1:25-cv-00057•Cosner v. United States of America
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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) REPORT AND RECOMMENDATION, RECOMMENDING THAT DEFENDANT’S MOTION TO DISMISS [ECF NO. 24] FOR FAILURE TO STATE A CLAIM AND PARTIAL MOTION TO DISMISS FOR LACK OF JURISDICTION BE GRANTED, AND THAT PRO SE PLAINTIFF’S AMENDED COMPLAINT [ECF NO. 23] BE DISMISSED On June 20, 2025, pro se Plaintiff Shawn Paul Cosner (“Plaintiff”) filed a Complaint against Defendant United States of America. [ECF No. 1].1 On June 24, 2025, this Court, by the Honorable Thomas S. Kleeh, Chief United States District Judge for the Northern District of West Virginia, entered a Referral Order, referring this matter to the undersigned United States Magistrate Judge in order to conduct a scheduling conference and issue a scheduling order, for written orders or reports and recommendations, as the case may be, regarding any motions filed, and to dispose of any other matters that may arise. [ECF No. 5]. Pending before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim and Partial Motion to Dismiss for Lack of Jurisdiction. [ECF Nos. 24, 25]. Having reviewed the respective motions and memoranda in support (where applicable) and briefing in response (where 1 On January 23, 2026, Plaintiff filed his 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]. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 1 of 37 PageID #: <pageID>
2 applicable), and the various objections, and having conducted a thorough review of the record and the applicable law, the undersigned now respectfully RECOMMENDS that Defendant’s Motion to Dismiss for Failure to State a Claim and Partial Motion to Dismiss for Lack of Jurisdiction [ECF Nos. 24, 25] be GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND2 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 complaints, 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 2 In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff’s well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. See Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, this Court may also take judicial notice of matters of public record, such as court and county deed records. Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Hall v. Virginia, 385 F.3d 421, 424 (4th Cir.2004)); see also Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). The Court may also consider documents attached to the complaint, “as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Id. (citing Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th Cir.2006)). Accordingly, the factual and procedural background provided herein is compiled from allegations found within the Complaint and Amended Complaint, attachments thereto, and other related filings on the docket of this matter. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 2 of 37 PageID #: <pageID>
3 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 13 8/87 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 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.]. Briefly, regarding the overall timeline, 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 Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 3 of 37 PageID #: <pageID>
4 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; 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]. Lastly, Plaintiff’s argues “VA staff confiscated Plaintiffs personal property, including a Soldier’s Leadership Bible, personal notes, and other items.” [Id., at 6, ¶ 24]. As discussed in greater detail infra, Defendant filed a Motion to Dismiss for Failure to State a Claim and Partial Motion to Dismiss for Lack of Jurisdiction. [ECF Nos. 24, 25]. II. SUMMARY OF PARTIES’ CONTENTIONS A. Plaintiff’s Claims in the Amended Complaint In his 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]. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 4 of 37 PageID #: <pageID>
5 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]. 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]. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 5 of 37 PageID #: <pageID>
6 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 damages of $5,000 and non-economic damages of $250,000 regarding his allegation of conversion. [Id., ¶ 54]. B. Defendant’s Motion to Dismiss for Failure to State a Claim and Partial Motion to Dismiss for Lack of Jurisdiction [ECF Nos. 24, 25]3 Much of Plaintiff’s case turns on the Federal Tort Claims Act (“FTCA”). Broadly, Defendant’s argument for dismissal is “[m]ost of the Amended Complaint should be dismissed for failure to state any claims under the FTCA because the complaint is filled with vague and conclusory allegations, rather than concrete facts supporting each required legal element.” [ECF No. 25, at 3]. It contends, “[o]ther portions of Plaintiff’s Amended Complaint should be dismissed 3 The undersigned notes Defendant entitled its motion, “Motion to Dismiss for Failure to State a Claim and Partial Motion to Dismiss for Lack of Jurisdiction.” [ECF No. 24]. A review of the motion itself reveals little to no argument on jurisdiction itself, but does include Defendant’s argument regarding exhaustion of remedies. Inasmuch as the two are interwoven, but Defendant’s analysis connecting the two is lacking, the undersigned construes Defendant’s argument regarding jurisdiction as linked to Plaintiff’s alleged failure to exhaust certain claims, which would strip jurisdiction from this Court. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 6 of 37 PageID #: <pageID>
7 for lack of exhaustion or on the grounds that the claims are not available or otherwise insufficient under the facts plead and applicable law.” [Id., at 4]. Regarding administrative exhaustion, Defendant provides that “a plaintiff cannot present an administrative claim based on one theory of relief and then maintain an FTCA suit based a different cause of action or set of facts.” [ECF No. 25, at 4]. Considering this, the argument is that, because “Plaintiff’s claims for negligence related to his diagnosis and medical treatment, medical malpractice generally are not raised in the administrative remedy. . . Each of these portions of the Amended Complaint should be dismissed for failure to exhaust.” [Id., at 5]. Moreover, it notes, “his [conversion] claim only mentioned personal notes (and unspecified other things) though his Amended Complaint also focuses on a Bible.” [Id.]. Regarding Plaintiff’s Counts One, Two, Four, and Five, Defendant alleges those counts are all “primarily medical negligence claims” and thus should be dismissed for failure to state a claim. [Id.]. Defendant maintains, “[p]ursuant to West Virginia Code § 55-7B-7, ‘[t]he applicable standard of care and defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff ….’ [Counts One, Two, Four, and Five] all include care or services which Plaintiff critiques as wrong, or otherwise what he should or should not have received by health care providers/the health care facility. Thus, all are subject to the MPLA.” [Id., at 8]. Defendant highlights, “Plaintiff does not allege who was involved, he does not allege what a reasonable medical provider in a similar circumstance would do, why it is a breach of the standard of care, or what the standard of care was. In other words, though he proclaims that he has problems with the care and services, he does not detail why such actions are violative of the standard of care in any meaningful way.” [Id., at 8]. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 7 of 37 PageID #: <pageID>
