Murray v. Rubenstein

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

GARLAND MURRAY,

v. CIVIL ACTION NO. 2:13-cv-15798

RUSSELL MATHENEY, et al.,

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants, James Rubenstein, David Ballard,

Russell Matheny, Steve Caudill, and David Miller’s, Motion for Summary Judgment

[ECF No. 218].1 The plaintiff filed a Response [ECF No. 237], and the defendants

filed a Reply [ECF No. 244]. The motion is now ripe for adjudication. For the reasons

stated below, the defendants’ motion is GRANTED in part and DENIED in part.

I. Facts

The plaintiff, Garland Murray, has been incarcerated at the Mount Olive

Correctional Complex (“MOCC”) since 2012. Pl.’s Resp. Opp’n to Partial Mot. Summ.

J. of Defs. Rubenstein, Ballard, Matheny, Caudill, & Miller 2 (“Pl.’s Resp.”) [ECF No.

237]. From 2012 to 2016, the plaintiff was housed in solitary confinement in the

Quilliams Units of MOCC. During this time, he was permitted one hour of

recreation five times per week. The plaintiff maintains that in 2013, he was the

only African American in his recreation group, and in this group, there were a couple

1 After this motion was filed, the parties stipulated to dismiss Defendant David Miller from this

action. Stip. Dismiss David Miller 1 [ECF No. 298]. Thus, this order will not address any arguments

regarding David Miller.

of known racist inmates who he believed were armed with improvised weapons. Am.

Compl. 11–12 [ECF No. 112]. According to the plaintiff, he repeatedly refused to go

to the recreation yard when it was his designated time because he was scared of those

racist inmates.

On March 12, 2013, the plaintiff filed a grievance stating:

I’ve addressed this problem on Requests & to staff about

being on (Single Rec) Before (I) get into a altercation. Im

still placed within rec with others. Im in fear on rec with

others. I don’t want to rec with anyone for sake of my safty.

So please put me on single rec before i get into trouble –

please – thank you

Compl. Ex. 1, at 1 [ECF No. 2-1]. On March 13, 2013, the unit manager, defendant

Russell Matheny, responded, “you can fill out a special management request and be

seen by the committee if you like. Let me know and we will bring you [sic] to fill out

the request.” The plaintiff maintains that after this, defendant Matheny went on

vacation without placing him on single rec or notifying other staff of the plaintiff’s

concerns. at 13. The defendants maintain, however, that the plaintiff was not

placed on single rec because he failed to fill out a special management request form.

Defs., James Rubenstein, David Ballard, Russell Matheny, Steve Caudill, and David

Miller’s Mem. Law Supp. Mot. Summ. J. 2 (“Defs.’ Mem.”) [ECF No. 219].

On April 1, 2013, the plaintiff was stabbed by another inmate, Kristopher

Creel, while on recreation. at 1. Creel was able to bring the weapon into the

recreation yard because defendant Paul Donelson failed to strip search or screen the

inmates before they went to recreation on that day. Am. Compl. 14. Defendant Steve

2

Caudill was the captain in charge of the unit as a stand-in for Captain Matheny the

day the plaintiff was stabbed. Pl.’s Resp. 4. Defendant David Ballard was the warden

of MOCC, and defendant James Rubenstein was commissioner of the Division of

Corrections. at 8.

On June 26, 2013, the plaintiff filed this action against the defendants. Compl.

[ECF No. 2]. On August 8, 2016, the plaintiff filed his second amended complaint.

Am. Compl. The amended complaint contains three causes of action against the

defendants: Count One alleges that the defendants violated the Eighth and

Fourteenth Amendments under 42 U.S.C. § 1983; Count Two alleges that the

defendants violated Article III, Sections 1, 5, and 10 of the West Virginia

Constitution; Count Three alleges that the defendants were negligent. at 22–26.

II. Legal Standard

To obtain summary judgment, the moving party must show that there is no

genuine dispute as to any material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they

might affect the outcome of the case.” , 85 F. Supp. 3d 851, 857 (S.D.

W. Va. 2015) (quoting ,

597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a

reasonable fact-finder could return a verdict for the non-movant.” ,

No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary

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judgment is appropriate . . . where the record as a whole could not lead a rational

trier of fact to find for the non-movant.”). The moving party bears the burden of

showing that “there is an absence of evidence to support the nonmoving party’s case.”

, 477 U.S. 317, 325 (1986).

