Jessup v. Sandy

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Clarksburg

HUNTER JESSUP,

Plaintiff,

V. Civil Action No. 1:21-CV-125

Judge Bailey

JEFF S. SANDY, personally and in his official

capacity as Secretary of West Virginia

Department of Military Affairs and Public Safety;

BETSY JIVIDEN, personally and in her official

capacity as Department of Corrections Commission;

JOHN SHEELEY, personally and in his official

capacity as Eastern Regional Jail Warden/Superintendent;

DONTREWELL E. KELLY, correctional officer,

personally and in his official capacity;

STEVEN ZITMEYER, correctional officer,

personally and in his official capacity;

ABRAHAM ARTHUR BEAN, correctional officer,

personally and in his official capacity;

JOHN MICHAEL ANDERSON, correctional officer,

personally and in his official capacity;

[FIRST NAME UNKNOWN] COSTELLO, correctional officer,

personally and in his official capacity;

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before this Court are Defendant Abraham Bean’s Motion to Dismiss

[Doc. 2], Defendant John Anderson's Motion to Dismiss [Doc. 3], Defendants Dontrewell

Kelley and Steven Zentmyer’s Motion to Dismiss [Doc. 4], and Administrator Defendants’

Motion to Dismiss the Complaint of Plaintiff Jessup [Doc. 5]. All motions have been fully

briefed and are ripe for decision.

Procedural Background

On October 31, 2019, four inmates at the Eastern Regional Jail (“ERJ”) filed suit

against the West Virginia Division of Corrections and Rehabilitation and nineteen unnamed

correctional officers [3:19-CV-185, Doc. 1]. On December 10, 2019, an amended

complaint was filed, adding Hunter Jessup and another inmate as plaintiffs and adding Jeff

S. Sandy, Betsy Jividen and John Sheeley (“The Administrator Defendants”) as defendants

[3:19-CV-185, Doc. 6]. By Order entered April 14, 2020, the Court dismissed the West

Virginia Division of Corrections and Rehabilitation with prejudice, because the Division is

not a person subject to suit under 42 U.S.C. § 1983. Additionally, the Court dismissed the

amended complaint as having been filed without leave [3:19-CV-185, Doc. 15].

On April 16, 2020, the Court further ordered the Clerk to sever the six plaintiffs’

claims into separate complaints. The Order provided that the Clerk was directed to open

a new case for Mr. Jessup. [3:19-CV-185, Doc. 28]. The new case was opened and

assigned docket number 3:20-CV-168. Subsequently, on October 9, 2020, plaintiff

amended his complaint and additionally moved for leave to proceed in forma pauperis

[3:20-CV-168, Doc. 8]. On December 3, 2020, Magistrate Judge Trumble filed his Report

and Recommendation (“R&R”) recommending that Counts 2, 3, 4, and 6 of the Amended

Complaint [3:20-CV-168, Doc. 8] be dismissed without prejudice against all defendants,

that defendants Dontrewell E. Kelly, Steven Zitmeyer, and [First Name Unknown] Costello

be dismissed without prejudice from Counts 1 and 5 of the Amended Complaint [3:20-CV-

168, Doc. 12].

On January 12, 2021, the Court dismissed the case on the basis that plaintiff had

failed to comply with the November 1, 2020 deadline [3:20-CV-168, Doc. 14]. Plaintiff filed

a Motion for Relief filed under Rule 60 on April 28, 2021 [3:20-CV-168, Doc. 15], which was

denied on the basis as not being filed within a reasonable time. [3:20-CV-168, Doc. 16].

The next day, the plaintiff filed a complaint in the Circuit Court of Berkeley County,

West Virginia, that was virtually identical to the Amended Complaint filed in federal court,

except for paragraph 20, which was added to include defendant John Anderson

[1:21-CV-125, Doc. 1-2].' The plaintiff's Complaint was served through the West Virginia

Secretary of State at various dates in September 2021, and this matter was removed to

this Court on September 15, 2021. [Doc. 1].?

On September 22, 2021, the pending motions to dismiss were filed.