8 According to Defendant, in Plaintiff’s original complaint [ECF No. 1], he was raising a false imprisonment claim. Considering his Amended Complaint [ECF No. 23] changed course, Defendant notes, “to the extent that these claims are false imprisonment claim[s] simply under different window-dressing than the prior complaint, they are thus easily disposed of as the FTCA prohibits claims of intentional torts and specifically names false imprisonment as a claim over which the United States retains sovereign immunity.” [ECF No. 25, at 8-9 (referencing 28 U.S.C. § 2680(h))]. Next, Defendant argues the intentional infliction of emotional distress claim should be dismissed considering none of the purported conduct meets the requisite four elements as set forth in Travis v. Alcon Lab'ys, Inc. See generally Travis v. Alcon Lab'ys, Inc., 202 W. Va. 369, 371, 504 S.E.2d 419, 421 (1998). According to Defendant, considering the “high bar to recovery,” Plaintiff’s claim must fail. In particular, “[t]here is simply nothing in the Amended Complaint to indicate that Plaintiff could ever meet element (2), ‘that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct.’” [ECF No. 25, at 10]. Lastly, regarding Plaintiff’s conversion claim, Defendant maintains that “[t]he vague and unspecified claims here are not sufficient to survive dismissal, along with their alleged value being seemingly untethered from reality.” [Id., at 11]. In his response in opposition, Plaintiff wishes to “clarif[y] the nature of his claim.” [ECF No. 27, at 3]. He indicates his intention to assert negligence and “and the tort of intentional or reckless infliction of emotional distress arising from clinical custody decisions and extreme conduct during a custodial medical confinement, and conversion arising from the Government’s unauthorized dominion over Plaintiff’s personal property.” [Id.]. First, he argues his claims were Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 8 of 37 PageID #: <pageID>
9 administratively exhausted. Specifically, he contends that his SF-95 and supporting materials identified the December 2022 incident at the VA are enough to satisfy the requirement. [See generally ECF No. 25-1]. He argues the Bible noted in his Amended Complaint is encompassed within the “presented [] claim for loss of personal property confiscated during the December 2022 hospitalization and not returned at discharge.” [ECF No. 27, at 5]. Second, he argues his claims are “distinct, not duplicative, and each is sufficiently plead[].” [Id., at 6]. In that regard, he claims Defendant ignores the legal and factual distinctions between his allegations. [Id.]. Regarding Count One, negligence, he decries the VA’s “failure to properly evaluate [him], failure to treat the condition for which he sought help, and continuation of care in a harmful environment. This is general negligence—the failure to exercise reasonable care— arising from conduct that any reasonable person, not just a physician, would recognize as deficient.” [Id., at 6-7]. Regarding Count Two, negligent confinement, he maintains “[t]he focus is on the confinement itself—the deprivation of liberty resulting from negligent medical decision- making.” [Id., at 7]. He reiterates his position that Count Two is a not a false imprisonment claim and instead showcases “independent negligence duties—evaluation, consent safeguards, reassessment, and continuation-of-confinement decisions—that sound in clinical negligence and custodial negligence. Any restraint is part of the factual background; the claim is the negligent decision-making that caused the deprivation of liberty.” [Id., at 9-10]. Regarding Count Three, intention infliction of emotion distress, his response indicates his belief that can meet his burden. Moreover, he argues “Defendant’s approach—isolating individual conditions and dismissing each in turn— ignores the totality-of-circumstances standard West Virginia applies to IIED claims. The question is not whether any single condition independently shocks the conscience, but whether the cumulative weight of all conditions, directed at a vulnerable patient in custodial confinement over Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 9 of 37 PageID #: <pageID>
10 the course of a week, could be found outrageous by a reasonable fact finder. Context matters to the outrageousness inquiry.” [Id., at 11]. Regarding Count Four, medical malpractice, he alleges the “clinical decisions that fell below the medical standard of care: obtaining consent from an impaired patient at 4:49 a.m., failing to treat the presenting condition, and allowing a nine-pound weight loss without intervention.” [Id., at 7]. Lastly, regarding Count Five, negligent conditions, the “temperature, food quality, access to family and religious services—[sic] were inadequate for patients admitted for mental health treatment.” [Id.]. At bottom, he argues his claims were also supported in specificity as it pertains to the actors, and emphasizes “VA medical personnel at Louis A. Johnson VAMC, including the ER physician who pressured consent and staff on Ward 4 West who maintained the conditions of confinement.” [Id., at 8 (referencing ECF No. 23, ¶¶ 8, 14 -15]. III. LEGAL STANDARDS A. Federal Tort Claims Act In general, the FTCA “represents a limited congressional waiver of sovereign immunity for injury or loss caused by the negligent or wrongful act of a Government employee acting within the scope of his or her employment. The statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.” Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001); see 28 U.S.C. § 2674 (providing “respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”)). To be clear, the FTCA does not create a new cause of action. Medina, 259 F.3d at 223. Instead, “[t]he statute merely permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred.” Id. The United States cannot be sued in a tort action unless it is clear that Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 10 of 37 PageID #: <pageID>
11 Congress has waived the Government's sovereign immunity and authorized suit under the FTCA. Dalehite v. United States, 346 U.S. 15, 30-31 (1953). The provisions of the FTCA are found in Title 28 of the United States Code. 28 U.S.C. §§ 1346(b), 1402(b), 2401(b) and 2671-2680. The FTCA’s administrative exhaustion requirement is met when the applicable agency “receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain.” 28 C.F.R. § 14.2)(emphasis added); see also McKreith v. United States, Civil Action No. 1:19cv106, 2020 U.S. Dist. LEXIS 168401, at *20 (N.D.W. Va. July 23, 2020). More precisely, the Fourth Circuit Court of Appeals has explained that, “[i]n order to present a personal injury claim to the appropriate administrative agency, the claimant must present it to the agency in writing by means of an [Standard Form] 95 or an equivalent; the writing must include a claim for money damages in a sum certain; if the claimant is represented, the representative's authorization must be demonstrated; and these matters must be accomplished within two years of the incident.” Ahmed v. United States, 30 F.3d 514, 517 (4th Cir. 1994)(emphasis in original). According to 28 U.S.C. 2675(a): An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 28 U.S.C. § 2675(a). However, the statute allows the following narrow exception in circumstances where no final letter has been issued: “[t]he failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant at any time thereafter, be deemed a final denial of the claim for purposes of this section.” 28 U.S.C. § 2675(a). Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 11 of 37 PageID #: <pageID>