In considering a motion for summary judgment, the court will not “weigh the

evidence and determine the truth of the matter.” , 477

U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the

underlying facts in the light most favorable to the nonmoving party.

, 475 U.S. 574, 587–88 (1986). Summary judgment is

appropriate when the nonmoving party has the burden of proof on an essential

element of his or her case and does not make, after adequate time for discovery, a

showing sufficient to establish that element. , 477 U.S. at 322–23. The

nonmoving party must satisfy this burden of proof by offering more than a mere

“scintilla of evidence” in support of his or her position. , 477 U.S. at 252.

Likewise, conclusory allegations or unsupported speculation, without more, are

insufficient to preclude the granting of summary judgment. ,

731 F.3d 303, 311 (4th Cir. 2013); , 105 F.3d 188, 191

(4th Cir. 1997).

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III. Discussion

a. Count One: 42 U.S.C. § 1983

The plaintiff brings a Section 1983 claim against each of the defendants alleging

that they violated his Eighth and Fourteenth Amendment rights.2 The court will

address each of the plaintiff’s Section 1983 claims below.

i. Russell Matheny

“In order to prevail on a [Section] 1983 claim, a plaintiff must show that the

defendant deprived him of a right secured by the Constitution and laws of the United

States and that the defendant acted under color of state law.” , 85 F. Supp. at

858 (citing , 526 U.S. 40, 49 (1999). “The Eighth

Amendment, which applies to the States through the Due Process Clause of the

Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments’

on those convicted of crimes.” , 501 U.S. 294, 297–98 (1991).

“The Constitution does not mandate comfortable prisons, but neither does it

permit inhumane ones, and it is now settled that the treatment a prisoner receives

in prison and the conditions under which he is confined are subject to scrutiny under

the Eighth Amendment.” , 511 U.S. 825, 832 (1994) (citations

omitted) (quotation marks omitted). The Eighth Amendment imposes a duty on

prison officials to “take reasonable measures to guarantee the safety of the inmates.”

2 The court is under the impression that the plaintiff only included the Fourteenth Amendment in

Count One to the extent that it incorporates claims for violations of rights enshrined in the Bill of

Rights against the states. Thus, the court will not conduct a separate analysis regarding whether

summary judgment is warranted as to the plaintiff’s Fourteenth Amendment claim.

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(quoting , 468 U.S. 517, 526–27 (1984)). This includes a duty to

protect prisoners from violence at the hands of other prisoners. at 833;

, 816 F.2d 977, 979 (4th Cir. 1987)(“The eighth amendment protects a convicted

inmate from physical harm at the hands of fellow inmates resulting from the

deliberate or callous indifference of prison officials to specific known risks of such

harm.”).

“It is not, however, every injury suffered by one prisoner at the hands of

another that translates into constitutional liability for prison officials responsible for

the victim’s safety.” , 511 U.S. at 834. Instead, prison officials only violate the

Eighth Amendment when two requirements are met. “First, the deprivation

alleged must be, objectively, ‘sufficiently serious.’” (quoting 501 U.S. at

298). This means that, “[f]or a claim . . . based on a failure to prevent harm, the inmate

must show that he is incarcerated under conditions posing a substantial risk of

serious harm.” “Though guidance is limited on the question of what precisely

constitutes sufficiently serious deprivation, the threat of a beating by another inmate

clearly satisfies” this requirement. , No. 3:10-1383-RMG-

JRM, 2012 WL 3877732, at *5 (D. S.C. Sept. 5, 2012).

The second requirement mandates that the prison official have acted with

“deliberate indifference” to the inmate’s safety. , 511 U.S. at 837. Deliberate

indifference is a subjective requirement which necessitates that the prison official

both “know[] of disregard[] an excessive risk to inmate health or safety.”

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(emphasis added). This means that “the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.” “This subjective assessment ‘sets a

particularly high bar to recovery’ which cannot be met by ‘a showing of mere

negligence.’” , 413 Fed. App’x 634, 638 (4th Cir. 2011) (citations

omitted).

Here, with regard to the first element, the plaintiff was fearful that he would

be attacked, and he was in fact attacked and stabbed multiple times. Thus, there is a

genuine issue of material fact as to whether he faced an objective, sufficiently serious

deprivation.

With regard to the second requirement, the defendant maintains that while

the plaintiff “may have voiced his fears to Correctional Officers in general terms,” he

“[n]ever stated that he had a particularized fear of a specific inmate or group of

inmates.” Defs., James Rubenstein, David Ballard, Russell Matheny, and Steve

Caudill’s Reply to Pl.’s Resp. to Defs.’ Mot. Summ. J. 3 (“Defs.’ Reply”) [ECF No. 244].