Legal Standard

To state a claim upon which relief can be granted, the Federal Rules of Civil

Procedure “require[ ] only ‘a short and plain statement of the claim showing that the

pleader is entitled to relief,’ in order 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although a complaint need

not assert “detailed factual allegations,” it must contain “more than labels and conclusions”

or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555

(citations omitted). To survive dismissal for failure to state a claim, the complaint must

raise a right to relief that is more than speculative. Id. In other words, the complaint must

‘ Inasmuch as Magistrate Judge Trumble filed a R&R concerning the same

allegations in the prior case, this Court may liberally plagiarize from that document.

* Unless otherwise specified, docket references from this point on will refer to

filings in 1:21-CV-125.

contain allegations that are “plausible” on their face, rather than merely “conceivable.” Id.

at 555, 570; Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008). Therefore, in order for

a complaint to survive dismissal for failure to state a claim, the plaintiff must “allege facts

sufficient to state all the elements of [his or] her claim.” Bass v. E.1, DuPont de Nemours

& Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d

193, 213 (4th Cir. 2002)). A “claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Thus, a

well-pleaded complaint must offer more than “a sheer possibility that a defendant has

acted unlawfully” in order to meet the plausibility standard and survive dismissal for failure

to state a claim. Id.; see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Alleged Facts

Plaintiff asserts the following facts in his amended complaint:

Plaintiff claims that on or about June 26, 2018, plaintiff was instructed by a

correctional officer (“CO”) to report to the medical unit to receive medication. While walking

to the medical unit, plaintiff was stopped by CO Anderson and ordered to return to where

he came from. Plaintiff asserts that when plaintiff explained why he was walking to the

medical unit, CO Anderson body slammed plaintiff and radioed for back-up. Fellow COs

Bean, Kelly, Zitmeyer, and Costello arrived to assist CO Anderson. Plaintiff claims that

after he was handcuffed by the COs, Bean punched plaintiff in the face and another CO

sprayed plaintiff with mace. According to plaintiff, he was then taken to a holding cell

without being given the chance to shower or clean the mace off of his body. Additionally,

plaintiff asserts that he was never formally disciplined for his role in the altercation.

Plaintiff brings a six-count complaint against defendants. First, plaintiff claims that

COs Kelly, Zitmeyer, Bean, and Costello violated his Eighth Amendment rights against

cruel and unusual punishment. Plaintiff argues that the COs used excessive force when

striking plaintiff after he was already restrained with handcuffs. In Count Two, plaintiff

alleges that his Eight Amendment rights were violated by Sandy, Jividen, and Sheeley

because these defendants established a policy or custom that permitted COs to act ina

cruel manner without deterrence. Further, these defendants made it difficult for plaintiff to

file grievances, seek medical care, and for third parties to oversee misconduct by COs.

In Count Three, plaintiff claims his due process rights were violated by defendants because

defendants obstructed plaintiff from documenting injuries and seeking redress for the

violations against him. Further, Count Four alleges that Sandy, Jividen, and Sheeley failed

to adequately train and oversee defendant COs and failed to act on repeated violations by

COs. Fifth, plaintiff asserts defendant COs Kelly, Zitmeyer, Bean, and Costello committed

assault and battery through offensive touching without a legitimate purpose. Finally, Count

Six alleges that defendants intentionally inflicted emotional distress on plaintiff when

defendants intentionally tortured plaintiff or established a policy promoting torture as a

means to retaliate against inmates.

Plaintiff seeks compensatory damages against all relevant defendants in the

amount of $250,000.00 for physical injuries, pain and suffering, and emotional distress.

Additionally, plaintiff seeks punitive damages against defendants in the amount of

$5,000,000.00. Further, plaintiff requests pre- and post-judgment interest on all liquidated

sums against defendants.

Discussion

Plaintiff brought claims pursuant to 42 U.S.C. § 1983, which provides in relevant

part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage . . . subjects, or causes to be subjected, any citizen of the United

States ... to the deprivation of any rights . . . secured by the Constitution

and laws, shall be liable to the party injured in any action at law . . . [or] suit

in equity.

