                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1494


SOTINA LAVALE CUFFEE, deceased, Estate of, by and through
her administrator, Bradley A. Cuffee,

                Plaintiff - Appellant,

           v.

JOHN R. NEWHART, individually and in his official capacity
as Sheriff of the City of Chesapeake,

                Defendant – Appellee,

           v.

WEXFORD HEALTH SOURCES, INCORPORATED,

                Third Party Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:08-cv-00329-JBF-DEM)


Argued:   October 23, 2012                 Decided:   November 29, 2012


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jeroyd Wiley Greene, III, ROBINSON & GREENE, Richmond,
Virginia, for Appellant.   Jeff W. Rosen, PENDER & COWARD, PC,
Virginia Beach, Virginia, for Appellees. ON BRIEF: Lisa Ehrich,
PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellee John
R. Newhart.   Andrew J. Terrell, Thomas C. Mugavero, WHITEFORD,
TAYLOR & PRESTON, LLP, Falls Church, Virginia, for Appellee
Wexford Health Sources, Incorporated.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        The Estate of Sotina LaVale Cuffee ("Cuffee's Estate" or

"The    Estate")       appeals      the    district        court's    grant    of    summary

judgment       to    John     R.    Newhart,        the    Sheriff     of    the    City    of

Chesapeake, Virginia, on several claims arising from Cuffee's

death    while       incarcerated         at   the    Chesapeake       City    Jail    ("the

Jail").       For the reasons set forth below, we affirm the district

court’s judgment.



                                               I.

       The parties do not dispute the material underlying facts:

The    Jail    contracted          with    Wexford        Health    Sources,       Inc.,   for

Wexford       to    provide     on-site        medical      and     dental    services      to

inmates.           The contract provided for inmates to submit health

services request forms regarding any medical or dental issues.

The contract required that within a set turnaround period, the

forms would be reviewed, and, for medical issues, a registered

nurse or physician would see the inmate.                            A similar provision

required dentists to see patients for "acute" dental issues.

       Over    the     course      of     approximately       two-and-a-half         months,

Cuffee    filed       five    health      services        request    forms,    complaining

first of a painful toothache and later of severe chest pains,

tingling in her arms and back, and insomnia.                         Licensed practical

nurses     ("LPNs")         examined      Cuffee      and    processed       her    services

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request forms on each occasion, and one of the LPNs assessed

that    Cuffee        had      "possible          indigestion."                In   apparent

contravention        of    Wexford's     contract         with      the     Jail,   however,

although Cuffee requested to be seen by a medical doctor for her

medical       complaints,       she     received         no       further    treatment     or

screening by an RN or physician.                         Cuffee's last request for

health services came the morning of July 17, 2006.                              An LPN gave

Cuffee an antacid and told her to submit another request to be

seen by a medical doctor.                    Cuffee was then returned to her

"pod," where her condition worsened throughout the day.                               Fellow

inmates informed corrections officers, who declared a medical

emergency.          Despite    the     efforts      of    corrections          officers   and

responding          emergency         medical       technicians,             Cuffee       lost

consciousness        and     died.      An    autopsy         indicated      that   Cuffee's

death was caused by coronary artery atherosclerosis.

       Cuffee's Estate initially filed a complaint in the Eastern

District      of    Virginia    alleging        several        claims     against     various

known       and    unknown    Wexford        medical      staff,        Jail    corrections

officers, and Sheriff Newhart.                    Decisions by the district court

not at issue on appeal led to the operative pleading in this

case    –    the    Second     Amended       Complaint        –    alleging     claims    for




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violation of 42 U.S.C. § 1983, gross negligence, and breach of

contract against Sheriff Newhart. 1

      The parties filed cross-motions for summary judgment.                    The

district court concluded that although

      the ultimate statutory responsibility for inmate
      medical care lies with Sheriff Newhart and . . .
      [Cuffee's Estate] appears to have identified certain
      omissions by Sheriff Newhart in connection with
      [overseeing] the City's contract with Wexford[,] there
      does not appear to be anything in the record of this
      case showing any causal connection between those
      apparent omissions by Sheriff Newhart and the alleged
      omissions by Wexford and/or its personnel that may
      have led to decedent's death.

