Virginia Injury Attorney Blog

Patients have a fundamental right to know the facts of what a commissioned third-party did to his or her body and mind. Patient care inherently is an invasion of privacy interests, the medical malpractice of which denies life, liberty and/or the pursuit of happiness. Because these patient rights are of constitutional proportions, they are inalienable and cannot be abrogated, abridged and/or infringed by statute or common law for the special interest benefit of those hired third-parties. The fact that healthcare providers are paid servants of the patients cuts against any protectionism. §8.01-581.17 is unconstitutional as drafted and as applied. It impacts most the class of patients who need disclosure most. It also denies them procedural and substantive due process.

Claimed “privilege does not permit a litigant to commit a fraud upon a court.” Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992). Peterson v. Fairfax Hosp. Sys., Inc., 32 Va. Cir. 294 (Fairfax 1993)(medical malpractice misrepresentation vitiates privilege). Moreover, defense discovery frauds are admissible in evidence. John Crane, Inc. v. Jones, 274 Va. 581, 589-590 (2007); Owens-Corning, 243 Va. at 141-142. “[W]hen deciding whether a fraud has been committed . . . a controlling factor is ‘whether the misconduct tampers with the judicial machinery and subverts the integrity of the court’.” Id. at 142.

Eppard v. Kelly, 62 Va. Cir. 57, 59-61 (Charlottesville 2003), another medical malpractice case, exposed the “quality” scheme of the University of Virginia Medical Center (“UVMC”). In 1991, UVMC’s “Incident/Occurrence Reports” summarily were retitled “Quality Reports” and claimed “generated to initiate quality review of Health System processes, practices, and procedures for quality assurance purposes.” Id. at 60. Retitled Reports were routed to various committees ostensibly concerned “primarily with health care improvement activities,” but whose membership included and/or was reported to by “risk management and insurance” and “legal” personnel. Id. at 60-61. UVMC and PLT also maintained “patient databases” and “incident report with medical chart review material in a database format” accessible by the Risk Manager. Id. at 60, 65.

Eppard found “there may be incentives to immediately commingle the creation of an incident report with healthcare evaluation by using § 8.01-581.17 to avoid discovery of damaging information or documents.” Id. at 64. Further, “since the University’s Risk Management staff as well as the PLT staff assigned to the healthcare committees have become part of the healthcare improvement process, the system appears to be designed to wrap large segments of the patient treatment review investigation under a blanket of privilege.” Id. “However, ‘peer review’ should not be used to shield from disclosure medical records not generated initially for peer review objectives.” Id. at 63. Eppard held “commingling” the “healthcare improvement committee” with legal, risk management and insurance interests did not create privilege under § 8.01-581.17. Id. at 64. Eppard ordered discovery of “Case Notes,” i.e., “an incident report with medical chart review material in a database format,” and “Database Notes,” including “medical discussions [that] list investigative facts unearthed by the various parties involved.” Id. at 65.

In a recent medical malpractice case, Judge Tench in Newport News seized upon the old scam: “It seems to be that what the healthcare providers does is they try to couch all this as confidential and say the only thing that the patient gets is the patient’s chart … .” See, 7/10/07 Licare v. Riverside Hearing Transcript Excerpt at 38.16-23 (emphasis added). After in camera review, Judge Tench and redacted and disseminated Riverside records. See, 10/31/07 Licare v. Riverside Judge’s Letter.

The sufficiency of §1983 civil rights wrongful death and other federal suits is scrutinized in the light most favorable to the plaintiff, particularly when the initial complainant is pro se. Avery T. “Sandy” Waterman, Jr., Esq. recently prevailed on the point against Rule 12 Motions to Dismiss in Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983.

The United States Supreme Court has declared that the general “inartfully pleaded” allegations of a pro se §1983 civil rights complaint are held to “less stringent standards”. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-521 (1972) (reversing Fed. R. Civ. P. 12 dismissal). “It is now established doctrine that pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated, and even if the claim is insufficient in substance, it be amended to achieve justice. [A] complaint, especially a pro se complaint, should not be dismissed summarily unless ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief….” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978) (emphasis in original) (reversing Rule 12 dismissal of pro se §1983 civil rights complaints). “The Fourth Circuit takes the position that its district courts must be especially solicitous of civil rights plaintiffs….This solicitude for a civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appear pro se.” Id.

Since “a pro se complaint must be read liberally,” the “power summarily to dismiss…is limited”. See, e.g., Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978) (reversing Rule 12 dismissal of pro se §1983 civil rights complaint). See also, e.g., Bolding v. Hoshouser, 575 F.2d 461 (4th Cir.), cert. denied, 439 U.S. 837 (1978)(manifest that broad sweeping pro se complaint of constitutional deprivations is immune from Rule 12 dismissal). “Pro se complaints and petitions should be construed liberally by this court. Such pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys. A federal district court is charged with liberally construing a complaint or petition file by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L.Ed.2d. 163 (1980).” Phomphackdi v. Spartanburg County, 2007 U.S. Dist. LEXIS 19895, *4 (D.S.C. Mar. 20, 2007)(citation omitted).