42 U.S.C. § 1983.

The initial inquiry in a § 1983 case is as follows: (1) was the conduct complained of

committed by a person acting under the color of state law and (2) did that conduct deprive

the complainant of rights, privileges, or immunities secured by the Constitution or laws of

the United States. See Hale v. Tallapoosa County, 50 F.3d 1579 (11th Cir. 1995);

Harvey v. Harvey, 949 F. 2d 1127, 1130 (11th Cir. 1992).

The Supreme Court has long recognized that “neither a State nor its officials acting

in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dept. of State

Police, 491 U.S. 58, 71 (1989). “As a general rule, ‘a public employee acts under color

of state law while acting in his official capacity or while exercising his responsibilities

pursuant to state law.” Conner v. Donnelly, 42 F.3d 220, 223 (4th Cir. 1994) (quoting

West v. Atkins, 487 U.S. 42, 50 (1988)); see also Lugar v. Edmonson Oil Co., Inc., 457

U.S. 922, 936 n.18 (1982) (finding that “state employment is generally sufficient to render

the defendant a state actor’). Thus, no state law has to be in place that is the source of

the constitutional violation. Rather, any person acting with a badge of authority given to

them by virtue of their position with the state who violates a person’s constitutional rights

is subject to liability for the unconstitutional act. West v. Atkins, 487 U.S. at 49 (citing

United States v. Classic, 313 U.S. 299, 326 (1941)); see also Monroe v. Pape, 365 U.S.

167, 187 (1961)).

This Court notes that the plaintiff has sued each defendant in his or her individual

and official capacity, which are treated as suits against the governmental agency.

Kentucky v. Graham, 473 U.S. 159 (1985); Will v. Michigan Dep’t of State Police, 491

U.S. 274, 280 (1985) (“state officers acting in their official capacity are also entitled to

Eleventh Amendment protection, because ‘a suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit against the official’s office,’ and

such, it is no different from a suit against the State itself.””); see also Noe v. West

Virginia, 2010 WL 3025561 (N.D. W.Va. July 29, 2010) (Bailey, J.).

An action for damages against a state, or a state employee in his or her official

capacity is barred by the Eleventh Amendment. Winston v. West Virginia Dept. of

Health and Human Resources, 2021 WL 4150709 (S.D. W.Va. Sept. 13, 2021)

(Johnston, J.); Westinghouse Elec. v. West Virginia Dept. of Highways, 845 F.2d 468

(4th Cir. 1988); Noe v. West Virginia, supra.

With regard to Count One, plaintiff alleges that CO Anderson body slammed the

plaintiff to the ground and radioed for assistance and that after he was handcuffed and

secured, CO Bean punched him in the face. Because there are sufficient facts alleged to

infer a plausible claim for relief against Anderson for body slamming plaintiff and for Bean

striking plaintiff, this Court finds that it would be inappropriate to dismiss defendants

Anderson and Bean at this time.

However, plaintiff fails to state a claim upon which relief may be granted as to the

remaining CO defendants. The only facts in the amended complaint regarding Kelly,

Zitmeyer, and Costello are that they responded to CO Anderson’s call for assistance. No

facts are presented in the complaint that support an Eighth Amendment violation based on

this conduct. While plaintiff states that another CO sprayed him with mace after he was

punched in the face by Bean, plaintiff fails to identify the CO. Additionally, Plaintiff does

not identify who escorted plaintiff to the holding cell without allowing him to clean up. Any

potential defendants are left without the required short and plain statement of the claim

showing that plaintiff is entitled to relief based on the limited information in the amended

complaint. See Twombly, 550 U.S. at 555. Therefore, plaintiff fails to state a claim in

Count One against defendants Kelly, Zitmeyer, and Costello, but does sufficiently state a

claim against defendants Anderson and Bean.

Plaintiff brings Count Two against defendants Sandy, Jividen, and Sheeley for

establishing a policy or custom of allowing COs to engage in cruel conduct against inmates

without deterrence.

