Cosner v. United States of America

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
SHAWN PAUL COSNER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
CIVIL ACTION NO.: 1:25-CV-57
(JUDGE KLEEH)
SUPPLEMENTAL REPORT AND RECOMMENDATION,
RECOMMENDING THAT 	PRO SE 	PLAINTIFF’S MOTION
TO FILE SECOND AMENDED COMPLAINT [ECF NO. 33] BE DENIED
This matter is before the undersigned United States Magistrate Judge pursuant to a Referral
Order [ECF No. 5], entered by the Hon. Thomas S. Kleeh, Chief United States District Judge, on
June 24, 2025. By the Referral Order, Chief Judge Kleeh directed that the undersigned enter orders
or reports and recommendations, as appropriate, and dispense with other matters which may arise.
By previous Report and Recommendation [ECF No. 29] entered on June 1, 2026, the
undersigned recommended that Defendant’s motion to dismiss [ECF No. 24] be granted and that
pro se 	Plaintiff’s claims be dismissed altogether. Now pending before the Court is 	pro se 	Plaintiff’s
motion [ECF No. 33] for leave to file a Second Amended Complaint, filed on June 15, 2026.
Plaintiff also includes a proposed Second Amended Complaint pursuant to Local Rule of Civil
Procedure 15.01. [ECF No. 33-1]. By the motion, Plaintiff seeks to cure certain deficiencies
outlined in the prior Report and Recommendation. [ECF No. 29]. The Court also is in receipt of
Defendant’s response [ECF No. 35] in opposition, filed on June 29, 2026. Plaintiff replied in
support of his motion on July 8, 2026. [ECF No. 37].
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 1 of 17 PageID #:
<pageID>

2
Having reviewed the motion, response, and reply, and having conducted a thorough
examination of the record and the applicable law, the undersigned respectfully 	RECOMMENDS
that Plaintiff’s motion for leave to file a second amended complaint [ECF No. 33] be 	DENIED,
as more fully set forth below.
I. PLAINTIFF’S ALLEGATIONS, AND
FACTUAL AND PROCEDURAL BACKGROUND1
By his 	pro se 	Complaint [ECF No. 1], Plaintiff seeks damages under the Federal Tort
Claims Act against Defendant, United Staes of America (“Defendant”), for acts and omissions by
Department of Veterans Affairs (“VA”) employees at Louis A. Johnson VA Medical Center
(“VAMC”), Clarksburg, West Virginia, located within the Northern District of West Virginia.
On December 30, 2026, Defendant filed its Motion to Dismiss for Failure to State a Claim.
[ECF Nos. 16, 17].
On January 23, 2026, Plaintiff filed a Notice of Filing First Amended Complaint and
Alternative Motion for Leave to Amend [ECF No. 21]. The Court granted his request for leave on
January 26, 2026, [ECF No. 22], and on the same date the Amended Complaint was docketed.
[ECF No. 23]. Regarding his overall allegations, Plaintiff maintains, “[i]n the early morning of
December 24, 2022, [he was] presented to the Emergency Department at Louis A. Johnson VA
Medical Center in Clarksburg, West Virginia, seeking care for severe insomnia and symptoms
related to a recent head injury.” [ECF No. 23, at 3 ¶ 7]. At approximately 12:50 a.m., Plaintiff was
brought to triage, where his “vital signs included blood pressure of 138/87 and pulse of 108, and
his recorded weight was 149.6 pounds.” [Id., ¶ 8]. Then, a provider note from Dr. Matthew T.
Goodfellow explains that, “[a]t approximately 04:49, Plaintiff was transferred from the Emergency
1 	The undersigned incorporates, verbatim, certain summary and background information as set forth in the
previous Report and Recommendation [ECF No. 29], for the sake of efficiency.
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 2 of 17 PageID #:
<pageID>