Rule 12 tests the sufficiency of a Complaint. On 12(b)(6) motion, “we accept as true the allegations of the complaint.” Adams v. Bain, 697 F.2d 1213, 1217 (4th Cir. 1982) (reversing and remanding dismissal of §1983 civil rights action). In addition, the court also may consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Wu v. Tseng, 2007 U.S. Dist. LEXIS 5025 (E.D. Va. 2007)(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §1357 (1990). See, Anheuser Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996). “The same standard is applied to a Rule 12(c) motion as for a Rule 12(b)(6) motion to dismiss.” See, e.g., Syngenta Crop Protection, Inc. v. United States, 444 F.Supp.2d 435, 444 (M.D. N.C. 2006).

It is hornbook law that the Court cannot consider Exhibits submitted by Defendant without converting the 12(b)(6) motion to a Rule 56 motion, giving Plaintiff sufficient advance notice of the same, and permitting full discovery with which to oppose it. A 12(b)(1) motion is “critically different” than a 12(b)(6) motion: “Unlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate fact finder, the court in 12(b)(1) hearing weighs the evidence to determine jurisdiction.” See, e.g., Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (§1983 civil rights dismissal reversed and remanded). “A trial court may consider evidence [on a 12(b)(1) motion] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Id. Significantly, however, 12(b)(1) motions should be denied where underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only be a proceeding on the merits.” Adams.

The timeliness of §1983 civil rights wrongful death and other federal suits depends on when the complaint physically was delivered to a Court officer, not when it is stamped “filed” and/or its fees are paid. Avery T. “Sandy” Waterman, Jr., Esq. recently has survived the point in Webb v. Stevens, No. 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983. In Webb, the pro se plaintiff timely delivered the complaint, but did not pay the filing fee; and then was denied his petition to proceed in forma puaperis (such that his complaint was not stamped “filed” until he belatedly paid the filing fee).

The “Federal Rules of Civil Procedure govern the commencement of this suit for purposes of tolling the state statute of limitations.” Lewis v. Richmond City Police Dept., 947 F.2d 733, 735 (4th Cir. 1991)(holding pro se litigant timely “filed” by depositing his §1983 complaint in prison mailbox). “As long as the complaint is deemed filed within the limitations period, the action is timely.” Id. (citing Fed. R. Civ. P. 3) (emphasis added). “The phrase ‘filing a complaint’ as used in Rule 3, means nothing more than delivery of the complaint to an officer of the court authorized to receive it – under Rule 5, the clerk of court or a judge thereof.” See, Robinson v. Waterman S.S. Co., 7 F.R.D. 51, 54 (D.N.J. 1947) (amended complaint delivered to judge, but not clerk, timely). See also, e.g., Robinson v. Yellow Freight Sys., 892 F.2d 74 (4th Cir. 1989)(pro se complaint); Ladd Furniture, Inc. v. Ernst & Young, 1998 U.S. Dist. LEXIS 173 45, *20 (M.D.N.C. 1998)(third-party complaint attached to motion for leave to amend filed timely despite grant after statute of limitations ran).

Wells v. Appel, 103 F.Supp.2d 893 (W.D. Va. 2000) is on point. In Wells, plaintiff timely delivered the clerk a complaint and an application to proceed in forma pauperis on November 29, 1999; but the court denied her application, and she did not pay her filing fee and correspondingly her complaint was not marked “filed” until January 12, 2000, after the statute of limitation had run. Id. 894-895. Nonetheless, Wells followed the “better rule” that a Complaint be deemed “filed” as of “the date on which it was first received by the clerk’s office,” regardless “the untimely payment of the required filing fee”. Id. at 896-899. See, also, e.g., Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955)(untimely filing fee payment did not “vitiate the validity” of appeal notice); Hunt v. Stone, 39 F.3d 1177 (4th Cir. 1994) (“Appellant’s petition should have been deemed filed on the date that the district court clerk received it along with what Appellant reasonably believed was the filing fee.”); Robinson v. Poe, 272 F.3d 921, 922-923 (2001), reh. en banc denied 2002 U.S. App. LEXIS 585 (7th Cir. 2002)(pro se §1983 complaint timely “filed” upon receipt by clerk, despite its return for lack of required filing fee; as local rule “cannot defeat a right, which in this case is the right to arrest the running of the statue of limitation by filing a complaint in the district court, that is conferred by the national rules”); McDowell v. Delaware State Police, 88 F.3d 188, 190-191 (3d Cir. 1996) (“Although a complaint is not formally filed until the filing fee is paid, we deem a complaint to be constructively filed as of the date that the clerk received the complaint – as long as the plaintiff ultimately pays the filing fee or the district court grants the plaintiff’s request to proceed in forma pauperis.”); Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 919-921 (9th Cir. 1987)(complaint constructively filed upon delivery to clerk despite rejection for non-compliance with local rules and filing fee statute); Rodgers v. Bowen, 790 F.2d 1550, 1551-1553 (11th Cir. 1986); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir. 1986); Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. 1981); In re Horob, 54 B.R. 693, 696 (Bankr. D.N.D. 1985); Johnson v. The Univ. of Va. Med. Ctr., 2007 U.S. Dis. LEXIS 3122, * 9 (W.D.Va. Jan. 17, 2007) (in forma pauperis Complaint is deemed “filed” when physically delivered to the Clerk’s office, not when formally docketed subsequently upon payment of fee); Cornett v. Weisenburger, 454 F.Supp.2d 544 (W.D. Va. 2006); and In re Emory, 219 B.R. 703, 708 (Bankr. D.S.C. 1998).

