throbber
Case 6:19-cv-00055-NKM-RSB Document 87 Filed 11/30/20 Page 1 of 32 Pageid#: 1848
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF VIRGINIA
`LYNCHBURG DIVISION
`
`RUTH ANN WARNER,
`as Guardian of Jonathan James Brewster
`Warner,
`
`
`
`CASE NO. 6:19-cv-55
`
`Plaintiff,
`
`MEMORANDUM OPINION
`
`
`
`v.
`
` JUDGE NORMAN K. MOON
`
`CENTRA HEALTH INC., et al.,
`
`
`
`
`
`
`
`
`
`
`
`
`
` Defendants.
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`Plaintiff Ruth Ann Warner (“Plaintiff”), on behalf of her son Jonathan Warner
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`(“Jonathan”), filed this lawsuit seeking compensatory and punitive damages against numerous
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`defendants involved in the hospitalization and shooting of her son in January 2016, which left him
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`paralyzed from the waist down. Defendant Katherine Prater allegedly facilitated Jonathan’s
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`transfer to the mental health facility where he was shot. Defendant Wesley Gillespie was the
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`supervising security guard at Lynchburg General Hospital who shot Jonathan. Defendants James
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`Barr and Dana Luck were security guards who escorted Jonathan to the mental health facility
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`adjacent to the hospital. Defendant Centra Health, Inc. operated the mental health facility where
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`the incident took place. The defendants have all moved to dismiss Plaintiff’s claims against them.
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`Dkts. 13, 15, 23.
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`The Court will grant in part and deny in part the motion to dismiss claims against Defendant
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`Gillespie: dismissing Count I (unreasonable seizure) with prejudice; Count III (due process
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`violation) without prejudice and affording Plaintiff the opportunity to amend; and denying the
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`
`
`1
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`11/30/2020
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`

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`motion to dismiss Count V (battery), as Plaintiff has pleaded a plausible claim of battery against
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`Gillespie. As to Defendant Centra, the Court will dismiss all counts except Count V (battery),
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`which survives because the facts as pleaded establish a plausible claim for vicarious liability under
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`a theory of respondeat superior with respect to Gillespie’s battery. The Court will dismiss all
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`claims against Defendants Prater, Barr and Luck.
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`I. LEGAL STANDARD
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`
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`A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a
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`complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve
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`contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican
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`Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Although a complaint “does not need
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`detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitle[ment] to
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`relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
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`cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
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`omitted).
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`
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`A court need not “accept the legal conclusions drawn from the facts” or “accept as true
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`unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D.
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`Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). “Factual allegations must be enough to
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`raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, with all allegations
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`in the complaint taken as true and all reasonable inferences drawn in the plaintiff’s favor, Chao v.
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`Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not require
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`heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible
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`on its face.” Twombly, 550 U.S. at 570. Consequently, “only a complaint that states a plausible
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`claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
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`2
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`

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`II. FACTS AS ALLEGED
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`
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`Jonathan Warner is a 32-year-old1 man who was diagnosed with bipolar schizoaffective
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`disorder, and suffers from “frequent, but intermittent, intense bouts of psychosis, paranoia and
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`depression induced by bipolar schizoaffective disorder.” Id. ¶¶ 33, 35–36. This condition has
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`“caused him to become paranoid as he suffered from delusional thought, violent outbursts, and
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`irrational decision making.” Id. ¶ 36. He has been hospitalized many times during these episodes,
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`both through voluntary and involuntary admissions, including at Centra and Horizon facilities on
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`several occasions.2 Id. ¶¶ 38–40.
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`
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`In December 2015, Jonathan accompanied his mother, sisters and brothers to Florida on a
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`vacation to visit family. Id. ¶ 43. There, he started exhibiting symptoms of “mania, anxiety,
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`confusion, agitation and insomnia.” Id. ¶ 44. These symptoms steadily worsened throughout the
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`trip and continued to worsen after returning home to Virginia. Id. ¶¶ 46–47. Finally, during the
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`weekend of January 9–10, 2016, the symptoms became severe: Jonathan stopped eating and
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`sleeping altogether, and he became incoherent in his expressions of fear and confusion. Id. ¶ 48.
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`On the evening of January 10, 2016, his family and friends persuaded him to go to the emergency
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`room of Lynchburg General Hospital (“LGH”) for treatment. Id. ¶ 49.