12 B. Subject Matter Jurisdiction Generally, only two types of cases can be heard in federal court: (1) cases involving diversity of citizenship of the parties and (2) cases involving a federal question. “Federal-question jurisdiction affords parties a federal forum in which ‘to vindicate federal rights,’ whereas diversity jurisdiction provides ‘a neutral forum’ for parties from different States.” Home Depot U. S. A., Inc. v. Jackson, 587 U.S. 435, 438 (2019) (citing Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 552, (2005)). Diversity jurisdiction lies “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1). Federal question jurisdiction lies when a plaintiff’s claim arises “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Generally, “[a] suit arises under the law that creates the cause of action.” Atl. Richfield Co. v. Christian, 590 U.S. 1, 2 (2020) (quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)). Jurisdiction may not be sustained on a theory that the plaintiff has not advanced. See Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480, (1915) (“[T]he plaintiff is absolute master of what jurisdiction he will appeal to”). Under the “well-pleaded complaint” rule, the facts showing the existence of subject matter jurisdiction “must be affirmatively alleged in the complaint.” Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178 (1936)). “A court is to presume, therefore, that a case lies outside its limited jurisdiction unless and until jurisdiction has been shown to be proper.” United States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Moreover, the “burden of establishing subject matter jurisdiction is on . . . the Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 12 of 37 PageID #: <pageID>
13 party asserting jurisdiction.” Robb Evans & Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir. 2010). Per the governing rules, “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3) (emphasis added); Duffield v. Memorial Hosp. Ass’n, 361 F. Supp. 398, 400 (S.D. W. Va. 1973), aff’d sub. nom. Duffield v. Charleston Area Medical Ctr., 503 F.2d 512 (4th Cir. 1974); see also Bolin v. Chavez, 210 F.3d 389 (10th Cir. 2000) (recognizing that courts may properly dismiss an action sua sponte under Fed. R. Civ. P. 12(h)(3) for lack of subject matter jurisdiction). In sum, “[w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, (1998)(quoting Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 514, (1869)). C. Requirement to State a Claim To state a claim for relief, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement serves to give “the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and quotation omitted). A complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Id., at 570; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Detailed factual allegations are not required. Twombly, 550 U.S., at 555. The factual allegations simply must be “enough to raise a right to relief above the speculative level.” Id. The “sheer possibility that a defendant has acted unlawfully” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Facial plausibility is established when a plaintiff “pleads factual content that allows Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 13 of 37 PageID #: <pageID>
14 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. However, conclusory allegations do not suffice; a plaintiff must provide detail that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S., at 570; Iqbal, 556 U.S., at, 678. In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff’s well-pleaded allegations are taken as true, and the complaint is viewed “in a light most favorable to the plaintiff.” Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). “But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6),” so long as “all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)). “When rendering its decision, [a] [c]ourt should consider only the allegations contained in the complaint, the exhibits to the complaint, matters of public record, and other similar materials that are subject to judicial notice.” Conklin v. Jefferson Cty. Bd. of Educ., 205 F. Supp. 3d 797, 803 (N.D.W. Va. 2016) (citing Anheuser–Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.1995)). Finally, “[a] district court's dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice. That determination is within the district court's discretion.” Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir. 1985); see also Cameron v. MTD Prod., Inc., No. CIV.A.5:03 CV 75, 2004 WL 3256003, at *3 (N.D.W. Va. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 14 of 37 PageID #: <pageID>
15 Jan. 7, 2004), aff'd, 90 F. App'x 53 (4th Cir. 2004). IV. ANALYSIS OF COMPLAINT As a threshold matter, the undersigned is mindful of Plaintiff’s pro se status. 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). A pro se complaint is subject to dismissal, however, if the Court cannot reasonably read the pleadings to state a valid claim on which a plaintiff could prevail. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct 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). However, even in view of Plaintiff’s pro se status, his claims herein fail entirely. The Amended Complaint [ECF No. 6] does not offer any factual allegations that could constitute a sufficient basis for claims which would allow this Court to grant relief. Furthermore, he does not set forth in the Amended Complaint any adequate legal grounds entitling him to any relief. A. Plaintiff exhausted all of his administrative claims as required under the FTCA and as such this Court has jurisdiction. The undersigned first addresses Defendant’s claim that “. . . . portions of Plaintiff’s Amended Complaint should be dismissed for lack of exhaustion or on the grounds that the claims are not available or otherwise insufficient under the facts plead and applicable law.” [Id., at 4]. Regarding administrative exhaustion, Defendant provides “a plaintiff cannot present an administrative claim based on one theory of relief and then maintain an FTCA suit based a different cause of action or set of facts.” [ECF No. 25, at 4]. Defendant argues Plaintiff did not exhaust his administrative remedies as to “negligence related to his diagnosis and medical treatment.” [Id., at 5]., Thus, “[e]ach of these portions of the Amended Complaint should be dismissed for failure to Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 15 of 37 PageID #: <pageID>
16 exhaust.” [Id.] Moreover, Defendant notes, “his conversation claim only mentioned personal notes (and unspecified other things) though his Amended Complaint also focuses on a Bible.” [Id.]. The FTCA’s administrative exhaustion requirement is fulfilled when the agency “receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain.” 28 C.F.R. § 14.2 (emphasis added). The purpose of this notice is to enable the agency to investigate and place a sum certain value on the claim. Ahmed, 30 F.3d at 516-17; cf. Henderson v. United States, 785 F.2d 121, 124 (4th Cir. 1986) (quoting Meeker v. United States, 435 F.2d 1219, 1222 (8th Cir. 1970) (explaining Congress intended to “improve and expedite disposition of monetary claims against the Government by establishing a system for prelitigation settlement, to enable consideration of claims by the agency having the best information concerning the incident, and to ease court congestion and avoid unnecessary litigation”)). Consequently, Defendant points out, the Seventh Circuit Court of Appeals has held a plaintiff cannot present an administrative claim based on one theory of relief and then maintain an FTCA suit based on a different cause of action or set of facts. Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir. 1991) (finding written notice was not sufficient because the “allegations involve wholly different incidents.”)). Plaintiff’s letter-form Standard Form 95 (“letter-form SF 95”),4 details a variety of complaints with his experience at the VA hospital. [See generally ECF No. 25-1]. On the document, dated as received June 24, 2024, he formulates the following causes of action: (1) Improper Involuntary Confinement (False Imprisonment), (2) Unsanitary and Inhumane Conditions, (3) Inadequate Nutrition and Weight Loss, (4) Forced Signing of Documents Under 4 The undersigned notes that the government-issued Standard Form 95 form itself was not attached to any pleading herein, but instead a detailed attachment was. See https://www.gsa.gov/system/files/SF95- 07a.pdf; see also ECF No. 25-1. Considering both Defendant and Plaintiff indicate a willingness to adopt this letter-form SF 95 as is, the undersigned references it as “letter-form SF 95” throughout. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 16 of 37 PageID #: <pageID>
