Green ex rel. Estate of Green v. City of Welch, Civil Action No. 1:06-0159.

• Decision Date: 22 December 2006
• Docket Number: Civil Action No. 1:06-0159.
• Citation: 467 F.Supp.2d 656
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Helen GREEN, as Administratrix of the ESTATE OF Claude GREEN, Jr., Deceased, and as Personal Representative, Plaintiff, v. The CITY OF WELCH, a West Virginia Political Subdivision, and Robert K. Bowman, individually and in his official capacity as the Chief of Police of the Welch Police Department, Defendants.

Page 656

467 F.Supp.2d 656

Helen GREEN, as Administratrix of the ESTATE OF Claude GREEN, Jr., Deceased, and as Personal Representative, Plaintiff, v. The CITY OF WELCH, a West Virginia Political Subdivision, and Robert K. Bowman, individually and in his official capacity as the Chief of Police of the Welch Police Department, Defendants.

Civil Action No. 1:06-0159.

United States District Court, S.D. West Virginia, at Bluefield.

December 22, 2006.

Marshall S. Campbell, Athens, WV, Rose A. Saxe, American Civil Liberties Union Foundation, New York, NY, Terri S. Baur, ACLU of West Virginia Foundation, Charleston, WV, for Plaintiff.

Jaime M. Potts, Jeffrey K. Phillips, Joseph Anthony Tarantelli, Michael D. Mullins, Robert Lee Bailey, Steptoe & Johnson, David A. Barnette, Jackson Kelly, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

FABER, Chief Judge.

Pending before the court are defendants' Motion to Dismiss (Doc. No. 10) and plaintiff's motion for a hearing on the same (Doc. No. 14). Having reviewed the parties' briefs and determined that a hearing is unnecessary, the court denies plaintiffs motion. As set forth in detail below, the court also denies in part and grants in part defendants' Motion to Dismiss.

I. FACTUAL BACKGROUND

Plaintiff Helen Green is the administratrix of the estate of her late son, Claude Green, Jr. (Doc. No. 1 at 3.) Her complaint alleges that on June 21, 2005, her son Claude Green, Jr., experienced a heart attack while driving in the city of Welch, West Virginia. (Id. at 1.) Mr. Green's passenger, Billy Snead, was able to bring the vehicle to a stop without injury to either of the men. (Id. at 4.) Snead then attempted to revive Claude. Although he was unable to get Claude out of the truck, Snead attempted to administer cardiopulmonary resuscitation (CPR), in which he had received training. (Id. at 5.) The complaint asserts that Snead's efforts succeeded in prompting Claude's heart to beat again, and that Claude gasped for breath. (Id.)

Two or three minutes after Snead stopped the truck, defendant Robert K. Bowman, Chief of Police of the city of Welch, arrived at the scene. (Id.) Plaintiff alleges that Bowman immediately stated that Claude was infected with the Human Immunodeficiency Virus (HIV), and that he directed Snead to "get back." (Id.) When Snead continued the CPR, Bowman allegedly grabbed Snead by the shoulders and moved him away from the truck, telling him again that Claude was HIV positive. (Id. at 5-6.) After Bowman again ordered Snead to stay away from Claude, Snead told the officer that he had "gotten [Claude] to take a breath." (Id. at 6.) Bowman is alleged to have responded that "he would `take care of it.'" (Id.) After calling the 911 dispatcher to request an ambulance, Bowman allegedly positioned himself in front of the door to the truck without assisting Claude. (Id.) When Snead tried to get a look at Claude's condition through the truck window, Bowman allegedly directed another officer who had arrived at the scene to take Snead away from the truck. (Id.)

Plaintiff avers that approximately eight to ten minutes passed between Claude's heart attack and the arrival of the ambulance. (Id. at 7.) Upon the arrival of the Emergency Medical Services (EMS) team, Bowman allegedly repeated that Claude was HIV positive. (Id.) The EMS personnel, who recorded this information in their patient care record, apparently performed CPR on Claude on the way to Welch Community Hospital. (Id.) The complaint further asserts that Bowman followed the ambulance to the hospital, where he and the EMS personnel, based on Bowman's information, told the hospital's medical staff that Claude had HIV. (Id.) Despite the efforts of the EMS team and the hospital staff, Claude was pronounced dead shortly after arriving at the hospital. (Id.) A subsequent autopsy confirmed that he died of coronary artery disease. (Id.)

