Messinger v. Moore

BARRY F. MESSINGER, Administrator of the Estate of Patrick Joseph Messinger, Plaintiff, v. MICHAEL MOORE, et al., Defendant.

Civil Action No. 2:21-cv-19

United States District Court, E.D. Virginia, Norfolk Division

August 10, 2021

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants Jason L. Spivey (“Deputy Spivey”) and Kimberly Leazer (“Deputy Leazer”) (collectively “Intake Deputies”) as well as Defendants Cintron, Edwards, Branham, Coardes Hersey, Matthews, Michalski, Dawson, Deaver, and Cashwell (“On Duty Guards”) Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 25 (Spivey), 44 (Leazer), 125 (Cintron), 40 (Edwards, Braham Hersey, Matthews, Michalski, Dawson, Deaver, and Cashwell) and 51 (Coardes).

Before the Court are also Defendants Motions to Dismiss, filed by G McMurrin, F. Goode-Alstork, L. McDaniels, D. Boutte, D. Chapman, P. Bell, Nina Williams, and Correct Care Solutions (collectively “Medical Personnel”), under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 21 (Goode-Alstork), 58 (McMurrin), 72 (McDaniels), 80 (Boutte), 84 (Chapman), 88 (Bell), 131 (Williams), and 65 (Correct Care Solutions), Also, before the Court are Defendants Motions to Dismiss, filed by Michael Moore (“Sheriff'), Marvin Waters (“Undersheriff'), Major Keller (“Major”), Captain Ford, Captain Sugg, and Lieutenant G. Everett (“Lieutenant”), (collectively the “Sheriff Leadership”). ECF Nos. 35 (Moore &Waters), 51 (Keller), and 40 (Ford, Sugg, and Everett).

For the sake of judicial economy, the Court will adjudicate all Motions to Dismiss together. The Court finds that a hearing is not necessary. Having reviewed the parties' filings, both matters are ripe for judicial determination.

I. FACTUAL AND PROCEDURAL HISTORY

The following facts taken from Plaintiff Barry F. Messinger's Complaint, ECF No. 1, are considered true and cast in the light most favorable to Plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). This case at bar concerns the death of Patrick Joseph Messinger (the “Decedent”) which occurred on January 11, 2019 at the Portsmouth City Jail (“the Jail”). Compl. at ¶ 1. On January 8, 2021, the Decedent's father and administrator of his estate, Barry F. Messinger (“Plaintiff”), filed this lawsuit against multiple jail officials and medical staff, asserting claims under 42 U.S.C. § 1983 and for wrongful death. The Complaint names “all defendants in both their individual and their official capacities.” Compl. at ¶ 12.

Deputies Leazer, Spivey, Cintron, Edwards, Spivey, Branham, Hersey, Matthews, Michalski, Dawson, Deaver, and Sergeants Cashwell and Coardes were on-duty, and were responsible for the Decedent during his incarceration at the Portsmouth City Jail. Compl. at ¶ 4. Moreover, Gwendolyn McMurrin, LPN, Nina M. Williams, Felicia Goode-Alstork, LPN, Dawn Chapman, LPN, D. Bouette, RN, L. McDaniels, LPN, and Paul Bell, RN were duly appointed and actively employed as nurses, licensed practitioners, and/or trained medical personnel, each acting within the scope of their employment for Correct Care Solutions. Compl. at 9.

On January 6, 2019, at approximately 8:31 p.m., the Decedent was booked into the Jail by Booking Officer J.L. Spivey and was processed by Intake Deputy K.S. Leazer (collectively referred to as (“Intake Deputies”). Compl. at ¶ 17. During the intake process, the Decedent advised the Intake Deputies that he used at least one gram of heroin per day, three to four doses of Xanax per day, and drank a 12-pack of alcohol per day. Compl. at 18. The Decedent also informed the Intake Deputies that he had a history of mental health and withdrawal symptoms, which included sweats, vomiting, diarrhea, chills, anxiousness, and restless legs. Compl. at 18-19. Deputy Leazer noted that the Decedent appeared unusual in both appearance and behavior and that he “seemed overly tired and agitated.” Compl. at ¶ 20.

After being processed, the Decedent was screened by Nurse McMurrin, who is a licensed practical nurse. Compl. at ¶ 21. During the screening interview, the Decedent told Nurse McMurrin that he: (1); was prescribed Prozac; (2) had a history of mental health treatment; (3) injected one gram of heroin per day; (4) took several Xanax per day; (5) consumed a 12-pack of beer per day; and (6) had “a history of withdrawal symptoms including sweats, headache, hot/cold, and stomach pain.” Id. Nurse McMurrin determined that the Decedent needed to be examined by a mental health professional to determine whether the Decedent needed any further course of treatment. Compl. at ¶ 23. Nurse McMurrin recommended that the Decedent be housed in general population. Compl. at ¶ 25. Two days later, Nina Williams, a mental health professional, made a note in the Decedent's file that confirmed “IMHA scheduled.” Compl. at ¶ 26.

