Taylor v. Clay County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

RITA KAYE TAYLOR,

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00387

CLAY COUNTY SHERIFF’S DEPARTMENT, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is a motion to dismiss filed by Defendants the Clay County Sheriff’s

Department (the “Department”), the Clay County Commission (the “Commission”), Robert Belt,

and Jonathan Holcomb (collectively, “Defendants”). (ECF No. 7.) For the reasons discussed

herein, the Court GRANTS the motion. (ECF No. 7.)

I. BACKGROUND

On November 14, 2018, Plaintiff Rita Taylor (“Plaintiff”) was at her home in Hartland,

West Virginia, when Deputy Jonathan Holcomb knocked on her door looking for an individual

named Pat Dawson. (ECF No. 1 at 2 ¶ 7, 3 ¶ 9.) Holcomb asked if he could search her residence,

but Plaintiff responded that he could not enter without a warrant. (Id. ¶¶ 11–12.) At that point,

Deputy Robert Belt came through Plaintiff’s back door and entered her kitchen. (Id. ¶ 15.)

Plaintiff insisted again that the officers obtain a warrant, but, despite her repeated request,

Holcomb and Belt proceeded to search Plaintiff’s residence without her consent. (Id. ¶¶ 18–20.)

As a result of their actions, Plaintiff alleges she suffered indignity, embarrassment, humiliation,

annoyance, inconvenience, and degradation. (Id. ¶ 21.)

On May 15, 2019, Plaintiff filed the present action asserting claims against Defendants for

violations of her Fourth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, state

constitutional violations under Article III, Section 1, 5, 6, and 10 of the West Virginia Constitution,

and ordinary negligence. Defendants filed the pending motion to dismiss on August 8, 2019.

(ECF No. 7.) Plaintiff filed a timely response on August 22, 2019, (ECF No. 9), and Defendants

timely replied on August 29, 2019, (ECF No. 10). As such, the motion is fully briefed and ripe

for adjudication.

II. LEGAL STANDARD

In general, a pleading must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep’t of

Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement

exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). To withstand a motion to

dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough

facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat’l Sec.

Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“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.” Iqbal, 556

U.S. at 678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to

raise a right to relief above the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639,

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647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are

required; labels, conclusions, and a “formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555; see also Ms. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.

2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to

state a claim.” (quoting Iqbal, 556 U.S. at 679)).

In evaluating the sufficiency of a complaint, the court first “identif[ies] pleadings that,

because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal,

556 U.S. at 679. The court then “assume[s] the[] veracity” of the complaint’s “well-pleaded

factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.”

Id. Review of the complaint is “a context-specific task that requires [the court] to draw on its

judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is

not required to plead factual allegations in great detail, but the allegations must contain sufficient

factual heft to allow a court, drawing on judicial experience and common sense, to infer more than

the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d

447, 452 (4th Cir. 2017) (internal quotation marks omitted).

III. DISCUSSION

Defendants advance five arguments for dismissal of Plaintiff’s claims: (1) Plaintiff’s claims

against the Department fail because it an entity incapable of being sued; (2) Plaintiff’s claims

against the Commission fail because it is entitled to immunity pursuant to the West Virginia

Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”), W. Va. Code § 29-

12A-1, et seq.; (3) the individual officers are entitled to qualified immunity on Count I to the extent

Plaintiff’s § 1983 claim is based on violations of the Eighth and Fourteenth Amendments; (4)

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Plaintiff’s state constitutional claims are inapplicable and fail to state a claim; and (5) Plaintiff’s

negligence claim is based on intentional conduct and, otherwise, fails to state a plausible claim.

A. Plaintiff’s Concessions

As an initial matter, Plaintiff makes several concessions to specific arguments raised in

Defendants’ motion. First, Plaintiff agrees to dismiss her § 1983 claim asserted in Count I of the

Complaint against the Department and the Commission. (ECF No. 9 at 8 n.1.) As such,

Plaintiff’s § 1983 claim is DISMISSED without prejudice as to these defendants.

Plaintiff also appears to concede to Defendants’ arguments that her state constitutional

claims for violations of Article III, Sections, 1, 5, 6, and 10 of the West Virginia Constitution fail

as a matter of law. Specifically, Defendants argue that Article III, Section 1 of the West Virginia

Constitution has no relevance because it does not independently give rise to a cause of action.