Fed. R. Civ. P. 15(a) strongly favors leave to amend being granted, including in §1983 civil right suits for wrongful death. Avery T. “Sandy” Waterman, Jr., Esq. recently was granted leave to amend a wrongful death suit against a former North Carolina state trooper with Rule 12 motions to dismiss pending. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Webb held that amendment was not futile, unduly prejudicial, or in bad faith. See, Decision and Order at 4-7. Adding “an additional theory of recovery to the facts already pled…before any discovery has occurred” is permissible. Id. at 3.

Mr. Waterman’s success in Webb follows the Fourth Circuit reaffirming the liberal mandate of Rule 15 in 2006 and 2007, twice vacating and remanding for district court denials of leave to amend for abuse of discretion, even in the face of delay. “Delay alone… is an insufficient reason to delay the plaintiff’s motion to amend.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006)(en banc). Sitting en banc, the Fourth Circuit in Laber concluded that it was an abuse of discretion to deny Plaintiff’s Motion for Reconsideration and to Amend because Plaintiff’s amendment was not in bad faith, prejudicial or futile. Id. at 429. To the same effect is the Fourth Circuit’s more recent decision following Laber in Sciolino v. City of Newport News, Virginia, 480 F.3d 642, 651 (4th Cir. 2007)(Rule 15 motion to file a second amended §1983 civil rights complaint after entry of judgment of dismissal was appropriate).

“Rule 15(a) directs that leave to amend ‘shall be freely given when justice so requires.’ This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities. See, Conley v. Gibson, 355 U.S. 41,48, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)(‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep counsel may be decisive to the out outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’); Ostrzenski v. Seigel, 177 F. 3d 245, 252-53 (4th Cir. 1999)(‘The Federal Rule policy of deciding cases on the basis of substantive rights involved rather on technicalities requires [the] Plaintiff be given every opportunity to cure a formal defect in his pleading.’(quoting 5(A) Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 357(2d ed. 1999))).”

Earlier, the Fourth Circuit reversed a district court that denied amendment because of “a change in the theory of recovery.” Wards Elecs. Serv. Inc. v. First Commercial Bank, 819 F.2d 496 (4th Cir. 1987). The “fact than an amendment changes the plaintiff’s theory of the case will not suffice as a reason for denial absent a showing of prejudice, bad faith, futility, or dilatoriness.” Id. At 497. “Under the circumstances, we think that Foman’s spirit required permitting this second amendment still early in the pre-trial process.” Id. (emphasis in original).

Continue reading "Federal Wrongful Death Suit Amendment – a Lawyer’s Complaint (FRCP 15)" »

Federal wrongful death suits properly are amended to substitute the correct estate representative after the limitation period has run. The leading Virginia case was litigated by Avery T. “Sandy” Waterman, Jr., Esq. Zhu v. Rocco Farms, Inc., 1998 U.S. Dist. LEXIS 21781 (W.D. Va. 1998). A leading North Carolina case also was litigated by Mr. Waterman. Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (Mar. 17, 2008), aff’d Order (E.D.N.C. May 22, 2008).

Zhu found that Federal procedural rules plainly provided for such amendment and relation back in wrongful death suits. “Under the federal rules, when the wrong party has brought a suit, the federal court may substitute the real party in interest in order to avoid forfeiture and injustice. See Levinson v. Denpree, 345 U.S. 648, 97 L.Ed. 1319, 73 S. Ct. 914 (1953); Fed. R. Civ. P. 15 and 17. The court may ‘continue the action, even though the state law under its statute of limitations might not allow relation back and would require dismissal.’ 3A James Wm. Moore et al., Moore’s Federal Practice §17.15 (2d ed. 1982). The statute of limitation does not pose an obstacle to the change in parties since Rule 17 states that ‘substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.’ Fed. R. Civ. P. 17(a); see also 6A Charles Alan Wright, et al. Federal Practice Procedure §1555 (2d ed. 1990).” Id. at *3-4. Indeed, lenient Fed. R. Civ. P. 17(a) prohibits dismissal “on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for . . . substitution of the real party in interest”. Id. at *4 (emphasis added). Zhu concluded: “The court believes that substituting personal representatives, absent a showing of improper or deceitful conduct by the plaintiff, constitutes just cause for abating an action until appointed.” Id. at *5.

