eighth Amendment claim based on deliberate indifference to serious medical needs has
two prongs, one objective and one subjective. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);
De’lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013). “Objectively, the inmate’s medical
condition must be ‘serious’—‘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.’” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Iko v. Shreve, 535
F.3d 225, 241 (4th Cir. 2008)). The subjective prong goes to culpability, and in “prison-conditions
cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer,
511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 302–03 (1991)).
To establish a constitutional violation, a prisoner must establish that, “a [prison official],
subjectively aware of the need and of its seriousness, nevertheless acted with ‘deliberate
indifference’ to it by declining to secure available medical attention.” Brice v. Va. Beach Corr.
Ctr., 58 F.3d 101, 104 (4th Cir. 1995) (citation omitted). Deliberate indifference is a “higher
standard for culpability than mere negligence or even civil recklessness, and as a consequence,
many acts or omissions that would constitute medical malpractice will not rise to the level of
deliberate indifference.” Jackson, 775 F.3d at 178. What is required is both awareness and
disregard of an “excessive risk” to inmate health or safety; “the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Farmer, 511 U.S. at 837.
Whether a given prison official exhibits deliberate indifference is “a question of fact subject
to demonstration in the usual ways, including inference from circumstantial evidence.” Id. at 842;
see also White by White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (noting that a claim of
12

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 13 of 22 PageID #: 159

deliberate indifference “implies at a minimum that defendants were plainly placed on notice of a
danger and chose to ignore the danger notwithstanding the notice”).

Where the evidence

demonstrates that an official “merely refused to verify ‘underlying facts that he strongly suspected
to be true,’ which, if verified, would have compelled him to realize that the claimant needed
immediate medical attention, or that he ‘declined to confirm inferences of risk that he strongly
suspected to exist,’” that official can be held liable notwithstanding his actual ignorance of the
medical need at issue. See id. (quoting Farmer, 511 U.S. at 843 n.8).
Under this standard, courts have emphasized that “[d]isagreements between an inmate and
a physician over the inmate’s proper medical care do not state a § 1983 claim unless exceptional
circumstances are alleged.”

Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (citing

Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970)); see also Jackson, 775 F.3d at 178. At the
same time, however, a prisoner need not be subjected to a total failure of medical treatment to state
a claim, and the fact that he received some treatment does not by itself doom an Eighth Amendment
claim. See De’Lonta, 708 F.3d at 526 (rejecting argument that the provision of some treatment for
the serious medical need at issue “necessarily” rendered the plaintiff’s claim of deliberate
indifference legally insufficient and stating that “just because [defendant officials] have provided
[the plaintiff] with some treatment . . . it does not follow that they have necessarily provided her
with constitutionally adequate treatment”); Jehovah v. Clarke, 798 F.3d 169, 181 (4th Cir. 2015)
(finding a § 1915A dismissal improper, even where the plaintiff received “extensive” treatment
from the doctor defendants, where the treatment provided was nonetheless “consistent with the
[plaintiff’s] allegation that his doctors ignored and failed to treat many of his symptoms”); Scott v.
Clarke, 64 F. Supp. 3d 813, 839 (W.D. Va. 2014) (finding a prison’s “failure to require or
13

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 14 of 22 PageID #: 160

undertake corrective action and its ‘hands-off’ attitude towards its medical care contractors,”
resulting in sub-standard medical care, sufficient to allow finding of deliberate indifference).
Ultimately, “[a] constitutional violation is . . . established when government officials show
deliberate indifference to those medical needs which have been diagnosed as mandating treatment,
conditions which obviously require medical attention, conditions which significantly affect an
individual’s daily life activities, or conditions which cause pain, discomfort or a threat to good
health.” Lynch v. Wexford Health Sources, No. 2:13-cv-01470, 2016 WL 2944688, at *7 (S.D. W.
Va. May 20, 2016) (internal citations omitted). At this stage in the litigation, Plaintiff has made
sufficient factual allegations to raise his right to relief above the speculative level and state a claim
for deliberate indifference to serious medical needs. As to the objective prong of the analysis,
Plaintiff specifically alleges that he has been diagnosed with chronic Hepatitis C, “a serious liver
disease, which if left untreated, can be terminal. (ECF No. 8 at 3 ¶ 4.) To this point, Defendants
do not disagree. (See ECF No. 18 at 1.)
With respect to the second prong, regarding the deliberate indifference of Wexford officials
towards Plaintiff’s serious medical needs, Plaintiff has similarly set forth sufficient factual
allegations to state an Eighth Amendment claim. Plaintiff alleges that Wexford’s policy of
refusing to treat Hepatitis C with drugs that are known to provide a cure has caused him to
experience “excruciating pain in the area of his liver.” (ECF No. 8 at 4 ¶ 6.) Additionally, Plaintiff
alleges that Wexford refused to follow guidelines from medical experts with the American
Association for the Study of Liver Disease and the Infectious Disease Society of America, which
recommend administering DAA drugs to all patients with chronic Hepatitis C infection. (Id. at 3
¶ 5.) According to the Amended Complaint, this standard of care has also been accepted by the
14

