Present: All the Justices 

OLUDARE OGUNDE 

v. Record No. 061121 OPINION BY JUSTICE ELIZABETH B. LACY 

 June 8, 2007 

PRISON HEALTH SERVICES, 

INC., ET AL. 

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY 

Samuel E. Campbell, Judge 

 Prison Health Services, Inc. (PHS) provides medical 

services to persons incarcerated at certain state correctional 

centers, including Greensville Correctional Center, pursuant 

to a contract with the Virginia Department of Corrections 

(VDOC). In 2005, Oludare Ogunde was an inmate at Greensville 

Correctional Center. Acting pro se, Ogunde filed a motion for 

judgment against PHS and its employees Katie M. Hamlin, 

Benjamin Ellis, Joan Hill, RN, and Doctors Amjad Mughal and 

Nagash Tesemma (the Employees or the PHS Employees).1 In his 

complaint, Ogunde alleged that he suffered from a skin 

condition diagnosed as "severe acne cysts and acne 

keloidalis," and that this condition was aggravated by 

shaving. According to the complaint, PHS and the Employees 

denied Ogunde proper medical treatment for his skin condition 

 1

 Ogunde also brought a claim against a "Dr. Stephens." 

Dr. Stephens was never served and is not a party to this 

appeal. 
2

and failed to issue him an exemption from VDOC's inmate 

grooming policy.2

 Ogunde's complaint identified seven claims for relief 

against PHS and the Employees: negligence or gross 

negligence; intentional infliction of emotional distress; 

medical malpractice; breach of contract; cruel and unusual 

punishment in violation of Section 9, Article I of the 

Constitution of Virginia; and a violation of his 

constitutional rights under the Eighth Amendment of the United 

States Constitution. Ogunde sought, inter alia, compensatory 

damages and an injunction requiring PHS and the Employees to 

provide him medical treatment and to issue him an exemption 

from the inmate grooming policy. 

The trial court dismissed Ogunde's negligence, gross 

negligence and medical malpractice claims, finding that PHS 

and the Employees were employees or agents of the 

Commonwealth, not independent contractors, and as such were 

entitled to sovereign immunity. The trial court also 

dismissed the breach of contract claim finding that there was 

 2

 VDOC's Operating Procedure prohibits male inmates from 

wearing goatees or beards. It provides, however, that if an 

inmate "has a medical condition that is aggravated by shaving 

or complete removal of facial hair, the offender must receive 

a 'no shave' medical order from the institutional medical 

authority. Offenders who have a 'no shave' medical order must 

continually trim all facial hair to not exceed 1/4" in 

length." 
3

no privity; sustained PHS's and the Employees' demurrer to the 

intentional infliction of emotional distress cause of action; 

and dismissed Ogunde's state and federal constitutional 

claims. In addition, the trial court denied Ogunde's motions 

to amend his motion for judgment and to add the Commonwealth 

and another PHS physician as party defendants. We awarded 

Ogunde an appeal and, for the reasons stated below, we will 

affirm in part and reverse in part the judgment of the trial 

court and remand the case for further proceedings. 

I. DISMISSED CLAIMS 

A. Medical Malpractice 

 We begin by reviewing the trial court's dismissal of 

Ogunde's claims of medical malpractice based on its 

determination that PHS and the Employees were entitled to 

sovereign immunity because they were not independent 

contractors.3

 In Epperson v. DeJarnette, 164 Va. 482, 486, 180 S.E. 

412, 413 (1935), we defined the term "independent contractor" 

as 

a person who is employed to do a piece of work without 

restriction as to the means to be employed, and who 

employs his own labor and undertakes to do the work 

according to his own ideas, or in accordance with plans 

 3

 The trial court concluded that Ogunde's claims of 

negligence were in fact medical malpractice claims, and thus 

limited Ogunde's negligence claim to "medical negligence." 

Ogunde has not appealed this determination.
4

furnished by the person for whom the work is done, to 

whom the owner looks only for results. 

If a person meets this definition, an independent contractor 

relationship exists and sovereign immunity is unavailable. 

Atkinson v. Sachno, 261 Va. 278, 283-84, 541 S.E.2d 902, 904-

05 (2001). 

