Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD TYLER HOWARD GRAENING,
Plaintiff,
v. CIVIL ACTION NO. 1:20-00400
WEXFORD HEALTH SOURCES, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is the motion of defendant Wexford Health Sources, Inc. (“Wexford”) for summary judgment. (ECF No.
56.) For the reasons that follow, the motion is GRANTED .
I. Background
In this § 1983 action, plaintiff alleges deliberate indifference to his medical needs in violation of the Eighth
Amendment to the United States Constitution. He says that he
was deprived of medical care to diagnose and treat “pain in his
ear, ringing, vertigo, and hearing loss.” (ECF No. 3, at 3.)
More specifically, he says that Wexford wrongfully delayed a
referral to an ear, nose, and throat specialist (“ENT”).
Plaintiff sued multiple defendants, but after plaintiff’s
voluntary dismissals and the court’s dismissal of two individual
defendants, the only defendant remaining in this action is
Wexford, a corporation that provided inmate healthcare to
prisoners at a facility where plaintiff was incarcerated.
At the motion to dismiss stage, the court found that although plaintiff sufficiently stated a claim for deliberate
indifference, the doctor and health administrator defendants
were entitled to qualified immunity. The court allowed
plaintiff’s Monell claim against Wexford to proceed, reasoning
as follows:
Although proving a policy or custom under Monell is quite difficult, pleading one is less so. Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379, 403 (4th Cir. 2014). A plaintiff need not “detail the facts underlying his claims, or . . . plead the multiple incidents of constitutional violations that may be necessary at later stages to establish the existence of an official policy or custom and causation.” Jordan, 15 F.3d at 339. In this context, as in others, “[t]he recitation of facts need not be particularly detailed, and the chance of success need not be particularly high.” Owens, 767 F.3d at 403. Hearsay will not suffice to defeat summary judgment. Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir. 2014). But the pleading stage is not as demanding, and the court must assume the truth of plaintiff’s allegations.
Plaintiff’s Monell allegations are essentially two: (1) Nurse New stated, in the presence of Dr. Garcia, that Wexford was withholding referrals to specialists for all but life-threatening illnesses; (2) as of the time plaintiff filed his complaint, he had been seeking a referral unsuccessfully for over six months despite alarming symptoms. Defendants argue that this is not enough. The court disagrees.
It does not matter that New was a low-level employee. Plaintiff is not saying that New came up with this policy, only that his statement reveals its existence. While only one allegation, it is a fairly powerful one. If it is true that New said it, as the court must assume, then it is plausible that Wexford had a policy of wrongfully withholding referrals to inmates. This fact, together with the currently unexplained delay in plaintiff’s case, is sufficient to state a claim under Monell.
(ECF No. 30, at 25-27.)
The court further noted that questions surrounding whether Nurse New (“New”) had knowledge of such a policy,
or was merely speculating, were for the summary judgment
stage. (Id. at 27.)
We are now at the summary judgment stage, discovery is closed, and the record on plaintiff’s side remains virtually
unchanged. It does not appear that plaintiff took the
deposition of New or engaged in any formal discovery to obtain
evidence of Wexford’s alleged unconstitutional policy or custom.
Instead, plaintiff relies on his affidavit, a fellow prisoner’s
affidavit regarding an unrelated injury, his own deposition, and
his verified complaint. He suggests that these items are
sufficient to support a reasonable inference of Monell
liability.
By contrast, Wexford has obtained evidence that New’s statement does not indicate the existence of a policy or custom
of unconstitutionally delaying referrals or of deliberate
indifference by Wexford to such a policy or custom. Wexford has
also obtained evidence (in the form of an expert opinion) that,
as a more preliminary matter, there was no violation of the
standard of care here (which would necessarily mean there was no
Eighth Amendment violation) when the medical staff did not refer
plaintiff to an ENT.
In sum, we arrive at the summary judgment stage with insufficient evidence to sustain a reasonable inference that (1)
Wexford had a Monell policy or custom that resulted in a delay
in plaintiff’s referral to an ENT; or (2) that plaintiff
received medical care so deficient as to violate the Eighth
Amendment. To the contrary, there is unrebutted evidence that
(1) a state (i.e., non-Wexford) policy urged the rescheduling or
postponement of non-emergency outside healthcare trips due to
the COVID-19 pandemic; and (2) there was no violation of the
medical standard of care here.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides: A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
“A fact is ‘material’ if proof of its existence or non-existence
would affect disposition of the case under applicable law. An
issue of material fact is ‘genuine’ if the evidence offered is
such that a reasonable jury might return a verdict for the non-
movant.” Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037
(4th Cir. 2020) (citations omitted). “A genuine question of
material fact exists where, after reviewing the record as a
whole, a court finds that a reasonable jury could return a
verdict for the nonmoving party.” CTB, Inc. v. Hog Slat, Inc.,
954 F.3d 647, 658 (4th Cir. 2020).
“The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine
issue of material fact.” Wai Man Tom, 980 F.3d at 1037.