Similarly, Defendants contend that Plaintiff’s monetary claim for violations of her rights secured

under Article III, Section 6—the State’s counterpart to the Fourth Amendment—must be dismissed

because the West Virginia Constitution does not create an independent cause of action for

monetary damages. Defendants also assert that Plaintiff’s claim for violations of Article III,

Section 5 fails because the protections against cruel and unusual punishment under this provision

are only triggered after a conviction, and, here, there are no allegations that Plaintiff was arrested

or convicted of a crime. Finally, Defendants argue that Plaintiff’s due process claim under Article

III, Section 10 is inapplicable because her claim is covered by the Fourth Amendment of the United

States Constitution. (ECF No. at 8 11–16.) Plaintiff failed to address any of these arguments,

and, consequently, concedes to Defendants’ position. See Pueschel v. United States, 369 F.3d

345, 354 (4th Cir. 2004) (authorizing the district court, after allowing plaintiff an opportunity to

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respond, to “rule on the [defendant’s] motion and dismiss [the] suit on the uncontroverted bases

asserted therein.”); Blankenship v. Necco, LLC, No. 2:16-cv-12082, 2018 WL 3581092, at *9 (S.D.

W. Va. July 25, 2018) (“The failure to respond to arguments raised in a motion . . . can indicate

that the non-moving party concedes the point or abandons the claim.”); Weller v. JP Morgan Chase

Bank, Nat’l Ass’n, No. 3:16-cv-110, 2017 WL 3581099, at *2 (N.D. W. Va. Aug. 18, 2017)

(finding the plaintiff abandoned their claims because they failed to address the defendant’s

arguments). Accordingly, Plaintiff’s state constitutional claims against all Defendants in Count

II are DISMISSED.

Finally, Plaintiff apparently concedes that the Department is an improper party, incapable

of being sued as she also does not address this point in her response in opposition to Defendants’

motion. In their motion, Defendants note that while West Virginia law authorizes a county

commission to sue or be sued, see W. Va. Code § 7–1–1(a)1, state law does not contain a similar

provision for county sheriff’s offices. The Court agrees that the Department is not a legal entity

that can be liable for any injury alleged by Plaintiff. See Webb v. Raleigh Cty. Sheriff’s Dep’t,

No. 5:09-cv-01253, 2010 WL 3702648, at *7 (S.D. W. Va. Sept. 16, 2010). This Court has

repeatedly held that,

[w]hile West Virginia law provides for the election of sheriffs and the appointment

of sheriff’s deputies, there is no organic authority in state law that creates a sheriff’s

department or sheriff’s office. This stands in contrast to entities such as volunteer

fire departments and emergency service organizations, the existence of which is

provided for by state law and both of which qualify as political subdivisions under

Section 29-12A-3(c) [of the West Virginia Code].

1 West Virginia Code § 7–1–1(a) provides that “[t]he county commission . . . of every county within the State of West

Virginia shall be a corporation by the name of ‘The County Commission of .......... County’ . . . by which name it may

sue and be sued, plead and be impleaded and contract and be contracted with.”).

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Wilkes v. Raleigh Cty., No. 5:17-cv-03606, 2018 WL 1513004, at *3 (S.D. W. Va. Mar. 27, 2018)

(citing Webb, 2010 WL 3702648, at *7); see also Revene v. Charles Cty. Comm’rs, 882 F.2d 870,

874 (4th Cir. 1989) (concluding that a “separate claim against the ‘Office of Sheriff’ was rightly

dismissed on the basis that this ‘office’ is not a cognizable legal entity separate from the Sheriff in

his official capacity and the county government of which this ‘office’ is simply an agency.”).

Accordingly, the Department is not susceptible to the instant suit, and all claims asserted against

it are DISMISSED.

B. Qualified Immunity

The individual defendants, Holcomb and Belt, argue that they are immune from liability

for Plaintiff’s § 1983 claims based on violations of the Eighth and Fourteenth Amendments

because Plaintiff alleges only a single constitutional violation of unlawful search. (ECF No. 8 at

7–10.) Plaintiff’s only argument in response is that a determination regarding qualified immunity

would be premature and should await the close of discovery.2 (ECF No. 9 at 7.) However, the

Supreme Court has made clear that qualified immunity issues are to be resolved at the earliest

possible stage of the litigation. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). In fact, “the

‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that

‘insubstantial claims’ against government officials will be resolved prior to discovery.” Id.

