Roxanne Adams, Administrator of the Estate of Jamycheal M. Mitchell v. Naphcare, Inc. et al
| Roxanne Adams, Administrator of the Estate of Jamycheal M. Mitchell |
| Naphcare, Inc., Nsekenene Kolongo, MD, Renee Edwards, LCSW, Justin Ray, NP-PSYCH, Benedict Ngwa, NP, Pam Johnson, RN, Natalya Thomas, RN, HSA, Jalessa Rivers, LPN, Hope Nicholson, MA, Doris Murphy, MSW, John/Jane Doe Naphcare Nurses (1-11), Lenna Jo Davis, Kelly N. Boyd, Hampton Roads Regional Jail Authority, Hampton Roads Regional Jail, David L. Simons, Eugene Taylor, III, Barnes, Blakely, Bourne, Butcher, Gibbs, Hilliard, Howard, Keister, Whitaker, Powell, Smith, Dixon, Johnson, Derrick R. Brown, Stephen T. Phillips, William A. Epperson, Steven W. Whitehead, Tamara L. Everette, Roderick D. Madison, Reginald Whitehead, Felicia M. Cowan, Debra K. Ferguson and Gail Hart |
| 2:2016cv00229 |
| May 10, 2016 |
| US District Court for the Eastern District of Virginia |
| Norfolk Office |
| Portsmouth City |
| Lawrence R. Leonard |
| Rebecca Beach Smith |
| Other Civil Rights |
| 42 U.S.C. ยง 1983 |
| Plaintiff |
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Filing
288
ORDER re 284 Petitioner's BRIEF by Roxanne Adams, Administrator of the Estate of Jamycheal M. Mitchell (Plaintiff's Brief Concerning the Administrator's Right to Compensation): See Order for details. Signed by District Judge Rebecca Beach Smith on 2/27/2019. Counsel for Plaintiff is DIRECTED to forward a copy of this Order to Ms. Adams.(dcou, )
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Filing
174
OPINION entered 3/31/17 and filed 4/3/17: This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum in Support filed by Defendant Debra K. Ferguson {"Ferguson") on August 1, 2016. ECF Nos. 84 , 85 . The Plaintiff filed a Response on September 1, 2016, ECF No. 123 , and on September 13, 2016, Ferguson filed a Reply. ECF No. 130 . On September 20, 2016, Ferguson also filed a Request for Hearing. ECF No. 133 . On September 21, 2 016, this court referred the Motion to a United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, a nd to submit to the undersigned District Judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 134 . Having conducted a hearing regarding the Motion on October 19, 2016, ECF No. 139 , the Magistrate Judge filed the Report and Recommendation ("R&R") on February 21, 2017. ECF No. 162 . The Magistrate Judge recommended granting the Motion. R&R at 1. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See id. at 21-22. On March 7, 2017, the Plaintiff filed Objections to the R&R. ECF No. 167 . On March 21, 2017, Ferguson filed a Response to the Objec tions. ECF No. 171 . The matter has been fully briefed and is ripe for review. For the reasons (stated in this Opinion), the Plaintiff has plausibly stated claims of negligence, gross negligence, and willful and wanton negligence against Ferguson under Virginia law, and Ferguson is not protected from these claims by Eleventh Amendment immunity or state sovereign immunity. The Plaintiff's objection regarding the state law claims is SUSTAINED. At this juncture, Ferg uson cannot hide behind the doctrines of sovereign and qualified immunity, and/or claims of ignorance of what was going on in the agency for which she was ultimately in charge. Accordingly, the Plaintiff's Objections are SUSTAINED, the Magistrate Judge's R&R is REJECTED, and the Motion to Dismiss, ECF No. 84 , is DENIED, as outlined. (See Opinion and Foot Notes for Specifics) (Signed by Chief District Judge Rebecca Beach Smith on 3/31/17). Copies provided as directed 4/3/17.(ecav, )
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Filing
173
MEMORANDUM ORDER entered and filed 3/24/17: This matter comes before the court on the Motion to Dismiss {"Motion") and Memorandum in Support filed by Defendant Natalya Thomas ("Thomas") on August 15, 2016. ECF Nos. 109 , 110 . The Plaintiff filed a Response on September 12, 2016, ECF No. 129 , and on September 30, 2016, Thomas filed a Reply. ECF No. 135 . On October 3, 2016, this court referred the Motion to United States Magistrate Judge Lawrence R. Leonard, as outlined. Having conducted a hearing regarding the Motion on October 19, 2016, ECF No. 139 , the Magistrate Judge filed the Report and Recommendation ("R&R") on February 22, 2017. ECF No. 164 . The Ma gistrate Judge recommended denying the Motion. On March 8, 2017, Thomas filed Objections to the R&R. ECF No. 168 . On March 20, 2017, the Plaintiff filed a Response to the Objections. ECF No. 170 . The matter has been fully brief ed and is ripe for review. In conclusion, Defendant Thomas's Objections are OVERRULED, the Magistrate Judge's R&R is ADOPTED AND APPROVED IN FULL, and Defendant Thomas's 109 Motion to Dismiss is DENIED, as outlined. (See Memorandum Order and Foot Notes for Specifics) (Signed by Chief District Judge Rebecca Beach Smith on 3/24/17). Copies provided as directed 3/24/17. (ecav, )
