United States District Court, E.D. Virginia, Norfolk Division
ROXANNE ADAMS, ADMINISTRATOR OP THE ESTATE OF JAMYCHEAL M. MITCHELL, Plaintiff,
NAPHCARE, INC., et al., Defendants.
REBECCA BEACH SMITH CHIEF JUDGE
matter comes before the court on the Motion to Dismiss
("Motion") and Memorandum in Support filed by
Defendant Debra K. Ferguson ("Ferguson") on August
1, 2016. ECF Nos. 84, 85. The Plaintiff filed a Response on
September 1, 2016, ECF No. 123, and on September 13, 2016,
Ferguson filed a Reply. ECF No. 130. On September 20, 2016,
Ferguson also filed a Request for Hearing. ECF No. 133.
September 21, 2016, this court referred the Motion to a
United States Magistrate Judge, pursuant to the provisions of
28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Procedure 72(b), to conduct hearings, including evidentiary
hearings, if necessary, and to submit to the undersigned
District Judge proposed findings of fact, if applicable, and
recommendations for the disposition of the Motion. ECF No.
conducted a hearing regarding the Motion on October 19, 2016,
ECF No. 13 9, the Magistrate Judge filed the Report and
Recommendation ("R&R") on February 21, 2017.
ECF No. 162. The Magistrate Judge recommended granting the
Motion. R&R at 1. By copy of the R&R, the parties
were advised of their right to file written objections to the
findings and recommendations made by the Magistrate Judge.
See id. at 21-22. On March 7, 2017, the Plaintiff
filed Objections to the R&R. ECF No. 167. On March 21,
2017, Ferguson filed a Response to the Objections. ECF No.
171. The matter has been fully briefed and is ripe for
action was brought by the Plaintiff in her capacity as the
administrator of the estate of Jamycheal Mitchell
("Mitchell"), who died as a pretrial detainee in
the Hampton Roads Regional Jail ("HRRJ"). Compl.
¶¶ 1, 20. During Mitchell's period of pretrial
detention, Defendant Ferguson was the Commissioner of the
Virginia Department of Behavioral Health and Developmental
Services ("DBHDS"), a department which, through an
Office of Forensic Services, provides services to individuals
with disabilities who are involved in Virginia's legal
system. Id. ¶ 41. The Complaint alleges the
following claims against Defendant Ferguson: negligence,
gross negligence, and willful and wanton negligence under
Virginia law (Count One), id. ¶¶ 202-203,
205-211; deprivation of civil rights through the denial,
delay, and withholding of medical care, under 42 U.S.C.
§ 1983 (Count Two), id. ¶¶ 212-223;
deprivation of civil rights under 42 U.S.C. § 1983
(Count Five), id. ¶¶ 252-258; and
deprivation of civil rights, with the heading
"Deliberate Indifference - Supervisory Liability, "
under 42 U.S.C. § 1983 (Count Six), id.
instant Motion, filed pursuant to Federal Rule of Civil
Procedure 12(b)(6), Ferguson seeks dismissal of the
aforementioned claims due to the Plaintiff's failure to
show plausible factual allegations for each of these counts.
Mot. at 1. Ferguson also claims the protection of qualified
immunity for Counts Two, Five, and Six, and absolute immunity
under the Eleventh Amendment for Counts Two, Five, and Six.
Id. at 2.
Magistrate Judge, accepting the facts as alleged in the
Plaintiff's Complaint as true, found that the Plaintiff
failed to state claims under 42 U.S.C. § 1983, in Counts
Two, Five, and Six, because the Plaintiff failed to allege
facts showing that Ferguson knew of a substantial risk of
harm to the Plaintiff and others like him, in terms of their
treatment by the DBHDS. See R&R at 9-14. The
Magistrate Judge also found that Ferguson is entitled to the
protection of qualified immunity for these § 1983
claims, see id. at 14-16, and to absolute immunity
for all of the Plaintiff's claims, under the Eleventh
Amendment. See id. at 16-20. Finally, the
Magistrate Judge found that the Plaintiff failed to state
claims of negligence, gross negligence, and willful and
wanton negligence under Virginia law, because the Plaintiff
failed to assert that Ferguson owed Mitchell a duty of care.