(quoting Anderson v. Creighton, 483 U.S. 625, 640 n. 2 (1987)).

The doctrine of qualified immunity shields government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

2 Plaintiff also argues at great length that her unlawful search claim based on the Fourth Amendment is sufficiently

pled in the Complaint. However, as Defendants’ do not challenge Plaintiff’s Fourth Amendment claim, Plaintiff’s

argument is irrelevant.

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rights of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). Qualified immunity protects law enforcement officers from “bad guesses

in gray areas” and ensures that they may be held personally liable only “for transgressing bright

lines.” Maciariello v. Summer, 973 F.2d 295, 298 (4th Cir. 1992). Whether a governmental

official is entitled to qualified immunity involves two inquiries: (1) whether the facts alleged or

shown demonstrate that a depravation of a constitutional right has occurred, and (2) whether that

right was clearly established at the time of the alleged violation. See Pearson, 555 U.S. at 232;

Meyers v. Baltimore Cty., Md., 713 F.3d 723, 731 (4th Cir. 2013). A clearly established right is

one that “violate[s] clearly established statutory or constitutional rights of which a reasonable

person would have known.’” West v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014) (quoting

Harlow, 457 U.S. at 818). With respect to the second prong, “[a] law is clearly established if ‘the

contours of a right are sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

The Court may address these two prongs in either order, and the officials are entitled to qualified

immunity if Plaintiff fails to establish either one. Pearson, 555 U.S. at 236.

In this case, the Complaint alleges a violation of the Eighth Amendment’s guarantee

against cruel and unusual punishment based upon the officers’ entry and search of her home. The

Eighth Amendment “was designed to protect those convicted of crimes.” Ingraham v. Wright,

430 U.S. 651, 664 (1977); Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997) (“The Eighth

Amendment prohibits the infliction of cruel and unusual punishment on one convicted of a

crime.”). In the absence of any allegation that Plaintiff was a convicted inmate, there is no basis

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for her claim under the Eighth Amendment. Therefore, the Complaint fails to state a claim upon

which relief can be granted under the Eighth Amendment.

To the extent that the Complaint alleges a violation of the Fourteenth Amendment’s due

process clause related to Plaintiff’s claim for unlawful search, such claim is not cognizable under

these circumstances. It is well-established 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.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citing Graham v. Connor, 490

U.S. 386, 394 (1989)). In Graham, the Supreme Court held that where an explicit textual source

of constitutional protection applies to physically intrusive government conduct, “that Amendment,

not the more generalized notion of ‘substantive due process,’” must be the guidepost for analyzing

the claim. 490 U.S. at 395. Under Graham’s guidance, the Court may not entertain a due process

claim where Plaintiff alleges a Fourth Amendment claim arising from the same wrongful conduct.

See Krein v. W. Va. State Police, No. 2:11-cv-00962, 2012 WL 2470015, at *6 (S.D. W. Va. Jun.

27, 2012) (dismissing Fourteenth Amendment claim because “the textually specific Fourth

Amendment protection preempts the more generalized substantive due process protection”).

The facts as set forth in the Complaint, even taken in the light most favorable to Plaintiff,

are insufficient to overcome Holcomb and Belt’s assertion of qualified immunity. Accordingly,

as Plaintiff has not sufficiently alleged any violations of the Eighth and Fourteenth Amendments,

the Court finds that the individual defendants are entitled to qualified immunity on Count I to the

extent it is based on the Eighth and Fourteenth Amendments.

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C. Statutory Immunity

The Commission raises several immunity arguments. First, the Commission contends that

the Tort Claims Act renders it immune from liability for Plaintiff’s state constitutional claims

because they are premised solely on intentional conduct. Plaintiff’s implied concessions with

respect to her state constitutional claims, as noted previously, renders this issue moot. See supra

III.A. Nevertheless, even if Plaintiff’s state constitutional claims survived at this stage, the

Commission could not be subject to liability under Count II.