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Filing
165
OPINION entered and filed 3/3/17: This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum in Support filed by Defendants Kelly Boyd ("Boyd") and Lenna Jo Davis ("Davis") on June 8, 2016 . ECF Nos. 12 , 13 . The Plaintiff filed a Response on June 22, 2016, ECF No. 23 , and Boyd and Davis filed a Reply and a Request for Hearing on June 29, 2016. ECF Nos. 32 , 33 . On July 5, 2016, this court referred the Motion to a Unit ed States Magistrate Judge, as outlined, for the disposition of the Motion. ECF No. 38 . Having conducted a hearing regarding the Motion on October 19, 2016, ECF No. 139 , the Magistrate Judge filed the Report and Recommendation ("R&R" ;) on January 24, 2017. ECF No. 151 . The Magistrate Judge recommended granting the Motion. R&R at 1. For the reasons stated in this Opinion, Davis and Boyd's Objections, regarding the Magistrate Judge's findings on quasi-judicial a nd statutory immunity, are OVERRULED, and the Plaintiff's Objection, regarding the Magistrate Judge's finding that Defendant Boyd owed no duty toward Mitchell, is SUSTAINED. The Magistrate Judge's 151 R&R is hereby ADOPTED AND A PPROVED with respect to dismissing the claims of negligence and gross negligence against Davis, but REJECTED with respect to dismissing the claims of negligence and gross negligence against Boyd, and with respect to the basis of the findi ng, but not the ultimate finding itself, on quasi-judicial immunity. Accordingly, the Motion to Dismiss is GRANTED with respect to the claims of negligence and gross negligence against Davis, and DENIED with respect to the claims of negligence a nd gross negligence against Boyd. The Plaintiff's claims of negligence and gross negligence against Davis are hereby DISMISSED, and the Plaintiff may proceed on the claims of negligence and gross negligence against Boyd. (Signed by Chief District Judge Rebecca Beach Smith on 3/3/17). (See Opinion and Foot Notes for Specifics) Copies provided as directed 3/3/17. (ecav, )
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Filing
150
MEMORANDUM ORDER: denying 10 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 147 Report and Recommendations. The court, having examined the Objection to the R&R filed by Hart, and having made de novo fin dings with respect thereto, does hereby OVERRULE the Objection, ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the R&R of the United States Magistrate Judge filed on December 19, 2016, ECF No. 147, and DENY the Plaintiff's Motion filed on June 8, 2016. ECF No. 10. Copy of this Memorandum Order provided to counsel for all parties. Signed by Chief District Judge Rebecca Beach Smith on 1/19/2017. (bgra)
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Filing
146
MEMORANDUM OPINION AND ORDER, entered and filed 11/14/16: The Court has held multiple hearings on this matter, at which counsel for the parties have argued zealously and passionately. Most recently, on October 19, 2016, the Court held a hearing o n motions to dismiss filed by fifteen of the thirty-eight Defendants. These motions were referred to the undersigned for report and recommendation by the Chief District Judge. The hearing, which lasted for four hours, included argument regarding th e dispositive motion filed by Defendant Ferguson, the DBHDS Commissioner. One of the affirmative defenses raised by Commissioner Ferguson is qualified immunity, and this issued was argues extensively at the hearing by her counsel, David Corrigan, an d by Plaintiff's counsel, John Preis. Mr. Preis, an attorney of record in this case, is also a full-time professor with the T.C. Williams School of Law at the University of Richmond. At the conclusion of the hearing the Court took the motions under advisement in order to prepare reports and recommendations to the Chief District Judge. Two days later, on October 21, 2016, the law clerk for the undersigned attended the Institute for Federal Law Clerks seminar held at the law school at Univ ersity of Richmond. This seminar, which is sponsored biennially by the District Judges Association of the Fourth Circuit and the University of Richmond, is limited in attendance to federal law clerks in the Fourth Circuit. Thirty-five law clerks f rom the Eastern District of Virginia were in attendance, including the undersigned's and all of those of the Chief District Judge. Mr. Preis was one of the lecturers at the seminar, speaking on the topic of "Recent Developments in the Unit ed States Supreme Court and the Fourth Circuit." Following the conclusion of his prepared remarks, Mr. Preis addressed the doctrine of qualified immunity, which was unrelated to his topic. In