United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
Cary Hixson, an insulin-dependent diabetic, alleges he was
denied insulin while incarcerated at Harrisonburg-Rockingham
Regional Jail ("HRRJ"). Hixson's First Amended
Complaint for Monetary Damages (the "FAC"), ECF No.
34, raises various claims against Defendants Bryan Hutcheson,
Steven Shortell, Dr. Michael Moran (collectively with
Hutcheson and Shortell, the "HRRJ Defendants"),
Southern Health Partners, Inc. ("SHP"), c and John
Doe #1 and #2 ("Does, " and collectively with the
HRRJ Defendants and SHP,
matter comes before the court on the HRRJ Defendants' and
SHP's Motions to Dismiss. ECF Nos. 37 & 53. For the
reasons discussed below, the court will GRANT
in part and DENY in
part the Motions to Dismiss. The court will also
sua sponte CONSOLIDATE this action
with Hixson v. Raynes. 5:18-cv-00001-MFU.
Cary Hixson is a 53-year-old man who was, at all relevant
times, diagnosed with insulin-dependent
diabetes. FAC ¶¶ 3, 32, 68. Hixson was
incarcerated at HRRJ for six months. Id. ¶ 3.
Hixson does not plead the exact dates during which he was
incarcerated. Hixson is not currently incarcerated.
Bryan Hutcheson was the supervising operator of HRRJ,
id. ¶ 4, while Shortell was the operator of
HRRJ, id. ¶ 7. Dr. Moran was a medical doctor
employed by HRRJ. Id. ¶ 109. Additionally, Dr.
Moran was "working on behalf of the county" and was
employed by Rockingham County "[f]rom at least August 1,
2016 through January 29, 2017." Id.
¶¶ 109, 111, 114. SHP is a regional health care
provider that employs and contracts with medical care
professionals to provide care to inmates at HRRJ.
Id. ¶ 10. Does #1 and #2 ("Does")
were nurses employed by SHP to provide medical care at HRRJ.
Id. ¶ 11.
under contract to provide medical services at HRRJ.
Id. ¶ 49. Prior to Hixson's incarceration
at HRRJ, Hutcheson, Shortell, and SHP developed a"policy
that prohibited all staff, including medical staff, at HRRJ
from providing medication, including insulin, to diabetics
housed at HRRJ. Id. ¶¶ 28-29, 64.
Hutcheson, Shortell, and Dr. Moran approved SHP's policy
of not providing diabetic medication. Id.
¶¶ 66-67. These policies have led numerous inmates
at HRRJ to be denied treatment. Id. ¶¶
incarceration at HRRJ, Does, on behalf of SHP, performed a
medical screening of Hixson. Id. ¶¶ 68,
75. Upon inquiry, Hixson informed Does that he was diagnosed
with diabetes and needed to take medication, including
insulin, to control his diabetes. Id. Does reviewed
Hixson's medical files and confirmed he needed
medication, including insulin, as well as a diabetic diet, to
treat his diabetes. Id. ¶¶ 68, 77. Dr.
Moran reviewed Hixson's medical files and knew that
Hixson required treatment for his diabetes. Id.
¶ 117. Each defendant was aware on the first day of
Hixson's incarceration that Hixson was diabetic.
ordered by Dr. Moran, Does took Hixson's blood sugar
levels daily a total of 150 times, each of which was recorded
on an SHP form. Id. ¶¶ 79, 82, 120. While
a blood-sugar level below 110 mg/dL is considered normal,
Hixson's blood-sugar level read less than 110 mg/dL only
3 out of 150 times, over 180 mg/dL 41 times, and as high as
407 mg/dL. Id. ¶¶ 84-86. Despite
these high levels, and despite having the authority to do so,
Does refused to provide Hixson with or order insulin or other
necessary diabetic medication. Id. ¶¶
89-92. Does did this despite knowing the risks to Hixson.
Id. ¶ 94-96.
regularly complained about the pain he was in due to not
receiving insulin, and Hutcheson, Shortell, and Moran
directly received those complaints. Id. ¶¶
42-43, 125. Hixson also complained to Does about the pain he
was in. Id. ¶¶ 102-04. Instead of treating
Hixson, however, Does threatened Hixson with solitary
confinement, and asked HRRJ deputies to put Hixson in
solitary confinement, because he continued to complain about
not receiving proper treatment for his diabetes. Id.
¶¶ 33, 107.
Dr. Moran reviewed Hixson's medical records and knew he
needed insulin. Id. ¶¶ 117, 119. While Dr.