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 15 of 22 PageID #: 161

Centers for Disease Control and Prevention. (Id.) Further Plaintiff alleged that he was told that
“if [he] w[as] in the free world, [his] MD would refer [him] to a hepatologist.” (ECF No. 9 at 1.)
Thus, Plaintiff alleges that Wexford had “no valid medical reason” to deny him DAAs other than
to avoid “incur[ring] the cost of said treatment.” (Id. at 5 ¶ 16.)
Defendants argue that this is merely a “disagreement with medical personnel regarding the
proper course of treatment,” and that Plaintiff is “essentially seeking a ruling that any and all
diagnosed Hepatitis C patients are constitutionally entitled to select the timeline and manner of
their treatment.” (ECF No. 18 at 3). The Court disagrees. Such allegations raise an inference that
the necessary medical treatment was not provided. To this, Defendants counter that not all cases
of Hepatitis C require treatment and cite caselaw to support. (ECF No. 18 at 2–3.) However, these
cases are easily distinguishable.
First, some cases Defendants cite involved inmates who were disqualified from receiving
treatment based on medical reasons. See, e.g., Johnson v. Wright, 412 F.3d 398, 400 (2nd Cir.
2005) (describing policy that recommended denying treatment with particular drugs if substance
abuse existed); Phelps, 2017 WL 528424, at *2 (“due to potential side effects of HCV antiviral
treatment, an inmate will not be considered for antiviral therapy if he or she is asymptomatic and
demonstrates an undetectable viral load.”). Second, some cases involved inmates whose Hepatitis
C was not advanced enough to receive treatment. See, e.g., Iseley v. Dragovich, 90 F. App’x 577,
581 (3rd Cir. 2004) (noting that the inmate did not dispute that his condition had not yet progressed
to point where such treatment would have been appropriate); Phelps, 2017 WL 528424, at *1
(noting that the inmate was asymptomatic with an undetectable viral load). Third, almost all the
cases noted that the inmate was at least being monitored regularly. See, e.g., id.
15

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 16 of 22 PageID #: 162

Whereas, in this case, Plaintiff has alleged that he has chronic Hepatitis C and the medical
treatment he received amounted to “no treatment.” (ECF No. 15 at 6.) In fact, rather than being
regularly monitored, Plaintiff alleges that he was told to “stop submitting sick calls.” (ECF No. 8
at 4 ¶ 6.) The result, according to Plaintiff’s allegations, ultimately left him in “excruciating pain.”
(Id.) Thus, if true, Wexford’s policy would demonstrate deliberate indifference towards Plaintiff’s
Hepatitis C. See McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999) (“A core principle of
Eighth Amendment jurisprudence in the area of medical care is that prison officials with
knowledge of the need for care may not, by . . . providing grossly inadequate care, cause a prisoner
to needlessly suffer the pain resulting from his or her illness.”); De’lonta, 708 F.3d at 525.
Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiff’s deliberate indifference
claim for failure to state a claim.
C. Failure to Exhaust Administrative Remedies
As a state prisoner, Plaintiff is bound by the mandatory requirements of the Prison
Litigation Reform Act (“PLRA”), which prohibits incarcerated individuals from the
commencement of a civil action regarding prison conditions and mistreatment without first
exhausting all available administrative remedies. See 42 U.S.C. 1997e(a) (“No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”). The Supreme Court has explicitly held “that failure to
exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially
plead or demonstrate exhaustion in their complaints.” Jones v. Block, 549 U.S. 199, 216 (2007).
However, a prisoner’s complaint may be dismissed in the “rare case” where the prisoner’s failure
16

