Milan Puskar Health Right v. Crouch, Civil Action 3:21-0370

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
PartiesMILAN PUSKAR HEALTH RIGHT, LAWSON KOEPPEL, ALINA LEMIRE, and CARRIE WARE, Plaintiffs, v. BILL J. CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources, JOLYNN MARRA, in her official capacity as Interim Inspector General and Director of the Office of Health Facility Licensure and Certification, and STEVE HARRISON, in his official capacity as Clerk of the House of Delegates and Keeper of the Rolls, Defendants.
Decision Date31 March 2022
Docket NumberCivil Action 3:21-0370

MILAN PUSKAR HEALTH RIGHT, LAWSON KOEPPEL, ALINA LEMIRE, and CARRIE WARE, Plaintiffs,
v.

BILL J. CROUCH, in his official capacity as Cabinet Secretary of the West Virginia Department of Health and Human Resources, JOLYNN MARRA, in her official capacity as Interim Inspector General and Director of the Office of Health Facility Licensure and Certification, and STEVE HARRISON, in his official capacity as Clerk of the House of Delegates and Keeper of the Rolls, Defendants.

Civil Action No. 3:21-0370

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

March 31, 2022


MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

Pending before the Court is Defendants Bill J. Crouch, Jolynn Marra, and Steve Harrison's (Defendants) Motion to Dismiss. ECF No. 32. Defendants argue that Plaintiffs are not entitled to the relief they seek, and thus, their Amended Complaint must be dismissed. For the following reasons, the Court GRANTS this Motion. ECF No. 32.

BACKGROUND

West Virginia is experiencing an opioid-related epidemic and facing alarming outbreaks of Hepatitis C and HIV, all exacerbated by the spread of infections and other harm related to the use of syringes by drug abusers and others untrained in syringe hygiene. To combat these outbreaks, public health officials have implemented several strategies, including sterile syringe exchanges. These programs, which are also known as “needle exchanges, ” provide sterile syringes

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to participants upon request, while promoting other public health services and preventing the spread of disease. As the amicus brief reports, these exchanges are considered harm reduction initiatives that have already demonstrated significant success across West Virginia and are recommended by many governmental and other health care entities.

Despite this success and contrary to the recommendations and objections from authorities in the field, the West Virginia Legislature decided to regulate these syringe services, perhaps to the point of elimination. On April 10, 2021, state lawmakers passed Senate Bill 334, the Syringe Services Program Act, which establishes an oversight scheme for syringe service programs in West Virginia. These measures create a new article of Chapter Sixteen of the West Virginia Code. W.Va. Ann. Code §§ 16-63-10 et seq. (West 2021).[1] Among other things, the Bill requires syringe services programs to obtain a license from the Office of Health Facility Licensure and Certification (“OHFLAC”), to “distribute syringes with a goal of a 1:1 model, ” and to be part of a comprehensive harm reduction program which offers or refers participants to other services. § 16-64-3.

The Bill also authorizes OHFLAC to promulgate emergency rules to “effectuate the provisions of [Senate Bill 334] in accordance with evidence-based practices” by July 1, 2021. § 16-64-7. Defendants have proffered at least five drafts that were sent to interested parties, including Milan Puskar Health Right Director Laura Jones. These draft rules indicate that OHFLAC intended to file its final rule with the West Virginia Secretary of State on July 1, 2021, and for the final rule to go into effect on July 9, 2021- the same day that Senate Bill 334 was set to go into effect. Attach. D to Marra Aff. ECF No. 14-2. Marra testified that OHFLAC decided not

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to file the rule in light of the Court's temporary restraining order (TRO). ECF No. 11.

