Carder v. Tinney

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JOSH CARDER,

Plaintiff,

v. CIVIL ACTION NO. 1:16CV204

(Judge Keeley)

BRADLEY TINNEY,

Circuit Court Probation Officer;

BRIAN THOMPSON,

State Parole and Probation Officer;

BENITA MURPHY, Chairperson,

West Virginia Sate Parole Board;

UNKNOWN EMPLOYEES OF THE WEST

VIRGINIA DIVISION OF CORRECTIONS; and

UNKNOWN EMPLOYEES OF THE WEST

VIRGINIA REGIONAL JAIL AUTHORITY,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’

MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]

Pending before the Court are motions to dismiss filed by each

of the named defendants seeking to dismiss the amended complaint

filed by the plaintiff, Josh Carder (“Carder”). For the reasons

that follow, the Court GRANTS the defendants’ motions (dkt. nos.

25, 28, 41, and 48) and DISMISSES this case.

I. BACKGROUND

On February 10, 2012, the Circuit Court of Lewis County, West

Virginia, convicted the plaintiff, Josh Carder (“Carder”), of a

third or subsequent offense of driving under the influence of

alcohol, and sentenced him to an indeterminate term of one to three

years. Carder began a period of home confinement on February 16,

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2012, that lasted until February 8, 2013. During that time, he

served ten days of incarceration for violating the conditions of

his home confinement. On February 9, 2013, Carder was released on

parole and remained on parole until a curfew violation occurred on

January 15, 2014. At Carder’s sentencing on the parole violation,

the defendant, Bradley Tinney (“Tinney”), a probation officer for

the Circuit Court, calculated Carder’s time served to that point.

Carder alleges that Tinney miscalculated his time served as only

278 days, which caused his effective date of sentence to be

incorrectly set as May 5, 2013.

Carder remained incarcerated on his parole violation from

January 15, 2014, until August 15, 2014. Upon his release, Carder

alleges that authorities erroneously placed him on parole again and

that, on November 14, 2014, he was again revoked for another parole

violation. This revocation resulted in his incarceration for an

additional thirty days. Following his release on December 15, 2014,

Carder again was placed on parole, but yet again was revoked on

January 12, 2015, for another parole violation.

According to Carder, during his last period of incarceration,

beginning January 12, 2015, he realized that his effective

sentencing date was incorrect and that his sentence should have

been discharged on July 28, 2014. He further alleges that he

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reported this error to the defendant, Brian Thompson (“Thompson”),

who allegedly stated that “[Carder] would not be under parole if he

was not supposed to be.” Dkt. No. 7 at 5. Additionally, in an

attempt to resolve the error, Carder’s girlfriend, Michele Hickman

(“Hickman”), made phone calls to the defendant, Benita Murphy

(“Murphy”), the chairperson of the West Virginia State Parole

Board, and defendant Judy Fitzgerald (“Fitzgerald”), former

Director of Parole Services. Allegedly, Murphy and Fitzgerald told

Hickman that, “even if there was an error, there was nothing [they]

could do until a court ordered his release.” Id. Carder asserts

that neither Murphy nor Fitzgerald attempted to investigate

Hickman’s complaint.

After continued efforts by Hickman, the error finally was

addressed by the Lewis County Prosecuting Attorney’s Office and,

pursuant to the circuit court’s amended sentencing order, Carder

ultimately was released on April 10, 2015. He alleges that he is

credited for 393 days beyond his original sentence of three years

and that his liberty was deprived by either wrongful incarceration

or parole for 257 days.1

1In his complaint, Carder is unclear as to why he alleges his

liberty was deprived for 257 days, while he simultaneously alleges

that he served 393 days more than his original maximum sentence.

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After filing his original complaint in this Court against

Tinney, Murphy, Thompson, and unknown employees of the West

Virginia Division of Corrections and the West Virginia Regional

Jail Authority on October 26, 2016 (dkt. no. 1), Carder amended his

complaint on December 15, 2016, to add Judy Fitzgerald as a

defendant(dkt. no. 7).