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`
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`Centra owns and operates LGH. Dkt. 1 ¶ 12. Jonathan had reported to LGH’s emergency
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`room “many times in the past for adjustment of psychotropic medication and he was familiar with
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`the hospital’s intake process for such treatment.” Id. ¶ 15. Prior to November 2015, the complaint
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`alleges that the intake practice for psychiatric patients reporting to LGH’s emergency room was to
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`1 28 years old at the time of the incident. Dkt. 1 ¶ 50.
`2 Horizon is a community services board established pursuant to Va. Code § 37.2-500 that
`provides mental health treatment and assessment services to residents of the City of Lynchburg
`and several surrounding counties.
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`3
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`transfer them to Virginia Baptist Hospital if admittance for psychiatric treatment was warranted.
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`Id. ¶ 16. After November 2015, however, LGH began “escort[ing]” “acute voluntary psychiatric
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`patients” to a “newly constructed, freestanding Psychiatric Emergency Center (“PEC”).” Id. ¶ 17.
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`Centra provided medical, administrative, and security staff for the PEC, and was primarily
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`responsible for its construction. Id. ¶¶ 23–24.
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`
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`Jonathan arrived at LGH’s emergency room with his family at approximately 9:00 p.m. on
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`January 10, 2016. Id. ¶ 52. He was placed in Bay 2 of the emergency room and remained there
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`until approximately 4:15 a.m. on the morning of January 11, 2016. Id. ¶ 54. His family left him
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`alone at the hospital at approximately midnight, three hours after arriving at the hospital. Id. ¶ 56.
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`Prior to leaving the hospital, Plaintiff Ruth Ann Warner, Jonathan’s mother and guardian, spoke
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`with the duty nurse, warning that Jonathan “was unstable and physically very strong.” Id. ¶ 57.
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`
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`After his arrival at the emergency room, Dr. Michael Dunlop examined Jonathan and
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`consulted Dr. Michael Judd, a psychiatrist, on the appropriate course of action. Id. ¶ 58. Dr. Dunlop
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`then requested an evaluation by David Walker, an employee of Horizon Behavioral Health, the
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`entity tasked with implementing the local community service board, which in turn is responsible
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`for conducting evaluations necessary to issue Emergency Custody Orders (“ECOs”). Id. ¶ 59; Va.
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`Code §§ 37.2-808–809. The community service board’s designee’s job is then to evaluate the
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`patient to determine whether probable cause exists that the patient:
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`(i) has a mental illness and that there exists a substantial likelihood that, as a result
`of mental illness, the person will, in the near future, (a) cause serious physical harm
`to himself or others as evidenced by recent behavior causing, attempting, or
`threatening harm and other relevant information, if any, or (b) suffer serious harm
`due to his lack of capacity to protect himself from harm or to provide for his basic
`human needs, (ii) is in need of hospitalization or treatment, and (iii) is unwilling to
`volunteer or
`incapable of volunteering for hospitalization or
`treatment.
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`Va. Code § 37.2-808. If the designee determines that the above criteria are satisfied, he submits a
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`petition to a magistrate for the issuance of an ECO. Id. Virginia law then provides that “any person
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`for whom an emergency custody order is issued shall be taken into custody and transported to a
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`convenient location to be evaluated to determine whether the person meets the criteria for
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`temporary detention pursuant to § 37.2-809 and to assess the need for hospitalization or
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`treatment.” Id.
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`
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`Pursuant to this statutory scheme, Walker, the community services board’s designee, spoke
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`with Jonathan at Dr. Dunlop’s request. Dkt. 1 ¶¶ 61–62. After the evaluation, Walker
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`recommended that Dr. Dunlop obtain an ECO from a magistrate in order to place Jonathan into
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`custody for further supervision. Id. ¶ 62. Dr. Dunlop put forward the ECO petition late at night on
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`January 10, 2016, swearing under oath that Jonathan met the legal criteria for the ECO’s issuance.
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`Id. ¶ 65. However, after issuing the ECO, Jonathan “was kept in the emergency room for several
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`hours, during which time his paranoia and psychosis continued to worsen.” Id. ¶ 67.