3
Department to the acute inpatient mental health unit (Ward 4B).” [Id., at 3]. During this time,
Plaintiff provides his father and fiancée accompanied him, and they “both opposed [his] admission
to the psychiatric ward.” [Id.]. He explains he spent “four to five hours in the Emergency
Department. During this time, VA staff attempted to persuade Plaintiff to agree to voluntary
admission to the acute inpatient mental health unit (Ward 4B).” [Id., ¶ 10]. Plaintiff maintains he
repeatedly denied seeking admission to the mental heath unit. [Id.]. Besides, he argues, “any
admission/consent paperwork was obtained while he was severely sleep-deprived and not in a
condition to provide meaningful informed consent, and that the circumstances were coercive.” [Id.,
at 4, ¶ 14].
Regarding his confinement, Plaintiff alleges he was “confined in the acute inpatient mental
health unit (Ward 4B) from December 24, 2022, through December 30, 2022.” [Id., at 4, ¶ 15]. He
alleges he repeatedly sought his release, but all advances were declined and his symptoms, such
as insomnia and head injury, went ignored. [Id., at ¶ 16]. He states the medical records reflect “[he]
lost approximately nine pounds during the admission, dropping from 149.6 pounds on December
24, 2022 to 140.6 pounds at discharge on December 30, 2022 and continuing after his release from
confinement. Plaintiff alleges this weight loss reflects inadequate nutrition and/or the stress of the
custodial conditions.” [Id., at ¶ 18]. He maintains the VA staff themselves documented that the
mental health ward was “negatively impacting patient’s mental health.” [Id., at 5, ¶ 19 (citations
omitted)]. In sum, he argues the conditions he endured were more akin to “incarceration than
medical treatment” because he supposedly experienced:
a. Inadequate temperature control, resulting in Plaintiff being cold;
b. Being served spoiled milk with his meals;
c. Being required to wear degrading hospital attire;
d. Denial of access to family members, including during Christmas;
e. Denial of access to religious services on Sunday and Christmas Day;
f. Confiscation of personal property including religious materials;
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 3 of 17 PageID #:
<pageID>

4
g. Treatment more appropriate for a prisoner than a patient seeking mental health care.
[Id., at 5, ¶ 20].
After he was released, Plaintiff received a letter, dated January 3, 2023, informing him of
his newly imposed Category 1 Patient Record Flag (“PRF”). [Id., at 5, ¶ 22]. Plaintiff explains his
PRF status did not allow him to “contest the designation or receive specific notice of the asserted
grounds. Plaintiff submitted a formal disagreement with the PRF designation and has received no
resolution to date.” [Id., at 6, ¶ 23].
A. Plaintiff’s First Amended Complaint
In his First Amended Complaint, Plaintiff brings multiple causes of actions again
Defendant, including: (1) Count I – Negligence; (2) Count II – Negligent Confinement, (3) Count
III – Infliction of Emotional Distress, (4) Count IV – Medical Malpractice, (5) Count V – Negligent
Conditions of Confinement, and (6) Count VI – Conversion. [See generally ECF No. 23, at 6-10].
As to Count One, Plaintiff complains VA employees failed to fulfill their duty to provide
reasonable care and “[a]s a direct and proximate result of these breaches, [he] suffered physical
deterioration (including significant weight loss), emotional distress, damage to his reputation via
the PRF, and other damages.” [Id., at 7, ¶ 30]. Regarding this negligence allegation, he requests
economic damages of $100,000 and non-economic damages of $500,000. [Id., ¶ 31].
As to Count Two, he argues he was negligently confined for seven days, and “as a direct
and proximate result of this negligent confinement, Plaintiff suffered loss of liberty, fear,
humiliation, psychological harm, and other damages.” [Id., ¶ 34]. Regarding this negligent
confinement argument, he is seeking economic damages of $10,000 and non-economic damages
of $750,000. [Id., ¶ 35].
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 4 of 17 PageID #:
<pageID>