Carder’s amended complaint asserts two causes of action under

42 U.S.C. § 1983 and § 1988 for violations of his Eighth and

Fourteenth Amendment rights under the United States Constitution.

In addition, he alleges three state law claims, including reckless

infliction of emotional distress, battery, and assault. Id. Each of

the four individual defendants has filed motions to dismiss based

on immunity, the applicable statute of limitations, and for failure

to state a claim (dkt. no. 25, 28, 41, and 48).

II. STANDARD OF REVIEW

In reviewing the sufficiency of a complaint, a district court

“‘must accept as true all of the factual allegations contained in

the complaint.’” Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th

Cir. 2007)(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

However, while a complaint does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of his

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entitlement to relief requires more than mere labels and

conclusions, and a formulaic recitation of the elements of a cause

of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). Indeed, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan v. Allain, 478

U.S. 265, 286 (1986). In considering whether the facts alleged are

sufficient, “a complaint must contain ‘enough facts to state a

claim to relief that is plausible on its face.’” Anderson, 508 F.3d

at 188 (quoting Twombly, 550 U.S. at 547). “A motion to dismiss

under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the 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).

III. DISCUSSION

All of the defendants argue that they are entitled either to

absolute or qualified immunity, that Carder’s claims are barred by

the applicable statute of limitations, or that he has failed to

state a claim. Because the statute of limitations is an affirmative

defense, the Court declines to address this argument at this early

stage. See Fluharty v. City of Clarksburg, 2015 WL 2341727, at *3

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MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, and 48]

(N.D.W.Va. 2015) (“A motion to dismiss under Rule 12(b)(6) tests

the sufficiency of a complaint; importantly, it does not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” (quoting Republican Party of N.C. v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992)). Nevertheless, as

discussed below, all of the defendants are entitled to either

absolute or qualified immunity as to the constitutional violations

asserted in Counts One and Two. Furthermore, Carder has failed to

state a claim as to his state law claims in Counts Three, Four, and

Five.

A. The Defendant’s are Entitled to Immunity from the

Constitutional Violation Claims in Count One and Count Two

1. Tinney is Entitled to Absolute Immunity

Tinney has moved to dismiss the claims against him, arguing

that, because “the doctrine of judicial immunity [] extends to

probation officers when assisting the court in carrying out

judicial functions,” he is immune from suit. The long-standing

doctrine of judicial immunity entitles judges to absolute immunity

for their judicial decisions, even when those decisions are clearly

erroneous and without regard to the severity of the consequences.

See Forrester v. White, 484 U.S. 219, 225 (1988); Pierson v. Ray,

386 U.S. 547 (1967); Bradley v. Fisher, 80 U.S. 335 (1871). The

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Supreme Court of the United States has extended this absolute

immunity to non-judges who perform functions integral to the

judicial process. See Imbler v. Pachtman, 424 U.S. 409 (1986)

(extending judicial immunity to prosecutors and grand jurors);

Briscoe v. LaHue, 460 U.S. 325 (1983) (extending judicial immunity

to witnesses, including police officers); Butz v. Economou, 438

U.S. 478 (1978) (extending judicial immunity to Executive Branch

officials performing “quasi-judicial” functions). Building on this

precedent, district courts have extended this quasi-judicial

immunity to “probation officers sued for performing tasks

‘intimately associated with the judicial phase of the criminal

process.’” Gant v. U.S. Probation Office, 994 F.Supp. 729, 733

(S.D.W.Va. 1998) (quoting Imbler, 424 U.S. at 430).