17 Duress, (5) Lack of Access to Communication and Religious Materials, (6) Emotional and Psychological Harm (Intentional Infliction of Emotional Distress - IIED), (7) Physical Harm from Improper Care, and (8) Failure to Provide Proper Documentation and Belongings. [ECF No. 25-1, at 2-3]. He further alleges that VA hospitals “have a long history of mistreatment and negligence towards veterans, which has been well-documented across various facilities, including those in West Virginia.” [Id., at 3]. He alleges his current anxiety and depression arose from the care he received during his December 2022 stay. [Id.]. In addition, he claims: libel and slander in his medical records, a HIPPA violation, discrimination, unnecessary consultations, prison like conditions, unfair labeling and access restrictions, and a constitutional right to health care. [Id.]. He continues to express, “[t]he most significant failure in this entire situation is that not one person apologized for the treatment [he] received. There was no compassion or care for the trauma [he] suffered. [He] attempted to redress this situation through the proper channels, but the VA couldn’t even follow its own policies. They did not conduct themselves professionally and ignored [his] pleas for help.” [Id., at 7]. As a prerequisite, a plaintiff is required to “first [present his or her] claim to the appropriate Federal agency …” 28 U.S.C. § 2675(a). A claim is considered “presented . . . when a Federal agency receives from a claimant . . . an executed [SF95] or other written notification of an incident, accompanied by a claim for money damages." 28 C.F.R. § 14.2(a). Regarding the requisite notice, “[t]he claimant meets their burden of notice only if the description of the claim included in the SF95 is ‘sufficient to enable the agency to investigate’ the alleged wrongdoing.” Est. of Vickers v. United States, No. 25-1514, 2026 U.S. App. LEXIS 12844, at *23 (4th Cir. May 4, 2026)(quoting Ahmed 30 F.3d at 516-17. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 17 of 37 PageID #: <pageID>
18 First, the undersigned notes the administrative claim need not match the federal court complaint in an identical fashion. Instead, the claim must include, among other things, written notice sufficient to cause the agency to investigate, and a sum-certain value on the claim. Ahmed, 30 F.3d at 517 (emphasis added); see also Est. of Vickers, No. 25-1514, 2026 U.S. App. LEXIS 12844, at *28. Considering Plaintiff explicitly noted his complaints regarding his IIED claim, he sufficiently established the required written notice in regard to Count Three. Additionally, in his letter-form SF 95, he alleged a “Failure to Provide Proper Documentation and Belongings.” [ECF No. 25-1]. It would be reasonable to construe this complaint as an allegation of conversion, which Plaintiff ultimately alleged in Count Six of his Amended Complaint. [Id.]. Defendant argues “his conversation claim only mentioned personal notes (and unspecified other things) though his Amended Complaint also focuses on a Bible.” [ECF No. 25]. This approach is flawed. The law requires a claimant to provide a written notice sufficient to cause the agency to investigate. Thus, the notice regarding his missing personal notes is sufficient for the agency to inquire regarding the status of any items of Plaintiff, including the Bible. However, the inquiry as to Count One, Count Two, Count Four, and Count Five presents a greater degree of complexity regarding the written notice requirement. Defendant contends that “Plaintiff’s claims for negligence related to his diagnosis and medical treatment, medical malpractice generally are not raised in the administrative remedy.” [ECF No. 25, at 5]. Plaintiff counters that his claims “address distinct wrongful conduct and protect distinct legal interests.” [ECF No. 27, at 6]. Plaintiff’s response explains the following in regard to Count One, Count Two, Count Four, and Count Five: Count I (Negligence) addresses the VA’s failure to properly evaluate Plaintiff, failure to treat the condition for which he sought help, and continuation of care in a harmful environment. This is general negligence—the failure to exercise Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 18 of 37 PageID #: <pageID>
19 reasonable care—arising from conduct that any reasonable person, not just a physician, would recognize as deficient. Count II (Negligent Confinement) addresses the VA’s failure to follow proper procedures for admitting and retaining a patient in a locked psychiatric ward. The focus is on the confinement itself—the deprivation of liberty resulting from negligent medical decision-making. Count IV (Medical Malpractice) addresses clinical decisions that fell below the medical standard of care: obtaining consent from an impaired patient at 4:49 a.m., failing to treat the presenting condition, and allowing a nine-pound weight loss without intervention. Count V (Negligent Conditions) addresses the physical environment of the ward— temperature, food quality, access to family and religious services—which were inadequate for patients admitted for mental health treatment. [Id., at 6-7]. The letter-form SF 95 [ECF No. 25-1] and the Amended Complaint [ECF No. 23] exhibit significant inconsistency, with severe discrepancies between the documents as it relates to Count One, Count Two, Count Four, and Count Five. For example, in his administrative claim, Plaintiff highlights his allegation of false imprisonment, unsanitary and inhumane conditions, lack of communication, and being forced to sign documents. At the same time, he alleges his consultations were too “frequent.” [ECF No. 25-1, at 4 (stating “[t]he hospital frequently brought in medical professionals from other departments who did not work on my floor to see me, treating me as if I were a zoo animal. This unnecessary and dehumanizing practice added to my distress and further illustrates the lack of proper care and respect I received.”)]. In the entirety of the document, he makes only fleeting comments regarding negligence. First, regarding unsanitary and inhumane conditions, Plaintiff’s letter-form SF 95 states he: Encountered patients with poor hygiene in common areas, received spoiled milk, and experienced general unsanitary conditions. This was occurring during Covid hospital protocols, and I had to ask multiple times for staff members to put their mask on. This negligence endangered patient health and violates standards of care. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 19 of 37 PageID #: <pageID>
20 [Id., at 2]. Next, he states, under the umbrella of inadequate nutrition and weight loss: My dietary needs were ignored, leading to a 15-pound weight loss in one week. The food provided was often unappetizing and processed, failing to meet nutritional care standards. Due to the holiday expired milk and other unacceptable food was provided. All the snacks consisted of sugar and were extremely unhealthy. [Id.]. Yet, fatal to Defendant’s position, the introductory paragraph of Plaintiff’s letter-form SF 95 itself explicitly states: “[t]hrough their carelessness and negligence my overall health has declined. The following is an account of the medical negligence, gross negligence, and medical malpractice including the circumstances leading to this claim. . .” [ECF No. 25-1, at 1]. This is not a case where a plaintiff failed to provide any information; instead, Plaintiff’s letter-form SF 95 is at least nine pages long.5 See generally Romulus v. United States, 160 F.3d 131, 131 (2d Cir. 1998) (explaining that “[t]he mere act of filing a SF 95 does not necessarily fulfill the presentment requirement of § 2675(a). A claimant must provide more than conclusory statements which afford the agency involved no reasonable opportunity to investigate.”)). While sparse, and certainly not an exemplar of meticulous legal analysis, Plaintiff’s letter-form SF 95 nevertheless provided a reasonable opportunity for Defendant to investigate. For thoroughness, regarding the sum certain requirement, Plaintiff clearly established a sum certain through both his letter-form SF 95 and his Amended Complaint. Ahmed, 30 F.3d at 517 (referencing Kokaras v. United States, 980 F.2d 20, 22 (1st Cir. 1992) (explaining that a, “timely-presented claim stating a sum certain is necessary for a court to have jurisdiction to entertain a suit against the United States under the FTCA”), cert. denied, 126 L. Ed. 2d 43, 114 S. Ct. 74 (1993)). 5 The undersigned notes that ECF No. 25-1 includes a variety of attachments with no clear delineation from the parties as to which documentation was included with the letter-form SF 95. However, both parties seem to indicate that the letter-form SF 95 is inclusive of ECF No. 25-1, at 1-9. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 20 of 37 PageID #: <pageID>
