Adams v. Ferguson

884 F.3d 219

Roxanne ADAMS, Administrator of the Estate of Jamycheal M. Mitchell, Deceased, Plaintiff–Appellee,

v. Debra K. FERGUSON, Licensed Clinical Psychologist, Defendant–Appellant,andNaphcare, Inc.; Nsekenene Kolongo, MD ; Renee Edwards, LCSW ; Justin Ray, NP–Psych; Benedict Ngwa, NP; Pam Johnson, RN; Natalya Thomas, RN, HSA; Jalessa Rivers, LPN; Hope Nicholson, MA; Doris Murphy, MSW; John/jane Doe, (1–11) Naphcare Nurses; Kelly N. Boyd; Hampton Roads Regional Jail Authority ; Hampton Roads Regional Jail ; David L. Simons; Eugene Taylor, III; Barnes, Correctional Officer at the Hampton Roads Regional Jail; Blakely, Correctional Officer at the Hampton Roads Regional Jail; BOURNE, Correctional Officer at the Hampton Roads Regional Jail; BUTCHER, Correctional Officer at the Hampton Roads Regional Jail; Gibbs, Correctional Officer at the Hampton Roads Regional Jail; Hilliard, Correctional Officer at the Hampton Roads Regional Jail; Howard, Correctional Officer at the Hampton Roads Regional Jail; Keister, Correctional Officer at the Hampton Roads Regional Jail; Whitaker, Correctional Officer at the Hampton Roads Regional Jail; Powell, Correctional Officer at the Hampton Roads Regional Jail; Smith, Master Jail Officers "MJOs" at Hampton Roads Regional Jail; Dixon, Master Jail Officers "MJOs" at Hampton Roads Regional Jail; Johnson, Master Jail Officers "MJOs" at Hampton Roads Regional Jail; Derrick R. Brown, Sergeant at the Hampton Roads Regional Jail; Stephen T. Phillips, Sergeant at the Hampton Roads Regional Jail; William A. Epperson, Sergeant at the Hampton Roads Regional Jail; Steven W. Whitehead, Sergeant at the Hampton Roads Regional Jail; Tamara L. Everette, Sergeant at the Hampton Roads Regional Jail; Roderick D. Madison, Lieutenant at the Hampton Roads Regional Jail; Reginald Whitehead, Sergeant at the Hampton Roads Regional Jail; Felicia M. Cowan, Captain at the Hampton Roads Regional Jail; Gail Hart, Defendants.

No. 17-1484

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2017

Decided: March 6, 2018

ARGUED: David Patrick Corrigan, HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia, for Appellant. John Frederick Preis, Henrico, Virginia, for Appellee. ON BRIEF: Jeremy D. Capps, M. Scott Fisher, Jr., HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia, for Appellant. Mark J. Krudys, THE KRUDYS LAW FIRM, PLC, Richmond, Virginia, for Appellee.

Before GREGORY, Chief Judge, and MOTZ and TRAXLER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Motz wrote the opinion, in which Chief Judge Gregory and Judge Traxler joined.

DIANA GRIBBON MOTZ, Circuit Judge:

This case arises from the events surrounding the death of Jamycheal Mitchell. His personal representative, Roxanne Adams, brought this action on his behalf, asserting claims under 42 U.S.C. § 1983 and state law against Debra K. Ferguson and forty-nine other defendants. Ferguson moved to dismiss all claims against her; the district court denied the motion. Ferguson appeals. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Because this case comes to us after denial of a motion to dismiss, we "accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).

A.

Police arrested Jamycheal Mitchell in April 2015 for theft. Because Mitchell had a history of mental health issues and displayed "agitated behavior, elevated and irritable mood," and had "delusions," a state court judge ordered a competency evaluation. That evaluation found that Mitchell "was an appropriate candidate for the [state's] Jail Diversion Program." Mitchell, however, "refuse[d] to accept [those] services." As a result, instead of transferring Mitchell to a mental health facility, the state sent him to Hampton Roads Regional Jail ("the Regional Jail").

While at the Regional Jail, a psychologist again evaluated Mitchell and found him "both manic and psychotic." The psychologist concluded that Mitchell "lacked the capacity to assist counsel in preparing a defense" and "urged" the court "to commit Mitchell to the Department of Behavioral Health [& Developmental Services] for inpatient treatment to restore his competency." The state court accordingly issued a Competency Restoration Order ("Competency Order"), which, "in an effort to restore him to competency," directed that Mitchell "be treated at Eastern State Hospital" ("the Hospital").