See id. at 20-21.
to Rule 72(b) of the Federal Rules of Civil Procedure, the
court, having reviewed the record in its entirety, shall make
a de novo determination of those portions of the
R&R to which a party has specifically objected.
Fed.R.Civ.P. 72(b). The court may accept, reject, or modify,
in whole or in part, the recommendation of the magistrate
judge, or recommit the matter to him with instructions. 28
U.S.C. § 636(b)(1)(C).
to Federal Rule of Civil Procedure 12(b)(6), a complaint must
be dismissed when a plaintiff's allegations fail to state
a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). "A motion to dismiss under Rule 12(b)(6) tests
the sufficiency of a complaint; importantly, 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. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Facial plausibility means that a
"plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). It is, therefore, not
enough for a plaintiff to allege facts demonstrating a
"sheer possibility" or "mere
consist[ency]" with unlawful conduct. Id.
(citing Twombly, 550 U.S. at 557).
Supreme Court has offered the following guidance to courts
evaluating a motion to dismiss:
[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 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.
Id. at 679. That is, the court accepts facts alleged
in the complaint as true and views those facts in the light
most favorable to the plaintiff. See, e.g.,
Venkatraman v. REI Sys., Inc., 417 F.3d
418, 420 (4th Cir. 2005). After doing so, the court should
not grant the defendant's motion if the plaintiff
"demonstrate[s] more than *a sheer
possibility'" that the defendant has violated his
rights, by "articulat[ing] facts, when accepted as true,
that 'show' that the plaintiff has stated a claim
entitling him to relief . . . ." Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting
Iqbal, 556 U.S. at 678) (as only quoting “a
Plaintiff has submitted four (4) objections to the R&R.
ECF No. 167. Specifically, the Plaintiff has objected to the
Magistrate Judge's finding that (1) the suit against
Ferguson is an official capacity suit that is protected by
Eleventh Amendment immunity; (2) the Plaintiff has failed to
state claims against Ferguson under 42 U.S.C. § 1983;
(3) Ferguson is entitled to qualified immunity from suit
under 42 U.S.C. § 1983; and (4) the Plaintiff has failed
to state claims of negligence, gross negligence, and willful
and wanton negligence against Ferguson under Virginia law.
Having reviewed the record in its entirety, the court herein
makes a de novo determination of these portions of
the R&R to which the Plaintiff has specifically objected.
Fed.R.Civ.P. 72(b). The court will address each of the
objections in turn.
Eleventh Amendment Immunity
Plaintiff asserts that the Magistrate Judge incorrectly found
that Ferguson is entitled to absolute immunity from the
§ 1983 claims under the Eleventh Amendment. Objs. at 3.
In the R&R, the Magistrate Judge stated, "despite
the nomenclature used by Plaintiff, [Ferguson] has been sued
in her official capacity, and therefore the absolute immunity
defense is also applicable here." R&R at 17. In
particular, the Magistrate Judge found that the state was
"the real, substantial party in interest, "
id. at 18 (quoting Pennhurst State Sch. &
Hosp. v. Halderman, 4 65 U.S. 89, 101 (1984)), because
"the [DBHDS]'s 'policy or custom' is what
played the role in preventing Mitchell's transfer"
to Eastern State Hospital. R&R at 18 (quoting Hafer
v. Melo, 502 U.S. 21, 25 (1991)). The Magistrate Judge
also found the "Plaintiff's claim that, because she
seeks money damages from [Ferguson] personally and not from
the Virginia treasury, this must be considered a personal
capacity suit, " to be an immaterial distinction, and
that the Plaintiff's "reliance on Edelman v.
Jordan, 415 U.S. 651 (1974) for that point is entirely
misplaced." R&R at 19. The Magistrate Judge stated
that "it matters not which pocket Plaintiff seeks to
recover from, but rather the substance of her claim, which is
based on the agency's alleged policy or custom
failure." Id. at 19-20.