“Because vicarious liability is inapplicable to [] § 1983 suits, a plaintiff must plead

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

violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). As stated by the

Fourth Circuit, because there is no respondeat superior liability under § 1983, supervisory

liability lies only “where it is affirmatively shown that the official charged acted personally

in the deprivation of the plaintiff's rights.” Vinnedge v. Gibbs, 550 F. 2d 926, 928 (4th Cir.

1997) (citing Bennett v. Gravelle, 323 F.Supp. 203, 214 (D. Md. 1971), affd, 451 F.2d

1011 (4th Cir. 1971)); Harris v. City of Virginia Beach, 11 F.App’x 212, 215 (4th Cir.

2001).

Nonetheless, when a supervisor is not personally involved in the alleged

wrongdoing, he may be liable under §1983 if a subordinate acts pursuant to an official

policy or custom for which he is responsible. Fisher v. Washington Metro. Area Transit

Auth., 690 F.2d 1133 (4th Cir. 1982), abrogated on other grounds by County of Riverside

v. McLaughlin, 500 U.S. 44 (1991).

“We have set forth three elements necessary to establish supervisory liability under

§ 1983: (1) that the supervisor had actual or constructive knowledge that his subordinate

was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional

injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was

so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged

offensive practices,’; and (3) that there was an ‘affirmative causal link’ between the

supervisor's inaction and the particular constitutional injury suffered by the plaintiff.” Shaw

v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), cert. denied, 513 U.S. 813 (1994) (citations

omitted).

“To satisfy the requirements of the first element, a plaintiff must show the following:

(1) the supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the

conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff.”

Shaw, 13 F.3d at 799 (citing Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984)). “A

plaintiff may establish deliberate indifference by demonstrating a supervisor's ‘continued

inaction in the face of documented widespread abuses,’ however, a plaintiff claiming

deliberate indifference ‘assumes a heavy burden of proof.” Shaw, 13 F.3d at 799.

“Causation is established when the plaintiff demonstrates an ‘affirmative causal link’

between the supervisor's inaction and the harm suffered by the plaintiff.” Id.

Plaintiff provides no facts to support this claim or allow the undersigned to infer the

existence of such a custom that would result in supervisory liability. Plaintiff merely makes

conclusory statements that these defendants prevented plaintiff from reporting grievances,

made it difficult for others to witness misconduct, and avoided the creation of medical

records. This Court needs facts to determine the merits of plaintiff's claim, not just

plaintiff's contentions. Therefore, plaintiff fails to state a claim upon which relief can be

granted as to all defendants in Count Two.

Plaintiff brings Count Three against all defendants for preventing plaintiff from

seeking redress because he was unable to document his injuries, obtain legal documents,

and timely access attorneys. The only fact in the amended complaint that clearly relates

to this claim is that plaintiff was taken to a holding cell without receiving medical attention.

However, plaintiff does not identify who escorted him to the holding cell or provide any

additional information about the event. Additionally, there are no facts to indicate that this

is a policy or custom supported by administrative officials within the ERJ. Importantly,

nowhere in the complaint does plaintiff provide information regarding either legal

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documents or access to attorneys being withheld. The first and only time this assertion is

made is in the “Claim” section of the complaint under Count Three. Again, defendants are

without the short and plain statement of the claim that demonstrates the basis for the

complaint. See Twombly, 550 U.S. at 555. Therefore, plaintiff fails to state a claim upon

which relief could be granted as to all defendants in Count Three.

Furthermore, the Fifth Amendment is inapplicable to this case because the Fifth

Amendment applies only to actions of the Federal government, not the actions of states.

Sarkissian v. W. Va. Univ. Bd. of Governors, 2007 WL 1308978, n. 2 (N.D. W.Va. May

3, 2007) (Stamp, J.).

Plaintiff brings Count Four against Defendants Sandy, Jividen, and Sheeley for

egaging in negligent oversight, allowing pervasive Eighth Amendment violations, and failing

to adequately train and oversee officers. The limited facts in the complaint for this case

do not support a claim and this Court only considers the facts alleged in the complaint.