Recently in Webb, a §1983 civil rights case for wrongful death, the court granted amendment and substitution of estate representatives with motions to dismiss over the point pending. Webb substituted an ancillary estate administrator qualified in the forum state of North Carolina instead of the estate administrator qualified in Virginia. See, Decision and Order at 4.

Earlier in McNamara v. Kerr-McGee Chem. Corp., 328 F.Supp. 1058 (E.D.N.C. 1971), this Court reached the same result. It did so despite holding incorrectly that North Carolina law must be applied to another wrongful death action under diversity jurisdiction, because North Carolina had adopted the relevant Federal rules. “The court is of the opinion that the North Carolina Supreme Court would hold that the enactment of Rule 15(c) changes the North Carolina law to conform to the majority state court rule and to the established rule in the Federal courts. The court is further of the opinion that the requirements of Rule 15(a) and (c) are met, and therefore, in the interest of justice, plaintiff’s motion to amend the complaint…is hereby granted. The court is also of the opinion that plaintiff’s motion to substitute a party plaintiff and to ratify the complaint must be granted [under North Carolina Rule 17(a)].” Id. at 1059. Subsequent to McNamara, consistent with Zhu, the Fourth Circuit held that Federal procedure governed in a diversity action, even if State procedure otherwise would command a different result. Davis v. Piper Aircraft Corp., 615 F.2d 606, 611 (4th Cir.), cert. denied 448 U.S. 911 (1980).

“Indeed, amendments to pleadings which substitute the real party in interest for a person who did not enjoy that capacity when he brought the claim is a more drastic change in the kind of claimant than an amendment which merely changes the capacity in which the same named individual is suing. Rule 17(a) expressly authorizes the former substitution of one party for another.” Burcl v. North Carolina Baptist Hosp., Inc., 306 N.C. 214, 230, 293 S.E.2d 85, 95 (1982). The Western District sua sponte has stayed a motion to dismiss to “permit Plaintiff or a similarly situated substitute … reasonable time to seek proper qualification as ancillary administrator or personal representative, to file a supplemental pleading establishing such qualification, and thereby to ratify the commencement of this action,” see, e.g., Janean v. Pitman Mfg. Co., 1991 U.S. Dist. LEXIS 19322 (W.D.N.C. 1991); and the Fourth Circuit even has raised the possibility of remand for that purpose. See, e.g., Messer v. American Gems, Inc., 612 F.2d 1367, 1374 (4th Cir. 1980).

An estate representative filing a federal suit for wrongful death pro se is not impermissible per se and does not constitute unauthorized practice of law. 28 U.S.C. §1654 expressly provides for pro se representation in Federal Court. Moreover, even assuming arguendo that such a temporary practice is disallowed, it is not just grounds for dismissal where the litigant subsequently retains legal counsel. See, e.g., Witherspoon v. Jeffords Agency, Inc., 120 Fed. Appx. 999 (4th Cir. 2005); Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (E.D.N.C. Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Gallo v. United States, 331 F.Supp.2d 446 (E.D. Va. 2004); Brown v. Ortho Diagnostic Sys., Inc., 868 F.Supp. 168, 172 (E.D. Va. 1994); and Wolford v. The Budd Co., 149 F.R.D. 127, 129-131 (W.D. Va. 1993)(North Carolina lawyer filing in Virginia federal court “mere technical defect” cured by retaining Virginia “to do substantial justice” versus “lock the courthouse door”).

The Fourth Circuit addressed an estate representative appearing pro se in a wrongful death suit. It found “no reversible error” in dismissal, but only after plaintiff was given opportunity to retain counsel of record and failed to do so. See, e.g., Witherspoon.

More recently in Webb, a §1983 civil rights suit for wrongful death, the court denied summary dismissal of the pro se complaint where the estate representative retained counsel of record. Avery T. Waterman, Jr., Esq. of Newport News and Williamsburg, Virginia, appeared, briefed and argued in Webb in North Carolina.

Earlier, in Gallo, a parent filed a personal injury action pro se in a representative capacity for a child. The Gallo court concurred with other courts that dismissal would be “unwarranted” because “appointment retention of counsel would solve the defect”; and also “would be a particularly harsh result in this case because any subsequent claim filed…after dismissal of this action would be effectively barred by the statues of limitation”. 331 F.Supp.2d at 448. Thus, Gallo concluded “the proper course is not to dismiss [the] case, but rather to allow Ms. Gallo to take measures to retain an attorney for her daughter.” Id. at 449. Brown, which likewise involved a parent appearing pro se for a child, holds the same. “And dismissal of [plaintiff’s] claim on this ground is certainly unwarranted. Rather, all that is required is for the Court to appoint counsel for [plaintiff], which now has been done.” 868 F.Supp. at 172.