Plaintiff argues that the Magistrate Judge's findings on
the Eleventh Amendment are, first and foremost, based on a
misunderstanding of the nature of the § 1983 claims
against Ferguson. See Objs. at 3-4. The Plaintiff
states that these claims are based on Ferguson's
"woefully mismanaging the DBHDS's available
beds." Id. at 3 (citing Compl. ¶ 87). The
Plaintiff further states that, because Defendant Hart was
also accused of mismanaging beds, but was not found to be
immune from claims under § 1983, the Magistrate
Judge's "finding of sovereign immunity comes down to
this: when a low-level state employee commits a
constitutional violation, a claim against the employee is not
barred by sovereign immunity, but when a high-level state
employee commits a constitutional violation, the claim is
barred by sovereign immunity." Id. at 4. For
support, the Plaintiff draws a comparison to Scheuer v.
Rhodes, 416 U.S. 232 (1974). See Objs. at 5-7.
The Plaintiff argues that Ferguson, like the defendant state
governor in Scheuer, is being sued for her personal
actions, and that the Magistrate Judge's interpretation
of Edelman for a contrary finding is mistaken.
See Objs. at 7-10. Overall, the Plaintiff contends
that the § 1983 claims against Ferguson are not barred
by the Eleventh Amendment, because the Plaintiff alleges that
Ferguson, though a high-ranking official, "personally
violated the United States Constitution." Id.
Eleventh Amendment of the United States Constitution
provides: "The Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State." U.S. Const, amend. XI. Because the
Plaintiff and Ferguson are citizens of Virginia, the language
of the Eleventh Amendment does not itself apply, but,
"[w]hile the [Eleventh] Amendment by its terms does not
bar suits against a State by its own citizens, " it is
established that "an unconsenting State is immune from
suits brought in federal courts by her own citizens as well
as by citizens of another State." Edelman, 415
U.S. at 662-63; see Alden v. Maine, 527 U.S. 706,
713 (1999) (explaining that Eleventh Amendment immunity
"is convenient shorthand but something of a misnomer,
for the sovereign immunity of the States neither derives
from, nor is limited by, the terms of the Eleventh
Amendment"). With this nomenclature in mind, it is also
established that Eleventh Amendment immunity prevents claims
against a state under 42 U.S.C. § 1983 without the
state's waiver of immunity, see Will v. Mich.
Dep't of State Police, 491 U.S. 58, 66 (1989), and
that "even though a State is not named a party to the
action, the suit may nonetheless be barred by the Eleventh
Amendment." Edelman, 415 U.S. at 663. Although
"the Eleventh Amendment provides no shield for a state
official confronted by a claim that he had deprived another
of a federal right under the color of state law, "
Scheuer, 416 U.S. at 237, "relief sought
nominally against an officer is in fact against the sovereign
if the decree would operate against the latter."
Pennhurst, 465 U.S. at 101 (quoting Hawaii v.
Gordon, 373 U.S. 57, 58 (1963) (internal quotation marks
omitted)). In other words, " [w] hen the suit is brought
only against state officials, a question arises as to whether
that suit is a suit against the State itself."
when a state official is sued for damages in his or her
official capacity under § 1983, the action
should be treated as one against the state, which is the
"real party in interest, " and Eleventh Amendment
immunity applies. Hafer, 502 U.S. at 25. However,
when a state official is sued for damages in his or her
individual capacity under § 1983, Eleventh
Amendment immunity does not apply, and the state official
remains subject to liability. See id. at 23, 25-26.
