United States District Court, N.D. West Virginia, Elkins
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS COMPLAINT
PRESTON BAILEY UNITED STATES DISTRICT JUDGE
before this Court is Defendant Kimberly Walsh's Motion to
Dismiss [Doc. 13] and Defendants, Cheryl Hill, M.D.,
Ph.D.'s and Abdel Massoud, M.D.'s Motion to Dismiss
Complaint [Doc. 15], both filed on January 23, 2017. The
plaintiff filed his Combined Response Opposing
Defendants' Motions to Dismiss [Doc. 18] on February 3,
2017. The defendants filed their respective Reply briefs
[Docs. 20, 21] on February 10, 2017. This matter is now ripe
for adjudication. For the reasons that follow, this Court
GRANTS the defendants' Motions to Dismiss [Docs. 13, 15].
filed this action in this Court on October 25, 2016,
asserting federal question jurisdiction for claims brought
pursuant to 42 U.S.C. § 1983 [Doc. 1 at ¶ 2].
Plaintiff Douglas Otto Fischer (“Fischer”) brings
this action following his alleged unlawful confinement in the
William R. Sharpe, Jr. Hospital (“Sharpe
Hospital”). [Id. at ¶ 3]. Sharpe Hospital
operates under the direction and control of the West Virginia
Department of Health and Human Resources
(“WVDHHR”), and is vested with treating
individuals found not guilty of criminal charges by reason of
mental illness pursuant to W.Va. Code § 27-6A-3.
[Id. at ¶ 7].
Dr. Cheryl Hill (“Dr. Hill”) was retained as a
consulting psychiatrist by Sharpe Hospital. [Id. at
¶ 8]. Defendant Dr. Abdel Massoud (“Dr.
Massoud”), was the Clinical Director of Sharpe Hospital
at all relevant times [Id. at ¶ 9]. Defendant
Kimberly Walsh (“Walsh”) is the former Interim
CEO of Sharpe Hospital. [Id. at ¶ 10]. All
three are being sued in their individual capacity.
April 10, 2015, Fischer entered a plea of not guilty by
reason of mental illness in the Circuit Court of Harrison
County, West Virginia, to two felony charges and one
misdemeanor charge following an incident at his home.
[Id. at ¶ 15]. Plaintiff was sentenced to be
committed to Sharpe Hospital in order to undergo a Forensic
Psychiatry Evaluation pursuant to W.Va. Code § 27-6A-4.
[Id. at ¶¶ 15, 17]. Plaintiff
self-reported to the Hospital on May 14, 2015, and Dr. Hill
completed her Forensic Evaluation Dangerousness Report
(“the Report”) on June 16, 2015. [Id. at
¶¶ 16-17]. Dr. Hill's Report found that at the
time of the incident leading to his arrest, plaintiff was
acutely psychotic with hallucinations and delusions, and that
these symptoms were attributable solely to a side effect of a
medication. [Id. at ¶ 18]. The Report further
indicated that the plaintiff was psychiatrically stable, with
no concerning behaviors, no additional episodes of
hallucinations since April 1, 2014, and that the side-effect
had completely resolved. [Id. at ¶¶ 19,
20]. As a result, Dr. Hill recommended the plaintiff receive
a “step down” into a lower level of security at
Sharpe Hospital. [Id. at ¶ 21].
Court held a hearing on July 27, 2015, at which Dr. Massoud
adopted Dr. Hill's recommendation and reported the same
to the Court. [Id. at ¶¶ 22, 27]. The same
day, the Court ordered plaintiff's release, and he was
released the next day, July 28, 2015. [Id. at
upon the above, the plaintiff alleges the following causes of
• Count 1: Violation of the
plaintiff's right to be free from cruel and unusual
punishment under the Eighth Amendment, pursuant to 42 U.S.C.
• Count 2: Violation of the
plaintiff's right to liberty without due process under
the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983;
• Count 3: Conversion of personal
belongings deposited with the Hospital upon commitment;
• Count 4: Trespass to Chattels;
• Count 5: Intentional Infliction of
Emotional Distress; and
• Count 6: Reckless Infliction of
January 23, 2017, the defendants filed the instant Motions to
Dismiss [Docs. 13, 15], arguing that the plaintiff did not
plead sufficient facts to state a claim upon which relief can
be granted, and that ...