This argument is unpersuasive. In , the Supreme court made clear “that ‘a

prison official [cannot] escape liability for deliberate indifference by showing that,

while he was aware of an obvious, substantial risk to inmate safety, he did not know

that the complainant was especially likely to be assaulted by the specific prisoner

who eventually committed the assault.’” , 789 F.3d 126, 135 (4th

Cir. 2015) (quoting , 511 U.S. at 843).

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On March 12, 2013, two weeks before the incident, the plaintiff filed a

grievance stating:

I’ve addressed this problem on Requests & to staff about

being on (Single Rec) Before (I) get into a altercation. Im

still placed within rec with others. Im in fear on rec with

others. I don’t want to rec with anyone for sake of my safty.

So please put me on single rec before i get into trouble –

please – thank you

Compl. Ex. 1, at 1. Defendant Matheny signed and responded to this grievance the

next day. Additionally, the plaintiff submitted an affidavit from another inmate,

Keith W.R. Lowe, which states:

I had a conversation with Capt. Matheney behind the glass

about another inmate named Murray. Capt. Matheney was

joking around and said “well it looks like you put another

one on single Rec” and I said who? Matheney said old tough

ass Garland Murray, apparently he thinks the Aryan

Brotherhood is going to stab him. He then said, what did I

think the reason was. I said I have no ideal why he is on

single rec but It had nothing to do with me. Captain

Matheney said that he was not stupid and that he received

information, but that he could careless if AB stabbed him

or not, just don’t do it on his watch, but regardless he

wasn’t going to place him on single rec.

Exs. M to V Opp’n Defs.’ Mot. Summ. J. Ex. T, at 1 [ECF No. 238-7].

Based on these facts, the court FINDS that the plaintiff has raised a genuine

issue of material fact as to whether Defendant Matheny was deliberately indifferent

to the plaintiff’s safety.

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ii. Defendants James Rubenstein & David Ballard

The plaintiff further alleges that defendants James Rubenstein and David

Ballard have “supervisory liability” for the plaintiff’s constitutional claims. “The

principle is firmly entrenched that supervisory officials may be held liable in certain

circumstances for the constitutional injuries inflicted by their subordinates.”

, 13 F.3d 791, 798 (4th Cir. 1994). “There is, however, no respondeat superior

liability pursuant to 42 U.S.C. § 1983.” , No. 1:07-00535, 2008

WL 1899907, at *2 (S.D. W. Va. Apr. 25, 2008) (citing ,

436 U.S. 658 (1978)). Instead, “‘[l]iability will only lie where it is affirmatively shown

that the official charged acted personally in the deprivation of the plaintiff's rights,’

or where a subordinate acts pursuant to a policy or custom for which the supervisor

is responsible.” (quoting 550 F.2d 926, 928 (4th Cir.1977)).

“Recognizing that supervisory liability can extend ‘to the highest levels of state

government,’” the Fourth Circuit has held that supervisory liability “ultimately is

determined ‘by pinpointing the persons in the decisionmaking chain whose deliberate

indifference permitted the constitutional abuses to continue unchecked.’” , 13

F.3d at 798 (quoting , 737 F.2d 368, 376 (4th Cir. 1984),

470 U.S. 1035 (1985)). There are three elements necessary to establish supervisory

liability:

(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

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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.

at 799.

In order to establish the first element, the plaintiff must show “(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.” “Establishing a ‘pervasive’ and ‘unreasonable’ risk of harm requires

evidence that the conduct is widespread, or at least has been used on several different

occasions and that the conduct engaged in by the subordinate poses an unreasonable

risk of harm of constitutional injury.”

Turning to the second element, the plaintiff “may establish deliberate

indifference by demonstrating a supervisor’s ‘continued inaction in the face of

documented widespread abuses.’” (citations omitted). The Fourth Circuit has held:

The plaintiff assumes a heavy burden of proof in

establishing deliberate indifference because: [o]rdinarily,

[the plaintiff] cannot satisfy his burden of proof by pointing

to a single incident or isolated incidents, for a supervisor

cannot be expected to promulgate rules and procedures

covering every conceivable occurrence within the area of

his responsibilities. Nor can he reasonably be expected to

guard against the deliberate criminal acts of his properly

trained employees when he has no basis upon which to

anticipate the misconduct. A supervisor’s continued

inaction in the face of documented widespread abuses,

however, provides an independent basis for finding he

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either was deliberately indifferent or acquiesced in the

constitutionally offensive conduct of his subordinates.