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`
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`At some point during the evening, Walker handed off Jonathan’s case to Katherine Prater,
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`another Horizon employee. Id. ¶ 69. Walker informed Prater that Jonathan’s case “had turned into
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`an ECO.” Id. ¶ 70. Prater arrived at the emergency room at approximately 1:00 a.m. on January
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`11, 2016 and interviewed Jonathan times after arriving. Id. ¶¶ 71–72. The complaint alleges that
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`at this time, Jonathan “expected that he would be taken into custody and transferred to an
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`appropriate, secure mental health facility at Virginia Baptist Hospital.” Id. ¶ 73.
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`The complaint alleges that it was around this time that “an agreement was made amongst
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`several of the named Defendants to transfer Jonathan to the PEC without executing the ECO and
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`to later execute the ECO if [Plaintiff] was ‘active or whatever’ in the PEC.” Id. ¶ 78. This scheme
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`was allegedly necessary because the PEC is a purely voluntary psychiatric facility, rather than a
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`5
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`custodial facility appropriate for an ECO transfer and evaluation. The complaint alleges that Centra
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`staff pursued this scheme “as part of a de facto policy to steer business to its new PEC, to deprive
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`individuals like [Jonathan] of their due process, and/or to detain individuals like [Jonathan] on
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`their premises.” Id. ¶ 77. The complaint further alleges that Defendants pursued this scheme
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`“despite knowing that [Jonathan] was hallucinating and not of sound mind, and knowing that the
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`magistrate had already made a finding of probable cause to believe that [he] was ‘unwilling to
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`volunteer or incapable of volunteering for hospitalization or treatment’” as part of the criteria for
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`issuing the ECO. Id.
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`
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`Prater then spoke with Jonathan, afterward informing Dr. Dunlop that Jonathan was
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`hearing voices and that Defendants “should ‘hold on the ECO [sic] for now’ but that they should
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`‘have it ready’ in case [Jonathan] ‘tries to leave, tries to do anything’ and that they would ‘do it at
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`that point.’” Id. ¶¶ 79–80. Dr. Dunlop agreed. Id. ¶ 81.
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`
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`At approximately 4:15 a.m., Jonathan was “escorted from the emergency room by armed
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`guards”—Defendants Wesley Gillespie and Bar, security guards at Centra—“in the early morning
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`of January 11, 2016.” Id. ¶ 83. The complaint alleges that “[b]oth guards walked into the PEC
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`armed with semiautomatic handguns and/or other weapons,” and that Jonathan “was in custody
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`and was not free to leave when he was escorted to the PEC.” Id. ¶¶ 83–84.
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`
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`Gillespie was one of the two Centra security officers who escorted Plaintiff to the PEC. In
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`2010, Centra originally hired Gillespie as an unarmed security officer in 2010, but in 2011, Centra
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`successfully petitioned the Lynchburg Circuit Court for the appointment of Gillespie as a Special
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`Conservator of the Peace (“SCOP”) pursuant to Va. Code § 19.2-13, which empowered Gillespie
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`to, inter alia, effectuate arrests, carry a firearm and other weapons, and to use those weapons in
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`effectuating arrests. Va. Code §§ 37.2-808, 16.1-335. Gillespie supervised the other Centra guards
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`6
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`on duty January 10 and 11, 2016. Id. ¶ 105. He was the officer authorized to execute ECOs on
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`LGH grounds at that time. Id. ¶ 106.
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`
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`Gillespie, with his subordinate security officer Barr, transferred Jonathan from Bay 2 at the
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`LGH emergency room to the PEC, where they handed off Jonathan to Centra staff in the PEC. Id.
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`¶¶ 107, 112. Gillespie told Jonathan to call him personally if he needed anything. Id. ¶ 112. After
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`the Centra guards departed from the PEC, Jonathan allegedly began to panic, as his “symptoms of
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`psychosis had worsened over the six hours he spent in the ER without treatment.” Id. ¶ 114. Centra
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`staff in the PEC “knew that an ECO had been issued” for Jonathan but declined to execute it at
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`that time because of Centra’s alleged policy not to serve ECOs in order to reroute patients to the
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`PEC. Id. ¶ 115. Jonathan, in his panic, requested Centra staff call Gillespie and ask him to return.
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`Id. ¶ 116.
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`
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`Gillespie returned to the PEC without any backup security officers. Id. ¶ 117. He was
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`equipped with a .40 caliber Glock semiautomatic pistol, a TASER model X26, and pepper spray.