On January 9, 2019 at approximately 10:00 a.m., Nurse Goode-Alstork saw the Decedent and he requested a bottom bunk bed because his left hand was paralyzed. Compl. at ¶ 28. Nurse Goode-Alstork documented that the Decedent was placed in isolation in the morning hours of January 9, 2019 until he could be seen by a medical doctor. Compl. at ¶¶ 28-29. Nurse Goode-Alstork also documented the following patient problems: “chronic”, “psych” and “bipolar disorder.” Id. Nurse Goode-Alstork also failed to timely communicate the fact that the Decedent was placed in isolation to the Watch Commander or any other jail deputies, leaving the Decedent to his own devices during his withdrawal symptoms. Compl. at ¶ 30. Several hours later, at approximately 2:30 p.m., the Decedent was found hanging from his cell bars. Compl. at ¶ 40. The Decedent died on January 11, 2019 at Sentara Norfolk General Hospital. Compl. at ¶¶ 24, 41. An autopsy revealed that the Decedent's cause of death was suicide by hanging. Compl. at ¶ 42. Critically, Nurse Goode-Alstork documented that she was the one who placed the Decedent in isolation after the Decedent was found alone, hanging in his cell by Defendant Edwards. Compl. At ¶ 32.

On January 8, 2021 the Barry Messinger, father of the Decedent and administrator of his decedent's estate, filed the instant twelve-count complaint against Deputies, Sergeants, Lieutenants for the Portsmouth City Jail and the Portsmouth Sheriffs Office as well as various nurses and employees of Correct Care Solutions. Compl. at ¶¶ 1-13. Plaintiff filed suit against Defendants in their individual and official capacities and is seeking five million dollars in compensatory damages and ten million dollars in punitive damages. Id. at ¶¶ 12, 153. Count One alleges Wrongful Death by On-Duty Guards' Negligence. Id. at ¶¶ 54-62. Count Two alleges Gross Negligence by the on-duty guards. Id. at ¶¶ 63-69. Count Three alleges Deliberate Indifference to Serious Medical Need against the on-duty guards in violation of 42 U.S.C. § 1983. Id. at ¶¶ 70-76. Count Four alleges Negligence of Sheriff Michael Moore and Colonel Marvin Waters. Id. at ¶¶ 77-86. Count Five alleges Gross Negligence against Sherriff Moore and Colonel Waters. Id. at ¶¶ 87-92. Count Six alleges a Policy and/or Custom of Deliberate Indifference to Serious Medical Need against Michael Moore and Marvin Waters, in violation of 42 U.S.C. § 1983. Id. at ¶¶ 93111. Count Seven alleges Negligence against the Medical Personnel. Id. at ¶¶ 112-121. Count Eight alleges Gross Negligence against the Medical Personnel. Id. at ¶¶ 122-127. Count Nine alleges deliberate Indifference to Serious Medical Need against the Medical Personnel, in violation of 42 U.S.C. § 1983. Id. at ¶¶ 128-134. Count Ten alleges Negligence against Correct Care Solution. Id. at ¶¶ 135-141. Count Eleven alleges Gross Negligence against Correct Care Solution. Id. at ¶¶ 142-147. Count Twelve alleges punitive damages. Id. at ¶¶ 148-153.

A. Procedural History for the On-Duty Guards

On March 4, 2021, Defendant Leazer filed a motion to dismiss Plaintiffs complaint. ECF No. 25 On March 18, 2021, Plaintiff responded in opposition to Leazer's motion to dismiss and, on March 29, 2021, Defendant Leazer replied. ECF Nos. 48, 78. Defendant Leazer also filed a request for a hearing. ECF No. 99.

On March 12, 2021, Defendants Branham, Cashwell, Dawson, Deaver, Edwards, Everett, Captain Ford, Hersey, Matthews, Michalski, and Captain Sugg filed a joint motion to dismiss. ECF No. 40. On March 26, 2021, Plaintiff responded in opposition. ECF No. 76. On March 31, 2021, Defendants Branham, Cashwell, Dawson, Deaver, Edwards, Everett, Captain Ford, Hersey, Matthews, Michalski, and Captain Sugg filed a joint reply. ECF No. 102.

On March 15, 2021, Defendant Spivey filed a motion to dismiss Plaintiffs complaint. ECF No. 44. On March 29, 2021, Plaintiff responded in opposition and, on April 1, 2021, Defendant Spivey replied. ECF Nos. 91, 104.

On March 22, 2021, Defendant Coardes filed a motion to dismiss and request for a hearing. ECF Nos. 51, 53. On April 5, 2021, Plaintiff responded in opposition. ECF No. 106. April 9, 2021, Defendant Coardes filed a reply. ECF No. 111.

On April 29, 2021, Defendant Cintron filed a motion to dismiss and request for hearing. ECF Nos. 125, 127. On May 13, 2021, Plaintiff filed a response in opposition. ECF No. 129. On May 17, 2021, Defendant Cintron filed a reply. ECF No. 130.

B. Procedural History for Medical Personnel

On March 3, 2021, Defendant Goode-Alstork filed a motion to dismiss Plaintiffs complaint. ECF No. 21. On March 17, 2021, Plaintiff responded in opposition. ECF No. 46. On March 31, 2021, Defendant Goode-Alstork replied. ECF No. 61.

On March 23, 2021 Defendant McMurrin filed a motion to dismiss Plaintiffs complaint and a request for a hearing. ECF Nos 58, 97. On April 6, 2021, Plaintiff responded in opposition and, on March 29, 2021, Defendant McMurrin...