The complaint goes on to assert that Claude was not HIV positive, and that Bowman assumed him to be infected because Claude had been in an intimate relationship with a man. (Id. at 7-8.) Plaintiff further alleges that, "[Nut for Defendant Bowman's erroneous beliefs that Claude was HIV positive and that HIV could be transmitted through CPR or other physical contact, Bowman would have taken steps to assist Claude," and would not have interfered with others' attempts to assist him. (Id. at 8.) The complaint goes on to assert that Bowman is obligated to provide emergency services without regard to the HIV status of the person requiring assistance, and that there is no medical reason for him to have believed that performing CPR on an HIV positive person would put him at risk for infection. (Id. at 8-9.) Finally, plaintiff alleges that Bowman's refusal to allow the administering of CPR greatly reduced Claude's chances of surviving his heart attack. (Id. at 8.)

On March 2, 2006, plaintiff filed her complaint in this court, asserting jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, and 42 U.S.C. §§ 1983 and 12132 and asserting supplemental jurisdiction under 28 U.S.C. § 1367. (Id. at 3.) Plaintiff alleges that Bowman's conduct violated 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), the West Virginia Human Rights Act (WVHRA), and West Virginia's wrongful death law. (Id. at 9-14.) Defendant's Motion to Dismiss (Doc. No. 10) seeks dismissal of all counts except the wrongful death claim. Below the court addresses plaintiff's causes of action in turn.

II. STANDARD OF REVIEW

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing such a motion to dismiss, this court accepts as true the facts as alleged in the complaint, views them in the light most favorable to the plaintiff, and recognizes that dismissal is inappropriate unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts that could be proved in support of his claim. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). Plaintiff must allege facts in the complaint sufficient to support the claimed legal conclusion. See Migdal v. Rowe Price-Fleming Inc., 248 F.3d 321, 326 (4th Cir.2001). Moreover, the Fourth Circuit has opined that "a rule 12(b)(6) motion should be granted only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989).

ANALYSIS

A. Counts II and III — 42 U.S.C. 1983

Counts II and III of plaintiff's complaint respectively allege Due Process and Equal Protection violations pursuant to 42 U.S.C. § 1983. Defendants argue that dismissal of these counts is necessary in accordance with Bell v. Board of Education of the County of Fayette, 290 F.Supp.2d 701 (S.D.W.Va.2003) (Haden, J.), which held that West Virginia's wrongful death statute is "not available for borrowing under [42 U.S.C.] § 1988 to remedy deficiencies in the civil rights law in a § 1983 action." Id. at 709. Plaintiff counters that the better line of reasoning is found in Jones v. George, 533 F.Supp. 1293, 1300 n. 15 (S.D.W.Va.1982) (Staker, J.) (permitting borrowing of West Virginia's wrongful death law to redress, via § 1983, constitutional claims resulting in death).

42 U.S.C. § 1983 provides a remedy for the violation of federal constitutional rights by state actors. The procedural aspects of a § 1983 action are governed by 42 U.S.C. § 1988(a), which, on its face, directs the court to undergo a three-part inquiry:

(a) Applicability of statutory and common law. The jurisdiction in civil and criminal matters conferred on the district and circuit courts by the provisions of this Title, and of Title "CIVIL RIGHTS," and of Title "CRIMES," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions, necessary to furnish suit able remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the Said courts in the trial and " disposition of the cause. . . .

42 U.S.C. § 1988(a) (2000).

Stated, another way, in adjudicating a § 1983 claim, the court shall first apply federal procedural law if it is suitable and "adapted to the object." If there is no such suitable federal law, the second step of the inquiry dictates that the law of the relevant state be applied. Finally, the court is to consider whether the applicable state law is inconsistent with the federal Constitution and laws, and, if so, the state law is not to be used. As the United States Supreme Court described this process in Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984), "courts undertake the second step by considering application of [state law]. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not `inconsistent with the Constitution and laws of the United States'" Id. at 48, 104 S.Ct. 2924 (emphasis added).

The parties do not contest the lack of federal procedural law on the issue of the survivability of the claims plaintiff asserts, and the court accordingly proceeds to consider the application of relevant state law. West Virginia Code Section 55-7-8a(a) states as follows with regard to the survival of causes of action in West Virginia: "In addition to the causes of action which survive at common law, causes...