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`Id. ¶ 118. When he arrived, Gillespie and Jonathan spoke for twenty-five minutes. Id. ¶ 120. The
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`conversation “turned to religious themes,” which “exacerbated [Jonathan’s] symptoms” and “ran
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`afoul of central tenets of crisis intervention training.” Id. ¶ 122. The complaint alleges that
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`Jonathan’s “psychosis was so severe and obvious that the experienced Centra nurse on duty in the
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`PEC immediately realized they rendered [Jonathan’s] medical emergency extremely dangerous.”
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`Id.
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`
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`According to the complaint, Gillespie then spent the next twenty minutes “attempt[ing] to
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`coerce [Jonathan] into signing a ‘voluntary’ admission form.” Id. ¶ 123. When Jonathan “balked
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`at signing the voluntary admission paperwork, Gillespie began to threaten [him] with detention,
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`injections and restraints.” Id. ¶ 124. Jonathan allegedly grew increasingly agitated and unstable
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`during this period. Id. ¶¶ 125–126. One of the nurses in the PEC, Melea Moore, realized the
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`severity of the situation and, at approximately 4:30 a.m., began trying to expedite prescriptions for
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`Haldol, Ativan and Cogentin, which are allegedly used to treat acute psychosis. Id. ¶¶ 127–28. She
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`tried expediting these medications again five minutes later, saying that if the medicine was not
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`provided in the next five minutes, “we were going to have a Code Atlas,” shorthand for a situation
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`in which the patient is out of control. Id. ¶¶ 129–30. However, the medication allegedly could not
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`be provided in time because Centra staff had not yet documented Jonathan’s transfer to the PEC.
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`Id. ¶ 131. Moore quietly told another staffer to remove his badge and put his pen away; she put her
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`cell phone away because she “knew it was coming.” Id. ¶ 132. However, she neglected to tell
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`Gillespie of her fears or request additional help. Id. ¶ 133.
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`By 4:43 a.m., Jonathan and Gillespie’s conversation escalated to a face-to-face
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`confrontation. When Gillespie made a “sudden hand gesture,” which the complaint alleges is
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`“conduct that no properly trained security officer would employ in a secure facility with a patient
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`suffering from psychosis,” Jonathan “finally snapped.” Id. ¶¶ 135–36. He was “in a fully psychotic
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`state which caused him to be unable to control his actions and/or distinguish right from wrong.
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`Voices in his head were telling him to kill himself to save his family.” Id. ¶ 136.
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`Jonathan attempted to snatch Gillespie’s Glock from the holster on his right hip, but failed.
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`Id. ¶¶ 137–40. Gillespie used his left hand to release his TASER, which Jonathan wrestled from
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`Gillespie’s grip and discharged “harmlessly into a wall.” Id. ¶ 141. An unnamed Centra employee
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`then unsuccessfully attempted to tackle Plaintiff, who turned on the employee and chased him into
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`an adjacent patient room with the stolen TASER. Id. ¶ 141. The complaint alleges that, although
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`Gillespie could not see what was occurring in the patient room, he would have understood at the
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`time that the TASER, having been discharged, could not be fired again. Id. ¶ 142. While in the
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`8
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`patient room, Jonathan allegedly struck the unnamed Centra employee with the body of the
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`discharged TASER one time, though not seriously injuring him. Id. ¶ 142.
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`Jonathan exited the patient room back into the main PEC room and ran toward the exit
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`(presumably with the TASER still in hand). Id. ¶ 143. As he entered the main room, “Gillespie
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`fired multiple shots from his Glock pistol in rapid succession, penetrating [Jonathan’s] torso, leg
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`and arm.” Id. ¶ 144. Jonathan attempted to keep running past Gillespie toward the exit, but
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`Gillespie shot Jonathan once more as he passed, causing him to fall to the ground. Id. ¶ 145. When
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`Jonathan attempted to rise in order to flee, Gillespie fired a final shot into his back. Id. ¶ 146. In
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`total, Gillespie shot Jonathan four times. The fourth (and final) shot allegedly severed Jonathan’s
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`spinal column, paralyzing him from the chest down. Id. ¶ 148.
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`As a result of the incident, Jonathan spent two weeks in intensive care. Id. ¶ 149. He has
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`lost all movement of his legs, and he now must carry urine and ostomy bags with him wherever he
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`goes. Id. He continues to suffer acute physical pain and a host of emotional and mental anguish.
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`Id.