instant case, while the Complaint states that the § 1983
claims for damages are brought against Ferguson in her
individual capacity, Ferguson contends that it should be
considered a suit brought against her in an official
capacity, due to the "Plaintiff's claims that
Ferguson did not fulfill her statutory obligations as the
Commissioner of DBHDS." Mem. Supp. at 15. However, this
argument does not reach the applicable standard for Eleventh
Amendment immunity regarding § 1983 claims. As the
Supreme Court has explained, "the phrase *acting in
their official capacities' is best understood as a
reference to the capacity in which the state officer is sued,
not the capacity in which the officer inflicts the alleged
injury." Hafer, 502 U.S. at 26. That
understanding is reflected in the following distinction:
"Personal-capacity suits seek to impose personal
liability upon a government official for actions he takes
under color of state law, " whereas "
[o]fficial-capacity suits . . . 'generally represent only
another way of pleading an action against an entity of which
an officer is an agent.'" Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55
Ferguson's conduct was undertaken pursuant to, or in
contravention of, a state policy or custom has no bearing on
the availability of Eleventh Amendment immunity for a §
1983 claim. Although the Supreme Court in Hafer
explained that "the plaintiff in a personal-capacity
suit need not establish a connection to a governmental
'policy or custom, '" Hafer, 502 U.S.
at 25 (quoting Graham, 473 U.S. at 166), that
statement does not mean a claim's relation to a state
policy or custom automatically converts the claim into an
official capacity claim. Rather, it means that an official
capacity claim under § 1983, as opposed to a personal
capacity claim under § 1983, requires "the entity
itself [to be] a 'moving force' behind the
deprivation." Graham, 473 U.S. at 166 (quoting
Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). In
other words, for an official capacity suit, "the
entity's 'policy or custom' must have
played a part in the violation of federal
law." Id. (citations omitted) (emphasis added).
burden of proof for official capacity suits under § 1983
has no bearing on the definition or viability of a personal
capacity suit under § 1983. Indeed, Hafer
explicitly rejected the contention that Eleventh Amendment
immunity protects "state officials from personal
liability for acts within their authority and necessary to
fulfilling governmental responsibilities."
Hafer, 502 U.S. at 28. Rather, to be immune from
personal liability based on such acts, an official must have
either absolute immunity from suit, because the
official's "special functions or constitutional
status requires complete protection from suit, " or
qualified immunity. Id. at 29 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982) (internal quotation
marks omitted)). Eleventh Amendment immunity plays no
relevant inquiry for Eleventh Amendment immunity, as opposed
to absolute or qualified immunity, is whether the state is
the real party of interest, and in the context of a §
1983 claim, the existence of a state policy or custom does
not provide the answer. In terms of Eleventh Amendment
immunity, therefore, the parties' arguments over whether
this action seeks to hold Ferguson liable for failing to
follow a statute, or whether it addresses her mismanagement
of beds, are non-starters. Instead, the sole question is
whether "the action is in essence one for the recovery
of money from the state." Edelman, 415 U.S. at
663 (quoting Ford Motor Co. v. Dep't of
Treasury, 323 U.S. 459, 464 (1945)).
Edelman, the Supreme Court reinforced this line of
inquiry. Specifically, the Court clarified that a federal
suit for injunctive relief against state officials runs afoul
of Eleventh Amendment immunity when it seeks
retroactive relief that "is in practical effect
indistinguishable in many aspects from an award of damages
against the State, " as opposed to seeking
prospective relief that may nonetheless
"require payment of state funds ... as a necessary
consequence of compliance in the future with a substantive
federal-question determination." Edelman, 415
U.S. at 668. However, the Court did not change the scope of
Eleventh Amendment immunity for § 1983 claims, which
remains based on a determination of whether the relief sought
constitutes "damages against the State."
Id.; see Quern v. Jordan 440 U.S. 332, 337
(1979) ("In Edelman we reaffirmed the rule that
had evolved in our earlier cases that a suit in federal court
by private parties seeking to impose a liability which must
be paid from public funds in the state treasury is barred by
the Eleventh Amendment.").
principle does not mean that the source of funds is always
dispositive in suits brought against public officials in
federal court. In other contexts, beyond claims for relief
under 42 U.S.C. § 1983, the Fourth Circuit has focused
on the substance of the claims in determining Eleventh
Amendment immunity. See Martin v. Wood, 772 F.3d
192, 196 (4th Cir. 2014) ("To identify the real,
substantial party in interest, we thus examine the
substance of the claims stated in the complaint . . .
