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)
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].
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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.
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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
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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].
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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].
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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.
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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].
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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
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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
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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
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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).
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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
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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
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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.
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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
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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.
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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.
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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
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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.
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[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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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(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.
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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).
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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.
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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
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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
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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.
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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
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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.
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