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`The complaint lays part of the blame on the setting in which the shooting occurred. Plaintiff
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`claims that this incident would never have unfolded so violently had Centra properly designed and
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`operated the PEC. The complaint alleges that there are several “best practices” in the design of
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`mental health facilities to maximize safety and minimize opportunities for confrontation. Among
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`these include a separated, contained admissions room with controlled access points with
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`emergency exits to avoid “choke points,” and a gun locker to keep firearms out of these close-
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`quartered spaces. Id. ¶¶ 25–27. However, the PEC was allegedly designed with none of these
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`things, “provid[ing] an immense amount of space for a violent situation to escalate and devolve.”
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`Id. ¶¶ 26–27, 31–32. In fact, one member of the Lynchburg-Central Virginia Crisis Intervention
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`Team wrote a memo to Horizon and Centra employees during the construction and design phase
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`of the PEC warning of many of these shortcomings. Id. ¶ 28. At one point in the memo, the
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`individual appears to closely envision the scenario that played out with Plaintiff:
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`In considering the physical layout of the assessment center further, I keep returning
`to thoughts of a “worst case scenario” in which a patient obtains an officer’s gun,
`or is so violent that he/she cannot be physically controlled by security/police
`present. I am thinking of a situation in which one or more staff (and security
`possibly) simply need to retreat from the holding area. Since egress through the
`main door may not be possible, it seems to me that . . . since this would effectively
`trap those inside, an outside exit should be available from the Work Area. This exit
`should not be in a direct line with the security door between the Work Area and the
`Nurses Station/Security Station area.
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`Id. ¶ 30.
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`III. DISCUSSION
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`A. Unreasonable Seizure
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`Plaintiff’s Count I alleges that Defendants Gillespie, Luck, Barr, and Prater3 unreasonably
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`seized him in violation of the Fourth Amendment. All four Defendants challenge the merits of this
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`claim in their motions to dismiss. Claims under § 1983 require three elements: “(1) the deprivation
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`of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color
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`of state law.” Fletcher v. Brown, No. 2:15CV00015, 2016 WL 1179226, at *3 (W.D. Va. Mar. 24,
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`2016) (quoting Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997)).
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`
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`Specifically, for Plaintiff’s Count I claim to survive these motions to dismiss, the
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`allegations in the complaint must demonstrate that (1) Plaintiff’s voluntary transfer to the PEC was
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`“seizure” under the Fourth Amendment; (2) if there was a seizure, there was no probable cause;
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`and (3) Defendants are not entitled to a good-faith exception or qualified immunity. See Jenkins,
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`3 Defendant Prater also argues that all the claims against here are time barred under Virginia
`law. But, because all the claims against her fail on the merits, the Court declines to rule on the
`issue of timeliness.
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`119 F.3d at 1159–60. An additional hurdle must be met for Defendants, demonstrating that their
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`actions were done “under color of state law.”
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`1. Seizure
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`
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`A person is “‘seized’ only when, by means of physical force or show of authority, his
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`freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). “As
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`long as the person … remains free to … walk away, there has been no intrusion upon that person’s
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`liberty or privacy as would under the Constitution require some particularized and objective
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`justification.” Id. at 554. The crucial question is whether “in view of all of the circumstances
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`surrounding the incident, a reasonable person would have believed that he was not free to leave.”
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`Id. Furthermore, if the person has no reason to leave unrelated to the police presence and he
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`passively acquiesces to the officer’s show of authority, the “coercive effect of the encounter” can
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`be measured by considering “whether a reasonable person would feel free to decline the officers’
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`requests or otherwise terminate the encounter.” Brendlin v. California, 551 U.S. 249, 255 (2007).
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`
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`The analysis of whether an encounter was consensual is an objective exercise. The
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`subjective intent of the officer is not relevant (unless, of course, the officer conveys an intention
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`to detain the citizen). Mendenhall, 446 U.S. at 554 n.6, 555. Instead, the Court looks to “all of the
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`circumstances surrounding the incident.” Id. at 554. Relevant factors include, but are not limited
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`to: the number of police officers present, the words used by the officer, the officer’s tone of voice
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`and demeanor, whether the officers were in uniform and displayed their weapons, whether the
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`officers made an attempt to block the citizen’s departure or restrain his movement, whether the
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`officer physically touched the citizen, and whether the citizen was treated as if suspected of illegal
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`activity. United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002); United States v. Gray, 883
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`F.2d 320, 322–23 (4th Cir. 1989).