Because “a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all
other facts immaterial,” one way to meet this burden it to show
that the nonmoving party has failed to prove an essential
element of the nonmoving party’s case for which the nonmoving
party will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23.
Once there is a proper challenge to the sufficiency of the nonmoving party’s evidence on an essential element, the burden
shifts to the nonmoving party to produce sufficient evidence for
a jury to return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
“[T]o survive the motion for summary judgment, [the nonmoving
party] may not rest on the allegations averred in his pleadings.
Rather, the nonmoving party must demonstrate specific, material
facts exist that give rise to a genuine issue.” Wai Man Tom,
980 F.3d at 1037 (citation omitted).
As the Supreme Court has explained, The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find, by a preponderance of the evidence, that the plaintiff is entitled to a verdict . . . .
Anderson, 477 U.S. 252. “If the evidence is merely colorable,
or is not significantly probative, summary judgment may be
granted.” Id. at 250-51. In other words, summary judgment is
proper when it is apparent from the record that “no reasonable
jury could find for the nonmoving party.” Moss v. Parks Corp.,
985 F.2d 736, 738 (4th Cir. 1993).
Disbelief in the nonmoving party’s ability to succeed on the merits, however, is not a sufficient reason to grant summary
judgment. See Stanton v. Elliott, 25 F.4th 227, 234 (4th Cir.
2022). Also, at the summary judgment stage, courts are not to
make credibility determinations or weigh the evidence. Id. at
255.
The evidence is to be viewed in the light most favorable to the nonmoving party, and all reasonable inferences are to be
drawn in that party’s favor. Verisign, Inc. v. XYZ.COM LLC, 848
F.3d 292, 298 (4th Cir. 2017). That said, “[t]he requirement to
construe the facts, and all reasonable inferences therefrom, in
the light most favorable to the non-moving party does not
require [courts] to accept cherry-picked snippets of testimony
divorced from their context.” Sedar v. Reston Town Ctr. Prop.,
LLC, 988 F.3d 756, 763 (4th Cir. 2021).
III. Discussion
The sole remaining claim in this case is that Wexford, a corporation providing healthcare services to West Virginia
prisoners, is liable under 42 U.S.C. § 1983 [1] on the theory that
it had a “de facto policy of denying requests for outside
treatment.” (ECF No. 3, at 3.) Plaintiff alleges that Wexford
would automatically deny specialist referrals until forced to
relent in the face of the grievance process. (See id.) Thus,
plaintiff’s § 1983 theory of liability is pursuant to Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978). [2]
“The substantive requirements for proof of municipal liability [under § 1983] are stringent.” Jordan by Jordan v.
Jackson, 15 F.3d 333, 338 (4th Cir. 1994). Proving a Monell
claim is difficult because it requires tracing the alleged
violation of federal law up to the policymaking arm of the
municipality or corporation. See Bd. of Cnty. Comm’rs v. Brown,
520 U.S. 397, 403 (1997); Spell v. McDaniel, 824 F.2d 1380,
1387, 1390 (4th Cir. 1987). Here, plaintiff has not shown that
there is a triable issue of fact that the alleged deprivation of
a federal right can be traced in this way. More fundamentally,
plaintiff has failed to show that there is a triable issue of
fact as to whether he sustained a deprivation of a federal
(Eighth Amendment) right at all.
In § 1983 actions, municipalities are liable only for the results of their unlawful policies or customs, not merely by
virtue of respondeat superior. Monell, 436 U.S. at 691, 694.
As the Fourth Circuit Court of Appeals has explained,
Although municipalities, unlike public officials, cannot claim immunity from suit, the Supreme Court has expressly cabined their liability: under Monell, a municipality is liable only for its own illegal acts. Pursuant to this standard, a municipality is liable under § 1983 if it follows a custom, policy, or practice by which local officials violate a plaintiff’s constitutional rights. Only if a municipality subscribes to a custom, policy, or No. 17-CV-00839-JPG, 2021 WL 1062214, at *5 (S.D. Ill. Mar. 18,
2021).
practice can it be said to have committed an independent act, the sine qua non of Monell liability.
Owens v. Baltimore City State’s Att’ys Off., 767 F.3d 379, 402
(4th Cir. 2014) (citations omitted).