5
As to Count Three, he maintains the conduct of VA employees “was extreme and
outrageous, exceeding all bounds of decency.” [Id., at 7-8, ¶ 37]. Considering this alleged
intentional infliction of emotional distress, and the subsequent distress, anxiety, fear, humiliation,
and lasting psychological harm, Plaintiff seeks economic damages of $25,000 and non-economic
damages of $1,500,000. [Id., at 8, ¶ 40].
Regarding Count Four, Plaintiff contends the “breached standard of care” was caused by
the VA failure to (1) “[obtain] consent at 4:49 a.m. from a severely sleep-deprived patient with a
recent head injury,” (2) “failing to treat the insomnia that was the reason Plaintiff sought help,” (3)
“allowing Plaintiff to lose nine pounds in six days without intervention,” and (4) “continuing
treatment in an environment that staff documented was harming the patient.” [Id., ¶ 43]. As such,
he requests economic damages of $250,000 and non-economic damages of $1,000,000 as to the
alleged medical malpractice claim. [Id., ¶ 45].
As to Count Five, he argues the VA “negligently maintained conditions in the psychiatric
ward that were unreasonable for patients admitted for mental health treatment, including
inadequate temperature control, spoiled food, denial of family contact, denial of religious services,
and degrading attire.” [Id., at 9, ¶ 47]. He maintains it, “exacerbate[d] the very mental health
conditions the ward was supposed to treat.” [Id., ¶ 48]. He seeks economic damages of $10,000
and non-economic damages of $500,000. [Id., ¶ 49].
Lastly, as to Count VI, Plaintiff aims to advance a theory of conversion that ostensibly
occurred during his confinement at the VA. Specifically, according to Plaintiff, during December
24, 2022 to December 30, 2022, the VA employees failed to inventory and return his personal
items, namely his Soldier’s Leadership Bible and personal notes. [Id., ¶ 51]. He requests economic
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 5 of 17 PageID #:
<pageID>

6
damages of $5,000 and non-economic damages of $250,000 regarding his allegation of conversion.
[Id., ¶54].
By the prior Report and Recommendation [ECF No. 29], the undersigned detailed how
each of these causes of action, as pled, are deficient and should be dismissed.
Now, in the presently-pending motion to for leave to file a second amended complaint,
detailed 	infra, Plaintiff seeks “only to incorporate clarifying allegations and objective duty sources
that address the concerns raised in the R&R -- without conceding that the Amended Complaint
was deficient.” [ECF No. 33, at 2, ¶4].
II. LEGAL ISSUES AND ANALYSIS
The undersigned addresses, in turn, the standards and requirements for amendment of a
Complaint, along with the substance of the proposed amendments.
A. Legal Standards
Because Plaintiff is proceeding 	pro se, the Court must liberally construe the pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.
1978). However, a court may not construct 	pro se 	plaintiffs’ legal arguments for them, nor should
it “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274,
1278 (4th Cir. 1985).
Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, a plaintiff may amend a
pleading “once as a matter of course,” but within certain timeframes. In the instant matter, those
timeframes have long passed, such that amendment here is governed by Rule 15(a)(2) of the
Federal Rules of Civil Procedure. Under that Rule, “a party may amend its pleading only with the
opposing party's written consent or the court's leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Here, obviously, no opposing party has consented to
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 6 of 17 PageID #:
<pageID>