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 17 of 22 PageID #: 163

to exhaust is apparent from the face of the complaint. Wilcox v. Brown, 877 F.3d 161, 167 (4th
Cir. 2017) (quoting Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005)).
Similarly, the West Virginia Prisoner Litigation Reform Act (“WV PLRA”) requires an
inmate to exhaust the agency’s procedures before filing a civil action involving an ordinary
administrative remedy. See W. Va. Code § 25-1A-2(c). An “ordinary administrative remedy” is
defined as “a formal administrative process by which an inmate submits a grievance seeking
redress or presenting concerns regarding any general or particular aspect of prison life which does
not involve violence . . . An ordinary administrative remedy includes, but is not limited to, . . . staff
treatment or some other alleged wrong.” W. Va. Code § 25-1A-2(a). The WV PLRA provides:
An ordinary administrative remedy is considered exhausted when the inmate’s
grievance complies with duly promulgated rules and regulations regarding inmate
grievance procedures, has been accepted, fully appealed and has received a final
decision from the Commissioner of Corrections or the Commissioner’s designee,
or the Executive Director of the Regional Jail Authority, or the Director’s designee.
W. Va. Code § 25-1A-2(d).
Claims that have not been administratively exhausted may be dismissed under the standard
of Federal Rule of Civil Procedure 12(b)(6). See, e.g., Baker v. Hammons, No. 2:15-cv-13849,
2016 WL 538481, at *2–3 (S.D. W. Va. Feb. 9, 2016) (granting defendant’s motion to dismiss for
failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) and W. Va. Code § 25-1A2). Additionally, where “a prisoner’s complaint contains a mix of exhausted and unexhausted
claims, the Court may not consider the unexhausted claims.” Stohl v. E. Reg’l Jail, No. 1:14-cv109, 2015 WL 5304135, at *4 (N.D. W. Va. Sept. 8, 2015) (citing Jones, 549 U.S. at 220–21).
Here, Defendants argue that Plaintiff has failed to exhaust his administrative remedies for
alleged treatment that occurred before May 1, 2019. (ECF No. 11 at 12.) Defendants explain that,
17

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 18 of 22 PageID #: 164

“[w]hile the Amended Complaint makes specific reference only to a single incident,” it
nonetheless alleges that Plaintiff’s particular requested Hepatitis C treatment was “denied [] on a
number of occasions.” (Id.) Plaintiff’s May 15, 2019 grievance is the only grievance referenced
in Plaintiff’s Amended Complaint. Thus, Defendants argue that Plaintiff has failed to exhaust his
administrative remedies “for alleged treatment denials which occurred before May 1, 2019,” (id.),
the length of the fifteen-day grievance period prior to his actual grievance filing. See W. Va. Code
R. § 90-9-4.1 (providing that an inmate may file a grievance using forms provided by the prison
“within fifteen (15) days of any occurrence that would cause him/her to file a grievance.”).
Defendants’ argument misrepresents the basis of Plaintiff’s claims. Plaintiff does not
challenge each instance of treatment as Defendants’ suggest. Rather, he claims that Wexford
maintained an unconstitutional policy or practice “to refuse the use of DAAs unless the inmate is
critically ill.” (ECF No. 8 at 6 ¶ 17.) In that regard, Plaintiff’s May 15, 2019 grievance complained
that he was “deni[ed] [] access to a hepatologist” and was told that “if [he] w[as] in the free world,
[his] MD would refer [him] to a hepatologist.” (ECF No. 9.) Plaintiff further alleged he was
“denied medical treatment” for his Hepatitis C despite his expressed “emotional duress, pain in
side, [and] loss of sleep.” (Id. at 2.) Thus, Plaintiff sufficiently grieved the implementation and
application of the Wexford policy that purportedly refused the use of DAAs unless the inmate was
critically ill.
The PLRA’s exhaustion requirement was designed to afford prison officials a chance to
address inmate complaints internally, prior to the filing of federal litigation. See Porter v. Nussle,
534 U.S. 516, 517 (2002); see also Wilcox, 877 F.3d at 167 n.4 (explaining that a grievance alerts
“the prison to the nature of the wrong for which redress is sought”). In other words, the purpose
18

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 19 of 22 PageID #: 165

of the grievance is to provide prison officials a “fair opportunity” to address an inmate’s complaint.
See Woodford v. Nero, 548 U.S. 81, 81 (2006); Anderson, 407 F.3d at 682.
Plaintiff’s May 15, 2019 grievance certainly provided the institution with a “fair
opportunity” to respond to Plaintiff’s complaints about his medical treatment, or lack thereof.
More importantly, this grievance alerted prison officials to the alleged problem in the healthcare
unit and permitted prison officials (who knew that Wexford was the healthcare contractor for the
prison) to examine whether Wexford’s policies or practices were the cause of Plaintiff’s
complaints regarding his treatment. For these reasons, the Court finds that Plaintiff’s May 25,
2019 grievance was sufficient to exhaust his claim against Defendants. Accordingly, Defendants’
motion is DENIED insofar as it seeks to dismiss any portion of Plaintiff’s Amended Complaint
for failure to exhaust administrative remedies.
D. Intentional/Reckless Infliction of Emotional Distress
Next, Defendants argue that Plaintiff has failed to state a claim for intentional infliction of
emotional distress because the alleged conduct was not outrageous. (ECF No. 11 at 9–11.)
Plaintiff’s state law tort claim for the intentional infliction of emotional distress is based on the
same facts giving rise to his § 1983 claim. (See ECF No. 8 at 7–8.) This Court will exercise its
supplemental jurisdiction over this state tort claim, as it forms part of the same case or controversy
as the federal claim. See 28 U.S.C. § 1367(a).
In West Virginia, “[o]ne who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such emotional
distress . . . .” Syl. pt. 6, Harless v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 694 (W. Va.
1982). The West Virginia Supreme Court of Appeals has set forth the following elements
19