21 Accordingly, after an exhaustive review of the letter-form SF 95 as related to the Amended Complaint, the undersigned FINDS that Plaintiff’s presentation of his claims to the VA are adequately presented throughout, such that he exhausted his administrative claims and the Court has jurisdiction here. B. Regarding Count One, Count Two, Count Four, and Count Five, there is no conceivable cause of action considering Plaintiff fails to state a claim. Defendant asserts that pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Plaintiff’s claims as encompassed in Count One, Count Two, Count Four, and Count Five must be dismissed inasmuch as there is no sufficient fact pled that would warrant intervention of this Court – let alone one warranting relief. The undersigned agrees. State substantive law applies in FTCA suits. Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991) (explaining “[s]tate law determines whether there is an underlying cause of action” in an FTCA suit). In short, to maintain a case under the FTCA, Plaintiff must demonstrate that his action is permissible under the FTCA and satisfies the necessary elements of a tort claim cognizable under West Virginia state law. That said, in federal court, a complaint must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The “sheer possibility that a defendant has acted unlawfully” is insufficient. Id. As discussed below, Count One, Count Two, Count Four, and Count Five fail to meet the requisite standard to state a claim under Federal Rule of Civil Procedure 12(b)(6). From the outset, the undersigned agrees with Defendant that these specific counts as presented in the Amended Complaint are near impossible to interpret. For context, Defendant’s argument: [takes] all of these claims together, and synthesizing the many duplicates claims in Plaintiff’s Amended Complaint, Plaintiff’s actual allegations which are encompassed by these counts are that: The Defendant did not properly evaluate and treat him Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 21 of 37 PageID #: <pageID>
22 He was coerced into admission or otherwise involuntarily admitted He was negligently kept at the facility though it was harmful to him Allowing/causing him to lose nine pounds The conditions of the ward he was admitted to were negligently maintained “for patients with mental health treatment,” specifically: o Inadequate temperature controls o Spoiled food o Denial of family contact o Denial of religious services o Degrading attire [ECF No. 25, at 6]. Although Defendant does not delineate among the claims in this fashion, the undersigned addresses Count One and Count Three separately, and addresses Count Two and Count Four together, considering the similar factual nature of the allegations. i. Count One – Negligence In order for Plaintiff to succeed with Count One, pursuant to the West Virginia Medical Professional Liability Act (“MPLA”), he must establish: “(a) the health care provider failed to exercise that degree of care, skill, and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and (b) such failure was a proximate cause of the injury or death.” W.Va. Code § 55-7B-3. Considering this, Plaintiff must plead that Defendant proximately caused his injuries. “[It is a] fundamental legal principle . . . that negligence . . . must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury [in order to be actionable].” Syl. Pt. 2, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 22 of 37 PageID #: <pageID>
23 427 (W. Va. 1965). Regarding proximate cause, pursuant to West Virginia law, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, 320 (W. Va. 2001) (quoting Syl. Pt. 5, Hartley v. Crede, 140 W. Va. 133, 82 S.E.2d 672 (W. Va. 1954), overruled on other grounds by State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (W. Va. 1983)). Lastly, “the determination of whether a cause of action falls within the MPLA is based upon the factual circumstances giving rise to the cause of action, not the type of claim asserted.” Blankenship v. Ethicon, Inc., 221 W.Va. 700, 656 S.E. 2d 453-54 (2007)(emphasis added); see also Minnich v. MedExpress Urgent Care, Inc., 238 W. Va. 533, 537, 796 S.E.2d 642, 646 (2017)(explaining “[i]f a claim falls squarely under the MPLA, the manner in which a complaint is drafted will not prevent the invocation of the MPLA.”)). Simply, Plaintiff fails to sufficiently plead conduct that meets the required elements for a medical negligence claim. In order to state a claim for medical negligence under applicable law, he must allege that Defendant “failed to exercise that degree of care, skill, and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances. . . ”. W.Va. Code § 55- 7B-3(a). Even assuming Plaintiff’s allegations are true, he does not allege anything about what the standard of care is for an individual seeking assistance for “severe insomnia and symptoms related to a recent head injury.” [ECF No. 23, at 3, at ¶ 7]. As Defendant rightly argues, “[f]or all of these particular allegations [Count One, Count Two, Count Four, and Count Five], Plaintiff does not allege who was involved, he does not allege what a reasonable medical provider in a similar circumstance would do, why it is a breach of the standard of care, or what the standard of care was. In other words, though he proclaims that he has problems with the care and services, he does not Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 23 of 37 PageID #: <pageID>
24 detail why such actions are violative of the standard of care in any meaningful way.” [ECF No. 25, at 8]. Moreover, as Defendant convincingly points out, “[t]hough [Plaintiff] includes broad sweeping statements of his injuries, there is never an explanation of how any particular breach of the standard of care caused any particular injury. The Amended Complaint does not provide any details summarizing anything about what was deficient about any care he received and how it harmed him. It is precisely the type of vague and conclusory allegations that are insufficient to maintain a claim.” [Id.]. Plaintiff counters that Count One aims to “address[] the VA’s failure to properly evaluate Plaintiff, failure to treat the condition for which he sought help, and continuation of care in a harmful environment. This is general negligence—the failure to exercise reasonable care—arising from conduct that any reasonable person, not just a physician, would recognize as deficient.” [ECF No. 27, at 7]. However, he is misguided. He fails to meet the first element considering he does not provide any allegation about what the applicable standard of care is specifically regarding Count One and negligence. As such, he fails to “raise the right relief above a speculative level.” Twombly, 550 U.S. at 555. Accordingly, the undersigned FINDS that Plaintiff fails to state a plausible claim for negligence, under Count One. ii. Count Two – Negligent Confinement and Count Five – Negligent Conditions of Confinement Despite Plaintiff’s attempts, he remains unpersuasive as to his negligent confinement claim under both Count Two and Count Five. To be fair, Plaintiff is correct that both the Supreme Court of the United States and the Fourth Circuit have “recognized that claims arising from negligent conduct may proceed under the FTCA even when they occur alongside conduct that might otherwise be characterized as an intentional tort.” [ECF No. 27, at 9, referencing Sheridan v. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 24 of 37 PageID #: <pageID>