(J.A. 473.)     The district court held that because causation was

a   necessary   element    of   each    of    the   Estate's    claims   against

Sheriff   Newhart,   the   Estate      could    not,   as   a   matter   of   law,

prevail on any of its claims.               Accordingly, it granted Sheriff

Newhart's motion for summary judgment and dismissed the case. 2



      1
       Cuffee's Estate sued Sheriff Newhart "individually and in
his official capacity as Sheriff of the City of Chesapeake."
(J.A. 28.)   The district court held that the Estate's "claims
against [Sheriff Newhart] in his official capacity are . . .
precluded by the Eleventh Amendment" given that he is a state
officer. (J.A. 474.) The Estate does not challenge that ruling
on appeal, and the remaining analysis focuses solely on the
claims against the Sheriff in his individual capacity.
      2
       The Estate's claims against Wexford and Wexford's medical
personnel were barred by the statute of limitations.     Sheriff
Newhart had filed a third-party complaint against Wexford
seeking indemnification under the contract for any recovery
against him in this action. That claim had been severed, and as
a result of the district court's disposition of the Estate's
(Continued)
                                        5
       Cuffee's      Estate        noted    a       timely        appeal,     and     we    have

jurisdiction under 28 U.S.C. § 1291.



                                            II.

       We review the district court's grant of summary judgment de

novo, applying the same standard as the district court.                                      See

Nat'l City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 329 (4th

Cir.   2006).        Summary       judgment         is    appropriate       "if   the      movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law."

Fed. R. Civil Pro. 56(a).



                                           III.

       The      central   issue      Cuffee's            Estate    raises    on     appeal    is

whether      the   district    court       erred         in   holding     that    the      record

failed     to    establish     a    proximate            casual    link     between     Sheriff

Newhart's alleged omissions in overseeing the Jail's contract

with Wexford and Wexford employees' conduct that led to Cuffee's

death. 3     It specifically contends that the record contains facts




claims against Sheriff Newhart, the district                                      court     also
dismissed the third-party complaint as being moot.
       3
        Cuffee's Estate also challenges the district court's
exclusion of evidence the Estate claims supports a finding of
Sheriff Newhart's deliberate indifference, and its conclusion
(Continued)
                                                6
on     which     a     jury     could    have          found      the     requisite          causal

connection.            To support this argument, the Estate points to

evidence        showing        that     Wexford         alerted          Sheriff        Newhart's

designated officer of an immediate need for additional nursing

staff    at     the     Jail;     Sheriff      Newhart's               internal       2005       audit

recognized       medical       staffing     shortages             at    the    Jail;     and       the

testimony of the Estate's expert witness, Dr. David Walthall

Richardson, opining that Cuffee's death could have been avoided

had    she     received       earlier   proper         care    each       of    the    times       she

submitted a health services request form in the weeks prior to

her death.

       Although Cuffee's Estate brought three separate causes of

action       against    Sheriff       Newhart,         the    claims      share       the    common

element of causation.             See Shaw v. Stroud, 13 F.3d 791, 798-99

(4th    Cir.     1994)    (observing        that        a    42    U.S.C.       §     1983       claim

premised on a supervisor's deliberate indifference exists where

a     supervisor's        "indifference            or        tacit        authorization             of

subordinates'          misconduct       [is]       a     causative            factor"       in     the



that Sheriff Newhart was entitled to qualified immunity against
a claim of ordinary negligence.     We need not address either
argument given our agreement with the district court that all of
the Estate's claims fail due to an absence of evidence of
causation.   See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (“[A] complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all
other facts immaterial.”).



                                               7
plaintiff's injury); Stone v. Ethan Allen, Inc., 350 S.E.2d 629,

631 (Va. 1986) (stating that breach of contract requires, inter

alia,    "harm     or       damage    to    the    plaintiff       as    a    proximate

consequence of the violation or breach") (quotation marks and

citation omitted); Smith v. Prater, 146 S.E.2d 179, 182-83 (Va.

1966)    (stating       that        gross   negligence       requires         proof   of

causation).       We have previously recognized that

       [a]lthough issues of causation are to be decided by
       the jury, whether the evidence is sufficient to create
       a jury issue is solely a question of law to be
       determined by the court. In diversity cases in which
       the sufficiency of the evidence to create a jury
       question is presented, this court resolves the issue
       based on the federal rule.     That rule presents the
       question whether there is evidence on which a jury
       properly can base a verdict.