In Powell v. Shopco Laurel Co., the Fourth Circuit made the limits of Monell applicable to private corporations acting under
color of state law. 678 F.2d 504, 506 (4th Cir. 1982); see also
Insco v. Wexford Health Sources, Inc., No. 2:19-CV-00612, 2020
WL 2770419, at *5 (S.D.W. Va. May 28, 2020) (“[A] private
corporation is liable under § 1983 only when an official policy
or custom of the corporation causes the alleged deprivation of
federal rights.”).
The most basic requirement for a successful Monell claim is to connect the alleged violation of a federal right to an
official policy or custom of the defendant. See Carter v.
Morris, 164 F.3d 215, 218 (4th Cir. 1999). An express policy
issued by the corporation’s policymakers is the most
straightforward source of such a policy or custom, but there are
three other possible sources: (1) a decision of a policymaking
official; (2) a corporate omission manifesting deliberate
indifference to federal rights; and (3) a practice that “is so
‘persistent and widespread’ as to constitute a ‘custom or usage
with the force of law.’” See Lytle v. Doyle, 326 F.3d 463, 471
(4th Cir. 2003) (quoting Carter, 164 F.3d at 217); see also
Connick v. Thompson, 563 U.S. 51, 61 (2011) (“Official municipal
policy includes the decisions of a government’s lawmakers, the
acts of its policymaking officials, and practices so persistent
and widespread as to practically have the force of law.”).
A Monell “custom” must be based on a practice that is “so widespread as to have the force of law.” Brown, 520 U.S. at
404. A plaintiff can trace an alleged “custom” up to the
defendant’s policymaking officials by showing that the “duration
and frequency of the practice[] warrants a finding of either
actual or constructive knowledge” on the part of those
officials. Spell, 824 F.2d at 1387. Constructive knowledge of
an improper practice is not to be inferred lightly: “[It] may
be evidenced by the fact that the practices have been so
widespread or flagrant that in the proper exercise of its
official responsibilities the governing body should have known
of them.” See id. (emphasis added).
A Monell plaintiff must not only prove the existence of a policy or custom, but also must prove causation between the
policy or custom and the deprivation of a federal right. Brown,
520 U.S. at 404 (requiring “a direct causal link between the
municipal action and the deprivation of federal rights”);
Haughie v. Wexford Health Sources, No. CV ELH-18-3963, 2020 WL
1158568, at *15 (D. Md. Mar. 9, 2020) (“A viable § 1983 Monell
claim consists of two components: (1) the municipality had an
unconstitutional policy or custom; and (2) the unconstitutional
policy or custom caused a violation of the plaintiff’s
constitutional rights.).
When the policy “directly commands or authorizes constitutional violations” (as in Monell itself), causation is
easily shown. Spell, 824 F.2d at 1387; see also Brown, 520 U.S.
at 404 (“Where a plaintiff claims that a particular municipal
action itself violates federal law, or directs an employee to do
so, resolving these issues of fault and causation is
straightforward.”). Causation becomes significantly more
difficult when the alleged policy is not improper on its face.
Id. “Where a plaintiff claims that the municipality has not
directly inflicted an injury, but nonetheless has caused an
employee to do so, rigorous standards of culpability and
causation must be applied to ensure that the municipality is not
held liable solely for the actions of its employee.” Brown, 520
U.S. at 405.
Here, plaintiff’s theory is that Wexford had a “de facto” policy of delaying necessary referrals to specialists. The
court understands plaintiff’s claim to be that Wexford had an
unconstitutional custom that caused a violation of the Eighth
Amendment. Plaintiff’s essential task at the summary judgment
stage was to show that a reasonable jury could infer (1) that
Wexford adopted or condoned the existence an unwritten rule that
(2) caused a violation of his Eighth Amendment rights.
To prove the adoption of an unwritten rule, plaintiff would need to show that the corporation took some deliberate action
toward such adoption. To prove that Wexford condoned an
unwritten rule, plaintiff would need to show Wexford’s
deliberate indifference to a practice of not referring inmates
even when doing so would violate the Eighth Amendment.
Plaintiff could do so by showing that the practice was so
widespread and the constitutional violations so likely to occur
that Wexford effectively condoned the constitutional violations.
Plaintiff has failed to show that there is a triable issue of
fact as to whether a policy or custom that Wexford adopted or
condoned was behind his alleged Eighth Amendment violation. On
this record, no reasonable jury could infer the existence of
such a policy or custom.