7
Plaintiff’s proposed amendment. Thus, it falls to the Court to determine if allowing amendment is
appropriate. To this end, as the Fourth Circuit has instructed, “[d]enying leave to amend is
appropriate when at least one of three circumstances exists: (1) the amendment would be
prejudicial to the opposing party; (2) there has been bad faith on the part of the moving party; or
(3) the amendment would have been futile.” Scott v. Fam. Dollar Stores, Inc., 733 F.3d 105, 121
(4th Cir. 2013) (citation and quotations omitted); see also Foman v. Davis, 371 U.S. 178, 182
(1962); Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986).
Regarding prejudice to the opposing party, it “can result where a proposed amendment
raises a new legal theory that would require the gathering and analysis of facts not already
considered by the opposing party, but that basis for a finding of prejudice essentially applies where
the amendment is offered shortly before or during trial.” Johnson, 785 F.2d at 510. Next, “[b]ad
faith amendments are ‘abusive’ or ‘made in order to secure some ulterior tactical advantage.’”
Earp v. Fed. Express Corp., No. 1:25-CV-52, 2026 U.S. Dist. LEXIS 75213, at *4, (N.D. W. Va.
April 7, 2026)(referencing GSS Props., Inc. v. Kendale Shopping Center, Inc., 119 F.R.D. 379,
381 (M.D.N.C. Mar. 15, 1988)). In addition, “[e]ven in the absence of prejudice and bad faith, a
court should still deny leave to amend when the amended complaint would not survive a motion
to dismiss.” Id. (referencing Perkins v. U.S., 55 F.3d 910, 917 (4th Cir. 1995); see also Devil’s
Advocate, LLC v. Zurich Am. Ins. Co., 666 Fed. App’x 256, 267 (4th Cir. 2016) (providing that
“leave to amend would be futile, because [Appellants'] proposed amendments to the Complaint
add no new facts that would allow [their] claims to survive a motion to dismiss.”)). Importantly,
the proposed amendment is also considered futile if it is “clearly insufficient or frivolous on its
face.” Save Our Sound OBX Inc. v. N. Carolina Dep’t of Transportation, 914 F.3d 213, 228 (4th
Cir. 2019) (quoting Johnson, 785 F.2d at 510)). Notably, “the Fourth Circuit has noted that the
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 7 of 17 PageID #:
<pageID>

8
‘repeated failure to cure a deficiency by amendments previously allowed’ can constitute an
improper motive favoring the denial of a motion to amend.” Nabawi v. Warden D.L. Young, No.
5:19-cv-00693, 2022 U.S. Dist. LEXIS 148131, at *14 (S.D. W. Va. Aug. 18, 2022)(quoting
Harless v. CSX Hotels, Inc., 389 F. 3d 444, 447 (4th Cir. 2004)).
Lastly, this Court’s Local Rules provide that “[a]ny party filing a motion to amend a
pleading that requires leave of court to file shall attach to that motion a signed copy of the proposed
amended pleading.” LR Civ P 15.01.
B. Substance of Proposed Amendments
Plaintiff’s presently pending motion for leave to file his second amended Complaint
provides as follows: (1) his proposed amendments would not prejudice Defendant, (2) there is no
bad faith, and (3) the proposed amendments are not futile. [ECF No. 33, at 2]. Overall, by way of
his motion, Plaintiff offers the following:
The proposed Second Amended Complaint cures the identified defect. It (a)
separates ordinary custodial-and routine-care negligence -- which under West
Virginia law requires no expert testimony, see McGraw v. St. Joseph’s Hosp., 200
W. Va. 114, 488 S.E.2d 389 (1997) -- from any clinical malpractice theory; (b)
pleads the standard of care governing the confinement through W. Va. Code
Sections 27-4-3 and 27-4-4 and 38 C.F.R. Section 17.32; (c) re pleads the
emotional-distress claim on the recklessness prong recognized in Travis v. Alcon
Lab’ys, Inc., 202 W. Va. 369, 504 S.E.2d 419 (1998); (d) re-pleads conversion with
specific allegations identifying when the VA gained exclusive control of Plaintiff’s
property -- items that came into his possession on the locked ward after the intake
inventory and were left in the VA’s sole possession at discharge -- and its failure to
return them on demand; and (e) consolidates former Count Five (negligent
conditions of confinement) into Count I’s custodial- and routine-care negligence
claim, eliminating the overlap between those Counts, with no claim abandoned.
[Id.]. For purposes of orientation, in his first Amended Complaint, Plaintiff brings multiple causes
of actions again Defendant, including: (1) Count One – Negligence; (2) Count Two – Negligent
Confinement, (3) Count Three – Infliction of Emotional Distress, (4) Count Four – Medical
Malpractice, (5) Count Five – Negligent Conditions of Confinement, and (6) Count Six –
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 8 of 17 PageID #:
<pageID>

