Brown v. Collier

CLERK'S OFFICE U.S. DIST. Cc

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA June 26, 2024

ROANOKE DIVISION LAURA A. AUSTIN, CLERK

By s/A. Beeson

DEPUTY CLERK

TYRELL BROWN, )

)

Plaintiff, ) Case No. 7:23CV00567

)

V. ) OPINION AND ORDER

)

CORRECTION OFFICER ) JUDGE JAMES P. JONES

S. COLLIER, ET AL, )

)

Defendants. )

Tyrell Brown, PRO SE PLAINTIFF; Andrew Page, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE & PUBLIC SAFETY DIVISION,

Richmond, Virginia, for Defendants.

Tyrell Brown, a Virginia inmate proceeding without counsel, has filed a

Complaint under 42 U.S.C. § 1983. He alleges that while he was confined at Wallens

Ridge State Prison (Wallens Ridge), Officers Collier and Boggs violently assaulted

him in violation of the Eighth Amendment. The Complaint also asserts claims

against the Virginia Department of Corrections (VDOC), former VDOC Director

Harold Clarke, Head of Operations David Robinson, Wallens Ridge Warden Davis,

Assistant Warden Russell, and Major Blevins (collectively, the supervisory

defendants). Collier and Boggs have filed an Answer, while the supervisory

defendants have filed a Motion to Dismiss. For the reasons set forth below, I will

grant the Motion to Dismiss.

I.

Brown alleges that on September 7, 2021, between 3:00 and 4:00 p.m., Brown

began experiencing chest pains. He asked Collier to allow him to see a nurse.

Collier told Brown to wait for the pill pass scheduled to begin in five minutes. At

the pill pass, the nurse gave Brown a form he needed to fill out to receive medication.

Brown sat down at a table and began filling out the form. Collier rushed Brown,

stating, “If you’re not getting medication, you need to step in your cell.” Compl. ¶

8, ECF No. 1.

Having completed the form, Brown walked to the nurse’s office door and

stood there, waiting to obtain medication. Collier walked over to Brown, yanked his

arm, pulled out a can of mace, and sprayed Brown’s eyes and face. While doing so,

Collier allegedly yelled “racial and sexual slurs.” Id. at ¶ 10. Around the same time,

Boggs, stationed in the gun booth, shot “a green OC maceball projectile into

[Brown’s] back extremities causing [him] to forcefully fall to the floor.” Id. at ¶ 11.

As a result of the officers’ attack, Brown suffered back trauma requiring him to wear

a back brace, extreme pain due to the irretrievable projectile fragments lodged in his

back, and emotional distress including nightmares.

In the § 1983 Complaint, Brown asserts that Collier and Boggs used excessive

force in violation of the Eighth Amendment and that the supervisory defendants

failed to prevent that use of force. Brown further alleges that the officers’ actions

violated prison policy concerning the use of force. Brown seeks declaratory,

injunctive, and monetary relief. Brown has responded to the supervisory defendants’

Motion to Dismiss, making it ripe for consideration.

II.

A 12(b)(6) motion to dismiss “challenges the legal sufficiency of a

complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a

12(b)(6) motion, a complaint must contain “sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).1 A complaint is facially plausible if the allegations within the

complaint support a “reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

The court must assume that the factual allegations in a complaint are true but

need not assume as true conclusory statements unsupported by facts. Id. A

complaint consisting of “labels and conclusions or a formulaic recitation of the

elements of a cause of action” cannot meet the threshold requirement of plausibility.

Id.

1 I have omitted internal quotation marks, citations, and alterations here and

throughout this opinion, unless otherwise noted.

III.

A state, including an agency operating as an arm of the state, is not a “person”

subject to suit under § 1983. 42 U.S.C §1983; Will v. Mich. Dep’t of State Police,

491 U.S. 58, 70 (1989). Since VDOC is a state agency, all claims against VDOC

must be dismissed. In addition, state officials acting within their official capacity

are not suable for damages under § 1983, although they can be sued for injunctive

relief. Id. at 71 n.10. Thus, I will grant the Motion to Dismiss as to all claims against

the VDOC and against the supervisory defendants in their official capacities.