We have previously recognized "that there are abundant 

tests and criteria that can be used to determine whether the 

relationship between the individual and the Commonwealth is 

that of an independent contractor or an employee." Id. at 

284, 541 S.E.2d at 905. In each case, however, "the 

individual circumstances . . . play an important part in 

answering the query." The Texas Co. v. Zeigler, 177 Va. 557, 

566, 14 S.E.2d 704, 707 (1941). In determining whether 

physicians are employees or independent contractors, we have 

included the following four factors: (1) selection and 

engagement; (2) payment of compensation; (3) power of 

dismissal; and (4) power to control the individual's work. 

See, e.g., Atkinson, 261 Va. at 284-85, 541 S.E.2d at 905; 

Hadeed v. Medic-24, Ltd., 237 Va. 277, 288, 377 S.E.2d 589, 

594-95 (1989); Naccash v. Burger, 223 Va. 406, 418-19, 290 

S.E.2d 825, 832 (1982). Although all these factors are 

relevant, the fourth factor, "the power of control" is 

determinative. Atkinson, 261 Va. at 284-85, 541 S.E.2d at 
5

905; Naccash, 223 Va. at 418-19, 290 S.E.2d at 832. We apply 

this analysis to the facts of this case.4

 PHS and the Employees provided medical services to Ogunde 

and other Greensville inmates pursuant to a contract with 

VDOC.5

 The contract required PHS to "provide all medical, 

dental, and mental health services" at several Virginia 

correctional centers including Greensville. PHS was to render 

these services in accordance with certain policies set forth 

by VDOC, including the inmate grooming policy. PHS and the 

Employees argue the trial court correctly held that they were 

not independent contractors under Atkinson, because the 

contract did not allow them to control the "means and methods 

used . . . to exercise [their] required professional skill and 

judgment." Atkinson, 261 Va. at 283, 541 S.E.2d at 904. 

Specifically, PHS and the Employees rely on provisions of the 

contract that they contend allow VDOC to pre-approve all 

personnel employed or subcontracted by PHS to deliver care,

and require PHS to remove any of its employees with whom VDOC 

is dissatisfied if attempts to reach a resolution are 

 4

 The PHS and the Employees agree that they are not 

employees of VDOC but maintain that they are VDOC's agents. 

We make no distinction between employees and agents in the 

application of this test to determine independent contractor 

status. 

5

 At oral argument, Ogunde abandoned his argument that the 

trial court inappropriately relied on the contract, and agreed 
6

unsuccessful. They also argue that the contract specifies the 

"circumstances and conditions under which PHS may authorize 

overtime hours for its employees [and] dictates the number of 

personnel that must be employed to prevent shortages," and 

sets forth where inmates may be hospitalized for inpatient 

care, the methods of delivering off-site medical care, and 

where PHS must purchase medications and the medications to be 

prescribed for certain illnesses. 

Many of the contract provisions which PHS and the 

Employees recite relate to issues of security attaching to 

penal institutions, not to the provision of medical services. 

The pre-approval of PHS's employees, for example, involves 

clearance from VDOC based on a background investigation 

including a criminal records check. Furthermore, in this 

context, restrictions such as location for the provision of 

medical treatment are not dispositive in resolving the 

question whether PHS and the Employees are independent 

contractors. The provisions cited for restricting the 

medications that can be prescribed are in an amendment to the 

contract, which sets forth a list of 25 medications for use in 

the treatment of HIV/AIDS and Hepatitis C. This amendment, 

 

the contract is dispositive of whether PHS and the Employees 

are independent contractors. 
7

however, is not applicable to treatment at Greensville 

Correctional Center.

 What is crucial to the independent contractor analysis is 

that the contract specifically charges PHS with supervising 

the work of its own employees and any subcontractors: 

The Contractor [PHS] shall be responsible for 

completely supervising and directing the work under 

this contract and all subcontractors that he may 

utilize, using his best skill and attention. 

Subcontractors who perform work under this contract 

shall be responsible to the prime Contractor. The 

Contractor agrees that he is as fully responsible 

for the acts and omissions of his subcontractors 

and of persons employed by them as he is for the 

acts and omissions of his own employees. 