9
Conversion. [See generally ECF No. 23, at 6-10]. His amendments seek to readdress, and
ultimately, repackage, Count One, Count Two, Count Three, Count Four, and Count Six. He also
seeks to “consolidate” Count Five into Count One. As such, the proposed amendments aim to alter
the entire contents of his First Amended Complaint. [ECF No. 23]. Despite Plaintiff stating he
“seeks only to incorporate clarifying allegations and objective duty sources that address the
concerns raised in the R&R -- without conceding that the Amended Complaint was deficient” 	–
the proposed alterations are considerable in scope.
As discussed in detail below, evaluating Plaintiff’s proposed amendments substantively,
and construed liberally, they would be futile. Thus, under Scott and the applicable precedent, the
proposed amendments should not be permitted inasmuch as Plaintiff offers nothing which would
overcome the deficiencies outlined in the previous Report and Recommendation. [ECF No. 29].
While Plaintiff, considering his 	pro se 	status, should be afforded an appropriate latitude, that
latitude is not without limits. Allowing amendments as requested would only postpone the
inevitable outcome in this matter, which is not in Plaintiff’s favor.
1. 	Count One – Negligence and
Count Five – Negligent Confinement
Nothing in his proposed amendments redeems Plaintiff’s claims as related to Count One,
negligence, and Count Five, negligent confinement. Candidly, Plaintiff’s request is difficult to
understand. It seems the request is two-fold: (1) he proposes to “separate[] ordinary custodial- and
routine-care negligence 	– 	which under West Virginia law requires no expert testimony;” and (2)
he requests a merger of Count One and Count Five. [ECF No. 33, at 2]. Regarding his negligence
claim he asserts that by weaving “former Count Five (negligent conditions of confinement) into
Count I’s custodial-and routine-care negligence claim, eliminating the overlap between those
Counts, with no claim abandoned.” [Id., ¶5]. By the proposed amendment, Plaintiff would allege
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 9 of 17 PageID #:
<pageID>

10
that “staff failed to maintain adequate temperature control and to abate a persistent mechanical
noise, proximately causing cold exposure and sleep disruption that worsened the very insomnia
for which Plaintiff sought care.” [ECF No. 33-1, at 7, ¶18].
Defendant argues “[t]his effort, by its definition, would be futile. It is just shuffling around
categories of claims with no real change.” [ECF No. 36, at 4]. As Defendant aptly notes, “[b]y all
accounts, this means he seeks to plead around the fact that the Magistrate [Judge] found that most
facets of this claim are encompassed by medical negligence. Artful pleading should not make what
is a medical negligence claim into something else. This is not a proper amendment and would
simply lead to another motion to dismiss on these grounds.” [ECF No. 36, at 2].
At bottom, Defendant is correct. Plaintiff’s consolidation request is merely cosmetic and
contains yet another rearrangement of an unviable count. [See generally ECF No. 29, at 27-28].
As Defendant remarks, Plaintiff’s proposed consolidation still “fails to establish an adequate link
between any negligence as related to his confinement, and its conditions, and the requisite law to
support any type of negligent conditions of confinement claim.” [Id., at 28]. Nothing whatsoever
about the request to consolidate Count Five into Count One addresses that deficiency. To meet his
burden, Plaintiff is required to plead “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). Herein, Plaintiff
continues to fail to meet that standard. His proposed amendments, such as linking his personal
assessment of the temperature of the building to a plausible degree of negligence, do not remedy
any of the associated deficiencies. Thus, Plaintiff’s proposed amendments cannot salvage his
request to incorporate Count Five into Count One.
Accordingly, the undersigned 	FINDS 	the requested amendment here would be futile.
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 10 of 17 PageID
#: <pageID>