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 20 of 22 PageID #: 166

necessary to establish intentional infliction of emotional distress:
(1) That defendant’s conduct was atrocious, intolerable, and so extreme and
outrageous as to exceed the bounds of decency; (2) That the defendant acted with
the intent to inflict emotional distress, or acted recklessly when it was certain or
substantially certain emotional distress would result from his conduct; (3) That the
actions of the defendant caused the plaintiff to suffer emotional distress; and (4)
That the emotional distress suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.
Syl. pt. 3, Travis v. Alcon Labs., 504 S.E.2d 419, 425 (W. Va. 1998). This claim requires conduct
that is “more than unreasonable, unkind or unfair; it must truly offend community notions of
acceptable conduct.” Id. at 425 (citation omitted). In fact, “it is not enough that the defendant
acted with a tortious intent” or even that “the defendant’s conduct could be characterized as
malicious.” Philyaw v. E. Associated Coal Corp., 633 S.E.2d 8, 14 (W. Va. 2006) (internal
citations omitted). Rather, liability depends upon whether the conduct has been so extreme and
outrageous “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va. 1990)
(emphasis removed). Alleged “conduct that is merely annoying, harmful of one’s rights or
expectations, uncivil, mean-spirited, or negligent does not constitute outrageous conduct.”
Courtney v. Courtney, 413 S.E.2d 418, 423–24 (W. Va. 1991) (internal citations omitted).
Defendants argue that Plaintiff’s allegations “cannot reasonably constitute the level of
outrageous conduct necessary to satisfy the first element of the Travis test.” (ECF No. 11 at 11.)
The Court disagrees and finds that the allegations support an inference that Defendants’ actions
amounted to extreme and outrageous conduct or exceeded “all possible bounds of decency.”
Travis, 504 S.E.2d at 425. Plaintiff alleged that Defendants knew of his medical issue and the
substantial risk of harm Hepatitis C poses. Instead of providing him treatment, Plaintiff alleges
20

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 21 of 22 PageID #: 167

that he was told to stop submitting sick calls and has suffered from pain as a result. Taken as true,
the conduct alleged here is certainly more than “merely annoying” or “uncivil.” It therefore
follows that Plaintiff’s claim is sufficiently pled. Accordingly, the Court DENIES Defendants’
motion to dismiss Plaintiff’s intentional/reckless infliction of emotional distress claim for failure
to state a claim.
E. Injunctive Relief
Finally, Defendants argue that Plaintiff’s claim for injunctive relief must be dismissed as
moot because “the condition which forms the basis of the Plaintiff’s Complaint occurred at
Northern Correctional Facility,” but “[Plaintiff] is presently incarcerated at St. Mary’s Correctional
Center.” (ECF No. 11 at 14.)
To be sure, under well-established Fourth Circuit precedent, the transfer or release of an
inmate from the facility where he suffered the challenged conditions “moots his claims for
injunctive and declaratory relief” pertaining to his imprisonment. Incumma v. Ozmint, 507 F.3d
281, 286–87 (4th Cir. 2007). But, the Fourth Circuit has explained that this is because a plaintiff’s
release from prison “le[aves] [the court] without a ‘case or controversy’ to decide.” United States
v. Hardy, 545 F.3d 280, 284 (4th Cir. 2008); see also Powell v. McCormack, 395 U.S. 486, 496
(“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the out-come.”); see also DeFunis v. Odegaard, 416 U.S. 312, 316
(1974) (per curiam) (stating that federal courts are “without power to decide questions that cannot
affect the rights of litigants in the case before them”).
Whereas, in the present case, the parties still have “a legally cognizable interest in the
outcome,” and this Court still has the “power to decide questions that [can] affect the rights of the
21

Case 2:19-cv-00612 Document 33 Filed 05/28/20 Page 22 of 22 PageID #: 168

litigants.” In an identical case, the Northern District of West Virginia reasoned, “the plaintiff’s
claims relate to Wexford,” and “[b]ecause Wexford provides medical care at all WVDOC
facilities,” plaintiff’s transfer does not make his claim moot. Taylor v. Wexford Health Sources
Inc., No. 5:17-cv-173, 2018 WL 4761621, at *1 n.1 (N.D. W. Va. July 30, 2018). Accordingly,
for these reasons, the Court DENIES Defendants’ motion to dismiss Plaintiff’s claim for
injunctive relief.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
Defendants’ Motion to Dismiss. (ECF No. 10.) Insofar as Defendants claim Moore is entitled to
qualified immunity, the Court GRANTS the motion and DISMISSES Plaintiff’s § 1983 claim
with respect to Moore only. The Court DENIES the motion on all other grounds.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

22

May 28, 2020