In determining whether a government official is entitled to

quasi-judicial immunity, the Supreme Court of the United States has

adopted a “‘functional’ approach” that examines the nature of the

functions rather than the defendant’s “rank or title or ‘location

within the Government.’” Cleavinger v. Saxner, 474 U.S. 193, 201

(U.S. 1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982); Butz, 438 U.S. at 511). Six non-exhaustive factors

determine whether absolute immunity exists. These include:

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(a) [T]he need to assure that the individual can perform

his functions without harassment or intimidation; (b) the

presence of safeguards that reduce the need for private

damages actions as a means of controlling

unconstitutional conduct; (c) insulation from political

influence; (d) the importance of precedent; (e) the

adversary nature of the process; and (f) the

correctability of error on appeal.

Cleavinger, 474 U.S. at 203 (citing Butz, 438 U.S. at 512).

“Functions most apt to be accorded absolute, rather than qualified,

immunity are those integrally related to the judicial process.”

Dorman v. Higgins, 821 F.2d 133, 136 (2d Cir. 1987).

Federal courts applying this functional test uniformly have

concluded that probation officers act “as an arm of the court” when

providing information to carry out sentencing obligations. Gant,

994 F.Supp. at 733 (S.D.W. Va. 1998) (citing Dorman, 821 F.2d at

137). Here, Tinney, the probation officer, at the behest of the

Circuit Court, calculated Carder’s time served following his first

parole revocation on January 15, 2014. It is this calculation that

Carder alleges was incorrect and deprived him of his liberty for

257 days.

Whether or not Tinney miscalculated Carder’s time served, it

is beyond debate that the nature of the function he performed was

integrally related to the judicial process. Tinney provided

information to his supervising court for the purpose of determining

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Carder’s sentence following his parole revocation. This task

directly served the court for sentencing purposes; both parties

agree Tinney performed the task “for the court.” See Dkt. No. 7 at

4.

Because Tinney’s conduct was in furtherance of the sentencing

judge’s ability to carry out judicial duties and his actions were

integrally related to the judicial process, he was acting as an arm

of the court. Gant, 944 F.Supp. at 733. He therefore is entitled to

absolute immunity for his quasi-judicial functions. Accordingly,

the Court GRANTS his motion and DISMISSES WITH PREJUDICE the claims

asserted against him in Counts One and Two of the amended

complaint.

2. Thompson, Fitzgerald, and Murphy are entitled to

Qualified Immunity

The remaining defendants, Thompson, Fitzgerald, and Murphy,

contend that they are entitled to qualified immunity.2 Under the

2Murphy additionally contends that she is entitled to absolute

quasi-judicial immunity because she was performing a function

integral to the judicial process. This argument is unavailing as

the functions that Carder requested her to perform, mainly,

reviewing his sentencing records to check their accuracy, were

merely administrative. See Osborne v. King, 2006 WL 2371186, at *5

(S.D.W.Va. 2006) (noting that judicial immunity is for adjudicative

decisions only and not for “administrative functions for which

judges should not be given absolute immunity” (quoting Forrester,

484 U.S. at 222)).

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defense of qualified immunity, individual officials performing

discretionary functions are immune from liability for civil damages

insofar as their conduct does not violate “clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow, 457 U.S. at 818; Covey v. Assessor of

Ohio Cty., 777 F.3d 186, 195 (4th Cir. 2015). The qualified

immunity doctrine “balances two important interests—the need to

hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223 (2009).

Qualified immunity is not just an immunity from liability, it

“is an entitlement not to stand trial or face the other burdens of

litigation.” Willingham v. Crooke, 412 F.3d 553, 558-59 (4th Cir.

2005) (internal quotations omitted). The doctrine of qualified

immunity “protects officers who commit constitutional violations

but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Estate of Armstrong ex

rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 898 (4th Cir.

2016) (quoting Henry, 652 F.3d at 531). “The qualified immunity

standard ‘gives ample room for mistaken judgments’ by protecting

‘all but the plainly incompetent or those who knowingly violate the

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law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986)). Society forgives officers for

reasonable errors because “‘officials should not err always on the

side of caution’ for fear of being sued.” Id. (quoting Davis v.

