United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendants' motions to
dismiss. Defendants have filed two separate motions-the first
filed by defendants Brian Bosserman, Chrystal Boyers, Regina
Chestnut, James Doyle, Jeffery Estes, Douglas Grimm, William
Lee Hereford, "Officer Carter," Donna Reynolds,
Nicholas Shires, Shawn Smals, and the Middle River Regional
Jail Authority (MRRJA), ECF No. 9, and the second by
defendants Bradford Barker, David Bauguess, Jr., Zoe
Humphrey, Barry Munsey, and Stacy Stewart, ECF No. 12. Both
sets of defendants argue correspondingly that all claims
alleging ordinary negligence against them should be dismissed
on the grounds that defendants are entitled to sovereign
immunity, and that all claims brought against defendants
William Lee Hereford, Regina Chestnut, Donna Reynolds, and
Barry Munsey should be dismissed as speculative. See
ECF Nos. 10 & 13. Plaintiff Jared Tilson responded in
opposition on June 11, 2019. ECF No. 21. Each set of
defendants filed a brief in reply-one filed June 14, 2019 by
Bosserman, Boyers, Chestnut, Doyle, Estes, Grimm, Hereford,
Carter, Reynolds, Shires, Smals, and MRRJA, ECF No. 22, and
one filed on June 18, 2019 by Barker, Bauguess, Humphrey,
Munsey, and Stewart, ECF No. 23.
November 19, 2019, Tilson filed a consent, motion for leave
to file an amended complaint, dismiss defendants Bosserman,
Carter, Estes, and Shires from this action, and dismiss
Tilson's deliberate indifference claim against defendant
Doyle. ECF No. 56. This motion was granted. Accordingly,
Bosserman, Carter, Estes, and Shires were dismissed from this
action, and Doyle was removed from Tilson's deliberate
reasons stated below, the court GRANTS in part and
DENIES in part defendants' motion to dismiss.
was sentenced to two months incarceration for larceny of a
milkshake and ice cream bar at Sheetz gas station. ECF No.
61, at 1. Before he began his sentence, Tilson informed
medical staff at MRRJA that he held a prescription for a high
dosage of Xanax, had held this prescription for years, and
would likely have a seizure if he stopped taking his
prescribed dosage suddenly. Id at 2. Tilson was told
that MRRJA did not permit benzodiazepines and that Tilson
would have to taper himself off his medication. Id.
at 12. Tilson attempted to do so but was unable to completely
taper himself off his medication before his sentence began.
entered MRRJA at approximately 4:30 pm on April 27, 2018. ECF
No. 61, at 11. He again informed jail staff that he had been
prescribed Xanax and that an abrupt halt in his medication
would cause seizures. Id. Tilson's Booking
Observation Report reported that he was taking medications
and had medical problems, including anxiety, epilepsy, and/or
seizures. Id. Tilson did not see a medical staff
member to have his "Health History and Assessment"
form filled out until April 30, 2018.
first complained of symptoms of benzodiazepine withdrawal on
April 28, 2018 to defendant Licensed Practical Nurse
("LPN") Stacy Stewart ("LPN Stewart").
ECF No. 61, at 12-13. Tilson complained of a migraine and
explained he believed it was caused by the sudden halt in his
Xanax dosage. Id. Tilson also mentioned his history
of seizures. Id. LPN Stewart gave Tilson Ibuprofen
and wrote on his medical chart: "IM c/o migraine has
been tapering self off Xanax due to being incarcerated has Hx
of seizures gave IM 800 mg Ibuprophen (sic) for headache S
Stewart LPN 0235." Id. at 12. No. further
action was taken by LPN Stewart. Id. Tilson did not
see medical staff again until April 30, 2018.Id.
April 30, Tilson met with medical staff and was asked a
series of questions by defendant LPN Zoe Humphrey ("LPN
Humphrey") regarding his medical history. ECF No. 61, at
12. Tilson told LPN Humphrey that he was prescribed Xanax,
that he took between four and six milligrams per day, and
that his doctor told him he would have seizures if he stopped
taking Xanax. Id. He also told LPN Humphrey that he
had been trying to taper himself off his dosage before his
incarceration began in response to what an MRRJA medical
staff member told him on the phone but had not completely
stopped taking his prescribed Xanax before entering MRRJA.