(citations omitted).

The third element for supervisory liability is established “when the plaintiff

demonstrates an ‘affirmative causal link’ between the supervisor’s inaction and the

harm suffered by the plaintiff.” (citations omitted). Causation in this context

encompasses both cause in fact and proximate cause. The Fourth Circuit has held

that the “proof of causation may be direct . . . where the policy commands the injury

of which the plaintiff complains . . . [or] may be supplied by [the] tort principle that

holds a person liable for the natural consequences of his actions.” (citations

omitted).

Here, the plaintiff argues that defendants Rubenstein and Ballard have

supervisory liability for his Section 1983 claims. Pl.’s Resp. 15. The plaintiff

maintains that these defendants were aware that there were significant unresolved

staffing shortages at MOCC, and that “staffing shortages led to mistakes, errors, and

reduction in safety.” The plaintiff also maintains that they were aware that

inmates had attacked others on the Quilliams II recreation yard prior to the date the

plaintiff was stabbed, but that they failed to take any measures to increase inmate

protection.

The plaintiff further alleges that these defendants “created and supported a

culture of coercion and lack of respect for inmates’ justifiable fears by either

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instituting ‘martial law’ or refusing to contradict its existence; and by instituting

policies that directed officers not to avoid confrontation with inmates or to utilize

efforts to temper force against inmates, including in their training of officers.” at

16. According to the plaintiff, “[t]his atmosphere led directly to officers ignoring [the

plaintiff’s] fears.” Finally, the plaintiff alleges that “[d]efendant Rubenstein

created the parameters for the contract with the medical provider, which creates

significant incentives to limit care.”

The facts, when viewed in the light most favorable to the plaintiff, do not show

that defendants Rubenstein and Ballard’s conduct violated his constitutional rights.

The plaintiff has failed to establish the first element of supervisory liability—i.e.

that either of these defendants “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.” , 13 F.3d at 799. The

plaintiff was stabbed after defendant Paul Donelson failed to search all of the inmates

before they went on recreation. The plaintiff failed to present any evidence that these

defendants had any knowledge of conduct like this occurring in the past. The plaintiff

states that defendants Rubenstein and Ballard “were aware [sic] that inmates had

attacked others on the Quilliams II recreation yard to the date [the plaintiff]

was attacked,” but he does not cite any evidence to support this.3 Pl.’s Resp. 15. This

bare assertion, however, is insufficient to allow this claim to survive summary

3 Hundreds of pages of exhibits were entered in this matter. It is the party’s responsibility to cite to

the court which exhibits they are relying on when making factual assertions.

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judgment. The plaintiff has also failed to allege enough facts to support the second

element, deliberate indifference. , 13 F.3d at 799.

The court FINDS that summary judgment is proper as to the plaintiff’s

supervisory liability claims against defendants Ballard and Rubenstein.

iii. Defendant Steve Caudill

The plaintiff also alleges that defendant Steve Caudill has supervisory liability

under Section 1983. Am. Compl. 18–22; Pl.’s Resp 14. The plaintiff alleges that

defendant Caudill failed to: (1) ensure the day-to-day security of the Quilliams Units

and the safety of the plaintiff and (2) train or supervise subordinate correctional

officers, and/or ensure that a continuous system of contraband prevention and

detection was implemented on the Quilliams units. Am. Compl. 20. Additionally, the

plaintiff alleges that immediately after he was stabbed, defendant Caudill entered

the unit and “stood by as his subordinates failed to take [the plaintiff] to the medical

unit, questioned him prior to allowing him access to any medical care, and ultimately

threatened him with mace rather than allowing him to obtain timely medical

treatment.” Pl.’s Resp. 14. The plaintiff further maintains that defendant Caudill

“took no corrective action after [the plaintiff] was stabbed, including not even

inquiring into the results of the investigation.” Pl.’s Resp. 14. The plaintiff also alleges

that after he was stabbed, defendant Caudill repeatedly removed the plaintiff from

single recreation and denied him alternative access to a telephone. at 14–15.

13

None of these allegations, however, support a claim for supervisory liability.

, 13 F.3d at 799. The plaintiff has failed to allege sufficient facts to prove

that defendant Caudill “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.” Additionally, the plaintiff has

failed to allege sufficient facts to prove that defendant Caudill was deliberately

indifferent.