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`
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`In this case, the only allegations by Plaintiff as to any show of force or his inability to leave
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`are as follows: (1) “[Jonathan] was escorted from the emergency room by armed guards in the
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`early morning of January 11, 2016, to the PEC,” and (2) “[Jonathan] was in custody and was not
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`free to leave when he was escorted to the PEC.” Dkt. 1 ¶¶ 83–84. Because the second allegation is
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`a straightforward legal conclusion devoid of factual enhancement, the Court is not bound to accept
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`it as true. Twombly, 550 U.S. at 555.
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`
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`As for the first allegation, it is settled law that the simple presence of an armed officer,
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`without some additional factors—like drawing a weapon or making a threatening gesture—is
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`insufficient to objectively signal to a putative arrestee that he is not free to leave. Mendenhall, 446
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`U.S. at 554, 558. Accepting as true that allegation, but without more, the Court must conclude that
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`Defendants’ actions, as alleged, could not constitute a seizure when they escorted Jonathan from
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`the emergency room to the PEC. Regardless whether they were correct to transfer him, the
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`complaint alleges that Defendants did nothing more than simply take him from point A to point B.
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`The complaint does not allege, for example, that Defendants brandished weapons, threatened
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`Jonathan during the escort process, or otherwise indicated compliance may be compelled.
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`
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`Consequently, because there was no unlawful seizure when Defendants moved Jonathan
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`from the emergency room to the PEC, this claim must be dismissed as to Defendants Prater,
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`Gillespie, Luck, and Barr.
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`2. Probable Cause for Seizure
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`
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`Even if the Court assumes there was a seizure, the facts as alleged substantiate a finding of
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`probable cause for a mental health seizure, undermining Plaintiff’s claim for yet another reason.
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`“[P]robable cause to seize a person for a psychological evaluation [exists] when the facts and
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`circumstances within their knowledge and of which they had reasonably trustworthy information
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`were sufficient to warrant a prudent man to believe that the person poses a danger to himself or
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`others.” Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 334 (4th Cir. 2009).
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`Although Defendants argue many facts to support a conclusion that they had probable
`
`cause to seize Jonathan for psychological evaluation, they are not all necessarily relevant to the
`
`inquiry. Rather, the Court looks only at the “facts and circumstances within the . . . knowledge” of
`
`the Defendants, not whatever facts might have been knowable in the abstract. Id. at 334.
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`Accordingly, the Court considers the facts alleged in light most favorable to Plaintiff as to what
`
`the Defendants knew at the time Jonathan was moved from the ER to the PEC. Id.
`
`
`
`On its face, the Complaint shows that Prater had ample knowledge of Jonathan’s rapidly
`
`deteriorating psychological condition. Indeed, Dr. Dunlop informed Prater that Jonathan’s case
`
`“had turned into an ECO,” indicating that she was on notice of the fact that he was susceptible to
`
`causing himself or others serious harm. Dkt. 1 ¶¶ 64, 70. When Prater was brought in to take over
`
`Jonathan’s case, she also interviewed him several times, noted that he was hearing voices, and
`
`confirmed Dr. Dunlop’s characterization of Jonathan’s mental state. Id. ¶¶ 70, 72, 79. It is alleged
`
`that Prater went so far as to inform Dr. Dunlop that they should “have [the ECO] ready” in case
`
`Jonathan “trie[d] to leave, trie[d] to do anything.” Id. ¶ 80. In totality, the allegations against Prater
`
`lead to the conclusion that even if Jonathan was seized by Prater, she did so with probable cause.
`
`Similar knowledge can be imputed to the remaining Defendants. Luck and Barr were both
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`aware that Jonathan’s case was an ECO. Id. ¶¶ 75–76. Upon removal from the ER to the PEC,
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`Jonathan’s psychotic symptoms had worsened. Id. ¶ 114. Both security guards were aware of the
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`facts as presented to them by Prater. Id. at ¶ 75. In fact, by the time he was in PEC custody,
`
`Jonathan’s psychosis had worsened to the point it was “obvious,” and a Centra nurse on duty
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`“immediately realized” his medical condition to be “extremely dangerous.” Id. ¶ 122. As with
`
`
`
`13
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`

`

`Case 6:19-cv-00055-NKM-RSB Document 87 Filed 11/30/20 Page 14 of 32 Pageid#: 1861
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`Prater, the allegations in the complaint establish that a reasonable person would have believed that
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`Jonathan posed a danger to himself or others at the time Defendants Luck and Barr allegedly seized
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`him.