Scherer, 468 U.S. 183, 195 (1984)).

Finally, “[t]he protection of qualified immunity applies

regardless of whether the government official’s error is ‘a mistake

of law, a mistake of fact, or a mistake based on mixed questions of

law and fact.’ ” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez,

540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)). Indeed,

“[q]ualified immunity is meant to protect against liability for

‘bad guesses in gray areas.’ ” Bellotte v. Edwards, 629 F.3d 415,

424 (4th Cir. 2011) (quoting Maciariello v. Sumner, 973 F.2d 295,

298 (4th Cir. 1992)).

In Saucier v. Katz, the Supreme Court of the United States

laid out a two-step sequential analysis for courts to apply when

determining whether an official is entitled to qualified immunity.

533 U.S. 194, 200-01 (2001). The first part of the analysis asks

whether the alleged facts, when taken in the light most favorable

to the injured party, establish that the conduct at issue violated

a constitutional right. Id. at 201. The second question is “whether

the right was clearly established.” Id. at 201.

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In Pearson v. Callahan, the Supreme Court concluded that the

mandatory sequential aspect of Saucier was unnecessarily rigid.

The judges of the district courts and the courts of

appeals should be permitted to exercise their sound

discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at

hand.

555 U.S. at 236. Accordingly, courts have discretion to determine

which prong to address first; a defendant meeting either prong is

entitled to summary judgment. Id.

To determine whether a constitutional right is clearly

established, it is critical to articulate with specificity the

constitutional right allegedly violated. See Saucier, 533 U.S. at

201. Courts must determine the particular right “in light of the

specific context of the case, not as a broad general proposition .

. . .” Id. A plaintiff cannot simply point to a particular

constitutional amendment and allege a violation of the overarching

right it preserves, but instead must define the “right allegedly

violated . . . at the appropriate level of specificity.” Id. at

201-02 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). For

example, framing a claim as a violation of the Fourth Amendment

right to be free from unreasonable search and seizure is far too

broad, but framing the claim as a violation of the “right not to be

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tasered, after having broken away from police officers but while

not threatening others or actively resisting arrest,” would provide

sufficient specificity. Brown v. Chapman, 814 F.3d 447, 461 (6th

Cir. 2016).

Any claim that Thompson, Fitzgerald, and Murphy violated

Carder’s right against over-incarceration is unavailing. Not only

would such an overly broad framing of the right allegedly violated

lack the necessary specificity, but the undisputed facts establish

that Tinney’s miscalculation, not these defendants’ actions or

inactions, caused Carder’s over-incarceration.

Here, although not well articulated, the right allegedly

violated by the defendants is Carder’s right to have the defendants

investigate his claims of over-incarceration. Nevertheless, Carder

does not point to, nor could the Court find, a clearly established

right requiring probation officers or parole board members to

investigate an inmate’s claim of over-incarceration in the face of

a valid court order mandating a period of incarceration. These

defendants were not “plainly incompetent,” nor did they “knowingly

violate the law” when they declined to investigate Carder’s claim.

Hunter, 502 U.S. at 229 (quoting Malley, 475 U.S. at 341). It was

perfectly reasonable for them to presume that a facially valid

court order, entered after a hearing at which Carder appeared,

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presumably with counsel, was correct and that no further inquiry

was warranted. Probation officers and parole board members are not

only instructed but are required to follow court orders. The remedy

here for Tinney’s miscalculation was not to complain to the

defendants, but to seek an amended court order, which was the

advice given by Murphy that Carder and his girlfriend, Ms. Hickman,

eventually followed.

In conclusion, there is no clearly established constitutional

right requiring Thompson, Fitzgerald, or Murphy, in the face of a

valid court order, to investigate whether Carder’s sentence was

correctly calculated. For this reason, the defendants are entitled

to qualified immunity and the Court GRANTS their motions and

DISMISSES WITH PREJUDICE Count One and Count Two of the amended

complaint.