Moran instructed the staff to serve Hixson a dabetic meal and
personally reviewed Hixson's elevated blood-sugar levels,
he refused to provide Hixson with insulin or other diabetes
medication. Id. ¶¶ 118-24. Dr. Moran
refused treatment despite knowing the risks of failing to
provide Hixson with insulin. Id. ¶¶
he was not treated at HRRJ, Hixson suffered severe, prolonged
pain throughout his feet, hand, and legs, suffered from
blurred vision and ringing in his ears for his entire stay at
HRRJ, and now suffers from organ damage and shortened life
expectancy. Id. ¶ 46.
filed suit against Defendants. The FAC contains nine counts.
Count I, pled against Dr. Moran and Does in their individual
capacities, alleges Section 1983 claims based on a violations
of Hixson's Eighth Amendment rights. Count II, pled
against Hutcheson and Shortell in their individual
capacities, alleges supervisory liability arising out of the
same Section 1983 claim in Count I. Count III, pled against
the HRRJ Defendants in their official capacities, alleges a
violation of the ADA. Similarly, Count IV, also pled against
the HRRJ Defendants in their official capacities, alleges a
violation of the Rehabilitation Act. Count V, pled against
Hutcheson and Shortell in their individual capacities,
alleges state-law gross negligence. Count VI, pled against
Dr. Moran, SHP, and Does, alleges state-law medical
malpractice. Count VII, pled against SHP, alleges state-law
respondeat superior liability. Count VIII, pled against all
Defendants, seeks punitive damages. Finally, Count IX seeks
attorneys' fees against unspecified parties.
"actions before the court involve a common question of
law or fact, " Federal Rule of Civil Procedure 42 allows
the court to "consolidate the actions."
Fed.R.Civ.P. 42(a)(2). Consolidation is a "managerial
device" that "makes possible the streamlined
processing of groups of cases, often obviating the need for
multiple lawsuits and trials." 8 Moore's Federal
Practice § 42.10[l][a]. The court has wide
discretion to consolidate actions. A/S J. Ludwig
Mowinckles Rederi v. Tidewater Constr. Co., 559 F.2d
928, 933 (4th Cir. 1977). That discretion extends to
consolidating actions sua sponte. 8 Moore's
Federal Practice § 42.10[a]-[b]:
see also Beach Mart. Inc. v. L & L Wings. Inc.,
Nos. 2:11-CV-44-F & 2:14-CV-52-F, 2014 WL 4635450, at *1
(E.D. N.C. Sept. 15, 2014) (consolidating cases sua
exercising its discretion to consolidate, the court must
whether the specific risks of prejudice and possible
confusion were overborne by the risk of inconsistent
adjudications of common factual and legal issues, the burden
on parties, witnesses and available judicial resources posed
by multiple lawsuits, the length of time required to conclude
multiple suits as against a single one, and the relative
expense to all concerned of the single-trial, multiple-trial
Arnold v. E. Air Lines. Inc., 681 F.2d 186, 193 (4th
Cir. 1982): see also Antoine v. Amick Farms. LLC.
Civ Nos. ELH-16-2444 & ELH-16-2938, 2017 WL 68646, at *14
(D. Md. Jan. 6, 2017) (consolidating actions after
considering "duplication of discovery" and
"trial testimony, " "conserv[ation] [of]
judicial resources, ... reduc[tion] [of] expenses associated
with trial, " and the "inconvenience to witnesses
for both sides").
January 3, 2018, Hixson filed Hixson v. Raynes,
5:18-cv-00001-MFU, in this court. The complaint in
Raynes (the "Raynes Complaint" or
"Raynes Compl."), Complaint, 5:18-cv-00001-MFU, ECF
No. 1, brings claims against Katherine Raynes and Janelle
Seekford, two nurses employed by SHP to provide medical care
to inmates at HRRJ. Raynes Compl. ¶¶ 7, 10. The
allegations in the Raynes Complaint mirror the allegations in
the FAC. Moreover, the claims against Raynes and Seekford-a
Section 1983 claim, a state-law medical malpractice claim,
and requests for punitive damages and attorneys'
fees-happen to he. the, same, claims brought against Does in
the FAC. Compare Id. at 20-21, with FAC
38-39, 44-45. It is clear from the face of me Raynes
Complaint diat Raynes and Seekford are, in fact, die Does
named in the FAC. Instead of amending the FAC to identify
Does, however, Hixson has filed a separate complaint.
court now has before it two actions that involve the same
ultimate sets of facts, law, and witnesses. Discovery and
trial testimony in the two actions will almost assuredly be
duplicative, as, at base, both die FAC and the Raynes
Complaint involve the same underlying facts and, to a large
extent, causes of action. Not only do the two actions
"present a common question of either law or fact, ...