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Adams v. Naphcare, Inc.

United States District Court, E.D. Virginia, Norfolk Division

March 31, 2017

ROXANNE ADAMS, ADMINISTRATOR OP THE ESTATE OF JAMYCHEAL M. MITCHELL, Plaintiff,
v.
NAPHCARE, INC., et al., Defendants.

          OPINION

          REBECCA BEACH SMITH CHIEF JUDGE

         This 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.

         On 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. 134.

         Having 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 review.

         I.

         This 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. ¶¶ 259-266.

         In the 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.

         The 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.

         II.

         Pursuant 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).

         Pursuant 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).

         The 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 sheer possibility").

         III.

         The 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.

         A. Eleventh Amendment Immunity

         The 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.

         The 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. at 10.

         The 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." Id.

         Thus, 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.

         In the 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 (1978)).

         Whether 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).

         The 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 part.[1]

         The 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)).

         In 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.").

         This 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).[2] 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.

         Here, 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.[3] 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.[4]

         B. Sufficiency of the Plaintiff's § 1983 Claims

          The 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 objection itself.

         In 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.

         Specifically, 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.

         In sum, 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.

         As a 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.

         The 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).

         Thus, 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.

         Finally, 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 22.

         In 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 4.[5] 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.

         Additionally, 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. ...


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