Limiting access to courts by wrongful death and other personal injury victims and/or conspiring to abridge their constitutional protections under color of state law may violate federal civil rights under 42 U.S.C. §1983. Avery T. “Sandy” Waterman, Jr., Esq. recently withstood Fed. R. Civ. P. 12 motions to dismiss such claims on allegations that officers tampered with evidence of a wrongful death victim in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).

In 1978, the Fourth Circuit established that citizens “have a constitutional right of meaningful access to the courts which a state may not abridge nor impair, nor may it impermissibly burden its exercise.” Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978)(§1983 claim stated). “It is enough that the [constitutional misconduct] was intended to impose a limitation upon the [citizen’s] right of access to the court and was reasonably calculated to have that effect.” Id. at 1348.

In 1987, the Fourth Circuit established that a police officer had a “duty to act,” i.e., a duty “to protect [a citizen] from illegal excesses perpetrated by [another officer present];” and that tacit conspiratorial liability for a §1983 civil rights claim could be predicated on an officer’s failure to protect in such circumstances. Further, the Fourth Circuit established that engagement in “concerted activity” could be inferred from minimal participatory physical conduct by an officer even in the absence of an oral agreement with another officer to deprive constitutional rights. Jackson v. Pantazas, 810 F.2d 426, 430 (4th Cir. 1987)(§1983 excessive force conspiracy claim). Browning v. Snead, 886 F.Supp. 547, 552 (S.D. W.Va. 1995) followed Jackson.

In 1992, the Fourth Circuit outlined, “The district judge did not err by instructing the jury that a claim of conspiracy under 42 U.S.C § 1983 can succeed by a mere showing of acquiescence.” Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992)(§1983 excessive force conspiracy claim). The Fourth Circuit in Hafner emphasized, “Acquiescence can amount to a conspiracy agreement when, as here, one police officer watches an open breach of the law and does nothing to seek its prevention.” Id. at 578. Mere participation in unconstitutional conduct can constitute “concerted activity” without any explicit agreement. Id. at 577. Thus, it is not necessary expressly to show or even allege a specific conspiratorial agreement; it suffices simply to allege and show “mere acquiescence” to prove a conspiracy.

Denial of medical care under color of state law may state a claim for wrongful death or personal injuries under 42 U.S.C. §1983. A leading civil rights case of Avery T. “Sandy” Waterman, Jr., Esq., clearly establishes “deliberate indifference to serious medical needs” as a constitutional violation. Kane v. Hargis, 987 F.2d 1005, 1008-1009 (4th Cir. 1993).

“A duty to render medical care is generally thought of as arising under the Due Process Clause or the Eighth Amendment.” See, e.g., DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200, 109 S. Ct. 998, 103 L.Ed.2d. 1134, 1139 (D. Minn. 2005). Under the Fourteenth Amendment, pretrial detainees are entitled to at least as much protection as under the Eighth Amendment.” Id. at 1141. Where an officer arrests by shooting and disabling and then denies the arrestee medical care, there is “no reason to carve out a separate standard for arrestees, a subset of pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 523, 99 S. Ct. 1861, 1865-66, 60 L.Ed.2d. 249 (1989). Patrick v. Lewis, 397 F.Supp.2d. 447 (1979).” Nerren v. Livingston Police Dep’t, 86 F.3d. 469, 472-473 (9th Cir. 1996).

Hence, cases have denied qualified immunity for §1983 civil rights claims where defendants have denied arrestees medical attention. For example, in Nerren, supra, the arrestee had fled the scene of an automobile accident and unlawfully was denied requested medical attention upon apprehension. In Torres v. The City of Chicago, 123 F.Supp.2d. 1130 (N.D. Ill. 2000), plaintiff stated a §1983 claim where the police failed to secure a shooting victim the necessary immediate medical attention and he died. In Penilla v. City of Huntington Park, 115 F.3d. 707 (9th Cir. 1997), the police actually frustrated and delayed the victim receiving gravely needed medical care from paramedics, causing his death. To the same effect is Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a wrongful death case litigated by Mr. Waterman, in which qualified immunity was denied under Rule 12 for allegedly conspiring officers delaying emergency medical treatment. Also, “G.S. 15A-503 imposes a duty on police who arrest an unconscious or semi-conscious person to make a reasonable effort to provide appropriate medical care.” Doerner v. City of Asheville, 90 N.C. App. 128, 130, cert. denied 323 N.C. 172 (1988).