these remarks, he specifically discussed the instan t case, advising the audience that he was presently involved in this litigation and addressing the qualified immunity defense asserted by Commissioner Ferguson, as outlined. Having been advised by the undersigned's law clerk of these events a nd being concerned about the possibility that Mr. Preis' conduct might constitute an attempted ex parte communication, the Court issued its Order on October 27, 2016, advising the parties of these events and setting the matter for hearing. By i ts Order the Court advised the parties of their opportunity to respond at the hearing. if they so requested. The Court also included in its Order a direction to Mr. Preis to show cause "why the Court should not consider his conduct to constitut e an attempted ex parte communication as to the merits of this case, in contravention of Rule 3.5(e) of the Virginia Rules of Professional Conduct." Prior to the hearing, Mr. Preis filed a response to the Court's Order on October 28, 2016 , in which he acknowledge the appropriateness of the Court's concern and expressed regret "that his conduct has given rise to such concerns." ECF No. 141 at 1-2., as outlined. Mr. Preis' conduct was improper and has been a significant and unnecessary distraction. Accordingly, Mr. Preis is ADMONISHED for his conduct in arguing the merits of Defendant Ferguson's qualified immunity defense before a private audience of federal lawclerks, including the unde rsigned's and those of the Chief Judge, while this litigation is pending. That stated, Mr. Preis is an officer of the Court whose good character was attested to by his co-counsel and who may be considered more a full-time professor than a full-time litigator. The Court therefore accepts his representation that he did not intend or appreciate the fact that by arguing his case to the assembled law clerks, he may have engaged in an attempted ex parte communication. In light of the above conclusion, the Court finds there are insufficient grounds to impose further sanction, or to take any further action pursuant to Virginia Rule ofProfessional Conduct 3.5(e). The show cause Order is therefore DISMISSED. In conclusion, the Court finds it necessary to include in this Order its closing remarks from the November 1 hearing, as stated in this Memorandum Opinion and Order. (See Order and Foot Notes for Specifics( (Signed by Magistrate Judge Lawrence R. Leonard on 11/14/16). Copies provided as directed 11/14/16.(ecav, )
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Filing
127
ORDER entered and filed 9/6/16: This matter comes before the court on the Plaintiff's "Time-Sensitive Motion to Respond to, and Prevent, Retaliation by Jail Personnel Against Inmate Witnesses" ("Motion"), and accompanying Me morandum in Support, filed on June 21, 2016. ECF Nos. 17 , 18 . On June 24, 2016, Defendant David L. Simons ("Simons") filed a Response, ECF No, 25 , and on the same day, the Plaintiff filed her Reply. ECF No. 26 . The Pla intiff filed a Notice of Additional Information on June 27, 2016, ECF No. 27 , as well as a Second Notice of Additional Information on June 30, 2016. ECF No. 34 . On July 5, 2016, this court referred the above Motion to United States M agistrate Judge Lawrence R. Leonard, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned dis trict judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 39 . Having conducted hearings on the Motion on July 13, 2016, and July 22, 2016, see ECF Nos. 50 , 58 , the Magistrate Judge filed the Report and Recommendation ("R&R") on July 25, 2016. ECF No. 57 . The Magistrate Judge recommended denying the Plaintiff's Motion. R&R at 32. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See id. at 32-33. On August 8, 2016, the Plaintiff filed her Objections to the R&R, ECF No. 94 , and on August 22, 2016, Defendant Simons filed his Reply . ECF No. 118 . While the Plaintiff labeled her requested relief as that of a "protective order," Mem. Supp. at 5, the Magistrate Judge found, and this court agrees, that the prospective injunctive relief requested by the Pl aintiff comes in the form of a preliminary injunction. R&R at 21. The Plaintiff did not object to this conclusion. The court, having examined the Objections to the R&R filedby the Plaintiff, and having made de novo findings with respect th ereto, does hereby OVERRULE the Objections, ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the R&R of the United States Magistrate Judge filed on July 25, 2016, ECF No. 57 , and DENY the Plaintiff's Motion filed on June 21, 2016. ECF No. [17, as outlined. (See Memorandum Order and Foot Notes for Specifics) (Signed by Chief District Judge Rebecca Beach Smith on 9/6/16). Copies provided as directed 9/6/16.(ecav, )
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