Insco v. Wexford Health Sources, Inc.

MICHAEL INSCO, Plaintiff, v. WEXFORD HEALTH SOURCES, INC., et al., Defendants.

Civil Action No. 2:19-cv-00612

United States District Court, S.D. West Virginia, Charleston Division

September 7, 2021

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, CHIEF JUDGE.

Pending before the Court are three motions: (1) Defendant Pam Moore and Wexford Health Sources, Inc.'s Motion to Dismiss (ECF No. 49) (“Moore and Wexford's Motion to Dismiss”); (2) Debbie Hissom's Motion to Dismiss (ECF No. 64) (“Hissom's Motion to Dismiss”) and (3) Plaintiff's Motion for Leave to Amend Complaint to Add Defendant Wexford to Count III Requesting Injunctive Relief and Bring Action Against Debbie Hissom in her Official Capacity (“Plaintiff's Motion for Leave to Amend Complaint”), (ECF No. 72). For the reasons stated more fully within, the Court GRANTS Plaintiff's Motion for Leave to Amend Complaint, (ECF No. 72) and DENIES IN PART and GRANTS IN PART Moore and Wexford's Motion to Dismiss (ECF No. 49). The Court GRANTS IN PART an DENIES IN PART Hissom's Motion to Dismiss. (ECF No. 64.)

I. Background

A. Procedural History

On August 21, 2019, Plaintiff Michael Insco (“Plaintiff”) initiated this action against Defendants Wexford Health Sources, Inc. (“Wexford”), Pam Moore (“Moore”), and unidentified John/Jane Doe Wexford employees. (ECF No. 1.) Then, on December 2, 2019, Plaintiff filed an Amended Complaint. (ECF No. 8.) On July 15, 2020, Plaintiff's counsel filed a Motion to Stay as Plaintiff had been recently paroled-but had not yet contacted his parole officer. (ECF No. 36.) At that time, Plaintiff's counsel indicated that Plaintiff's location was unknown and asked to stay this matter for three months. Id. Defendants did not oppose this Motion to Stay. Id. The Court agreed to the stay and stayed this action through October 15, 2020. (ECF No. 37.) After the case was reopened, Plaintiff filed a Motion for Leave to Amend Complaint to Substitute or Add Party. (ECF No. 43.) In that Motion for Leave to Amend Complaint, Plaintiff sought to add Debbie Hissom as a party to the matter. Id. Ultimately, the Court granted the Motion for Leave to Amend Complaint, (ECF No. 47), and the Second Amended Complaint was deemed filed on December 21, 2020, (ECF No. 48).

Following the filing of the Second Amended Complaint, Defendants Moore and Wexford filed a Motion to Dismiss. (ECF No. 49.) Plaintiff responded to the Motion to Dismiss on January 19, 2021. (ECF No. 56.) On January 25, 2021, Defendants Moore and Wexford filed their Reply in support of their Motion to Dismiss. (ECF No. 57.) Defendant Debbie Hissom (“Hissom”)- the defendant Plaintiff added in the Second Amended Complaint-filed her own Motion to Dismiss on April 9, 2021. (ECF No. 64.) Hissom's Motion to Dismiss was fully briefed by April 30, 2021. (ECF Nos. 64, 65, 71, 75.) During the briefing of Hissom's Motion to Dismiss, Plaintiff filed a Motion for Leave to Amend Complaint. (ECF No. 72.) Hissom filed her Response to the Motion for Leave to Amend Complaint on May 7, 2021, (ECF No. 78), and Moore and Wexford joined that Response shortly thereafter, (ECF No. 79). Now, all three of these motions, Wexford and Moore's Motion to Dismiss, (ECF No. 49); Plaintiff's Motion for Leave to Amend Complaint, (ECF No. 64); and Hissom's Motion to Dismiss, (ECF No. 72), are ripe for adjudication.

B. Factual Background and Allegations

This case stems from allegations related to the sufficiency of medical and drug treatment provided to Plaintiff by Defendants for Plaintiff's Hepatitis C diagnosis. Generally, Plaintiff alleges that, at various West Virginia Correctional facilities, Wexford and its employees “have been deliberately indifferent to the serious medical conditions of [Plaintiff] by repeatedly refusing to provide [him] treatment for [his] hepatitis C.” (ECF No. 48 at 1.) Plaintiff contends that the Wexford policy that contains the treatment regimen for inmates with Hepatitis C rises to the level of deliberate indifference to his serious medical condition. (ECF No. 48 at pp. 1-2.) Plaintiff further claims that the standard of care for the successful treatment of individuals with Hepatitis C involves medications known as Direct Acting Antiviral drugs (“DAAs”) and that Defendants' refusal to provide DAAs to Plaintiff amounts to a violation of the Eighth Amendment. (See ECF No. 48 at ¶ 6.)