."). The court in Martin listed five factors to
consider when evaluating the real party in interest,
including whether the official's underlying conduct was
inextricably tied to the official's duties, and whether
that conduct was taken to further personal interests distinct
from the state. See id. However, the court in
Martin addressed Eleventh Amendment immunity
regarding a claim under the Fair Labor Standards Act, not a
claim under § 1983, and "the Fourth Circuit has
never extended Martin to § 1983 claims, likely
because it would 'absolutely immunize state officials
from personal liability for acts within their authority and
necessary to fulfilling government
responsibilities.'" Patterson v. Lawhorn,
No. I:15cv477, 2016 WL 3922051, at *6 (E.D. Va. July 20,
2016) (Brinkema, J.), appealed on other grounds, No.
16-1936 (4th Cir. Aug. 17, 2016) (quoting Hafer, 502
U.S. at 28). Accordingly, the standard for Eleventh
Amendment immunity in a § 1983 claim remains the
standard reinforced by the Supreme Court in Edelman,
requiring only that the damages sought come from public
funds. See Quern, 440 U.S. at 337.
the Plaintiff is seeking to hold Ferguson personally liable
for damages in a § 1983 action, and no award of damages
against Ferguson would come from state coffers. Therefore,
Ferguson, not Virginia, is the real party of interest, and
Eleventh Amendment immunity does not apply to the § 1983
claims against Ferguson. Accordingly, the Plaintiff's
objection to the finding of Eleventh Amendment immunity, as
to the § 1983 claims, is SUSTAINED.
Sufficiency of the Plaintiff's § 1983
Plaintiff objects to the Magistrate Judge's finding that
the Plaintiff has failed to state claims against Ferguson
under 42 U.S.C. § 1983. See Objs. at 15-22.
Given the numerous layers of argument underlying this
objection, the court will first review the Magistrate
Judge's findings, the Plaintiff's objection to those
findings, and Ferguson's responses, before evaluating the
R&R, the Magistrate Judge explained that for each of the
Plaintiff's § 1983 claims against Ferguson, the
Plaintiff is required to allege "some independent
knowledge or awareness on the part of [Ferguson] to the fact
that Mitchell's constitutional rights were being
violated, and that she was deliberately indifferent to these
violations." R&R at 10. After reviewing the
applicable legal standards for each of the Plaintiff's
§ 1983 claims against Ferguson, the Magistrate Judge
stated that "the salient facts necessary to assert
plausible constitutional claims must establish that
[Ferguson] knew of the constitutional violations and acted
deliberately indifferent towards them." Id. at
10-11. The Magistrate Judge found that "[i]t is these
facts which Plaintiff's Complaint fails to assert."
Id. at 11.
the Magistrate Judge found that, "even accepting
Plaintiff's allegation that [Ferguson] 'could not
have failed to know' that available hospital beds were
not being filled by inmates on waiting lists, she has failed
to allege facts which establish that, because they were on
waiting lists, such class of inmates were necessarily subject
to 'a substantial risk of serious harm, ' and that
[Ferguson] was aware of this fact." Id. at 12
(citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)). The Magistrate Judge further explained: "Merely
because an inmate may be improperly on a waiting list does
not lead to the plausible inference that, but for the failure
to transfer him, he will be subject to a deprivation so
extreme that it poses 'a serious or significant physical
or emotional injury-resulting from the challenged conditions,
' or 'a substantial risk of such serious harm
resulting from . . . exposure to the challenged
conditions.'" Id. (quoting De'Lonta
v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)). The
Magistrate Judge noted that the Plaintiff "admits that
[Ferguson] was not aware of Mitchell in particular, "
and stated that the Plaintiff "did not allege that any
other inmates on the waiting list suffered any constitutional
deprivation or other serious injury at all."