25 United States, 487 U.S. 392 (1988); also referencing Medina, 259 F.3d at 225]. Moreover, the MPLA does not explicitly coin or utilize the term of “negligent confinement,” and Plaintiff does not sufficiently articulate such a claim. Under W. Va. Code § 55-7B-2, “medical professional liability” includes “any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.” W. Va. Code § 55-7B-2(i). In addition, this incorporates “other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.” Id. Pertinently, “[q]uestions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.” Syl. pt. 6, McAllister v. Weirton Hospital Co.,173 W. Va. 75, 312 S.E.2d 738 (1983); see also Adams v. El-Bash, 175 W. Va. 781, 786, 338 S.E.2d 381, 387 (1985). In order to survive a motion to dismiss, and be facially plausible, the facts alleged must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Considering that Plaintiff’s allegations are “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” Plaintiff cannot pass the requisite muster. Id., at 678. In essence, Plaintiff hinges much of his argument, as to both Count Two and Count Five, on the allegedly insufficient consent he himself provided the VA hospital. Specifically, he argues, “Count II does not allege that VA staff intentionally detained Plaintiff without justification. It alleges that the medical decision-making that led to and continued the confinement fell below the standard of care. The distinction matters. False imprisonment Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 25 of 37 PageID #: <pageID>
26 requires intentional confinement without consent or legal authority. Negligent confinement alleges that a medical provider’s negligent clinical judgments resulted in unnecessary deprivation of liberty.” [ECF No. 27, at 9]. In particular, he believes, “the gravamen of Count II is that VA staff negligently failed to obtain valid informed consent (obtaining consent at 4:49 a.m. from an impaired patient), negligently failed to reassess whether continued confinement was appropriate (despite documenting the environment was harming Plaintiff), and negligently deprived Plaintiff of liberty as a result. These are failures of medical judgment—negligence—not deliberate imprisonment.” [Id.]. While his response in opposition includes attempts at clarifying the intentions that his letter-form SF 95 and Amended Complaint lacked, Plaintiff still fails to plead how “the health care provider failed to exercise that degree of care, skill, and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances” and “such failure was a proximate cause of the injury or death.” W.Va. Code § 55-7B-3 (emphasis added). Plaintiff argues, “VA employees breached that duty by failing to properly evaluate Plaintiffs condition, failing to treat the insomnia that was the primary reason for [Plaintiff’s] visit, obtaining consent under coercive circumstances from a sleep-deprived patient with a head injury, and continuing confinement despite staff observations that the environment was harming Plaintiff.” [ECF No, 23, at 6, ¶ 29]. Given the totality of his 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. At bottom, as Defendant persuasively explains, “Plaintiff does not allege who was involved, he does not allege what a reasonable medical provider in a similar circumstance would do, why it is Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 26 of 37 PageID #: <pageID>
27 a breach of the standard of care, or what the standard of care was. In other words, though he proclaims that he has problems with the care and services, he does not detail why such actions are violative of the standard of care in any meaningful way.” [ECF No. 25, at 8]. Considering Plaintiff’s Amended Complaint wholly fails to identify what was “expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances,” he fails to state a viable claim upon which relief can be granted. Accordingly, the undersigned FINDS that the claim under Count Two fails. Inasmuch as Plaintiff also claims negligent conditions of confinement in Count Five, the undersigned’s assessment remains akin to Count Two. He likewise fails to state viable claim. Plaintiff states that Count Five “addresses the physical environment of the ward—temperature, food quality, access to family and religious services—which were inadequate for patients admitted for mental health treatment.” [ECF No. 27, at 6-7]. In its reply, Defendant continues to argue that the negligent confinement claims are false imprisonment claim and points out that it is “unaware of any particular tort of ‘negligent confinement’ in this context. Thus, this must either a false imprisonment claim or a medical negligence claim.” [ECF No. 28, at 3]. While the undersigned agrees with Defendant that there is seemingly no “tort of negligent confinement,” the assessment must apply the factual circumstances, not the label of the claim. Plaintiff argues that, from his perception, Defendant’s VAMC had poor temperature management, suboptimal visitation practices, poor food quality, and imperfect religious services. Plaintiff argues this amounts to negligent confinement conditions. However, Plaintiff continues to utterly fail to identify any specific act or omission, by any government employee, that states a plausible claim. For example, he takes issues with the “physical environment of the ward,” yet fails to create any viable linkage Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 27 of 37 PageID #: <pageID>
28 between his gripes and any alleged conduct of a VA employee during his stay. Plaintiff does not provide any particularized context that would allow this Court to consider his claim of negligent conditions of confinement as plausible. In sum, that Plaintiff 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. Accordingly, the undersigned FINDS that Plaintiff fails to state a claim under Count Five. iii. Count Four – Medical Malpractice In West Virginia, the fundamentals of a medical malpractice action arise from a physician- patient relationship. Rand v. Miller,185 W. Va. 705, 706, 408 S.E.2d 655, 656 (1991). Where a physician-patient relationship is established, the physician owes the patient a duty of care when rendering medical services. Id. Pursuant to West Virginia Code § 55-7B-3(a), “the following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care: (1) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and (2) Such failure was a proximate cause of the injury or death. W. Va. Code § 55-7B-3. Additionally, Plaintiff “bears the burden of proving negligence and lack of skill on the part of the physician proximately caused the injuries suffered.” Bellomy v. United States, 888 F. Supp. 760, 764 (S.D. W. Va. 1995) (referencing Hicks v. Chevy,178 W. Va. 118, 121, 358 S.E.2d 202, 205 (1987); also referencing Syl. Pt. 2, Totten v. Adongay,175 W. Va. 634, 337 S.E.2d 2 (1985)). Plaintiff fails to plead the necessary elements under W. Va. Code § 55–7B–3. First, according to the statute, Plaintiff must explain how “[t]he health care provider failed to exercise Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 28 of 37 PageID #: <pageID>