In arguing to the contrary, plaintiff points to three items: (1) New’s comment that the corporation was not referring
inmates unless they were dead or dying; (2) the delays
associated with the referral in this case; and (3) the affidavit
of a fellow prisoner stating that he, too, was denied a referral
by Wexford. Individually or collectively, this is not nearly
enough for a jury reasonably to conclude that Wexford is liable
under a Monell theory.
As to New’s comment, the court assumes that it is admissible as one of a party opponent under Federal Rule of
Evidence 801, and further assumes that New in fact said it and
that it is in fact true. Read for all it is worth, however,
this statement does not create a triable issue of fact
concerning the existence of a corporate policy of automatically
delaying medically necessary referrals. At most, it supports an
inference that those who made referral decisions were not then
granting them except in critical medical situations. But there
is no evidence that the refusal to refer is traceable to Wexford
policymakers. In discovery, plaintiff had an opportunity to tie
the refusals to Wexford policymakers, and he failed to do so.
Neither can this statement sustain a finding that Wexford condoned a practice of automatic nonreferral. First, New’s
alleged suggestion that an inmate must be dead or dying is
obviously at least somewhat hyperbolic. New could not have
meant that Wexford was actually referring dead inmates to
specialists. If a prerequisite for a referral was that the
inmate needed to be dying, that would lead to inevitable Eighth
Amendment violations, but to draw this inference, one would need
to understand New’s at least half-hyperbolic comment as half
literal. The comment is no more than a scintilla of evidence of
an unconstitutional custom.
Second, New’s comment was that referrals were not then happening. (See ECF No. 3, at 3 (“Wexford Health is not
approving any specialist appointments unless the inmate was dead
or dying.”).) Reading the comment as proof of a widespread,
settled practice asks far too much of it. While it may support
an inference of general unwillingness by Wexford staff to refer
non-critically ill prisoners, it does very little to support an
inference that the refusal to refer was widespread and flagrant
enough to put Wexford on constructive notice of its existence.
The comment is also insufficient to support the inference that
Wexford was aware of a reluctance to refer severe enough to lead
to inevitable Eighth Amendment violations.
As to the delayed referral and delay in carrying out the referral in this case, these facts also do very little to show
the existence of a Monell policy or custom. First, the delays
speak to only a single instance of a potential constitutional
violation, which is insufficient as proof of a policy or custom.
Spell, 824 F.2d at 1388 (“Neither the existence of such a policy
or custom nor the necessary causal connection can be established
by proof alone of the single violation charged.”). On this
record, it would be speculative to infer that the delays
indicate the existence of a Monell policy or custom.
Wexford’s delay in carrying out the referral is particularly unavailing. The delay in carrying out the referral
is a different kind of delay than the one based on New’s
statement (that referrals were not being approved), and it would
again be speculative to infer that the delay was pursuant to a
policy or custom. The undisputed evidence shows that plaintiff
received a referral very soon after the grievance process
resulted in a favorable recommendation for him. It also shows
that during the entire period of delay between when plaintiff
received the referral and when he saw an ENT specialist (1) the
world was in the midst of the COVID-19 pandemic; and (2) the
West Virginia Division of Corrections (“WVDCR”) accordingly had
a policy in place to restrict outside appointments as much as
possible. (ECF No. 56-3. 56-4.)
Plaintiff attempts to create a dispute of fact by citing his deposition testimony, where he denied that anyone told him
that the pandemic was the reason for the delay and where he
stated that, instead, the explanation he received was that the
referral was not approved. (ECF No. 58-3, at 2.) In reviewing
this deposition testimony, it is unclear whether it related to
the delay in receiving the referral or the delay in carrying out
the referral. Regardless, assuming that plaintiff was told that
the reason for either delay was a lack of approval, that does
not refute the existence of the COVID-19 pandemic or the WVDCR
policy.
In response to Wexford’s assertion that the only policy uncovered in discovery is the WVDCR COVID-19 policy, plaintiff
retorts that this explanation for the delay is “bogus” and that
the WVDCR policy should have been asserted in Wexford’s answer
as an affirmative defense. But plaintiff offers no challenge to
the existence of the policy, its non-Wexford source, or its
validity. Plaintiff casts no more than a scintilla of doubt on
the assertion that the delay in carrying out the referral was a
result of the restrictions on movement due to the COVID-19
pandemic. In asking that the delays here speak for themselves,
plaintiff would invite the trier of fact to assume blindly—not
infer reasonably—that the delay resulted from a Monell policy or
custom. It was incumbent upon plaintiff to discover evidence
connecting the delay to such a policy or custom, and he failed
to do so.