No specific precedent for unconstitutionality is necessary for a §1983 civil rights claim where the unlawfulness indisputably is apparent. Factually dissimilar precedent does not entitle an offender qualified immunity where his misconduct is obviously unconstitutional. See, e.g., United States v. Lanier, 520 U.S. 259, 271 (1997). “[W]e must also keep in mind the Supreme Court’s warning that this is not a mechanical exercise, and that the test is not whether ‘the very action in question has previously been held unlawful,’ but rather whether pre-existing law makes the unlawfulness of an act ‘apparent.’ Accordingly, a constitutional right is clearly established for qualified immunity purposes not only when it has been ‘specifically adjudicated’ but also when it is ‘manifestly included with in more general applications of the core constitutional principle invoked.’ Thus, ‘when the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous pre-existing case law is not required to show that the law is clearly established.’ And to hold otherwise would allow an officer who understood the unlawfulness of his actions to escape liability simply because the incident case could be distinguished on some immaterial facts, or worse, because the illegality of the action was so clear that it had seldom before had been litigated.” Clem v. Corbeau, 282 F.3d. 543, 553 (4th Cir. 2002)(italics in original)(citations omitted).

A federal civil rights suit for wrongful death under 42 U.S.C. §1983 was cleared for discovery and Court-facilitated mediation at Status Conference earlier this month. The case is Webb v. Stevens, No. 5:05-CV-33-BO(1) in the Eastern District of North Carolina, with Avery T. “Sandy” Waterman, Jr., Esq. as lead counsel.

Webb alleges multiple civil rights violations, including objectively unreasonable: (1) use of deadly force; (2) denial of first responding emergency medical attention; and (3) conspiracy to tamper with evidence and deny court access. Such implicates the Fourth, Eighth and Fourteenth Amendments to the U.S. Constitution.

The defendant Caucasian North Carolina state trooper stopped an African-American motorist in rural North Carolina on Martin Luther King Day in 2003 for claimed seatbelt violation. After being placed under arrest and attempting to flee, the Virginia motorist was subdued, handcuffed improperly, and put in a running cruiser alone.

As the arrestee slowly backed the cruiser straight in reverse to leave, the trooper ran along side and repeatedly fired at point blank range through the driver’s window into the driver’s torso. The earliest EMT responders initially were not allowed by encircling officers to attend the victim, and another officer removed a telltale dangling handcuff from the victim’s wrist as he lay dying.

Defendant trooper was terminated by the North Carolina State Highway Patrol over the incident. His firing was upheld on appeal after a two-day evidentiary hearing.

Continue reading "§1983 Civil Rights Wrongful Death Suit – a Lawyer’s Case" »

“N.C.G.S. §15A-401(d) abrogated any public officer immunity for the use of deadly force by creating a state-law privilege for the use of deadly force but specifically providing that nothing in the statute justified willful, malicious or criminally negligent conduct or excused or justified the use of unreasonable or excessive force.” Thompson v. Farmer, 645 F. Supp. 109, 111 (W.D.N.C. 1996). Thus, §15A-401(d)(2) does not insulate officers from all liability for wrongful death and serious personal injury.

§15A-401(d) does not trump Federal law. It codifies not only rights and privileges of officers, but also their “duties” to arrestees, consistent with §1983. See, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 210 (Spring 2002). “N.C. Gen. Stat. 15A-401 provides both a statutory standard and a privilege for law enforcement officers which is consistent with common law as well as contemporary decisions by the United States Supreme Court regarding the use of force.” Id. Thus, Defendant’s immunity or liability under §15A-401(d) simply tracks his immunity or liability under the United States Constitution. See, e.g., Thompson, 945 F. Supp. at 110-111.

Even if arguendo North Carolina doctrine of public official immunity survives §15A-401(d), it applies only if the action involves the “exercise of judgment and discretion” and is not “corrupt, malicious or beyond the scope of authority”. See, e.g., McGuiness at 211 n. 26 (and North Carolina cases cited therein); Abney v. Cox, 2005 U.S. Dist. LEXIS 41890, *41 (M.D.N.C. 2005); Lea v. Kirby, 171 F.Supp.2d 579, 584 (M.D.N.C. 2001), aff’d in part and dism’d in part, 39 Fed. Appx. 901 (4th Cir. 2002). Showalter v. North Carolina Dept. of Crime Control and Pub. Safety, 2007 N.C. App. LEXIS 836, *8, 643 S.E. 2d 649, 652 (2007); Glenn-Robinson v. Acker, 140 N.C. App. 606, 626, 538 S.E. 2d 601, 615 (App. 2000) cert. den., 353 N.C. 372, 547 S.E. 2d 811 (2001). Further, public officer immunity at most applies only to state law claims. Federal civil rights claims are affected only by the qualified immunity doctrine. See, e.g. Massasoit v. Carter, 439 Supp.2d. 463, 480 (M.D.N.C. 2006).

Wrongful death and personal injury victims are entitled to discover case facts underlying their 42 U.S.C. §1983 civil rights claims before adverse adjudication of a dispositive motion, even if a defendant claims qualified immunity. On January 2, 2009, Avery T. “Sandy” Waterman, Jr., Esq. was ordered discovery in a §1983 civil rights wrongful death suit despite motions to dismiss on qualified immunity in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (E.D.N.C. Jan. 2, 2009).