Id. Tilson also told LPN Humphrey that he had
already had one migraine since entering MRRJA and "was
worried about what would happen to him next."
Id. at 12 -13.
time of Tilson's incarceration, MRRJA had a
Benzodiazepine Taper Protocol and Medical Guidelines for
Acute Benzodiazepine Withdrawal. ECF No. 61, at 13. Tilson
alleges that, for LPNs Humphrey and Stewart, these protocols
and guidelines established medical procedures that were
mandatory and "required no appreciable medical
discretion." Id. The procedures are alleged as
1. Performing a withdrawal assessment using a CIWA-AR form
2. Taking vital signs
3. Obtaining a urine screen to check for benzodiazepine use
4. Contacting outside primary care doctor, including records
5. Requesting an appointment with the jail doctor or medical
6. Requesting an appointment with the jail physician
7. Requesting specialized housing to ensure patient safety
8. Review of policy to ensure quality of care
Id. According to the medical records, LPNs Humphrey
and Stewart did not do any of the above tasks listed in the
preceding paragraph, with the exception of the one meeting at
which LPN Humphrey took Tilson's vital signs when filling
out his "Health History and Assessment" form.
Id. Tilson makes a number of allegations and
alternative allegations regarding LPNs Humphrey and
Stewart's conduct, including that they did not follow the
above policies and did not report Tilson's self-reported
Xanax use and cessation or his migraine, or alternatively,
did report the Xanax use, Xanax cessation, and migraine, but
proper action was not taken by those to whom LPNs Humphrey
and Stewart reported. Id. at 14.
also alleges that defendants Registered Nurse
("RN") Regina Chestnut ("RN Chestnut"),
RN Donna Reynolds ("RN Reynolds"), Physician
Assistant ("PA") Barry Munsey ('TA
Munsey"), and Dr. William Hereford ("Dr.
Hereford") were subject to procedures establishing
mandatory tasks that required no appreciable medical
discretion, triggered by Tilson's self-reported regular
use of Xanax (prescribed or otherwise):
1. Reviewing, or referring the inmate to psychiatry to
review, the medical records of inmates who are reported by
LPNs/RNs to be on Xanax and not currently receiving Xanax.
2. Reviewing the medical records of inmates who are reported
by LPNs/RNs to be complaining of migraine due to
self-tapering off Xanax and not receiving Xanax while in
3. Starting, or referring the inmate to psychiatry to start,
the Benzodiazepine/Xanax tapering protocol which includes
taking vital signs.
4. Seeing the inmate or referring the patient to Mental
Health practitioners to see the inmate, within 72 hours of
admission to jail.
5. Reviewing or performing a withdrawal assessment.
ECF No. 61, at 15-16. Tilson alleges that, according to
medical records, RN Chestnut, RN Reynolds, PA Munsey, and Dr.
Hereford did none of the things listed in the preceding
paragraph, and that this failure was a violation of the
standard of care. Id. at 16.
2, 2018, defendant Officer Gary Taylor ("Taylor")
wrote in an incident report that Tilson approached him and
told him he needed to be moved off the prison pod. ECF No.
61, at 16. Taylor also reported that Tilson was making
"strange remarks that didn't make any sense."
Id In response, Taylor moved Tilson to segregation
and recorded that he needed to see a mental health
professional. Id. at 18. Taylor signed his report,
as did defendants Shift Supervisor Cp. David Bauguess, Jr.
("Bauguess") and Watch Commander Sergeant Bradford
Barker ("Barker"). Standards of procedure required
that an inmate entering segregation receive an evaluation of
his physical condition from the medical staff. Id.
at 16-17. This evaluation was not performed. Id at
17. Tilson alleges that defendants Bauguess, Barker, James
Doyle ("Doyle") Chrystal Boyers
("Boyers"), and Douglas Grimm ("Grimm")
all served a shift as Shift Supervisor between the time
Tilson was moved to segregation and the time he had his
seizure, and all failed to ensure Tilson received a medical
screening. Id. at 17-18. As the mental health
professional who visits MRBJA was ...