On June 25, 2021, Plaintiffs Milan Puskar Health Right, Lawson Koeppel, Alina Lemire, and Carrie Ware filed the Verified Complaint for Declaratory and Emergency Injunctive Relief for Constitutional Violations (ECF No. 1) and a Motion for Emergency Injunctive Relief (ECF No. 4). Plaintiffs claim that the law violates their due process and equal protection rights, as well as the West Virginia Constitution. As sterile syringe service providers, Plaintiffs predict that the enforcement of Senate Bill 334 will result in fewer people accessing health services and fewer opportunities to prevent the spread of diseases including HIV, endocarditis, and Hepatitis C. Plaintiffs asked for a preliminary injunction (1) enjoining the State Defendants from enforcing Senate Bill 334; (2) enjoining the Clerk of the House of Delegates and Keeper of the Rolls from exercising any authority granted to him under House Rule 20 to amend Senate Bill 334; and (3) waiving the bond requirement for Plaintiffs.

On June 28, 2021, the Court issued a TRO granting Plaintiffs' requested relief, and on July 2, 2021, Defendants submitted their response in opposition. ECF No. 14. On July 7, 2021, the Court entered another order resolving several issues ahead of the preliminary injunction hearing. Specifically, the Court held that Plaintiffs were not likely to succeed on Count I of the Amended Complaint, but only to the extent that it is premised on Senate Bill 334 being irreconcilable with House Bill 2500. The Court also held that Plaintiffs were not likely to succeed on Count IV, which alleged violation of the expressive title requirement under the West Virginia Constitution.

The Court held a preliminary injunction hearing the next day. At the outset of the hearing, the Court reiterated its prior findings and held that Plaintiffs were also not likely to succeed on Count VI, which alleges another violation of the expressive title requirement and a violation of separation of powers under the West Virginia Constitution. The parties then presented evidence

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and oral argument on the remaining claims. At the close of the hearing, the Court extended the TRO, but ultimately the TRO was dissolved, and the Court denied the Plaintiffs injunctive relief on July 15, 2021. ECF No. 31.

Defendants filed this Motion to Dismiss on July 23, 2021. ECF No. 32.

STANDARD OF REVIEW

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court disavowed the “no set of facts” language found in Conley v. Gibson, 355 U.S. 41 (1957), which was long used to evaluate complaints subject to 12(b)(6) motions. 550 U.S. at 563. In its place, courts must now look for “plausibility” in the complaint. This standard requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal quotation marks and citations omitted). Accepting the factual allegations in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to relief above the speculative level . . . .” Id. (citations omitted). If the allegations in the complaint, assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal quotation marks and citations omitted).

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained the requirements of Rule 8 and the “plausibility standard” in more detail. In Iqbal, the Supreme Court reiterated that Rule 8 does not demand “detailed factual allegations[.]” 556 U.S. at 678 (internal quotation marks and citations omitted). However, a mere “unadorned, the-defendant-unlawfully-harmed-me accusation” is insufficient. Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”

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Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists when a claim contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The Supreme Court continued by explaining that, although factual allegations in a complaint must be accepted as true for purposes of a motion to dismiss, this tenet does not apply to legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted). Whether a plausible claim is stated in a complaint requires a court to conduct a context-specific analysis, drawing upon the court's own judicial experience and common sense. Id. at 679. If the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (quoting, in part, Fed.R.Civ.P. 8(a)(2)). The Supreme Court further articulated that “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.

DISCUSSION

Defendants raise several arguments as to why Plaintiffs' Amended Complaint should be dismissed. They are as follows:

1. Count I fails because the Act is not unconstitutionally vague.
2. Count II fails because OHFLAC has resolved the purported conflict between § 10(b) and § 10(d).
3. Count III fails because even if § 16-64-10(d) can be read to discriminate between new and existing providers, that does not justify the relief Plaintiffs seek.
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4. Counts IV through VI fail because sovereign immunity precludes state law claims against state officials in federal court.
5. Even if Defendants were not immune from Counts IV through VI, those claims have no merit under West Virginia law.

See generally Def.'s Br., ECF No. 33. The Court will address each of these arguments. 1. Count I - Unconstitutional vagueness

Laws that regulate persons in the United States must give fair notice of the prohibited or required conduct. F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253...

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