Charleston Area Med. Ctr., Inc. v. Blue Cross & Blue Shield Mut.

of    Ohio,   Inc.,     6    F.3d    243,   247    (4th    Cir.    1993)      (internal

citations omitted).           "Fair and proper adjudication of disputes .

. . precludes jury consideration of a party's claim unless the

party produces evidence demonstrating that claim to be at least

a    reasonable    probability        rather      than    merely   one       of   several

equally surmisable possibilities."                 Id.; see also Shaw, 13 F.3d

at 799 (discussing an "affirmative causal link" necessary to

survive summary judgment in the context of a § 1983 deliberate

indifference claim).

       Here, Cuffee's Estate relies on evidence it proffered that

may have proven that Sheriff Newhart knew there were medical

                                            8
staffing    shortages    at     the       Jail.      But   that    evidence    is   not

sufficient to survive summary judgment as it is not proof of the

critical    element     of    causation.           Even    assuming    the    Estate's

evidence    was   sufficient         to    prove     Sheriff      Newhart's    alleged

omissions in overseeing the Jail's medical staffing, the Estate

also had to provide evidence that Sheriff Newhart's acts led to

Cuffee's death.       The record lacks any evidence to show that the

staffing shortages caused or otherwise contributed to Cuffee's

death.     A jury verdict that the two were related would be based

on pure speculation rather than a legally sufficient showing of

proximate cause, i.e., a supportable finding that Cuffee's death

was a natural and foreseeable consequence of any omissions on

Sheriff     Newhart's        part    with       respect     to    medical     staffing

shortages at the Jail.          Cf. Charleston Area Med. Ctr., 6 F.3d at

247-48     (discussing       speculative          conclusions     of   causation     as

opposed to actual evidence thereof).

     Having    reviewed        the    evidence       as    well   as   the    parties'

arguments, we agree with the district court's conclusion that

"there is nothing in the record to suggest that [Cuffee] was not

correctly assessed or seen by a medical doctor because of the

apparent     staffing    shortages          of     which    Sheriff    Newhart      was

allegedly     deliberately          indifferent.           Consequently,      in    the

absence of any such affirmative causal link, [the Estate's]"

claims against Sheriff Newhart must fail.                    (J.A. 485.)       Indeed,

                                            9
as the district court aptly observed, the Estate's own expert

witness,     Dr.    Richardson,    testified      as    to   the   lack   of    any

evidence making the requisite causal link:

      Q      Do you have any facts that the reason that the
             [LPN] didn't provide [sic] Ms. Cuffee to a doctor
             or an RN was caused by nursing shortages?

      A      No, I don't have any facts of that.  My opinion
             is that the nurse should have done better, that
             nurse.

      . . . .

      Q      . . . The nurse could have made the decision not
             to present, say that she is not sick enough for
             an EKG and not told the doctor.   To the best of
             your knowledge, you don't know why the nurse did
             what she did?

      A      That's true.

      Q      And it has no basis on whether there's a nursing
             shortage or not?

      A      That is true.

(J.A. 485.)        Cuffee's Estate cannot rise above its own evidence.

See Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,

522   (4th   Cir.    2003)   (“A   party     opposing   a    properly   supported

motion     for     summary   judgment      may   not    rest    upon    the    mere

allegations or denials of [its] pleadings, but rather must set

forth specific facts showing that there is a genuine issue for

trial.     [N]either unsupported speculation, nor evidence that is

merely colorable or not significantly probative will suffice . .

. .”) (internal quotation marks and citations omitted).                        Even


                                        10
the Estate’s own expert witness could not identify any reason to

attribute       Wexford's      medical    personnel's         decisions      regarding

Cuffee's treatment to a medical staffing shortage at the Jail.

None   of   the    Estate's      other    evidence         provides    a   "reasonable

probability"      that   such     a     causal    link      exists     either.      Cf.

Charleston Area Med. Ctr., Inc., 6 F.3d at 247.                            Because the

record does not contain any evidence of causation, the Estate's

claims each fail as a matter of law.                       See Celotex Corp., 477

U.S.   at   322    (stating      that     summary      judgment       is   appropriate

“against    a    party   who    fails    to     make   a    showing    sufficient    to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.”).



                                          IV.

       For the reasons set forth above and in the district court's

opinion, we find no error in the district court's decision to

grant summary judgment to Sheriff Newhart and dismiss this case.

Accordingly, that judgment is

                                                                             AFFIRMED.




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