The court FINDS that summary judgment is proper as to the plaintiff’s

supervisory liability claims against defendant Caudill.

b. Count One: Qualified Immunity

Next, the defendants argue that the plaintiff’s Section 1983 claims are barred

by the doctrine of qualified immunity. Since the court has already found that

summary judgment is warranted as to defendants Rubenstein, Ballard, and Caudill,

the court will only address qualified immunity in regard to defendant Matheny.

Under the doctrine of qualified immunity, “[g]overnmental officials performing

discretionary functions are shielded from liability for money damages so long ‘as their

conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’” , 973 F.3d 295, 298

(4th Cir. 1992) (quoting , 457 U.S. 800, 818 (1982)). “Officials are

not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”

(citations omitted). “Qualified immunity ‘shield[s] [officials] from civil damages

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liability as long as their actions could reasonably have been thought consistent with

the rights they are alleged to have violated.’” , 706 F.3d 379, 385 (4th

Cir. 2013) (quoting , 483 U.S. 635, 638 (1987)). “The concern of

the immunity inquiry is to acknowledge that reasonable mistakes can be made as to

the legal constraints on particular [government] conduct.” , 501 F.3d

374, 377 (quoting , 533 U.S. 194, 205 (2001)). Thus, qualified

immunity protects “all but the plainly incompetent or those who knowingly violate

the law.” (quoting , 475 U.S. 335, 341 (1986)).

The Supreme Court has held that qualified immunity is “an entitlement not to

stand trial or face the other burdens of litigation.” , 472 U.S. 511,

526 (1985). The privilege is “an rather than a mere defense to

liability; and like an absolute immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” , 533 U.S. at 200–01.

The Fourth Circuit has held that:

When a government official properly asserts qualified

immunity, the threshold question that a court must answer

is whether the facts, when viewed in the light most

favorable to the plaintiff, show that the official’s conduct

violated a constitutional right. “If no constitutional right

would have been violated were the allegations established,

there is no necessity for further inquiries concerning

qualified immunity.” However, “if a violation could be made

out on a favorable view of the parties’ submissions, the

next, sequential step is to ask whether the right was clearly

established”—that is, “whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” The “answer to both

questions must be in the affirmative in order for a plaintiff

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to defeat a . . . motion for summary judgment on qualified

immunity grounds.”

, 501 F.3d 374, 377 (citations omitted). The plaintiff bears the burden

of proof on the first question regarding whether there was a constitutional violation.

If the plaintiff shows that a genuine issue of material fact exists as to whether the

defendants violated his statutory or constitutional rights, then summary judgment is

improper. , 545 Fed. App’x 211, 215 (4th Cir. 2013). The defendant

bears the burden of proof on the second question regarding whether the right was

clearly established. , 501 F.3d at 378.

Since the plaintiff has met his burden of proving that there is a question of

material fact as to whether there was a constitutional violation, summary judgment

is improper unless defendant Matheny has proven that the right was not clearly

established. Defendant Matheny has failed to satisfy this burden. As explained above,

the Supreme Court has explicitly held that prison officials have a duty to protect

prisoners from violence at the hands of other prisoners, and that failing to do so may

violate the Eighth Amendment. , 511 U.S. at 832; ,

816 F.2d 977, 979 (4th Cir. 1987).

Thus, the court FINDS that qualified immunity is improper at this time as to

the plaintiff’s 42 U.S.C. § 1983 claim against defendant Matheny.

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c. Count Two: West Virginia Constitution

Count Two of the Complaint alleges that the defendants deprived the plaintiff

of his rights protected under Article III, Sections 1, 5, and 10 of the West Virginia

Constitution. Am. Compl. 24–26. The defendants argue that these claims “should be

dismissed because the West Virginia Constitution does not create an independent

cause of action for money damages.” Defs.’ Mem. 12.

While the defendants did not raise this argument, the court finds it necessary

to explain that Article III, Sections 1 and 10 are not actually relevant in this case.

Article III, Section 1 of the West Virginia Constitution is entitled “Bill of Rights.” W.

Va. Const. art. III, § 1. It “is a statement of the basic principle on which our entire

democratic structure is founded.” , No. 2:14-cv-07529, 2016 WL

5419442, at *13 (S.D. W. Va. Sept. 27, 2016) (citations omitted) (quotation marks

omitted). This section “does not independently give rise to a cause of action.” at

*14 n.7. Thus, the court FINDS that summary judgment is proper as to the plaintiff’s

claim under Article III, Section 1 of the West Virginia Constitution.