Thus, as set forth in this provision, the actual work to be 

performed under the contract – the rendering of medical 

services to inmates – remains under the control of PHS. The 

contract provisions related to staffing cited by PHS and the 

Employees do not undermine this control. For instance, 

although the contract sets forth staffing requirements, PHS 

has the responsibility to "manage its workforce so that there 

is sufficient staffing on each and every shift at each 

institution in order to assure the delivery of both routine 

and emergency health care services to all inmates at all 

times." In short, PHS supervises and directs its employees, 

not VDOC. 
8

The contract to provide medical services was executed in 

response to VDOC's request for proposals under the Virginia 

Public Procurement Act, and was the result of a competitive 

bidding process. Based on that fact and on our review of the 

contract, we hold that PHS and the Employees are independent 

contractors. Therefore the trial court erred in concluding 

that PHS and the Employees were entitled to sovereign 

immunity. Accordingly, we will reverse that portion of the 

trial court's judgment dismissing Ogunde's medical malpractice 

claims on this basis.6

B. Breach of Contract 

 Ogunde also assigns error to the trial court's dismissal 

of his breach of contract claim because he was not in privity 

with PHS. Ogunde argues that he is an intended third party 

beneficiary of the contract between PHS and VDOC and, as such, 

entitled to sue for breach of the contract. 

It is well established that "under certain circumstances, 

a party may sue to enforce the terms of a contract even though 

he is not a party to the contract." Levine v. Selective Ins. 

 6

 Ogunde also assigns error to the trial court's dismissal 

of his gross negligence claim, which was apparently dismissed 

as a result of the trial court's determination that PHS and 

the Employees were entitled to sovereign immunity. Reversal 

of that holding and reinstatement of the medical malpractice 

claim necessarily reinstates Ogunde's claim of gross 

negligence and we therefore need not address Ogunde's 

assignment of error on this issue.
9

Co. of Am., 250 Va. 282, 285, 462 S.E.2d 81, 83 (1995); Code 

§ 55-22. "The essence of a third-party beneficiary's claim is 

that others have agreed between themselves to bestow a benefit 

upon the third party but one of the parties to the agreement 

fails to uphold his portion of the bargain." Copenhaver v. 

Rogers, 238 Va. 361, 367, 384 S.E.2d 593, 596 (1989). In 

accordance with this principle, we have allowed third parties 

to sue on contracts where "the third party . . . show[s] that 

the parties to the contract clearly and definitely intended it 

to confer a benefit upon him." Ward v. Ernst & Young, 246 Va. 

317, 330, 435 S.E.2d 628, 634 (1993) (quoting Professional 

Realty Corp. v. Bender, 216 Va. 737, 739, 222 S.E.2d 810, 812 

(1976)). 

The contract between PHS and VDOC states that its purpose 

is to "provide cost effective, quality inmate health care 

services for up to approximately 6,000 inmates (initially) 

housed at four correctional center facilities," including 

Greensville. The contract then sets forth the scope of health 

care services to be provided to the inmates. Ogunde is one of 

these inmates and PHS's performance under the contract renders 

a direct benefit to Ogunde. The contract thus "clearly and 

definitely" indicates that PHS and VDOC intended to provide a 

benefit to, among others, Ogunde. Bender, 216 Va. at 739, 222 

S.E.2d at 812. 
10

 PHS and the Employees argue that Ogunde is not an 

intended beneficiary but merely an "incidental" beneficiary of 

the contract because if he ceases to be an inmate at 

Greensville, the contract, and the duties imposed on PHS, will 

remain intact. As an incidental beneficiary, Ogunde does not 

have standing to enforce the contract according to PHS and the 

Employees. 

We disagree with the proposition that Ogunde is an 

incidental beneficiary. The status of an intended third party 

beneficiary does not depend upon permanent membership in the 

class of persons entitled to receive the benefit of the 

contract. In Moorman v. Nationwide Mut. Ins. Co., 207 Va. 

244, 148 S.E.2d 874 (1966), we held that a person injured 

while riding as a passenger in a motor vehicle was entitled to 

recover pursuant to an insurance policy held by the owner of 

the vehicle, which obligated the insurer to pay for medical 

expenses incurred by any person "while occupying" the insured 

vehicle. We reasoned that the insurance policy had the effect 

of placing the injured person "in the position of a third 

party beneficiary, and as such, [the injured person] has in 

Virginia a statutory right to maintain an action on the 

contract in his own name." Id. at 248, 148 S.E.2d at 877. We 

reached this conclusion despite the fact that once the injured 

person was no longer a passenger in the vehicle, she ceased to 
11

be a member of the class of persons who would benefit from the 

contract, which would remain in force, subject to its other 

provisions. Accord Owens v. Haas, 601 F.2d 1242, 1250-51 (2d 

Cir.), cert. denied, 444 U.S. 980 (1979) (reversing dismissal 

of inmate's breach of contract claim because contract between 

prison and the county to provide transportation of prisoners 

"indicates that Owens, as a federal prisoner, was intended to 

benefit from the agreement"). 