More specifically, Plaintiff's Second Amended Complaint asserts claims against three named defendants and John/Jane Does. (ECF No. 48.) The named defendants are Wexford, “a company that provides health services to inmates at various West Virginia Correctional facilities[;]” Moore, “a nurse practitioner employed by Wexford who has personally addressed plaintiff's request for antiviral drug treatment[;]” and Hissom, “who is employed by the [West Virginia Division of Corrections and Rehabilitation] as the Director of Medical Services.” (ECF No. 48 at pp. 2-3.) The Second Amended Complaint contains three causes of action. (ECF No. 48.) The first two causes of action are deliberate indifference under 42 U.S.C. § 1983 in violation of the Eighth Amendment and intentional/reckless infliction of emotional distress under West Virginia state law. (ECF No. 48.) The third cause of action seeks injunctive relief (1) that directs Hissom “to alter the policy that results in contracted medical providers from treating plaintiff or referring plaintiff for treatment of his hepatitis C;” (2) that directs “providers to make medical referrals for treatment of Hepatitis C on medical grounds and, not financial grounds;” and (3) that directs “providers to develop and implement policies to preclude such violations from occurring in the future.” (ECF No. 48 at p. 9.)

Now Defendants Wexford, Moore, and Hissom move to dismiss this Second Amended Complaint, (ECF Nos. 49, 64), and Plaintiff seeks leave to amend his Second Amended Complaint, (ECF No. 72). Each of these three pending motions will be discussed in turn below.

II. Legal Standard

As the Court is addressing two separate types of motions in this Order, each legal standard will be provided in separate subsections below.

A. Motion to Amend

When a plaintiff seeks to amend a complaint after expiration of a court's scheduling deadline with respect to amended pleadings, that plaintiff “first must satisfy the good cause standard of Rule 16(b). If the moving party satisfies Rule 16(b), the movant then must pass the tests for amendment under Rule 15(a).” Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995); see Fed.R.Civ.P. 16(b) (“A schedule may be modified only for good cause and with the judge's consent.”); see also Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (following other federal courts of appeals in holding that “after the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend pleadings”). “Rule 16(b)'s good cause standard focuses on the timeliness of the amendment and the reasons for its tardy submission; the primary consideration is the diligence of the moving party.” Montgomery v. Anne Arundel Cty., 182 Fed.Appx. 156, 162 (4th Cir. 2006) (per curiam) (unpublished opinion); see also Cook v. Howard, 484 Fed.Appx. 805, 815 (4th Cir. 2012) (per curiam) (unpublished opinion) (“‘Good cause' requires ‘the party seeking relief [to] show that the deadlines cannot reasonably be met despite the party's diligence,' and whatever other factors are also considered, ‘the good-cause standard will not be satisfied if the [district] court concludes that the party seeking relief (or the party's attorney) has not acted diligently in compliance with the schedule.'” (alterations in original) (quoting 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1522.2 (3d ed. 2010))); Marcum, 163 F.R.D. at 255 (“[T]he touchstone of ‘good cause' under Rule 16(b) is diligence.”).

Once a plaintiff demonstrates good cause, then amendment should be allowed in accordance with the standard set forth by Rule 15(a), which provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Whereas the Rule 16(b) analysis focuses on the diligence of the moving party, the Rule 15(a) inquiry focuses “substantially on the prejudice to the opposing party if leave to amend is granted.” Marcum, 163 F.R.D. at 254 n.8. As this Court has previously recognized:

In the absence of any apparent or declared reason-such as undue delay,

bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtueof allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given.'

Burton v. United States, 199 F.R.D. 194, 199 (S.D. W.Va. 2001) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)). “Although the decision whether to grant leave rests within the sound discretion of the district court, the federal rules strongly favor granting leave to amend.” Medigen of Ky., Inc. v. Pub. Serv. Comm 'n of W.Va., 985 F.2d 164, 167-68 (4th Cir. 1993) (citing Nat'lBank v. Pearson, 863 F.2d 322, 327 (4th Cir. 1988)).

B. Motion to Dismiss

To defeat a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, which, if proven would entitle him to relief under a cognizable legal claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). A case should be dismissed if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff, the complaint does not contain ...