“A trial court may consider evidence [on a Fed. R. Civ. P. 12(b)(1) motion for qualified immunity] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Adams v. Bain, 697 F.2d. 1213, 1219 (4th Cir. 1982). However, a defendant’s 12(b)(1) motion should be denied where the underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only by a proceeding in the merits.” Id. (§1983 dismissal reversed and remanded for lack of discovery unto merits).

Indeed, discovery on qualified immunity should be permitted even if a motion for summary judgment is filed under Rule 56. For example, the Fourth Circuit reversed a grant of summary judgment on qualified immunity on the mere possibility that one of the police cruisers at the scene may have had a camera with videotape. Ingle v. Yelton, 439 F.3d., 191, 196-198 (4th Cir. 2006). “Although [plaintiff] could not determine whether any of the vehicles present that night had cameras installed, the new policy provided sufficient basis to conclude that a videotape of the incident might exist. Such a videotape might have provided [plaintiff] with an opportunity to contradict the affidavits upon which the district court relied. For this reason, we remanded for further discovery as to the existence of a videotape of the incident; our mandate specifically noted that the district court could reconsider the defendants’ motion for summary judgment again after completion of discovery.” Id. at 197. Ingle v. Yelton, 2008 U.S. App. LEXIS 3184, *3-4 (4th Cir. Feb. 14, 2008).

Likewise, last year a Virginia district court twice deferred consideration of defendants’ motions in favor of discovery, following Fourth Circuit precedent. “[T]he United States Court of Appeals for the Fourth Circuit has held that ‘ordering discovery on the issues of immunity…[is] well within the discretion of the district court.’ American Civil Liberties Union, Inc. v. Wicomico County, 999 F.2d. 780, 787 (4th Cir. 1993). Indeed, most often ‘qualified immunity is tested at the summary judgment stage after the facts have been developed through discovery.’ Alford v. Cumberland County, No. 06-1569, 2007 U.S. App. LEXIS 24138, 2007 W.L. 2985297, at *3 (4th Cir. Oct. 15, 2007).” Turner v. Kinder, 2008 U.S. Dist. LEXIS 18143, *8 (W.D.Va. Mar. 10, 2008) and 2008 U.S. Dist. LEXIS 39709, * 6-10 (W.D.Va. May 15, 2008).

Specifically, Turner initially upheld various discovery requests on §1983 civil rights claim for denial of medical attention and extent of injuries. “The court finds that the discovery requested by [plaintiff] could contribute to the determination of whether defendants acted maliciously and sadistically for the very purpose of causing harm, whether [plaintiff] injuries were more than de minimis, and whether defendants were deliberately indifferent to [plaintiff’s] allegedly serious medical needs.***The court further determines that the discovery requested by [plaintiff] could contribute to the determination of the extent of [plaintiff’s] injuries and whether or not defendants offered [plaintiff] medical care. Accordingly, as the discovery requests are relevant to qualified immunity, the court finds that [plaintiff] has made an adequate showing of his need to engage in discovery and will grant him the opportunity to do so.” 2008 U.S. Dist. LEXIS 18143 at 10-11. Subsequently, Turner ordered production concerning “any relevant complaints, investigations, civil rights or criminal actions, and disciplinary reports,” including ones post-incident and/or related to the suit. 2008 U.S. Dist. LEXIS 39709 at 7 and 10.

Qualified immunity does not insulate all officers from wrongful deaths or other personal injury claims under 42 U.S.C. §1983 for excessive force. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); Massasoit v. Carter, 253 Fed. Appx. 295 (4th Cir. 2007); Schultz v. Braga, 455 F.3d 470 (4th Cir. 2006); Clem v. Corbeau, 284 F.3d 543 (4th Cir. 2002); Haddaway v. Ellerbusch, 1993 U.S. App. LEXIS 16039 (4th Cir. 1993); Kane v. Hargis, 987 F.2d 1005 (4th Cir. 1993); Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Phomphackdl v. Spartansburg County, 2007 U.S. Dist. LEXIS 19895 (D.S.C. Mar. 20, 2007); Russo v. United States, 37 F.Supp.2d 450 (E.D. Va. 1999); Thompson v. Farmer, 945 F. Supp. 109 (W.D.N.C. 1996); Jordan v. Civil Service Board for the City of Charlotte, 153 N.C. App. 691, 570 S.E.2d 912 (2002), cert. denied 356 N.C. 672, 577 S.E.2d 672 (2003); and Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E. 2d 601 (2002), cert. denied, 353 N.C. 372, 547 S.E.2d 811 (2001). See also, e.g., J. Michael McGuiness, Law Enforcement Use of Force: The Objective Reasonableness Standards Under North Carolina and Federal Law, 24 Campbell L. Rev. 201, 227 n.157 (Spring, 2002) (“McGuiness I”) (“Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999)(denying qualified immunity in law enforcement personnel cases)”). “Officers are subject to civil, civil rights and criminal liability for excessive force,” see, e.g., McGuiness I at 206-207; despite the existence of qualified immunity.

