United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge
Kiser, a Virginia inmate proceeding pro se, filed a civil
rights action, naming the Southwest Virginia Regional Jail
Authority ("SWVRJA") as the sole defendant.
Plaintiff complains that jail policy prevents medical testing
and treatment of his Hepatitis C ("HCV") infection
and does not allow him to be a trusty because he takes
seizure medications. The SWVRJA filed a motion to dismiss,
and Plaintiff responded with a motion to amend the complaint.
After reviewing the record, I grant the motion to amend
pursuant to Rule 15 and deny the SWVRJA's motion to
dismiss because, liberally construed, Plaintiffs allegations
state plausible claims for relief. See, e.g.,
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
municipality cannot be held liable under § 1983 on a
respondeat superior theory." Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691 (1978). Thus, the SWVRJA
cannot be held vicariously liable under § 1983 for the
acts of its employees. However, "[l]ocal governing
bodies ... can be sued directly ... for monetary,
declaratory, or injunctive relief where ... the action that
is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's
officers." Id. at 690. To prove that a
governmental entity, such as a local jail authority, is
liable for constitutional violations committed by its
employees, a plaintiff must show that the entity's policy
was the moving force of the constitutional violation.
See, e.g.. Polk Cnty. v. Dodson, 454 U.S.
312, 326 (1981). To survive a motion to dismiss, a plaintiff
must plausibly allege (1) the existence of an official policy
or custom, (2) that is fairly attributable to the municipal
entity, and (3) proximately caused the underlying
constitutional violation. See, e.g., Jordan ex
rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir.
1994). Municipal policy can be found in written ordinances
and regulations, affirmative decisions of policymaking
officials, or omissions by policymaking officials that
manifest deliberate indifference to the rights of citizens.
Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999).
Plaintiff alleges generally in the amended complaint, "I
was denied trust[y] status for having a seizure disorder.
They stated[, ] 'Due to medical concerns for plaintiffs
safety.'" Plaintiff included grievance responses
from SWVRJA staff denying Plaintiffs request for
consideration of being a trusty. Plaintiff referred to the
Americans with Disabilities Act, 42 U.S.C. § 12131,
et seq. ("ADA") in his grievance.
Nonetheless, staff denied his request, stating, "You
were denied for seizures, " and, "You were denied
for medical concerns for your safety...."
II of the ADA provides that "no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity." 42
U.S.C. § 12132. A "qualified individual with a
disability" is defined as "an individual, with a
disability who, with or without reasonable modifications to
rules, policies, or practices ... or the provision of
auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation
in programs or activities provided by a public entity."
Id. at § 12131(2). Title II of the ADA does
apply to state prisons and their inmates. See, e.g.,
Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210
state a claim under Title II of the ADA, Smith must show (1)
that he is a qualified individual with a disability; (2) that
he was denied participation in, or denied benefits of the
services, programs or activities of the SWVRJA, or was
otherwise discriminated against; and (3) the denial or
discrimination was because of his disability. 42 U.S.C.
§ 12132. Here, Plaintiff explains that he suffers from
seizures that are fully controlled by medication and that he
was denied the chance to be a trusty because of his treated
medical condition. Accordingly, the motion to dismiss must be
denied for this claim.
Plaintiff alleges that his HCV infections "can't be
checked or treated due to SWVRJA Policymaking [and] [I]
can't get help for it." Plaintiff informed jail
staff how his private physician believed his HCV levels
"had reached a dangerous level" and alleges that
jail policy does not allow HCV testing despite his requests.
Liberally construing the allegations, Plaintiff has alleged
that the SWVRJA has a policy of refusing to monitor or treat
his HCV, which is a serious medical need. See, e.g.,
Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). A
policy to refuse testing or treatment for
"dangerous" levels of HCV could expose Plaintiff to
a substantial risk of serious harm. Consequently, the
complaint plausibly suggests an Eighth Amendment claim of
deliberate indifference to a serious medical need. See,
e.g., Estelle v. Gamble, 429 U.S. 97, 104
foregoing reasons, I grant Plaintiffs motion to amend and
deny the motion to dismiss. Pursuant to Standing Order
2013-6, the SWVRJA shall file a ...