B. The State Law Claims in Counts Three, Four, and Five Fail to

State a Claim Against the Defendants

The amended complaint contains three state law claims against

the defendants, including (1) reckless infliction of emotional

distress, (2) battery, and (3) assault. The Court will address each

claim in turn.

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1. Reckless Infliction of Emotional Distress

Carder is unable to establish all of the elements of a prima

facie claim of reckless infliction of emotional distress. To

prevail on such a claim in West Virginia, a plaintiff must

establish the following four elements:

(1) conduct by the defendant which is atrocious, utterly

intolerable in a civilized community, and so extreme and

outrageous as to exceed all possible bounds of decency;

(2) the defendant acted with intent to inflict emotional

distress or acted recklessly when it was certain or

substantially certain such distress would result from his

conduct; (3) the actions of the defendant caused the

plaintiff to suffer emotional distress; and (4) the

emotional distress suffered by the plaintiff was so

severe that no reasonable person could be expected to

endure it.

Travis v. Alcon Laboratories, 202 W.Va. 369, 375 (1998). Here,

Carder’s allegations against the defendants fall far short of

actions or inactions that were “atrocious, utterly intolerable in

a civilized community, and so extreme and outrageous as to exceed

all possible bounds of decency.” Id.

Tinney were not reckless but negligent in calculating the

amount of time Carder had served. His mistake, while unfortunate,

does not rise to the requisite level of reckless infliction of

emotional distress.3 See, e.g., Herbert J. Thomas Memorial Hospital

3Although the Court concludes that Carder has failed to

adequately plead his state law claim against Tinney, Tinney would

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Assoc. v. Nutter, 795 S.E.2d 530, 545 (W.Va. 2016) (holding that

even a “grievous mistake” was not “so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of

decency,” thus it did not rise to the level of reckless infliction

of emotional distress).

As to Thompson, Carder has alleged only that “he dismissed

[Carder’s] concerns, stating that [Carder] would not be under

parole if he was not supposed to be.” See Dkt. No. 7 at 5. Given a

facially valid court order placing Carder on parole, Thompson’s

disbelief and inaction hardly rises to a level that is “atrocious,

utterly intolerable in a civilized community, and so extreme and

outrageous as to exceed all possible bounds of decency.” Travis,

202 W.Va. at 375.

As to Fitzgerald and Murphy, Carder has alleged that they

informed Hickman, his girlfriend, that “even if there was an error,

there was nothing [they] could do until a court ordered his

also be entitled to quasi-judicial immunity for those claims under

West Virginia law. See, e.g., Parkulo v. West Virginia Bd. of

Probation and Parole, 483 S.E.2d 507, 525 (W.Va. 1996) (holding

that “Board of Probation and Parole, being a quasi-judicial body,

is entitled to absolute immunity from tort liability for acts or

omissions in the exercise of its judicial function”). Thus, the

Court finds as an alternative grounds for dismissal that Tinney is

entitled to quasi-judicial immunity for Carder’s state law claims

of reckless infliction of emotional distress, as well as for

battery and assault, which are discussed below.

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release.” His ire is particularly focused on the fact that they

“made no attempts to investigate Ms. Hickman’s report.” Again, this

conduct is not so extreme and outrageous as to exceed all possible

bounds of decency. Not only were Fitzgerald and Murphy operating

under the reasonable presumption that the circuit court’s order was

correct, but they also advised Hickman about what she needed to do

to secure Carder’s release — advice she and Carder ultimately

followed.

Thompson, Fitzgerald, and Murphy may not have believed Carder

and Hickman, but their skepticism and inaction in the face of a

facially valid court order mandating Carder’s sentence is simply

not “atrocious, utterly intolerable in a civilized community, and

so extreme and outrageous as to exceed all possible bounds of

decency.” Id. Consequently, the Court GRANTS the defendants’

motions and DISMISSES WITH PREJUDICE Carder’s state claims against

them in Count Three.