Mitchell never received such treatment. The clerk of the court did not notify the Hospital of Mitchell's Competency Order for two months. When the Hospital did receive the Competency Order, the person responsible for processing it "put the fax [containing the Competency Order] in her desk drawer and took no further action." As a result, no one ever entered Mitchell's name into the list of individuals waiting for beds at the Hospital. Instead, Mitchell remained at the Regional Jail, where he did not receive necessary medical care and guards denied him food and water, allowed him to live in a cell covered by feces and urine, and physically abused him.

On August 19, 2015, Mitchell died from "wasting syndrome" or severe malnutrition. Months after Mitchell's death, the Office of the State Inspector General reported that the Hospital almost never operated at capacity, and that state-wide, there were more empty beds available at state mental hospitals than there were inmates waiting for beds.

B.

During these events, Debra K. Ferguson served as the Commissioner of the Virginia Department of Behavioral Health & Developmental Services, the agency responsible for overseeing state mental health hospitals.

Adams alleges that Ferguson "had a statutory duty ... to transfer Mitchell and other incompetent individuals to appropriate hospitals and to provide them restorative inpatient health care." Instead, Ferguson "deliberately failed to comply with [the Competency Order] concerning Mitchell, thus impeding Mitchell's access to adequate medical care." Accordingly, Adams sued Ferguson under Virginia law for "negligence, gross negligence, and willful and wanton negligence," and under § 1983 for constitutional violations resulting from "denial, delay, and withholding of medical care"; "deprivation of civil rights"; and "deliberate indifference."

C.

Ferguson moved to dismiss all counts against her, claiming sovereign immunity, qualified immunity, and that the complaint did not state a claim under § 1983 or state law. The district court referred the matter to a magistrate judge, who recommended dismissal of all claims alleged against Ferguson. Adams objected to that recommendation, and on de novo review, the district court denied Ferguson's motion to dismiss in its entirety. The court found that neither sovereign nor qualified immunity protected Ferguson from suit and that Adams had sufficiently pled all of her claims against Ferguson. This appeal followed.

II.

Before we can address the substantive issues in this case, we must first determine whether we have jurisdiction.

In general, we have jurisdiction only to review final judgments. See 28 U.S.C. § 1291. Thus, we ordinarily lack jurisdiction to hear an appeal from the denial of a motion to dismiss. See Suarez Corp. Indus. v. McGraw , 125 F.3d 222, 225 (4th Cir. 1997). One exception to this general rule is the collateral order doctrine. That doctrine permits appellate review of a "small class" of orders "that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (internal quotation marks and citations omitted).

The collateral order doctrine has long been held to provide a basis for appellate jurisdiction over orders refusing to dismiss § 1983 claims against officials claiming sovereign or qualified immunity from suit. See Jenkins v. Medford , 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc); Suarez , 125 F.3d at 226 ; see also Mitchell v. Forsyth , 472 U.S. 511, 525, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, pursuant to the collateral order doctrine, we have jurisdiction over Ferguson's claimed immunity defenses to Adams's § 1983 claims.

Ferguson contends that the collateral order doctrine also grants us jurisdiction to review the district court's decision not to dismiss the state law claims asserted against her. In her reply brief, she maintains that this is so because the Virginia "public duty doctrine ... affords public officials immunity from suit" under state law. Appellant Reply Br. at 16. This argument fails. As an initial matter, Ferguson has waived the right to assert this argument. In moving to dismiss her state law claims, she maintained only that she was "entitled to sovereign immunity"; she did not mention the public duty doctrine. See Castendet–Lewis v. Sessions , 855 F.3d 253, 259 (4th Cir. 2017). Moreover, it is not at all clear that the "public duty doctrine" constitutes an immunity from suit. As Ferguson herself admits, the Supreme Court of Virginia has never so held. Appellant Reply Br. at 19.

Alternatively, Ferguson maintains that we have pendent jurisdiction to review the sufficiency of Adams's state law claims. Appellant Reply Br. at 20–21. But "pendent appellate jurisdiction is available only (1) when an issue is 'inextricably intertwined' with a question that is the proper subject of an immediate appeal; or (2) when review of a jurisdictionally insufficient issue is 'necessary to ensure meaningful review' of an immediately appealable issue." Rux v. Republic of Sudan , 461 F.3d 461, 475 (4th Cir. 2006) (quoting Swint v. Chambers Cty. Comm'n , 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) ). Whether Ferguson owed Mitchell a duty under...