Moreover, Brown’s allegation that the officers violated prison policy does not

state a claim under the Eighth Amendment. Allegations that state officials have not

followed their own policies or procedures, standing alone, do not amount to

constitutional violations. Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th

Cir. 1990) (holding that if state law grants more procedural rights than the

Constitution requires, state’s failure to abide by that law is not a federal due process

issue).

IV.

A correctional officer who uses excessive force may be liable under the Eighth

Amendment for cruel and unusual punishment. An excessive force claim has an

objective prong and a subjective prong. Brooks v. Johnson, 924 F.3d 104, 112 (4th

Cir. 2019). Under the objective prong, the amount of force used must be

“sufficiently serious to establish a cause of action,” meaning that the force applied

must be “more than de minimis.” Id. Under the subjective prong, a defendant must

have a “sufficiently culpable state of mind.” Id. The requisite state of mind exists

when the defendant evinces “wantonness in the infliction of pain.” Id. A defendant

inflicts pain wantonly when force is applied “maliciously and sadistically for the

very purpose of causing harm.” Id. at 113.

While Brown’s Complaint alleges plausible excessive force claims against

Collier and Boggs, it does not state facts showing that any of the supervisory

defendants used excessive force against him. Thus, he is apparently attempting to

prove claims of vicarious liability or supervisory liability against them. Both of

these theories fail.

Vicarious liability is a superior’s automatic liability for the unlawful actions

of subordinates, irrespective of the superior’s culpability. Because “vicarious

liability is inapplicable to . . . § 1983 suits,” the supervisory defendants are not

automatically liable for any wrongful acts by Collier and Boggs. Iqbal, 556 U.S. at

676. A plaintiff seeking to implicate supervisors in a constitutional violation “must

plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.” Id.

A plaintiff may prove a supervisor’s liability by stating facts demonstrating

that the defendant’s actions evinced “deliberate indifference or tacit authorization”

towards “a pervasive and unreasonable risk of harm from some specified source.”

Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984). Deliberate indifference may be

shown by a “supervisor’s continued inaction in the face of documented widespread

abuses.” Id. For a supervisory liability claim, the plaintiff must show three

elements: the official’s actual or constructive knowledge of the requisite risk, his

deliberate indifference towards that risk, and “an affirmative causal link” between

the indifference and the constitutional injury. Carter v. Morris, 164 F.3d 215, 221

(4th Cir. 1999). A single instance of misconduct by subordinates is usually

insufficient to demonstrate a supervisor’s deliberate indifference. Slakan, 737 F.2d

at 373.

Brown’s Complaint does not state facts that support claims of supervisory

liability. Rather, Brown alleges a single incident of misconduct involving two prison

guards with no mention of any prior incidents that would have given the supervisors

actual or constructive knowledge of the risk alleged by Brown.

In Brown’s response to the Motion to Dismiss, he argues that the occurrence

of the attack suggests that the supervisory defendants failed to properly train the

subordinates. This argument fails for several reasons. First, “[i]t is well-established

that parties cannot amend their complaints through briefing.” S. Walk at Broadlands

Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th

Cir. 2013). Since the allegation concerning inadequate training did not appear in

Brown’s Complaint, it makes no difference to the 12(b)(6) analysis. Second, the bare

allegation of inadequate training, without any supporting details, is far too

conclusory for the court to assume its truth. Iqbal, 556 U.S. at 678. Moreover, the

bare allegation of failure to train does not render Brown’s supervisory liability theory

plausible. Brown does not allege a “pattern of similar constitutional violations by

untrained employees,” which is “ordinarily necessary” for a successful failure-to-

train claim. Connick v. Thompson, 563 U.S. 51, 62 (2011). For the reasons stated, I

will grant the supervisory defendants’ Motion to Dismiss.

V.

Based on the foregoing, it is hereby ORDERED as follows:

1. The Motion to Dismiss, ECF No. 13, is GRANTED as to defendants Davis,

Russell, Robinson, Clarke, and Blevins, and the Clerk shall terminate these

defendants as parties to this action; and

2. Defendants Collier and Boggs, having filed only an Answer, are

DIRECTED to file any motion for summary judgment within 30 days from

the entry of this Opinion and Order, or the action will be set for a jury trial

in the Abingdon Division of the court.

ENTER: June 26, 2024

/s/ JAMES P. JONES

Senior United States District Judge