29 that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances.” W. Va. Code § 55–7B–3. But Plaintiff does not do that. Rather, all Plaintiff offers in the Amended Complaint is, “VA medical personnel breached the standard of care by: obtaining consent at 4:49 a.m. from a severely sleep-deprived patient with a recent head injury; failing to treat the insomnia that was the reason Plaintiff sought help; allowing Plaintiff to lose nine pounds in six days without intervention; and continuing treatment in an environment that staff documented was harming the patient.” [ECF No. 23, at 8, ¶ 43]. This does not amount to actionable conduct, as pled, considering Plaintiff does not plea how Defendant “failed to exercise [the] degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances.” West Virginia Code § 55–7B–3. Plaintiff may have been displeased with the quality of care he received, or the assessments of the underlying medical personnel, but he offers no factual allegations to show how the complained conduct falls short of the degree of care expected of a reasonable healthcare professional(s). Instead, he offers mere conclusory allegations that the care he received is actionable without pleading how it is so. What is more, Plaintiff has pled nothing more than conclusory statements regarding how such alleged failure was a proximate cause of any alleged injury, as indicated under Bellomy. Accordingly, the undersigned FINDS that Plaintiff fails to state a claim for medical malpractice under Count Four. C. Plaintiff fails to state a sufficient claim for intentional infliction of emotional distress. Critical to the instant inquiry for Count Three, “[i]ntentional infliction of emotional distress is a highly disfavored claim in the Fourth Circuit.” Weth v. O'Leary, 796 F. Supp. 2d 766, 774 Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 29 of 37 PageID #: <pageID>
30 (E.D. Va. 2011); see also Pegg v. Herrnberger, 845 F.3d 112, 122 (4th Cir. 2017) (“It is difficult to overstate the high burden of proof required to sustain a tort claim for intentional infliction of emotional distress/outrage.”)). At bottom, Plaintiff’s allegations fall short of meeting the required threshold. Pursuant to West Virginia law, in order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, the following four elements must be established: (1) that the “defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency;” (2) that the “defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct;” (3) that the “actions of the defendant caused the plaintiff to suffer emotional distress;” and, (4) that the “emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.” Travis v. Alcon Lab'ys, Inc., 202 W. Va. 369, 371, 504 S.E.2d 419, 421 (1998). As Defendant correctly points out, “[t]he liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Travis, 504 S.E.2d at 425 (citing Tanner v. Ride Aid of West Virginia, Inc., 461 S.E.2d 149, 156-57 (W. Va. 1995)). As for the prongs of the Travis test, Plaintiff does not meet the first or second prongs, such that analysis of the remaining prongs is unnecessary. Regarding the first Travis prong, West Virginia courts examine 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. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 30 of 37 PageID #: <pageID>
31 Syl. Pt. 4, Travis, 504 S.E.2d at 419 (emphasis added). More precisely, a court must find, as a matter of law, that a defendant’s conduct is: so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which 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!” Zsigray v. Langman, 243 W. Va. 163, 174, 842 S.E.2d 716, 727 (2020) (referencing Tanner, 461 S.E.2d at 157 (quoting Restatement (Second) of Torts § 46(1) Comment (d) (1965)); see also Hatfield v. Health Mgmt. Assocs. of W. Va., 223 W. Va. 259, 672 S.E.2d 395, 404 (W. Va. 2008)(providing that a trial court must determine whether the complained conduct is legally outrageous)). Examples of conduct that did not meet the requisite threshold under West Virginia law include: an employee alleging retaliation considering a change in job assignments6; a bitter conflict excluding a son from funeral arrangements of his father that were considered by the court to petty and mean spirited7; an employee who claimed his employer treated him like a dog, and implied he was a thief8; when a corrections officer utilized Oleoresin Capsicum (“O.C.”) spray to discontinue an incarcerated individual from spitting on the officer9; and mocking remarks made by an employer about an employee’s physical abilities.10 6 See Love v. Ga.-Pacific Corp., 209 W. Va. 515, 525, 550 S.E.2d 51, 61 (2001). 7See Keyes v. Keyes, W. Va., 392 S.E.2d 693 (1990). 8See Kanawha Valley Power Co. v. Justice, 181 W. Va. 509, 383 S.E.2d 313 (1989) (providing,“[a]s the Restatement further explains, liability may be imposed for outrageous conduct only where the distress that results is more than the 'transient' and 'trivial' distress that necessarily accompanies life among other people. 'The law intervenes only where the distress is so severe that no reasonable [person] could be expected to endure it.’” W. Va. at 383 S.E.2d at 317 (quoting Restatement (Second) of Torts SECTION 46, Comment J)). 9 See Fitzpatrick v. McKnight, No. 2:24-cv-00286, 2026 U.S. Dist. LEXIS 29420, at *7 (S.D. W. Va. Feb. 12, 2026)(providing that considering the totality of the circumstances, and the “. . . deployment of O.C. spray was the correct use of force in this situation under West Virginia Division of Corrections and Rehabilitation policy. . . a reasonable and rational trier of fact could not find that his use of O.C. spray was outrageous.”)). 10 See Napier v. Stratton, 204 W. Va. 415, 418, 513 S.E.2d 463, 466 (1998). Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 31 of 37 PageID #: <pageID>
32 Plaintiff does not plead how the conduct alleged is reasonably considered to be outrageous, under Travis. He fails to illustrate, under the first prong, how Defendant’s conduct rises to the level of “atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency.” Travis, 504 S.E.2d at 419. Plaintiff may have endured unpleasant circumstances, but this alone is insufficient. Per above-noted caselaw, the Fourth Circuit disfavors this cause of action, and West Virginia courts have disallowed the claim in a wide array of circumstances. 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. Plaintiff appears to have undergone treatment during a pronounced mental health event. During that time, his contact with family was limited and he was unable to move about freely for a period of days. He was unhappy with hospital fare. Such allegations do not allow the Court here to reasonably consider the alleged conduct to be outrageous. As for the second Travis prong, Defendant rightly argues that “[t]here is simply nothing in the Amended Complaint to indicate that Plaintiff could ever meet element [two], ‘that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct.’” [ECF No. 25, at 10]. Even assuming the alleged conduct transpired precisely as Plaintiff alleges, he continues to fall short. His discontents regarding food choice, overall facility conditions, and visitor availability are merely grievances about the level of patient care. It does nothing to establish the requisite intentionality or recklessness. In addition, his confinement and “permanent flag” are what might reasonably be expected for a patient who is hospitalized for an apparent mental health event. Thus, even by the permissive standard of pro se pleadings, this is too inadequate. Plaintiff offers nothing at all in support of the assertion that Defendants acted intentionally with the aim of inflicting emotional distress. Plaintiff's claim fails to meet the second Travis prong. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 32 of 37 PageID #: <pageID>