Id. Although, as the Magistrate Judge explained,
"an official's awareness of substantial risk can be
based on their knowledge that all prisoners in
[Mitchell's] situation face such a risk, "
id. (citing Farmer, 511 U.S. at 842), the
Magistrate Judge found that the "Plaintiff never pled
what specific substantial risk all prisoners who are not
transferred face." Id. Thus, the Magistrate
Judge concluded, "while Commissioner Ferguson might be
aware that all prisoners who need to be transferred are not
being transferred, Plaintiff failed to allege facts showing
she was aware that all such prisoners faced substantial risk
of serious harm; i.e., abuse, starvation,
withholding of specific medical care, and death."
Id. at 12-13. In other words, the Magistrate Judge
found that "no facts were pled to establish that it is
'obvious' that prisoners who do not get hospital beds
face the substantial harm Mitchell is alleged to have
faced." Id. at 13.
the Magistrate Judge found that "it was incumbent upon
Plaintiff to allege facts asserting a plausible claim that
[Ferguson] was aware that the class of inmates who were not
transferred to hospitals with available beds faced the
extreme deprivation which constituted a serious or
significant physical or emotional injury resulting from the
challenged conditions." Id. (citing
De'Lonta, 330 F.3d at 634). The Magistrate Judge
concluded that the Plaintiff failed to do so. Id.
final note, the Magistrate Judge observed that, while the
"Plaintiff's allegations of constitutional
deprivations suffered by Mitchell go far beyond merely
alleging that he should have been treated in a hospital
instead of at the HRRJ, " the Plaintiff "only
alleged that [Ferguson] was aware of waiting lists and empty
beds, " not that Ferguson was aware that inmates in
Mitchell's class would suffer constitutional harms such
as "beatings, denial of food, clothing, shoes,
medication and sanitary living conditions, " and
"taunting and other humiliations" that Mitchell
allegedly suffered at the HRRJ. Id. at 14.
"Absent allegations of this nature, " the
Magistrate Judge stated, the "Plaintiff has not stated a
claim under 42 U.S.C. § 1983." Id.
Plaintiff objects to the Magistrate Judge's above
findings for several reasons. Primarily, the Plaintiff argues
that the Magistrate Judge's findings are incorrect
because the Magistrate Judge "misperceives the legal
standard applicable to these claims." Objs. at 16. In
particular, the Plaintiff states that the Magistrate Judge
applied Farmer's standard for "serious
harm, " when the Magistrate Judge should have applied
the standard for a "serious medical need."
Id. The Plaintiff states that "the Court in
Farmer did not intend to replace the 'serious
medical need' standard with a 'substantial risk of
harm' standard, " and that "[b]oth tests are
still alive and well; they simply apply in different
contexts." Id. The Plaintiff argues that, based
on this "serious medical need" standard, the
relevant inquiry here is "whether inmates on the waiting
lists were, in the opinion of a medical professional,
required to receive treatment." Id. at 17. In
response to that inquiry, the Plaintiff states that
"[t]o ask this question is almost to answer it, because
one's name is only added to the waiting list after a
professional diagnosis that medical care is
mandated." Id. (emphasis in original).
the Plaintiff argues, "all inmates on the
waiting list were there because a medical professional had
diagnosed them as requiring medical care and advised the
court of such, " and "all inmates on the
waiting list had a 'serious medical need' that was
not being met." Id. at 18. The Plaintiff
further argues that, although the Magistrate Judge found that
the Complaint does not permit "the plausible inference
that delays in transferring inmates must necessarily, by the
nature of the delay, cause substantial harm, "
id. (quoting R&R at 13 (internal quotation marks
omitted)), the delay here satisfied the Fourth's
Circuit's test that it "exacerbated the injury or
unnecessarily prolonged an inmate's pain."