Accordingly, we hold that Ogunde was a third party 

beneficiary of the contract between PHS and VDOC and the trial 

court erred by dismissing Ogunde's breach of contract claim. 

C. State Constitutional Claim 

Ogunde alleged that the failure to provide appropriate 

medical treatment was cruel and unusual punishment in 

violation of Art. I, § 9 of the Constitution of Virginia. In 

response to this claim, PHS and the Employees originally 

asserted that the claim was barred by the doctrines of res 

judicata and collateral estoppel. PHS and the Employees 

subsequently withdrew their objections on these grounds. The 

dismissal order does not recite the basis for dismissal of the 

constitutional claim. 

On appeal, PHS and the Employees argue that the trial 

court was justified in dismissing Ogunde's constitutional claim 

because Ogunde failed to comply with the Virginia Prisoner 
12

Litigation Reform Act (VPLRA), Code §§ 8.01-689, et seq. PHS 

and the Employees assert that Code § 8.01-694 of the VPLRA 

requires a prisoner to submit documentation or affidavits to 

support his claim, and that failure to do so allows the trial 

court to dismiss the pleading sua sponte. 

Code § 8.01-694 does not require dismissal of a 

prisoner's claim if the prisoner has not attached all 

supporting documentation to the complaint. Rather, the 

provision simply describes circumstances which "may" result in 

the dismissal of the claim. Nothing in the VPLRA changes the 

rules governing pleadings and motions in Virginia. The Act 

does not require the filing of additional documentation or 

affidavits with a pleading. Regardless whether a trial court 

believes a claim brought by a pro se prisoner may ultimately 

fail, at the pleading stage the trial court is bound by the 

same procedures, rules and policies which apply to a party 

represented by counsel. The VPLRA does not provide courts or 

defendants with a mechanism to disregard these procedures in a 

suit brought by a pro se prisoner, and we reject the 

application of the Act suggested by PHS and the Employees. In 

this case, there is nothing in the record to support the 

dismissal of Ogunde's constitutional claim at the pleading 

stage, and we accordingly reverse that portion of the trial 

court's judgment.
13

D. Intentional Infliction of Emotional Distress 

Ogunde challenges the trial court's action sustaining 

PHS's and the Employees' demurrer to his claim of intentional 

infliction of emotional distress. A demurrer tests the legal 

sufficiency of the facts alleged in the plaintiff's complaint. 

Sanchez v. Medicorp Health Sys., 270 Va. 299, 303, 618 S.E.2d 

331, 333 (2005). In reviewing a demurrer, a trial court must 

consider the pleadings in the light most favorable to the 

plaintiff and sustain the demurrer if it is clear that the 

plaintiff has not stated a valid cause of action. Id. To 

survive a demurrer as to the instant claim, a plaintiff must 

allege: "1) the wrongdoer's conduct was intentional or 

reckless; 2) the conduct was outrageous or intolerable; 3) 

there was a causal connection between the wrongdoer's conduct 

and the resulting emotional distress; and 4) the resulting 

emotional distress was severe." Almy v. Grisham, 273 Va. 68, 

77, 639 S.E.2d 182, 186 (2007). 

Ogunde alleged in his complaint that PHS and the 

Employees denied him treatment and refused to recommend he be 

exempted from the grooming policy because they believed the 

importance of Ogunde's compliance with the grooming policy 

outweighed any medical need for an exemption and because they 

erroneously believed "they lack[ed] authority to make such a 

recommendation." Assuming the truth of the allegations, the 
14

conduct is not so intolerable or outrageous such that it 

"offends against the generally accepted standards of decency 

and morality." Jordan v. Shands, 255 Va. 492, 498, 500 S.E.2d 

215, 219 (1998)(quoting Womack v. Eldridge, 215 Va. 338, 342, 

210 S.E.2d 145, 148 (1974)). And, while Ogunde did allege 

that their conduct was both intentional and reckless, we are 

not bound to accept conclusory allegations in a review of a 

demurrer to an intentional infliction of emotional distress 

claim. Id. at 499, 500 S.E.2d at 219 (plaintiff failed to 

plead cause of action for emotional distress where her 

allegations were "merely conclusional" and did not set forth 

any specific conduct by defendants); Russo v. White, 241 Va. 