2. Battery and Assault

A defendant commits a battery if “(a) he acts intending to

cause a harmful or offensive contact with the person of the other

or a third person, or an imminent apprehension of such a contact,

and (b) a harmful contact with the person of the other directly or

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indirectly results.” Tolliver v. Kroger Co., 498 S.E.2d 702, 711

(W.Va. 1997) (quoting Syl. Pt. 1, Funeral Services by Gregory, Inc.

v. Bluefield Community Hosp., 413 S.E.2d 79 (W.Va. 1991)). A

defendant is guilty of assault if “(a) he acts intending to cause

a harmful or offensive contact with the person of the other or a

third person, or an imminent apprehension of such a contact, and

(b) the other is thereby put in such imminent apprehension.” W. Va.

Fire & Cas. Co. v. Stanley, 602 S.E.2d 483, 495 (W.Va. 2004).

As to his battery claim, Carder alleges that “the Defendants

either directly caused, or created a situation substantially

certain to result in, harmful and offensive contact with the

Plaintiff during his time wrongfully incarcerated.” See Dkt. No. 7

at 9. As to his assault claim, he alleges that “[t]he Defendants

either directly caused, or created a situation substantially

certain to result in, the Plaintiff’s reasonable apprehension of

harmful and offensive contact during his time wrongfully

incarcerated.” Id. at 10. And in response to the defendants’

motions to dismiss, Carder attempts to argue that the defendants’

actions “placed [him] in a position where each tort was

substantially certain to result.” See, e.g., Dkt. No. 32 at 5.

What Carder has failed to allege, however, is that any of the

defendants possessed the requisite intent that Carder suffer a

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harmful or offensive touching or an imminent apprehension of such.

Carder’s legal conclusions and recitations of the elements of the

offense do not meet the pleading requirements of Iqbal and Twombly.

To reiterate, Thompson, Fitzgerald, and Murphy did not directly

cause or create Carder’s over-incarceration, which was a

consequence of Tinney’s mistake. Moreover, Carder has not pleaded

that any of the defendants intended by any of their actions or

inactions to commit a battery or an assault, nor has he made any

factual allegations, beyond a lone conclusory statement, that he

actual did suffer a harmful or offensive touching, or an

apprehension of such. Finally, as to his bare contention that a

battery and assault were substantially likely to occur, and that

this alone can constitute a battery or assault, he cites no legal

support for this assertion, nor could the Court find any.

Consequently, Carder’s claims of battery and assault are legally

inadequate, and the Court GRANTS the defendants’ motions and

DISMISSES WITHOUT PREJUDICE Carder’s state claims against Thompson,

Fitzgerald, and Murphy in Counts Four and Five. As to Tinney,

because he would be entitled to quasi-judicial immunity under West

Virginia law, the Court DISMISSES Carder’s state claims against him

in Counts Four and Five WITH PREJUDICE.

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IV. CONCLUSION

For the reasons discussed, the Court concludes that each of

the defendants is entitled to immunity as to Carder’s

constitutional claims against them in Counts One and Two. Further,

pursuant to Fed. R. Civ. P. 12(b)(6), Carder has failed to

adequately plead his state law claims in Counts Three, Four, and

Five. Consequently, the Court:

• GRANTS Tinney’s motion (dkt. no. 28) and DISMISSES WITH

PREJUDICE all claims against him;

• GRANTS Thompson’s, Fitzgerald’s, and Murphy’s motions (dkt.

nos. 25, 41, and 48), DISMISSES WITH PREJUDICE Counts One,

Two, and Three against them, and DISMISSES WITHOUT PREJUDICE

Counts Four and Five against them; and

• DIRECTS the clerk to strike this case from the Court’s active

docket.

It is so ORDERED.

The Court directs the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record and to enter a

separate judgment order.

DATED: August 10, 2017.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE