Whittaker v. O'Sullivan

Decision Date09 August 2022
Docket NumberCivil Action 3:21cv474
PartiesWILLIAM WHITTAKER, Plaintiff, v. JIM O'SULLIVAN, et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia
OPINION

John A. Gibney, Jr. Senior United States District Judge

William Whittaker sues Sheriff Jim O'Sullivan, Sergeant Christopher Earles, Senior Deputy Jamie Fanelli, Sergeant Duane Gill, Deputy Levi Golt, Captain Timothy Morgan, Dr Alex Taylor, Director of Nursing Brittany Jones, Nurse Pam Smith, Nurse Jaqueline Winstead, and Correct Care Solutions LLC, now conducting business as Wellpath, LLC (“CCS”) for events related to Whittaker's medical care while he was incarcerated at the Chesapeake Correctional Center.[1] Whittaker alleges that he missed seven to ten doses of his medication and received no bloodwork to monitor his condition through the course of his eleven months at Chesapeake Correctional Center. He further alleges that defendants Golt and Winstead improperly disclosed his medical status which caused another inmate to attack him.

Whittaker raises negligence (Count One), gross negligence (Count Two) and willful and wanton negligence (Count Three) state law claims against all the defendants. He raises a constitutional claim for failure to provide adequate medical care (Count Four) against Winstead, Jones, Taylor, Smith, Earles Fanelli, Gill, Golt, and Morgan. He raises a constitutional claim for violation of his privacy rights (Count Five) against Winstead and Golt. He raises a state law claim of improper disclosure of medical information (Count Six) against Winstead, Golt, CCS, and O'Sullivan. He raises a supervisory liability constitutional claim related to his medical care and privacy (Count Seven) against Jones, Smith, Taylor, and O'Sullivan. He also raises a supervisory liability constitutional claim related to just his privacy (Count Eight) against O'Sullivan, Earles, Gill, Morgan, and Fanelli. Finally, he raises a constitutional municipal liability claim (Count Nine) against O'Sullivan and Taylor in their official capacities and CCS. Each of the defendants moves to dismiss the respective claims they face.

Upon review of Whittaker's complaint, the Court finds that he fails to state a simple negligence claim against any defendant because sovereign immunity protects the jail defendants and, as for the medical defendants, Whittaker did not comply with a state law requiring that he obtain a certifying expert medical opinion at the time of service of process. This lack of an expert witness opinion dooms Whittaker's other negligence claims against the medical defendants. Whittaker fails to state a gross or willful and wanton negligence claim against Earles, Gill, and Morgan because they each exercised some degree of care in responding to Whittaker's needs. He also fails to state such claims against Fanelli because he does not allege that Fanelli knew of the deficiencies in his medical care. Whittaker does, however, state claims for gross and willful and wanton negligence against Golt, who disclosed Whittaker's medical condition and, in so doing, caused him harm.

As for the failure to provide adequate medical care, Whittaker states a claim against Jones and Winstead but not Taylor, Smith, or any of the jail defendants. Whittaker does not allege facts that suggest Taylor, Smith, or any of the jail defendants knew of health risks he faced while at the jail.

Whittaker does not state a claim for violation of his privacy rights under either the Constitution or state law. First, he has no constitutional privacy rights in prison with respect to his medical condition. Likewise, Virginia does not recognize a right of action for improper disclosure of medical information against non-medical professionals, and he fails to allege facts to support his claim against the medical professionals.

Whittaker does not state a constitutional claim for supervisory liability against any jail defendant because he does not establish an underlying violation of a corresponding constitutional right. Likewise, he fails to state a claim for supervisory liability against any medical defendant. While he does state an underlying constitutional claim against Jones and Winstead, he does not demonstrate that those violations arose from a supervisory relationship with another medical defendant.

Whittaker states a constitutional municipal liability claim against O'Sullivan and Taylor in their official capacities and CCS because he alleges facts that suggest they had knowledge of a potentially widespread unconstitutional practice among jail medical personnel.

I. FACTS ALLEGED IN THE COMPLAINT

On July 31, 2020, Whittaker was arrested and detained at the Chesapeake Correctional Center. (ECF No. 16 ¶ 19.) Following his detention, the jail did not have his particular medication for the first few days, but family members were able to drop it off. (Id. ¶ 20-22.) The jail's medical personnel work for CCS, a private corporation, under the supervision of Dr. Alex Taylor, the Medical Director of the Chesapeake Correctional Center. (Id. ¶¶ 12-13.)

