United States District Court, W.D. Virginia, Big Stone Gap Division
VICTORIA B. FOXWORTHY, MOTHER, NEXT-OF-KIN, AND CO-ADMINISTRATOR OF THE ESTATE OF JARROD TY FOXWORTHY, DECEASED, ET AL., Plaintiffs,
RYAN JOSEPH SLUSS, ET AL., Defendants.
Randolph Smith, David Randolph Smith & Associates,
Nashville, Tennessee, for Plaintiffs.
Timothy W. McAfee, Big Stone Gap, Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge.
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.
Complaint alleges the following facts, which I must accept as
true for the purpose of deciding the Motion to Dismiss.
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
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.
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.,  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
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.
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.
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
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 ...