11
2. 	Count Two – Negligent Conditions of Confinement
With respect to Count Two, Plaintiff would amend to incorporate “the standard of care
governing the confinement through W. Va. Code Sections 27-4-3 and 27-4-4 and 38 C.F.R. Section
17.32. . .” [ECF No. 33, at 2]. However, the argument and reasons for amendment here is
perplexing. As Defendant rightly argues, “[i]t is unclear why this amendment would be merited.
The statute and regulation do not seem to establish a standard of care, but only procedures for
releasing certain patients.” [ECF No. 36, at 3]. Thus, nothing Plaintiff offers here would cure the
defects previously summarized regarding the negligence standard.
As the prior Report and Recommendation suggested, “[g]iven the totality of [Plaintiff’s]
circumstances – i.e., that he was exhibiting signs of sleep deprivation, insomnia, and other related
defects – Plaintiff’s own allegations demonstrate that his condition may have warranted his
admittance to the mental health unit. He does not explain how a reasonable, prudent health care
provider would have acted differently in a similar circumstance.” [ECF No. 29, at 26]. The
proposed amendment does not “move the needle” to salvage the claim because these statutes and
regulations simply do not apply. In other words, the proposed amendment does nothing to show a
breach of any applicable standard of care. Thus, the amendment is futile insofar as Plaintiff still
does not articulate a viable claim.
Accordingly, the undersigned 	FINDS 	the request to amend Count Two, negligent
confinement, deficient in that amendment would be futile.
3. 	Count Three – Intentional Infliction of Emotional Distress
Plaintiff plainly states he seeks to “re[-]plead[] the emotional-distress claim on the
recklessness prong recognized in Travis v. Alcon Lab’ys, Inc., 202 W. Va. 369, 504 S.E.2d 419
(1998).” [ECF No. 33, at 2]. Specifically, Plaintiff would allege Defendant acted recklessly
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 11 of 17 PageID
#: <pageID>

12
because “[Plaintiff] repeatedly told staff the environment was harming him.” [ECF No. 33-1, at
10, ¶29]. He provides, without providing the records themselves, that:
[the VA’s] own notes record that he “repeatedly identified feeling that this is a
negative environment for him” and stated it was “destructive to me to be here” --
while 	their 	observation 	entries 	documented 	his 	accumulating 	distress. 	The
treatment team “discussed at length” the risks of continued retention, including
“negative effects on veteran’s mental health due to unit environment,” and its notes
ultimately 	conceded that 	“the unit 	environment 	may 	actually be negatively
impacting patient’s mental health at this time” and that inpatient confinement was
“not necessary at this time for the safety of patient or others.” To persist in confining
a patient on a locked psychiatric unit under conditions he repeatedly identified as
harmful, 	while 	documenting 	his 	deterioration, 	is 	the 	paradigm 	of 	conduct
undertaken when distress is certain or substantially certain to result.
[Id.]. He continues to allege that the records indicate:
Plaintiff-- a veteran it had confined -- “trying to open locked doors,” crawling on
the floor, found “in [the] bathroom floor on hands and knees, completely naked,
crying and asking for forgiveness,” stating he was “scared” and “didn’t know reality
from non-reality anymore” and “I want to go home, but I don’t know why I am
here,” and reduced to asking “permission to do simple things like use the phone
[or] go back to his room.”
[Id.].
Defendant argues it is “telling” that Plaintiff labels his amendment as a “repleading”
inasmuch as “this was already done. See Doc. 23, p. 8, ¶ 38. The Magistrate [Judge] found it
insufficient under law not because he did not use magic language to proceed under ‘recklessness’
but because the claim is insufficient. This would thus be futile.” [ECF No. 36, at 3].
Plaintiff argues the “outrageousness lies in the VA’s persistence in the face of its own
documentation.” [Id., at 11, ¶30]. Despite Plaintiff’s heavy reliance on direct quotations of
passages from purported records, nothing before the Court demonstrates what such records are or
what they may contain. By his newly-raised argument, he decries that “[t]o record a confined
patient’s deterioration as it accumulated -- and ultimately the harm and unnecessariness of his
confinement -- and to persist anyway, is conduct a reasonable factfinder could find atrocious,
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 12 of 17 PageID
#: <pageID>