There are no facts that demonstrate these defendants were negligent in their oversight and

training of personnel at the ERJ. It would appear from the paragraph added to the

complaint in this case that the plaintiff relies on his allegation that “in the months and years

immediately preceding and following the events giving rise to the instant complaint. . .

there had been multiple other incidents at Eastern Regional Jail where, as here, prisoners

were victimized by the excessive force of correctional officers, the officers involved were

not punished, and efforts were taken by ERJ administrators to cover up evidence of

correctional officer misconduct and/or deny prisoners the ability to document their injuries

or meaningfully seek redress, including with respect to Michael Garrett, Mark Blue, Roger

Reid, Adebowole Ojo, and David Richardson. Of the alleged misconduct regarding these

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five prisoners, three occurred well after the alleged misconduct with regard to this plaintiff.

[See Doc. 6 in 3:19-CV-185]. One alleged incident occurred six months before and

involved different COs. Finally, the one prior incident involving CO Bean allegedly occurred

on June 7, 2018, only 19 days prior to the plaintiff's claimed incident.

This Court finds that this information is insufficient to nudge the allegations from

speculative to pausible. Therefore, plaintiff fails to state a claim upon which relief could be

granted as to Defendants Sandy, Jividen, and Sheeley in Count Four.

Plaintiff brings Count Five against COs Kelly, Zitmeyer, Anderson, Bean, and

Costello for offensively touching plaintiff without a legitimate purpose. In his complaint,

plaintiff states that CO Anderson body slammed him and that after he was handcuffed and

secured, CO Bean punched him in the face. Because these are sufficient facts to infer a

plausible claim for relief against Anderson and Bean, the undersigned finds that it would

be inappropriate to dismiss them at this time.

However, plaintiff fails to state a claim upon which relief may be granted as to the

remaining CO Defendants. The only facts in the amended complaint regarding Kelly,

Zitmeyer, and Costello are that they responded to CO Anderson’s call for assistance. No

facts are presented in the amended complaint that demonstrate the remaining COs

assaulted, touched, or offensively touched piaintiff. There is no mention of Kelly, Zitmeyer,

and Costello's conduct once they responded to CO Anderson’s call for backup. While

plaintiff states that another CO sprayed him with mace after he was punched in the face

by Bean, the plaintiff fails to identify the CO or give additional facts. Therefore, plaintiff

fails to state a claim in Count Five against Defendants Kelly, Zitmeyer, and Costello, but

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does sufficiently state a claim against defendants Anderson and Bean to permit that claim

to proceed.

Finally, plaintiff brings Count Six against all defendants for allegedly intentionally

torturing plaintiff and establishing a policy that promoted such torture. Again, the Court

is left with conclusory statements without facts, which is insufficient to support a

well-pleaded complaint. See Twombly, 550 U.S. at 555. There are no facts in the

complaint that plausibly demonstrate that there is a policy permitting “intentional torture”

within the ERJ. Additionally, the complaint does not reflect that defendants sought to inflict

emotional distress as the complaint states. Further, plaintiff states that the conduct here

caused him emotional distress without providing any information of the harm. The

undersigned is left to question how plaintiff has been damaged without any facts to support

the assertion.

West Virginia does recognize a cause of action for intentional infliction of emotional

distress. Syl. Pt. 6, Harless v. First Nat. Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d

692 (1982). The West Virginia Supreme Court of Appeals has set forth a four part test:

In order for a plaintiff to prevail on a claim for intentional or reckless infliction

of emotional distress, four elements must be established. It must be shown:

(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

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plaintiff was so severe that no reasonable person could be expected to

endure it.

Syl. Pt. 3, Travis v. Alcon Lab’ys, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).

While plaintiff states in a conclusory fashion that he suffered extreme emotional

distress that no reasonable person could endure, he plead no facts describing such

distress, any physical, mental, or emotional injuries, any treatment, or the impact such

suffering has had on his life. A plaintiff must allege factual allegations sufficient to show

that the plaintiffs emotional distress was severe, and no reasonable person could expect

to endure it. See Travis v. JP Morgan Chase Bank, N.A., 2012 WL 3193341, at *5(N.D.