On May 4, 2021, Whittaker again did not receive his medication. (ECF No. 16 ¶ 24.) He explained to the nurse on duty, Jacqueline Winstead, “the severity of his health condition and that it was imperative for him to take his medication.” (Id. ¶ 25.) He also explained that missing medication “could cause his body to build a resistance and possibly contract an opportunistic infection.” (Id. ¶ 26.) Winstead replied, “That is not my problem.” (Id. ¶ 27.) Whittaker then asked if she would tell Brittany Jones, the Director of Nursing, that he needed bloodwork to monitor his disease. (Id. ¶¶ 28, 30.) He explained that had received no bloodwork since his detention and that prior to his detention he would receive bloodwork every ninety days. (Id. ¶ 29.) Winstead told Whittaker, “It is not my responsibility to report that.” (Id. ¶ 31.)

Also on May 4, 2021, Whittaker asked Deputy Golt about seeing medical staff and receiving his medication. (Id. ¶ 33.) Golt then “made an intentional decision to publicly disclose, in a joking manner, . . . [Whittaker's medical condition] and [that he] needed his medication.” (Id. ¶ 34.) The disclosure occurred within earshot of thirteen inmates, including Morrison, who began laughing along with Golt. (Id. ¶¶ 35, 38.)

On May 6, 2021, Whittaker filed a grievance pertaining to the delay in medication. The grievance stated:

I didn't receive my medication during med pass; my health depends on it. I must take it daily as prescribed by my doctor. My private medical information [is] being discussed with the staff members that aren't medical. A statement was made about my medication, the staff member knew the type of med.

(Id. ¶¶ 43-44 (alteration in original).) Sergeant Gill received the grievance and met with Whittaker in person. (Id. ¶¶ 45-47.) Whittaker cried and begged Gill to get his medication because without it he “was more at risk of [COVID-19] or death.” (Id. at ¶ 46.) Gill told Whittaker that he had relayed his concerns to Jones “and that she would come to speak to” Whittaker. (Id. ¶ 47.) Jones never spoke with him. (Id. ¶ 48.) Whittaker appealed his grievance resolution that same day. On June 7, 2021, June 10, 2021, July 5, 2021, July 6, 2021, July 7, 2021, July 9, 2021, and July 13, 2021, Whittaker sent correspondence forms to “multiple prison staff' voicing his concerns. (Id. ¶ 50.)

On July 2, 2021, Morrison punched Whittaker in the face because Whittaker “did [Morrison's] hair and could have given him” his disease. (Id. ¶ 52.) The night of the assault, Deputy Antinet had left Morrison's and Whittaker's cell blocks unlocked. (Id. ¶¶ 54, 55.)[2] As a result of the assault, Whittaker suffered “a busted lip, blackened eyes, [a] potential fracture to his nose,” and “light headedness from the inability to breathe through his nose, blurred vision, extreme pain from nasal septum deviation, headaches, dizziness, and vomiting.” (Id. ¶ 57.) Whittaker received pain medication, but he did not initially receive an X-ray, and he never received his X-ray results despite his many requests. (Id. ¶¶ 58-62.)

On July 14, 2021, Senior Deputy Fanelli responded to Whittaker (presumably to one of his correspondence forms) and explained that Whittaker “should have never received a grievance” for his medical privacy concerns. (Id. ¶ 66.) On July 18 and 23, 2021, Whittaker sent out more correspondence forms to “prison staff.” (Id. ¶ 67.) On July 30, 2021, Captain Morgan “advised [Whittaker] that there is not a deputy that deals with HIPPA[3] violations.” (Id. ¶ 68.) On July 31, 2021, Whittaker filed a second grievance form outlining the same complaint from the first grievance. (Id. ¶ 69.) Sergeant Earles received the second grievance and completed a “supervisor statement” noting that Whittaker had spoken with Morgan. (Id. ¶ 70.) On August 7, 2021, Whittaker wrote to Sheriff O'Sullivan “to indicate his dissatisfaction with the meeting with ... Morgan and Pam Smith and requested his grievance be taken seriously.” (Id. ¶ 72.)

Ultimately, Whittaker missed “at a minimum” seven to ten daily doses of medication during his eleven months at the Chesapeake Correctional Center. (Id. ¶ 23.) He contracted COVID- 19 after being transferred to a new jail, and he suffered symptoms including a headache, fever of 103 degrees, diarrhea, vomiting, fatigue, loss of appetite, shortness of breath, excessive sleeping, and bone pain. (Id. ¶ 76.)

II. ANALYSIS[4]
A. Negligence (Count One)

Whittaker brings his negligence claim against both the jail and the medical defendants.

(ECF No. 16 ¶ 90.) The jail defendants move to dismiss his claim under the doctrine of sovereign immunity, and the medical defendants move to dismiss his claim for failure...

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