Insco v. Wexford Health Sources, Inc., Civil Action 2:19-cv-00612

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
PartiesMICHAEL INSCO, Plaintiff, v. WEXFORD HEALTH SOURCES, INC., et al., Defendants.
Decision Date13 October 2021
Docket NumberCivil Action 2:19-cv-00612


WEXFORD HEALTH SOURCES, INC., et al., Defendants.

Civil Action No. 2:19-cv-00612

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

October 13, 2021



Pending before the Court are two motions: (1) Defendant Pam Moore and Wexford Health Sources, Inc.'s Motion for Summary Judgment, (ECF No. 92) (“Moore and Wexford's Motion for Summary Judgment”); and (2) Defendant Debbie Hissom's Motion for Summary Judgment, (ECF No. 94) (“Hissom's Motion for Summary Judgment”).[1] For the reasons stated more fully within, the Court GRANTS IN PART Moore and Wexford's Motion for Summary Judgment, (ECF No. 92), and GRANTS IN PART Hissom's Motion for Summary Judgment, (ECF No. 94). The remainder of both motions are DENIED AS MOOT for the reasons set forth below.


A. Factual Background and Allegations

This case stems from allegations related to the sufficiency of medical and drug treatment provided to Plaintiff Michael Insco (“Plaintiff”) by Defendants for Plaintiff's Hepatitis C treatment. Generally, Plaintiff alleges that, at various West Virginia Correctional facilities,


Wexford Health Sources, Inc. (“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. 72-1 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. (Id. 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 Id. at ¶ 6.)

More specifically, Plaintiff's Third Amended Complaint asserts claims against three named defendants and John/Jane Does. (ECF No. 72-1.) The named defendants are Wexford, “a company that provides health services to inmates at various West Virginia Correctional facilities[;]” Pam Moore (“Moore”), “a nurse practitioner employed by Wexford who has personally addressed plaintiff's request for antiviral drug treatment[;]” and Debbie Hissom (“Hissom”), “who is employed by the [West Virginia Division of Corrections and Rehabilitation] as the Director of Medical Services.” (Id. at ¶¶ 2-4.) The Third Amended Complaint contains two causes of action: (1) deliberate indifference under 42 U.S.C. § 1983 in violation of the Eighth Amendment and (2) intentional/reckless infliction of emotional distress under West Virginia state law. (Id. at 6-8.) The Third Amended Complaint also 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.” (Id. at 9.)


B. Procedural History

On August 21, 2019, Plaintiff initiated this action against Defendants Wexford, Moore, and unidentified John/Jane Doe Wexford employees. (ECF No. 1.) On December 2, 2019, Plaintiff filed an Amended Complaint. (ECF No. 8.) Then, on December 21, 2020, the Court granted Plaintiff's Motion for Leave to Amend Complaint, (ECF No. 47), and the Second Amended Complaint was filed on December 21, 2020, which added Hissom as a defendant to the matter. (ECF No. 48).

Following the Second Amended Complaint, Moore and Wexford filed a Motion to Dismiss on January 4, 2021. (ECF No. 49). In his response, Plaintiff clarified that (1) Count I for deliberate indifference was being brought only against Wexford and Hissom and (2) the request for injunctive relief was brought against Hissom in her official capacity. (ECF No. 56.) Hissom filed her own Motion to Dismiss on April 9, 2021. (ECF No. 64.) On April 23, 2021, Plaintiff filed another Motion to Amend for Leave to Amend Complaint. (ECF No. 72.)

On September 7, 2021, the Court entered an order, (ECF No. 118), granting Plaintiff's Motion for Leave to Amend Complaint, (ECF No. 72), and the Third Amended Complaint was filed on April 23, 2021, (ECF No. 72-1). The Court also denied Wexford and Moore's Motion to Dismiss as to the deliberate indifference claim asserted against Wexford, (ECF No. 49), granted Hissom's Motion to Dismiss as to the deliberate indifference claim against her, (ECF No. 64), and granted both motions to dismiss the intentional infliction of emotional distress claim asserted against all defendants, (ECF No. 49, 64). Finally, the Court denied as moot Wexford and Moore' motion regarding Plaintiff's claim for injunctive relief. (ECF No. 49). However, the Court noted


that Plaintiff still had an active claim for injunctive relief in the Third Amended Complaint. (See ECF No. 118 at 22.)

Before the Court entered that order, Moore and Wexford filed a Motion for Summary Judgment on June 21, 2021. (ECF No. 92.) Hissom also filed a Motion for Summary Judgment on June 21, 2021. (ECF No. 94.) Plaintiff responded to both motions on July 13, 2021. (ECF Nos. 98, 99.) On July 20, 2021, Moore and Wexford filed their Reply. (ECF No. 100.) Hissom also filed her Reply on July 20, 2021. (ECF No. 101). With the briefing complete, these motions are ripe for adjudication. Each of these pending motions will be discussed in turn below.


Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. In pertinent part, this rule states that a court should grant summary judgment if “there is no genuine issue as to any material fact.” Summary judgment should not be granted, however, if there are factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating these factual issues, the Court must view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

“The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial . . . by offering ‘sufficient proof in the form of admissible evidence' . . ..” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). This burden may be met by use of depositions and other discovery materials. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th


Cir. 1984). Once the moving party meets its burden, the burden shifts to the non-moving party to “make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Should a party fail to make a sufficient showing on one element of that party's case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The mere existence of a scintilla of evidence” in support of the nonmoving party is not enough to withstand summary judgment; the judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.


As an initial matter, the Court notes that Moore, Wexford, and Hissom have moved this Court to grant summary judgment on Count II for intentional infliction of emotional distress. (See ECF No. 72-1; see also ECF No. 48.) However, Count II has been dismissed against all defendants in a previous order.[2] (ECF No. 118.) Thus, a claim of deliberate indifference against Wexford is only the remaining cause of action, accompanied by Plaintiff's request for injunctive relief against Wexford and Hissom. This Court will begin its analysis with Moore and Wexford's Motion for Summary Judgment. (ECF No. 92.) Then, the Court will address Hissom's Motion for Summary Judgment regarding Plaintiff's requested injunctive relief. (ECF No. 94.)

A. Moore and Wexford's Motion for Summary Judgment


Moore and Wexford's Motion sought summary judgment on Plaintiff's claim for deliberate indifference against Wexford. (ECF No. 93.) Wexford contends it is entitled to summary judgment because the medical care rendered to Plaintiff as it pertains to his Hepatis C did not fall below the standard of care at the time it was given. (ECF No. 93 at 11.) Conversely, Plaintiff alleges that Wexford provided Plaintiff with “no interventional care” for his Hepatitis C. (ECF No. 98 at 10.)

An Eighth Amendment claim based on deliberate indifference to serious medical needs has two prongs, one objective and one subjective. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir. 2013); see also White by White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997) (“[D]eliberate indifference, . . . implies at a minimum that defendants were plainly placed on notice of a danger and chose to ignore the danger notwithstanding the notice.”). “Objectively, the inmate's medical condition must be ‘serious'-‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily...

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