33 At bottom, Plaintiff’s mere conclusory allegations cannot satisfy the strict standard under Fourth Circuit and West Virginia law regarding intentional infliction of emotional distress. Plaintiff’s allegations are exactly “the type of 'unadorned, the-defendant-unlawfully-harmed- me accusation[s]' and 'legal conclusions' that are insufficient to survive a Rule 12(b)(6) motion to dismiss.” Iqbal, 566 U.S. 678. Accordingly, the undersigned FINDS that Plaintiff fails to state a claim for intentional infliction of emotional distress, under Count Three. D. Plaintiff’s conversion claim is insufficiently pled, rendering it deficient. Lastly, regarding Count Six, the inquiry is whether Plaintiff fails to sufficiently pled a claim for conversion pursuant to West Virginia law. 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). Moreover, “[t]he term ‘no legal right’ is equated to a wrongful exercise of dominion.” Id. Additionally, “[a]ny distinct act of dominion wrongfully exerted over the property of another, and in denial of his rights, or inconsistent therewith, may be treated as a conversion and it is not necessary that the wrongdoer apply the property to his own use. And when such conversion is proved the plaintiff is entitled to recover irrespective of good or bad faith, care or negligence, knowledge or ignorance.” Id. (citing Miami Coal Co., Inc. v. Hudson, 175 W.Va. 153, 332 S.E.2d 114 (1985)). Notably, conversion does not require a showing of “[b]ad faith or evil motive.” Id. Plaintiff’s Amended Complaint simply alleges the VA employees failed to inventory and return his personal items, namely his Soldier’s Leadership Bible and personal notes. [ECF No. 23, at 9, ¶ 51]. Standing alone, that leaves the Court little to evaluate. However, considering his pro Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 33 of 37 PageID #: <pageID>
34 se status, the undersigned notes additional information contained in Plaintiff’s response in opposition, and his Declaration attached to response in opposition to Defendant’s Motion to Dismiss. These provide further, previously omitted, details and insight for this claim. [See generally ECF Nos. 27, 27-1]. Specifically, he notes that medical documents include explicit references to the existence of both his personal writings and Bible. [ECF No. 27, at 14]. For example, he explains his medical records indicate that he: used [his] written observations to present organized, specific concerns to VA staff throughout [his] stay. . . presented a detailed list of unit improvement needs including staff mask compliance, barber services for patients, organization of items in the dayroom, the temperature of the telephone, and the observation that the unit felt “kind of like a jail and not a place of recovery. . . presented a specific safety recommendation regarding toilet paper dispensers, demonstrating how existing supplies could be used for self-harm while making clear that [he] had no desire to harm [himself] and was reporting the concern to improve safety for other patients. . . . [His] personal Bible—a Soldier’s Leadership Bible—was in [his] possession on the ward. VA clinical notes document [him] “reading his bible” and describe [him] as “bent over clutching his knees and or his Bible” during group sessions. The Bible contained written notes and important indexed passages. [ECF No. 27-1, at 2, ¶ 5, 7]. In addition, he declares: On December 30, 2022, [he] was discharged. Upon discharge, [he] was unable to locate all of [his] belongings that were in [his] room. [His] handwritten notes, journal, and Bible were not returned to [him]. The discharge belongings inventory does not account for [his] papers, notes, or Bible. To the best of [his] knowledge, this property has been lost, withheld, destroyed, or otherwise converted while under Government control. [He has] not received any of these items since discharge despite requests. [Id., at 4, ¶ 8]. Defendant argues, regarding the Bible, that Plaintiff’s “administrative remedy only specifically details that handwritten notes were missing, thus his claim regarding the Bible has not been exhausted.” [ECF No. 25, at 11]. However, Defendant’s position is misguided. Considering the assessment above, regarding requirements of written notice, the Bible not being included in Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 34 of 37 PageID #: <pageID>
35 the original letter-form SF-95 was not required inasmuch as the VAMC was on notice of his missing material in general. Certainly, it provided sufficient notice to the VA to investigate the inquiry, given the detail of the letter-form SF-95. [See generally ECF No. 25-1]. Specifically, Plaintiff alleged the VA “[failed] to provide proper documentation and belongings” and his “personal belongings, including important paperwork, were removed and not returned, causing distress and loss of property. Personal notes and written materials that [he] was working on came up missing.” [ECF No., 25-1, at 3] (emphasis added). Yet, Plaintiff’s conversion must fail, given the overall vagueness and inconsistency of the allegations. His factual allegations regarding conversion generally are as follows: (1) “VA staff failed to inventory these items and failed to return them upon Plaintiffs discharge,” [ECF No. 23, at 10, ¶ 52], (2) “[u]pon discharge, [he] was unable to locate all of [his] belongings that were in [his] room. [His] handwritten notes, journal, and Bible were not returned to [him]. The discharge belongings inventory does not account for [his] papers, notes, or Bible. To the best of [his] knowledge, this property has been lost, withheld, destroyed, or otherwise converted while under Government control . . .” [ECF No. 27-1, at 4, ¶ 8], and (3) he notes that the medical records indicate the presence of his Bible and notes. [See generally ECF No. 27-1]. These statements, among others throughout his filings, provide a disjointed factual context regarding conversion. Specifically, it is not clear whether Plaintiff is alleging conversion because Defendant did not properly inventory his belongings, because Defendant took them, or because Defendant allegedly lost them. With such vague pleading, the Court is left wondering who exercised “dominion over the personal property,” per Rodgers, and under what circumstances. And if the Court must guess what Plaintiff is alleging here, then Plaintiff fails to state a claim for which relief can be granted. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 35 of 37 PageID #: <pageID>
36 To be clear, there is no evidence in the record that the allegedly converted items were specifically inventoried and assumed by the VA. On the contrary, while Plaintiff points to records indicating he was taking notes throughout his stay at the VA, he does not detail how and when the items themselves were converted into the alleged wrongful possession of the VA. Even more detrimental to his position, per his own allegations, it seems that throughout his time at the VA, it was Plaintiff himself who had control and dominion over his notes and Bible. By failing to indicate any specifics surrounding at what juncture Defendant allegedly gained control of over the property in question, he fails to plausibly state a claim of conversion against Defendant. Accordingly, the undersigned FINDS that Plaintiff fails to state a claim for conversion, under Count Six. V. CONCLUSION For the reasons stated herein, the undersigned FINDS that Plaintiff fails to state a viable claim with respect to any cause of action in the Amended Complaint. The undersigned respectfully RECOMMENDS that Plaintiff’s Amended Complaint [ECF No. 23] be DISMISSED without prejudice, and Defendant’s Motion [ECF Nos. 24] to Dismiss for Failure to State a Claim and Partial Motion to Dismiss for Lack of Jurisdiction be GRANTED. In addition, the undersigned RECOMMENDS the Defendant’s first Motion to Dismiss for Failure to State a Claim [ECF No. 16] be DENIED as MOOT. Any party shall have fourteen (14) days from the date of service of this Report and Recommendation to 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. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 36 of 37 PageID #: <pageID>
37 pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12. Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984). The Clerk of the Court is DIRECTED to transmit copies of this Report and Recommendation to the pro se Plaintiffs by certified mail, return receipt requested, and to 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 June 1, 2026. Case 1:25-cv-00057-TSK-MJA Document 29 Filed 06/01/26 Page 37 of 37 PageID #: <pageID>
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