Tennessee v. Garner, 471 U.S. at 11, clearly establishes that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” McGuiness I at 230. Schultz, 455 F.3d 477. “Generally, mere flight alone without more is not sufficient to warrant deadly force. Without some implied threat of harm to officers or others, fleeing suspects cannot be shot.” Id.

“The intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. at 9. “And it is clearly established principle of law that law enforcement officers may employ deadly force ‘[w]here the officer has probably cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’ Id. at 11. ‘Where [a] suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.’ Id. But ‘if the suspect threatens the officer with a weapon or there is probably cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible some warning has been given.’ Id. at 11-12.” Schultz, 455 F. 3d at 477.

“The evolving body of use of force law mandates a complete assessment of the facts, circumstances and reasonable beliefs of the officer….” See, e.g., J. Michael McGuiness, “Supreme Court Further Defines Police Use of Force Standards,” The Connecticut Lawyer (February 2002) (“McGuiness II”); J. Michael McGuiness, “Shootings by Police Officers are Analyzed under Standards Based on Objective Reasonableness”, 72 N.Y.S. Bar J. 17 (September 2000)(“McGuiness III”). See also, McGuiness I at 226 (stating “careful attention to the facts and circumstances of each particular case” is required). In “Tennessee v. Garner, 471 U.S. 1, 8-9 (1985),…the Court relied upon the ‘totality of the circumstances” in assessing reasonableness, see, e.g., McGuiness I at 219 n.89, 230; and a “literal application of this [so-called ‘reasonableness of the moment’ concept] may strain logic and the ‘totality of the circumstances’ framework because the course of events leading up to the use of force may further support or negate the need for force.” See, e.g., id. at 219. Hence the Fourth Circuit properly has applied the Court’s “totality of the circumstances’” analysis instead of the myopic “reasonableness of the moment” concept. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). This determination must include an evaluation of the full context of the situation, evaluating all the relevant factors. See id.” McClain v. Cumberland County, 1998 U.S. Dist. LEXIS 18592 (E.D. N.C. 1998). Cf., Scott v. Harris, 127 S.Ct. 1769 (2007)(determining qualified immunity based on a six-minute videotape “capturing the events in question,” a ten-mile vehicle chase).

On motion for summary dismissal, the facts must be viewed “in the light most favorable” to the injured party. Massasoit, 253 Fed. Appx. at 297; Clem, 284 F.3d at 550-551; Webb, 2008 U.S. Dist. LEXIS 61480, * 2-3. The defendant officer on a traffic stop in Massasoit twice shot and killed a suspect after he “tussled” and pepper-sprayed the suspect, and also twice shot another fleeing suspect; all “without warning”. Under these facts, the Fourth Circuit found the deadly force unreasonable, unjustified and clearly unconstitutional. 253 Fed. Appx. at 297. Similarly, because the plaintiff in Clem proffered that he was not a serious threat and “firing three shots are close range was an application of force that could have killed him;” the Fourth Circuit explained that “on the basis of Garner alone…, we would have to conclude that the constitutional right at issue in this case was ‘clearly established’.” 284 F.3d at 554. See, Phomphackdl, supra, 2007 U.S. Dist. LEXIS 19895, *7-11 (Magistrate’s Report and Recommendation that “accepted defendants’ accounts of the incident” was rejected by district judge and summary judgment on excessive force was denied); Russo, supra, 37 F.Supp.2d at 455 (“At this early stage of the proceedings, where the court is limited to the allegations contained in the complaint and must accord every reasonable inference to the plaintiff as the non-moving party, the court cannot determine [the unconstitutionality or constitutionality of the use of deadly force].”)

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On November 7, 2008, Avery T. “Sandy” Waterman, Jr., Esq. provided Virginia’s Attorney General and its Division of Risk Management Director notice of alleged wrongful death. The Virginia State Police shot to death an arrestee escaping by vehicle on November 18, 2007, for which the administratrix of the victim’s estate is making a claim under 42 U.S.C. §1983 for alleged use of excessive (deadly) force.

Under common law, the sovereign – in this case, the state – enjoys immunity from suit for wrongful death and personal injuries. But in Virginia, that harsh rule of sovereign immunity has been relaxed a bit by statute. See, Va. Code Ann. §8.01-195.1, et seq.

Enacted in 1981, the Virginia Tort Claims Act (“VTCA”) permits certain wrongful death, personal injury and property damages claims against the Commonwealth. Currently, however, the VTCA maximum amount of recovery is $100,000.00, regardless the actual amount of damages suffered by the victim.

But the key prerequisite to filing suit for wrongful death, personal injury and/or property damages is first providing a very specific notice to the appropriate governmental officials within one year of the casualty. Otherwise, the victim’s claim is barred forever, regardless its merits. See, §8.01-195.6.