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`Insofar as it related to Defendant Gillespie, he was aware that an ECO had been issued to
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`Jonathan. Id. ¶ 109. When Gillespie met with him inside the PEC, Jonathan allegedly was
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`experiencing “severe mental torment under the influence of psychosis and paranoia.” Id. ¶ 119.
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`When Gillespie attempted to have him sign a voluntary PEC admission form, Jonathan began
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`frantically pacing throughout the area. Id. ¶ 123. The apparent nature of his deteriorating condition
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`at this time led to a PEC nurse calling the pharmacy on Jonathan’s behalf because it was
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`“imperative” that he receive the drugs Haldol, Ativan and Cogentin “immediately” to relieve his
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`acute psychosis. Id. ¶ 127. Thus, the facts as alleged establish that even if Defendants seized
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`Jonathan, they did so with probable cause and therefore the seizure passes constitutional muster.
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`In sum, the Court concludes that Defendants Prater, Luck, Barr and Gillespie did not
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`unlawfully seize Jonathan when they took him from the ER to the PEC. Moreover, even assuming
`
`Defendants did “seize” Jonathan, the allegations in the complaint establish Defendants had
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`probable cause to do so, considering Jonathan’s mental state and behavior. Accordingly, the Court
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`will dismiss Count I as to Defendants Prater, Barr, Luck, and Gillespie.
`
`B. Excessive Force
`
`Turning to Gillespie alone, Count II alleges use of excessive force in violation of the Fourth
`
`and Fourteenth Amendments. To satisfy the requirements under § 1983, the complaint must allege
`
`sufficient facts demonstrating that Gillespie deprived Jonathan of a right secured by the
`
`Constitution or a federal statute while acting under color of state law.
`
`1. “Under Color of Law”
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`
`
`14
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`

`

`Case 6:19-cv-00055-NKM-RSB Document 87 Filed 11/30/20 Page 15 of 32 Pageid#: 1862
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`In addressing if Gillespie acted under color of law, Plaintiff merely alleges an ECO was
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`issued and thus, because Gillespie is an SCOP, he acted under color of law by not following ECO
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`procedures. Dkt. 1 ¶¶ 155–61. Standing alone, this allegation does not actually evince any action
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`under the color of law.
`
`Fourth Circuit precedent is clear that simple governmental authority to arrest or use police
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`powers—such as by appointment as a SCOP in Virginia—is, without more, insufficient to
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`implicate government acquiescence of the type required to implicate the Fourth Amendment.
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`United States v. Day, 591 F.3d 679, 685 (4th Cir. 2010) (“This mere governmental authorization
`
`for an arrest . . . in the absence of more active participation or encouragement is insufficient to
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`implicate the Fourth and Fifth Amendments.”); see also id. at 685 (“Virginia’s regulatory scheme
`
`. . . merely permitted [the individuals] to arrest Day; it did not require or even encourage an arrest
`
`or any other complained-of action.”). Rather, the Fourth Circuit has laid out a two-factor analysis
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`for determining when a private individual acts under color of state law for the purposes of § 1983:
`
`(1) “whether the Government knew of and acquiesced in the challenged conduct” and (2) whether
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`the defendant “intended to assist law enforcement or had some other independent motivation.”
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`Day, 591 F.3d at 683–84; see also United States v. Jarrett, 338 F.3d 339, 344 (4th Cir. 2003)
`
`(same). For instance, this Court has allowed a similar excessive-force claim to proceed against
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`another Centra-employed SCOP when that defendant worked with two police officers to subdue
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`the plaintiff, and sought arrest warrants at the behest of those officers—the “‘active participation
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`or encouragement’ that the Fourth Circuit contemplated in Day.” Rose v. Centra Health, Inc., No.
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`6-17-cv-12, 2017 WL 3392494, at *11–13 (W.D. Va. Aug. 7, 2017).
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`Applying these principles to this case, while the Complaint notes that Gillespie “coerce[d]
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`[Jonathan] into admitting himself to the PEC,” it does not allege that the ECO was used as a “stick”
`
`
`
`15
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`

`

`Case 6:19-cv-00055-NKM-RSB Document 87 Filed 11/30/20 Page 16 of 32 Pageid#: 1863
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`to threaten Jona

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