Article III, Section 10 is “West Virginia’s equivalent to the federal Due Process

Clause.” at *13. “The Supreme Court has held that ‘if a constitutional claim is

covered by a specific constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard appropriate to that

specific provision, not under the rubric of substantive due process.’”

, No. 2:-16-cv-0178, 2017 WL 440733, at *6 (S.D. W. Va. Feb. 1, 2017) (quoting

17

, 520 U.S. 259, 272 n.7 (1997)). “The [c]ourt has no reason to

believe that the West Virginia courts would apply a different rule in their

construction of Article III, [Section] 10 of the West Virginia Constitution.”

Here, the plaintiff has alleged that he was attacked by another inmate while

on recreation because the defendants failed to protect him. This claim is covered by

both the Eighth Amendment of the United States Constitution, , 511 U.S. at

833, as well as Article III, Section 5 of the West Virginia Constitution. ,

171 W. Va. 415, 417 (1982). Thus, the court FINDS that summary judgment is proper

as to the plaintiff’s claims under Article III, Section 10 of the West Virginia

Constitution.

Lastly, the plaintiff alleges that the defendants violated his rights secured by

Article III, Section 5 of the West Virginia Constitution. For this alleged violation, the

plaintiff seeks compensatory damages, outside medical and psychiatric services,

punitive damages, and injunctive relief. Am. Compl. 24–26. The defendants argue

that this claim “should be dismissed because the West Virginia Constitution does not

create an independent cause of action for money damages.” Defs.’ Mem. 12–13.

The Supreme Court of Appeals of West Virginia has held that the remedies

available under the West Virginia Constitution to a plaintiff “brutalized by state

agents while in jail or prison” include:

(a) A reduction in the extent of his confinement or his time

of confinement;

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(b) Injunctive relief, and subsequent enforcement by

contempt proceedings, including but not limited to,

prohibiting the use of physical force as punishment,

requiring psychological testing of guards, and ordering

guards discharged if at a hearing they are proved to

have abused inmates;

(c) A federal cause of action authorized by 42 U.S.C. § 1983;

and

(d) A civil action in tort.

271 S.E.2d 322, 324 (W. Va. 1980). Insofar as the plaintiff seeks

monetary damages under the West Virginia Constitution outside the scope of those

contemplated by the court, the court FINDS that summary judgment is

warranted. , No. 2:13-cv-29533, 2014 WL 1329790, at

*2 (S.D. W. Va. Apr. 1, 2014); , No. 2:13-10148, 2013 WL 5918753, at

*5 (S.D. W. Va. Nov. 1, 2013). The defendants did not address the plaintiff’s request

for injunctive relief, and thus the court declines to address it at this time. Therefore,

the court FINDS that summary judgment is not warranted as to the plaintiff’s

request for injunctive relief in Count Two.

d. Count Three: Negligence

Finally, the plaintiff has brought a negligence claim against each of the

defendants. Am. Compl. 26–27. The defendants argue that they are entitled to

qualified immunity as to this claim. Defs.’ Reply 8. The record is unclear regarding

the specific conduct the plaintiff alleges was negligent. Moreover, the defendants

briefing on whether they are entitled to qualified immunity as to the plaintiff’s

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negligence claim was wholly inadequate. The defendants do not cite to any case law

or a single statute that supports their defense. Def.’s Reply 8. Instead, they state that

they are entitled to qualified immunity as to the plaintiff's negligence claim, while

only explaining why they are entitled to qualified immunity as to the plaintiffs

constitutional claims. Jd.

The court FINDS that material facts exist as to whether the defendants are

entitled to qualified immunity as to the plaintiffs negligence claims, and therefore

summary judgment as to Count Three is not warranted.

IV. Conclusion

For the reasons stated herein, the defendants’ motion for summary judgment

is GRANTED in part and DENIED in part. As to Count One, summary judgment is

GRANTED in favor of defendants Caudill, Rubenstein, and Ballard, but DENIED as

to defendant Matheny. As to Count Two, the defendants’ motion for summary

judgment is GRANTED as to the plaintiff's request for monetary damages, but is

otherwise DENIED. As to Count Three, the defendants’ request for summary

judgment is DENIED.

The court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented party.

ENTER: October 26, 2017

My

G

fo STATES DISTRICT JUDGE