United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
matter is before the Court pursuant to two (2) Motions to
Dismiss Plaintiff David Quigley's
("Plaintiffs") Amended Complaint, Doc. 28:
Defendant Robert McCabe's ("McCabe's")
Motion to Dismiss Counts I through IV, Doc. 29
("McCabe's Motion"), and Defendant Imhotep
Carter's ("Carter's") Motion to Dismiss
Count II, Doc. 32 ("Carter's Motion"). For the
reasons set forth in the Court's Opinion and Order
entered August 30, 2017, Doc. 27, the Court
GRANTS McCabe's Motion, Doc. 29, as to
Counts I and II, and GRANTS Carter's
Motion, Doc. 32. For the reasons set forth below, the Court
CONSTRUES Counts III and IV as stating a
single claim, and DENIES McCabe's Motion
as to this claim.
action arises in response to the alleged negligent medical
treatment of Plaintiff during incarceration. Doc. 1, Ex. A
("Compl.") ¶¶6-9. In early August 2013,
Plaintiff was incarcerated at the Norfolk City Jail.
Id. ¶ 5. On or about August 7, 2013, he fell
from a bunk bed and landed on his head and other parts of his
body, falling unconscious and suffering severe injuries that
included multiple broken bones. Id. ¶ 6. He was
taken to the medical ward of the jail, where Defendant Carter
and another doctor were responsible for his medical
treatment. Id. ¶ 7. He "begged to be taken
to the hospital, " but they refused that request as well
as any other "reasonable medical care."
Id. Carter once dangled two aspirins in front of
Quigley and then pulled them away without providing them to
him. Id. Defendants provided "little to nothing
in the way of medical services, " resulting in
"great pain of body and mind, " subsequent medical
expenses to treat those injuries, and permanent bodily
injury. Id. ¶ 8. Upon his release on August 21,
2013, Plaintiff walked to Sentara Norfolk Hospital to receive
care. Id. ¶ 9.
filed his complaint in the Circuit Court for the City of
Norfolk on December 22, 2016. Doc. 1. The Complaint names
three Defendants: then Sheriff Robert McCabe, and facility
doctors Imhotep Carter and John Doe. The Complaint asserted
three claims against all Defendants: Count I for
"Breaches of Virginia's Common Law and Statutory
Duties, " Count II for "Violations of the Virginia
Constitution, " and Count V for "Breaches of the
8th and 14th Amendments of the United States Constitution
pursuant to 42 U.S.C. §§ 1983 and 1988." See
Compl. at 1-4, 6-7. It asserted two additional claims against
Defendant McCabe alone: Count III for "Failure to
Train" and Count IV for "Defacto Policy of Denying
Inmates Health Care." See Id. at 5. In
the original Complaint, Counts III and IV were alleged as
Virginia law claims.
removed the case to this Court on January 31, 2017. Doc. 1.
McCabe filed a Motion to Dismiss, Doc. 4, on February 1,
2017, and Carter filed a Partial Motion to Dismiss Counts II
and V, Doc. 15, on March 1, 2017. Plaintiff opposed both
Motions. Docs. 10, 20. Defendants each replied in further
support of their respective Motions. Docs. 12, 21.
August 30, 2017, the Court entered an Opinion and Order
GRANTING McCabe's Motion to Dismiss as to Counts I and
II, GRANTING Carter's Partial Motion to Dismiss as to
Count II, and DENYING both Motions as to Count V. See Doc. 27
at 1. Plaintiff was given LEAVE TO AMEND Counts III and IV,
so as to state these as federal claims. Id.
filed an Amended Complaint on September 15, 2017. Doc. 28.
Despite the Court's Order DISMISSING Count I as to McCabe
and Count II as to McCabe and Carter, the Amended Complaint
re-alleged Counts I and II against all Defendants. See
Id. ¶¶ 1-20. Per the Court's Order,
the Amended Complaint re-stated Counts III and IV as federal
claims, specifically as violations of the 8th and 14th
Amendments of the U.S. Constitution, through 42 U.S.C.
§§ 1983 and 1988. See Id. ¶¶
21-25. The Amended Complaint re-alleged Count V without
change from the original Complaint. See Id.
September 28, 2017, McCabe and Carter filed the instant
Motions. Docs. 29, 32. Plaintiff did not respond to either
Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss
tests the sufficiency of a complaint; 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)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Venkatraman, 417 F.3d at 420
("In considering a motion to dismiss, we accept as true
all well-pleaded allegations and view the complaint in the
light most favorable to the plaintiff.") (citing
Mylan Labs., 7 F.3d at 1134). A complaint
establishes facial plausibility "once the factual
content of a complaint allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.
2009) (quoting Iqbal. 556 U.S. at 678). Therefore,
the complaint need not include "detailed factual
allegations" as long as it pleads "sufficient facts
to allow a court, drawing on judicial experience and common
sense, to infer more than the mere possibility of
misconduct." Id. Although a court must accept
as true all well-pleaded factual allegations, the same is not
true for legal conclusions. "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at
deciding the motion, a court may consider the facts alleged
on the face of the complaint as well as "'matters of
public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint.'"
Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D.
Va. 1997) (quoting 5A Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 1357 (1990)).
The court may look to documents attached to the complaint and
those incorporated by reference without converting a Rule
12(b)(6) motion into ...