West Virginia law provides that political subdivisions may be liable for the negligent acts

of their employees, committed while said employees are acting within the scope of their

employment. See W. Va. Code § 29-12A-4(c)(2). In contrast, “West Virginia political

subdivisions are not liable for the intentional malfeasance of their employees.” Jones v. Bd. of

Educ. of Putnam Cty., W. Va., No. 3:19-cv-0618, 2020 WL 118600, at *7 (S.D. W. Va. Jan. 9,

2020). Here, Plaintiff’s state constitutional violations are not premised on negligence, but, rather,

the alleged intentional acts of Holcomb and Belt. In connection with her state constitutional

claims, Plaintiff expressly alleges that “[t]he defendants’ actions were reprehensible, willful,

wanton, malicious, and/or undertaken with blatant and intentional disregard of the rights owed to

the plaintiff . . . .” (ECF No. 1 at 7 ¶ 43.) This, of course, is not negligence. See Stone v.

Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (“A wilful [sic] act is an intentional act, and, strictly

speaking, there can be no such thing as wilful [sic] negligence, because negligence conveys the

idea of inadvertence as distinguished from premeditation or formed intention.”). Therefore,

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Plaintiff’s state constitutional claims against the Commission must be DISMISSED, not due to

statutory immunity but because Plaintiff’s claim is only premised on intentional conduct.3

The Commission also argues that it is immune from liability for Plaintiff’s negligence

claim pursuant to West Virginia Code § 29-12A-5(a)(5), which provides that a political

subdivision is immune from liability if a loss or claim results from “. . . a failure to provide, or the

method of providing police, law enforcement or fire protection.” Plaintiff counters, citing West

Virginia Code 29-12A-4(c)(2), that the Commission is susceptible to liability for the alleged

negligent acts of Holcomb and Belt carried out in the scope of their employment.

As “[t]he general rule of construction in governmental tort legislation cases favors liability,

not immunity,” political subdivisions are liable for losses resulting from their employees’

negligence “[u]nless the legislature has clearly provided for immunity under the circumstances.”

Syl. pt. 2, Marlin v. Bill Rich Const., Inc., 482 S.E.2d 620 (W. Va. 1996). Plaintiff correctly notes

that political subdivisions can be liable for the negligent acts of their employees performed in the

scope of their employment under West Virginia Code 29-12A-4(c)(2), but the liability provided

for in Section 4 is conditioned upon the absence of any applicable immunity provision set forth in

Section 5. See Albert v. City of Wheeling, 792 S.E.2d 628, 631 (2016) (noting that “subsection

4(c) begins with the disclaimer that the subsequent grants of liability are expressly made ‘[s]ubject

to section five [§ 29-12A-5] and six [§ 29-12A-6].’”); Hose v. Berkeley Cty. Planning Comm’n,

460 S.E.2d 761 (W. Va. 1995) (same). As additional authority, Plaintiff cites Smith v. Burdette,

566 S.E.2d 614 (W. Va. 2002), which held that Section 5(a)(5) of the Torts Claim Act “does not

3 Plaintiff cites West Virginia Code § 29-12A-18(e) to suggest that immunity does not apply here. (ECF No. 9 at 8–

10.) However, as statutory immunity is not the basis for dismissal of Plaintiff’s state constitutional claims, the Court

declines to consider this argument.

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provide immunity to a political subdivision for the negligent acts of the political subdivision’s

employee performing acts in furtherance of a method of providing police, law enforcement or fire

protection.” Id. at 618.

In Smith, the plaintiff alleged that a police officer negligently drove his cruiser through a

red light and collided with his vehicle. 566 S.E.2d at 616. The West Virginia Supreme Court

concluded the city, which employed the officer, was not entitled to immunity, reasoning that

immunity under West Virginia Code § 29-12A-5(a)(5) is limited to the “decision-making or the

planning process in developing a governmental policy, including how that policy is to be

performed.” Id. at syl. pt. 4. Importantly, however, the court made clear that this immunity does

not relate to the negligent acts of political subdivision employees acting on those policies. Id. at

syl. pt. 5. In reaching this conclusion, the West Virginia Supreme Court explained the following:

This Court has discussed the meaning of the phrase “the method of providing police

protection” in Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993), Mallamo

v. Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525 (1996), and Westfall v. City

of Dunbar, 205 W. Va. 246, 517 S.E.2d 479 (1999) (per curiam). “The phrase ‘the

method of providing police, law enforcement or fire protection’ contained in W.

