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Foxworthy v. Sluss

United States District Court, W.D. Virginia, Big Stone Gap Division

July 9, 2019

VICTORIA B. FOXWORTHY, MOTHER, NEXT-OF-KIN, AND CO-ADMINISTRATOR OF THE ESTATE OF JARROD TY FOXWORTHY, DECEASED, ET AL., Plaintiffs,
v.
RYAN JOSEPH SLUSS, ET AL., Defendants.

          David Randolph Smith, David Randolph Smith & Associates, Nashville, Tennessee, for Plaintiffs.

          Timothy W. McAfee, Big Stone Gap, Virginia, for Defendants.

          OPINION AND ORDER

          James P. Jones United States District Judge.

         This civil case arises out of the death of Jarrod Ty Foxworthy, a federal inmate, at the hands of his cellmate. The plaintiffs, co-administrators of Foxworthy's estate, bring this Bevins action against certain corrections officers at the prison, alleging that the officers were deliberately indifferent to a substantial risk of harm to Foxworthy and to Foxworthy's need for medical care after being attacked. The defendants have moved to dismiss the Complaint for failure to state a claim upon which relief can be granted. For the reasons that follow, I will grant the Motion to Dismiss, but with leave to amend.

         I.

         The Complaint alleges the following facts, which I must accept as true for the purpose of deciding the Motion to Dismiss.

         At the time of his death on October 28, 2016, Jarrod Ty Foxworthy was incarcerated at United States Penitentiary Lee (“USP Lee”), located in this judicial district. Foxworthy was housed in administrative detention in USP Lee's Special Housing Unit (“SHU”). He was in administrative detention because he was at risk of harm from inmates who had obtained a copy of his Plea Agreement and discovered that he had agreed to cooperate with law enforcement.

         Foxworthy's cellmate was Eric Horne, who had a history of violence and mental health issues. On October 23, 2016, Foxworthy's parents visited him, and he told them that Horne was “‘crazy, paranoid and hearing voices of Jesus and the Devil.'” Compl. ¶ 15, ECF No. 1. Foxworthy also told his parents that he feared for his safety.

         At approximately 8:58 p.m. on October 28, 2016, Foxworthy was found unconscious in his cell. An ambulance was called at 9:30 p.m., [1] and Foxworthy was transported to a local hospital, where he was pronounced dead. The medical examiner determined that Foxworthy's death was a homicide by strangulation.[2]

         After Foxworthy's death, an investigation found that defendants Charles Carter, William Marshall, Jerry Shuler, and Ryan Sluss, all corrections officers at USP Lee, had not been making safety rounds in the SHU every 30 minutes, as required by Bureau of Prisons policy and prison procedures. In addition, they had been falsifying log sheets in which they were required to record that they had made the safety rounds.

         All of the officers were subsequently indicted in this court for falsely representing that he or another corrections officer had completed a required round in the SHU when the round had not been completed. Thereafter, all of the officers entered into nonprosecution agreements with the government in which they agreed that they had failed to make rounds and falsified records. The indictments against them were thereafter dismissed without prejudice on motions by the United States. In particular, Sluss agreed that he had failed to make rounds at 6:56 and 8:23 p.m. on October 28, 2016, and Shuler agreed that he had failed to make rounds at various times between October 17 and October 28, 2016.

         The plaintiffs, co-administrators of Foxworthy's estate, allege that the defendants were aware of strange, dangerous, and violent behavior by Horne and of the risk of injury that he posed to Foxworthy, and that they ignored that risk when they failed to make the required rounds, falsified records, and failed to report Horne's behavior and isolate him. The plaintiffs allege that the defendants' failure to make rounds led Horne to believe that the corrections officers were not watching him, and if the rounds had been performed, the defendants would have noticed Horne's aberrant and violent behavior. They also allege that the defendants present when Foxworthy was found unconscious in his cell were aware that he needed emergency treatment.[3]

         The plaintiffs bring their Complaint under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the defendants violated Foxworthy's Fifth and Eighth Amendment rights. In particular, they contend that failing to follow procedures to report and isolate Horne and failing to make safety rounds constituted a deliberately indifferent failure to protect Foxworthy's safety in violation of the Eighth Amendment, and an abusive executive action that shocks the conscience in violation of the Fifth Amendment. They contend that delaying in calling an ambulance after finding Foxworthy unconscious in his cell constituted deliberate indifference to Foxworthy's serious medical needs in violation of the Eighth Amendment, as well as an action that shocks the conscience in violation of the Fifth Amendment. Lastly, they allege that the defendants deprived Foxworthy of his right to be protected in ...


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