Id. (quoting Sharpe v. S.C. Dep't of
Corr., 621 F.App'x 732, 734 (4th Cir. 2015)
(internal quotation marks omitted)). The Plaintiff states
that, "if a transfer to a hospital is delayed simply
because the agency charged with the transfer cannot get its
paperwork straight, and [Ferguson] knows such and does not
take reasonable steps to remedy it, the delay is hardly
'necessary.'" Id. at 19. Moreover, the
Plaintiff states that "a jury could reasonably infer
that a significant number of inmates who had been slated for
a court-ordered transfer to a hospital after evaluation and
diagnosis by a healthcare professional (i.e.,
inmates with a serious medical need) suffered pain and/or
exacerbation of their conditions because of the delay in
receiving treatment." Id. The Plaintiff argues
that the Magistrate Judge, therefore, "was incorrect in
finding that Ferguson's failures do not allow an
inference that those on the waiting list suffered
'serious harm.'" Id.
as to the Magistrate Judge's finding that the Plaintiff
has not sufficiently alleged Ferguson's knowledge, the
Plaintiff draws a comparison to the Fourth Circuit decision
in Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984),
see Objs. at 19-22, and argues that "there is ample
ground for a reasonable factfinder to infer that Ferguson
knew of problems with the waiting list." Id. at
response to the Plaintiff's objection, Ferguson states
that the factual allegations against her are "extremely
limited, " and that it is "important to consider
what Plaintiff did not allege." Def.'s Resp. to
Pl.'s Objs. at 3-4. Specifically, Ferguson states that
"[t]here are no allegations that Ferguson had knowledge
of Mitchell, his condition, or the CRO issued by the
Portsmouth General District Court, " and that the
"Plaintiff also does not allege that Ferguson knew that
[Defendant Gail Hart ("Hart")] had received
Mitchell's CRO and placed it in a desk drawer without
entering Mitchell into the system." Id. at
Moreover, Ferguson states that "there are no allegations
that Ferguson knew Hart had placed any other CROs in a desk
drawer without taking action on them, " and that
"there are no allegations that Ferguson had authority or
jurisdiction over HRRJ, where the allegedly horrible
treatment of Mitchell occurred." Id. at 4-5.
Having thus described the Plaintiff's allegations,
Ferguson argues that she "was not deliberately
indifferent to Mitchell's medical needs."
Id. at 5. Ferguson challenges the Plaintiff's
argument that the deliberate indifference standard in
Farmer does not apply to Count Two, citing the
Fourth Circuit's recent opinion in Scinto v.
Stansberry, 841 F.3d 219, 225-26 (4th Cir. 2016).
Def.'s Resp. to Pl.'s Objs. at 5. Ferguson asserts
that, while the "Plaintiff argues that all individuals
who were on the waiting list to be transferred to a state
mental health institution inherently had a serious medical
need, " the instant case shows that is not so.
Id. at 6. Ferguson states that "Mitchell was
merely ordered to have his competency restored so that he
could be tried for his crimes, " and that "[t]here
is nothing that is inherently medically serious about the
need for competency restoration like there would be for
someone who, for instance, was a risk to himself or
others." Id. Ferguson further states that
"the Complaint does not allege Ferguson was aware that
all prisoners such as Mitchell had a serious medical need
that was not being met merely by virtue of being on a waiting
list." Id. Moreover, Ferguson asserts that
"[t]he law requires that all prison facilities . .
provide medical care to their prisoners, " and that
"[t]here is no reason to believe that medical care was
not being provided to those who happened to be on waiting
lists to be transferred to a state mental health
facility." Id. For these reasons, Ferguson
argues, "the facts alleged and the reasonable inferences
that can be drawn therefrom do not satisfy the objective
prong of the Farmer analysis." Id.
Ferguson argues that, "even if it were assumed . . .
that the Complaint alleges Mitchell had a serious medical
need, there are no allegations that satisfy the subjective
prong of the analysis, " under which the "Plaintiff
must demonstrate that Ferguson 'subjectively recognized a
substantial risk of harm' and actually perceived the
risk." Id. at 6-7 (quoting Parrish ex. rel.
Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004)).
Ferguson notes that " [i]t is not enough that the
[official] should have recognized" such a risk,
Def.'s Resp. to Pl.'s Objs. at 7 (quoting
Parrish, 372 F.3d at 303) (second alteration in
original) (emphasis in Parrish), and states that
"this is the argument Plaintiff makes by asserting that
Ferguson is liable because her department was failing to move
people off waiting lists and into state mental health
facilities." Def.'s Resp. to Pl.'s Objs. ...