13
intolerable, and beyond all bounds of decency.” [Id.]. Yet, as previously addressed at length in the
prior Report and Recommendation, Plaintiff’s claim of intentional infliction of emotional distress
continues to fail to meet the first or second prong under Travis as required.
In West Virginia, a court must determine whether
the conduct was atrocious, intolerable, and so extreme and outrageous as to exceed
the bounds of decency: In evaluating a defendant's conduct in an intentional or
reckless infliction of emotional distress claim, the role of the trial court is to first
determine whether the defendant's conduct may reasonably be regarded as so
extreme and outrageous as to constitute the intentional or reckless infliction of
emotional distress. Whether conduct may reasonably be considered outrageous is a
legal question, and whether conduct is in fact outrageous is a question for jury
determination.
Syl. Pt. 4, Travis, 504 S.E.2d at 419 (emphasis added).
Even with Plaintiff’s new allegations, he continues to fail to plead how Defendant’s
conduct rises to the requisite level of “atrocious, intolerable, and so extreme and outrageous as to
exceed the bounds of decency.” Travis, 504 S.E.2d at 419; see also Zsigray v. Langman, 243 W.
Va. 163, 174, 842 S.E.2d 716, 727 (2020)(explaining that to meet the required threshold, “the
recitation of the facts to an average member of the community would arouse his resentment against
the actor, and lead him to exclaim, “Outrageous!”)). Even construed liberally, and as explained
previously, “Plaintiff may have endured unpleasant circumstances, but this alone is insufficient. .
. Plaintiff’s mere assertions about how objectionable he found Defendant’s conduct to be do not
carry the day, given the weight of applicable caselaw.” [ECF No. 29, at 32]. Thus, his proposed
amendments as related to Count Three are “. . . futile, because [his] proposed amendments to the
[first amended] Complaint add no new facts that would allow [his] claims to survive a motion to
dismiss.” Devil’s Advocate, LLC, 666 Fed. App’x at 267; see also Scott, 733 F.3d at 121. In other
words, while Plaintiff may seek to offer further allegation about the unpleasant circumstances of
his hospitalization, it does not rise to a level of outrageousness as a matter of law.
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 13 of 17 PageID
#: <pageID>

14
Accordingly, the undersigned 	FINDS 	that the request to amend Count Three, his
intentional infliction of emotional distress claim, would be futile, because Plaintiff continues to
fail to state a viable claim.
4. 	Count Four – Medical Malpractice
To be clear, Plaintiff’s motion is generally silent to his proposed amendments as it pertains
to his medical malpractice claims. [See generally ECF No. 33]. Yet, to be fair, the proposed Second
Amended Complaint contains allegations that “A reasonable, prudent psychiatric provider in the
same or similar circumstances would not have obtained consent to psychiatric admission from a
severely sleep-deprived patient. . .” [ECF No. 33-1, at 12, ¶35]. Plaintiff then asserts, “[i]n the
alternative, the breaches alleged are so apparent, and relate to such noncomplex matters within the
understanding of lay jurors, that no expert testimony is required to establish them.” [Id., ¶36]. As
to these additional allegations, Plaintiff continues to, as previously discussed in the prior Report
and Recommendation, offer mere conclusory allegations. [See generally ECF No. 29, at 28-29].
Such conclusory allegations add no new fact that would allow the claim to survive a motion to
dismiss. As such, his proposed amendments as to Court Four are futile.
Accordingly, the undersigned 	FINDS 	that as to Count Four, medical malpractice, the
amended claim would be futile, considering Plaintiff would continue to fail to state a viable claim.
5. 	Count Six – Conversion
Lastly, Plaintiff seeks to “re-plead[] conversion with specific allegations identifying when
the VA gained exclusive control of Plaintiff’s property -- items that came into his possession on
the locked ward after the intake inventory and were left in the VA’s sole possession at discharge -
- and its failure to return them on demand.” [ECF No. 33, at 2]. His second amended complaint
newly incorporates the following:
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 14 of 17 PageID
#: <pageID>