Finally, plaintiff points to the affidavit of a fellow prisoner regarding an unrelated failure to refer despite a
severe staph infection on his pinky finger. This evidence fails
to move the needle with any appreciable magnitude. It is not at
all clear that this unrelated instance would amount to
deliberate indifference under the Eighth Amendment, rather than
mere disagreement over a course of treatment under Estelle v.
Gamble, 429 U.S. 97 (1976). At most, this is evidence of one
other instance where Wexford did not make a specialist referral
despite a course of treatment that was seemingly not resolving a
medical issue. One other example of a possible case of a
wrongfully withheld referral does virtually nothing to support
plaintiff’s Monell claim. In other words, it presents
essentially no support for an inference that Wexford condoned an
unwritten rule that referrals should always be withheld unless a
prisoner is dying.
In addition to plaintiff’s failure to show a triable issue of fact as to the existence of a Monell policy or custom, there
is a more fundamental failure: Plaintiff has failed to show a
triable issue of fact as to an underlying violation of the
Eighth Amendment. “Disagreements between an inmate and a
physician over the inmate’s proper medical care do not state a
§ 1983 claim unless exceptional circumstances are alleged.”
Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). The
Eighth Amendment demands a reasonable response to a serious
medical risk, not a preferred course of treatment. See Hixson
v. Moran, 1 F.4th 297, 302-03 (4th Cir. 2021).
In Hixon, a prisoner brought a deliberate indifference claim based on his not receiving the insulin that his expert
witness was prepared to testify that he needed. Hixson v.
Moran, 1 F.4th 297, 300 (4th Cir. 2021). In lieu of prescribing
insulin, the doctor in that case placed the prisoner on a
diabetic diet and ordered blood sugar monitoring. Id. The
court held that because the plaintiff “failed to forecast
evidence showing that [the doctor’s] alternative treatment plan
was ‘so grossly incompetent’ as to permit a finding of
deliberate indifference, the district court properly granted
summary judgment.” Id. at 303 (quoting Miltier v. Beorn, 896
F.2d 848, 851 (4th Cir. 1990)).
In this case, the court denied the motion to dismiss because, under the “exceptional circumstances” standard (which
eludes a precise definition), it appeared plausible that the
refusal to refer plaintiff to an ENT violated the Eighth
Amendment. Now, after the close of discovery, the record
indicates otherwise. No reasonable jury could find an Eighth
Amendment violation on this record.
The question of whether there was an Eighth Amendment violation here depends on whether further diagnostic efforts
(referral to an ENT) were required. Because plaintiff’s
allegedly serious medical condition was not at all an obvious
one, plaintiff’s claim implicates medical standards beyond the
ken of laypersons. Thus, expert opinion is required concerning
the standard of care to help the jury understand whether there
was even a breach of the standard, let alone deliberate
indifference to a serious medical need.
Wexford has submitted an expert opinion by Dr. Richard A.
Capito (“Dr. Capito”) that there was not a violation of the
medical standard of care. (ECF No. 56-5.) Mere medical
malpractice is an insufficient basis for a § 1983 claim based on
an alleged violation of the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 107 (1976). If there was not even a
violation of the standard of care here, there was necessarily no
deliberate indifference.
Plaintiff submitted no expert opinion to rebut Dr. Capito’s opinion (or in support of plaintiff’s case in chief). Plaintiff
did not take Dr. Capito’s deposition. In short, the opinion
that there was no violation of the standard of care is
unrebutted. Accordingly, and because plaintiff has submitted no
evidence that the medical staff were deliberately indifferent
(or even that they committed malpractice), there is no triable
issue of fact as to whether there was an Eighth Amendment
violation here.
IV. Conclusion
In the Monell context, the Fourth Circuit Court of Appeals has noted the importance of summary judgment in “ferret[ing] out
before trial unmeritorious suits against municipalities.” See
Jordan, 15 F.3d at 340. This case proves that point well.
There is no need for a trial where plaintiff can only speculate
as to the existence of a Monell policy or custom and ask a jury
to substitute its own medical judgment for that of the medical David A. Faber Senior
staff involved here without the benefit of expert testimony to explain the standard of care. For the foregoing reasons,
Wexford’s motion for summary judgment (ECF No. 56) is GRANTED .
The Clerk is directed to send a copy of this Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 8th day of June, 2022.
ENTER:
[1] This statute imposes liability on “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
[2] “A Monell claim asserts § 1983 liability against a municipal or county government. In Monell, the Court held that municipalities may be liable under § 1983 for unconstitutional or illegal policies.” Randall v. Prince George’s Cty., 302 F.3d 188, 194 n.4 (4th Cir. 2002). For purposes of § 1983 liability, “a private medical corporation acting under color of state law is treated like a municipal entity.” Southard v. Wexford Med.,