23, 28, 400 S.E.2d 160, 163 (1991)(the court is not "bound by 

such conclusory allegations" in considering demurrer to 

infliction of emotional distress claim). Accordingly, we find 

no error by the trial court in sustaining the demurrer. 

II. DENIAL OF MOTIONS TO AMEND AND TO ADD NEW PARTIES

 Following the trial court's ruling sustaining the 

demurrer to Ogunde's intentional infliction of emotional 

distress claim, dismissing his breach of contract claim, and 

consolidating his negligence claims with his medical 

malpractice claim, discovery continued and PHS and the 

Employees filed their pleas of sovereign immunity. In 

response, Ogunde filed two motions, one to add the 
15

Commonwealth as a party defendant and a second to amend his 

motion for judgment to "cure the imperfections" in his prior 

pleading and to add new counts and a claim for punitive 

damages. Ogunde asserted the amendments resulted from matters 

arising in discovery and that PHS and the Employees would not 

be prejudiced by allowing the proposed amendments. A copy of 

the amended motion for judgment was attached to the motions to 

amend. PHS and the Employees did not file any written 

opposition to the proposed amendments. Following a hearing, 

the trial court denied Ogunde's motions, granted the sovereign 

immunity plea, and dismissed Ogunde's motion for judgment. 

Ogunde has assigned error to the trial court's denial of his 

motions to amend. 

 Ogunde's stated reason for adding the Commonwealth as a 

party and including a claim under the Virginia Tort Claims Act 

was in response to PHS's and the Employees' claim of sovereign 

immunity. In light of our holding that PHS and the Employees 

are independent contractors and not entitled to sovereign 

immunity, these amendments are no longer necessary and we need 

not address Ogunde's arguments directed to that part of the 

trial court's ruling. 

 PHS and the Employees raise a number of arguments in 

support of the trial court's exercise of its discretion in 

denying the remaining amendments. They again assert that 
16

Ogunde did not satisfy the pleading requirements of the VPLRA 

because he did not provide "written documentation to support 

his claim." We have already rejected that construction of 

Code § 8.01-694 and reject it again here as a basis for 

refusing the amendments sought. PHS and the Employees also 

claim that certain counts were barred by the statute of 

limitations and that venue was improper. These arguments may 

be defenses to the claims but were not resolved by the trial 

court, and thus are not appropriate as a basis for denying the 

amendments. 

 Whether to grant leave to amend pleadings is a matter 

within the sound discretion of the trial court. Kole v. City 

of Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409 (1994). 

"Leave to amend shall be liberally granted in furtherance of 

the ends of justice." Rule 1:8. Ogunde had not previously 

sought to amend his motion for judgment and filed this request 

in a timely manner, following the relevant rulings of the 

trial court and the conclusion of discovery. Nothing in the 

amendments suggests that PHS and the Employees would have been 

prejudiced by allowing the amendments. Under these 

circumstances, Ogunde provided good cause to seek to amend his 

complaint. See Ford Motor Co. v. Benitez, 273 Va. 242, 252, 

639 S.E.2d 203, 208 (2007); Mortarino v. Consultant Eng'g 

Servs., 251 Va. 289, 295-96, 467 S.E.2d 778, 782 (1996). 
17

Accordingly, we find that the trial court abused its 

discretion in failing to allow Ogunde to file his amended 

motion for judgment. 

CONCLUSION 

In sum, we hold that the trial court erred in holding 

that PHS and the Employees were entitled to sovereign immunity 

and in dismissing Ogunde's medical malpractice and gross 

negligence claims on that basis, and in dismissing Ogunde's 

claims for breach of contract and violation of Article I, § 9 

of the Constitution of Virginia. We further hold that the 

trial court abused its discretion by denying Ogunde leave to 

amend his complaint. We find no error by the trial court in 

sustaining the demurrer to Ogunde's claim for intentional 

infliction of emotional distress. 

 For these reasons, we will affirm in part and reverse in 

part the circuit court's judgment and remand the case for 

proceedings not inconsistent with this opinion. 

Affirmed in part, 

reversed in part, 

 and remanded.