15
The conversion occurred at discharge. On December 30, 2022, Plaintiff -- eager to
depart once release was granted -- was unable to locate and collect all of his
property before leaving; whatever remained in his room on the locked unit passed
into the exclusive possession and control of VA staff, because patients and the
public have no access to that space. The discharge belongings inventory did not
account for the Bible or the journal, and, despite Plaintiff’s requests following
discharge, the items were never returned. The VA’s retention of, and failure to
return, Plaintiff’s property at and after discharge is a distinct act of dominion
inconsistent with his ownership.
[ECF No. 33-1, at 13, ¶40].
In arguing against the request to amend here, Defendant simply argues that the proposed
amendments, “. . .provide a different summary and timeline of Plaintiff’s odyssey regarding this
property.” [ECF No. 36 at 3]. Put another way, Plaintiff offers nothing different substantively.
Defendant is correct that the proposed amendments do not salvage the claim. Plaintiff’s
allegations concerning the journey his personal Bible and notes have taken has taken a new form
with every pleading. Under West Virginia law, conversion is considered “the exercise of dominion
over the personal property of another by a person who has no legal right to do so.” Rodgers v.
Rodgers, 184 W. Va. 82, 399 S.E.2d 664, 677 (W. Va. 1990)(emphasis added). As described in
the prior Report and Recommendation, Plaintiff has alleged a variety of scenarios as it pertains to
his belongings. [ECF No. 29, at 35]. Plaintiff now avers “items that came into his possession on
the locked ward after the intake inventory and were left in the VA’s sole possession at discharge.
. .” [ECF No. 33-1, at 13, ¶40]. 	Despite Plaintiff’s attempts, it remains that “the Court is left
wondering who exercised ‘dominion over the personal property,’ per Rodgers, and under what
circumstances.” [ECF No. 29, at 35]. Plaintiff does not provide sufficient allegation about any
handling of personal property by one without legal right to handle it. The factual allegations
otherwise are threadbare. Thus, Plaintiff continues to fail to support a viable claim of conversion.
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 15 of 17 PageID
#: <pageID>

16
Accordingly, the undersigned 	FINDS 	that as to Count Six, conversion, the amendment
would be futile considering Plaintiff continues to fail to state a viable claim.
As described 	supra, the undersigned finds that Plaintiff’s amendments are in their totality
are futile. However, the undersigned also notes that courts have provided, “that the ‘repeated
failure to cure a deficiency by amendments previously allowed’ can constitute an improper motive
favoring the denial of a motion to amend.” Nabawi v. Warden D.L. Young, No. 5:19-cv-00693,
2022 U.S. Dist. LEXIS 148131, at *14 (S.D. W. Va. Aug. 18, 2022)(quoting Harless v. CSX
Hotels, Inc., 389 F. 3d 444, 447 (4th Cir. 2004)). In addition, “[w]hether an amendment is
prejudicial will often be determined by the nature of the amendment and its timing.” Laber v.
Harvey, 438 F.3d 404, 427 (4th Cir. 2006). While the undersigned declines to address bad faith
and prejudice herein in light of the complete futility, Plaintiff’s “repeated failure to cure a
deficiency by amendments previously allowed” further favors the denial.
III. RECOMMENDATION AND CONCLUSION
Accordingly, for the reasons herein stated, the undersigned 	FINDS 	that the request to
amend the Complaint is deficient in every regard, as detailed herein, and thus respectfully
RECOMMENDS 	that Plaintiff’s motion for leave to file a Second Amended Complaint [ECF No.
33] be 	DENIED.
Any party may within 	fourteen (14) days 	after service of this Report and Recommendation
file with the Clerk of the Court 	specific written objections identifying the portions of the Report
and Recommendation to which objection is made, and the basis for such objection. 	A copy
of such objections should also be submitted to the presiding United States District Judge.
Failure to timely file objections to the Report and Recommendation set forth above
will result in waiver of the right to appeal from a judgment of this Court based upon such
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 16 of 17 PageID
#: <pageID>

17
Report and Recommendation. 	28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91
(4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir.
1985); Thomas v. Arn, 474 U.S. 140 (1985).
The 	Clerk 	of 	the 	Court 	is 	DIRECTED 	to 	provide 	a 	copy 	of 	this 	Report 	and
Recommendation to all parties who appear 	pro se 	and all counsel of record, as applicable, as
provided in the Administrative Procedures for Electronic Case Filing in the United States District
Court for the Northern District of West Virginia.
Respectfully submitted August 7, 2026.
Case 1:25-cv-00057-TSK-MJA Document 38 Filed 08/07/26 Page 17 of 17 PageID
#: <pageID>