W.Va. Aug. 6, 2012) (Bailey, J.). In Travis, this Court held that the plaintiffs failed to

adequately plead the emotional distress elements of the tort of outrage because the factual

allegations were merely a formulaic recitation of the elements. See fd. In order to satisfy

the emotional distress and damage elements in a tort of outrage claim, a plaintiff must

allege “facts describing such distress, any physical, mental, or emotional injuries, any

treatment, or the impact such suffering has had on their lives[.]” Patrick v. PHH Mortg.

Corp., 937 F.Supp.2d 773, 791 (N.D. W.Va. 2013) (Groh, J.).

Furthermore, Jessup’s claim of intentional infliction of emotional distress is

duplicative of his claim for assault and battery because it arises from the same events.

Kelly v. W.Va. Reg’! Jail & Corr. Facility Auth., 2019 WL 2865863, *3 (S.D. W.Va. July

2, 2019) (Copenhaver, J.) (“The West Virginia Supreme Court of Appeals ‘treats claims for

outrage and assault [and] battery arising from the save events [as] duplicative.”). Since

“the ‘law does not permit a double satisfaction for a single injury,’ the plaintiff ‘may not

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recover damages twice for the same injury simply because he has two legal theories.”

Id. (citing Syl. Pt. 7, Harless v. First Nat’l Bank, 169 W.Va. 673, 289 S.E.2d 692 (1982)).

Therefore, Jessup’s claim for intentional infliction of emotional distress will be dismissed.

Finally, the plaintiff requests that he be given leave to amend his complaint. Federal

Rule of Civil Procedure 15(a)(2) states that a party may amend its pleading only with the

opposing party's written consent or the court's leave. The Rule also states that “[t]he court

should freely give leave when justice so requires.” However, in this instant matter, justice

would require that leave not be given as the plaintiff has failed over the course of three

separate complaints to assert proper causes of action. In fact, even after having the

benefit of Magistrate Judge Trumble’s Report and Recommendation, the plaintiff added

but a single paragraph. The granting or refusing of leave to file a supplemental pleading

rests in the sound discretion of the trial court. Graham v. Stansberry , 2008 WL 3910689

(E.D. N.C. Aug. 20, 2008) (Flanagan, C.J.) (citing United States v. Sherwood Distilling

Co., 235 F.Supp. 776, 782 (D. Md. 1964)), aff'd per curiam, 344 F.2d 964 (4th Cir.1965)).

The United States Supreme Court has cited repeated failure to cure deficiencies by

amendments previously allowed, as well as undue prejudice to the opposing party by virtue

of allowance of the amendment, as grounds for denial of leave to amend pleadings under

Rule 15(a)(2). Foman v. Davis, 371 U.S. 178, 182 (1962) (cited in Medigen, Inc. v. Pub.

Serv. Comm’n, 985 F.2d 164, 168 (4th Cir. 1993)).

In this case, the Plaintiff's continuing failure to meet the pleading requirements of

Twombly and Iqbal justify this Court’s denial of the plaintiff's request for leave to amend

his pleadings.

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For the reasons stated above:

Counts Two, Three, Four and Six are DISMISSED;

Counts One and Five are DISMISSED as to all defendants except Anderson and

Bean;

This action will proceed against defendants Anderson and Bean under Counts One

and Five;

Defendant Abraham Bean's Motion to Dismiss [Doc. 2] is DENIED;

Defendant John Anderson’s Motion to Dismiss [Doc. 3] is DENIED;

Defendants Dontrewell Kelley and Steven Zentmyer’s Motion to Dismiss [Doc. 4]

is GRANTED, and

Administrator Defendants’ Motion to Dismiss the Complaint of Plaintiff Jessup

[Doc. 5] is GRANTED.

This Court will issue a First Order and Notice Regarding Discovery and Scheduling

Conference forthwith.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to any counsel of record herein.

DATED: December 2 2021.

OHN-PRESTON BAILEY Seamus

UNITED STATES DISTRICT JUDGE

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