Va. Code, § 29–12A–5(a)(5) refers to the formulation and implementation of policy

related to how police, law enforcement, or fire protection is to be provided.”

Syllabus Point 3, Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993).

Id. at 480 (emphasis in original). Thus, under the teachings of Smith, a political subdivision is

not entitled to immunity if an alleged negligent act results from the manner in which an employee

implements a policy regarding police protection.

In Albert v. City of Wheeling, 792 S.E.2d 628 (W. Va. 2016), the West Virginia Supreme

Court revisited the immunity provision set forth in Section 5 of the Torts Claim Act. Reiterating

that Section 4(c) is expressly subject to Sections 5 and 6, the Court concluded that

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[s]tatutory immunity exists for a political subdivision under the provisions of West

Virginia Code § 29-12A-5(a)(5) if a loss or claim results from the failure to provide

fire protection or the method of providing fire protection regardless of whether such

loss or claim, asserted under West Virginia Code § 29-12A-4(c)(2), is caused by

the negligent performance of acts by the political subdivision’s employees while

acting within the scope of employment. To the extent that this ruling is

inconsistent with syllabus point five of Smith v. Burdette, 211 W. Va. 477, 566

S.E.2d 614 (2002), the holding as it pertains to the negligent acts of a political

subdivision’s employee in furtherance of a method of providing fire protection is

hereby overruled.

Id. at 632. In effect, the Albert court overruled the limitation of the police protection immunity

announced in Smith. Because the specified immunity provided in subsection 5(a)(5) trumps the

grant of liability seemingly extended by subsection 4(c)(2), the Commission is shielded from

allegations of Holcomb and Belt’s negligence. Accordingly, the Commission is DISMISSED

from Plaintiff’s negligence claim asserted in Count III.

D. Negligence

Defendants argue that the Complaint fails to state a plausible claim of negligence. To

state a negligence claim under West Virginia law, a plaintiff must “show four basic elements: duty,

breach, causation, and damages.” Hersh v. E-T Enterprises, Ltd. P’ship, 752 S.E.2d 336, 341 (W.

Va. 2013), abrogated by statute on other grounds in Tabit v. Kroger Grp. Coop., Inc., No. 18-

0287 (W. Va. Feb. 11, 2019). Plaintiff has failed to do so here. Plaintiff alleges that “[t]he

defendants were negligent in the performance of their duties within the scope of their

employment”, (ECF No. 1 at 7 ¶ 44), but she fails to allege the requisite duty in the Complaint.

Even if Plaintiff had adequately pled a duty of care, the acts alleged against Defendants are

only for intentional conduct. As a rule, a plaintiff “[cannot] prevail on a claim of simple

negligence based on [a defendant’s] intentional act.” Smith v. Lusk, 533 F. App’x 280, 284 (4th

Cir. 2013) (citing Stone, 32 S.E.2d at 748 (noting that “intentional acts are not encompassed by

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general negligence principles”)); Weigle v. Pifer, 139 F. Supp. 3d 760, 780 (S.D. W. Va. 2015)

(“A mere allegation of negligence does not turn an intentional tort into negligent conduct.”)

(citations omitted). This Court has previously explained that “[c]onduct that supports a

negligence claim can be distinguished from conduct that supports an intentional tort claim by

examining the subjective intent of the alleged tortfeasor.” Id. Specifically, “[i]ntentional torts,

as distinguished from negligent or reckless torts . . . generally require that the actor intend ‘the

consequences of an act,’ not simply ‘the act itself.’” Id. (quoting Kawaauhau v. Geiger, 523 U.S.

57, 62 (1998)); see also Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907, 913–14 (W. Va. 1978)

(“The law of this jurisdiction recognizes a distinction between negligence, including gross

negligence, and wilful [sic], wanton, and reckless misconduct. The latter type of conduct requires

a subjective realization of the risk of bodily injury created by the activity and as such does not

constitute any form of negligence.”) (superseded by statute on other grounds).

While couched in negligent terms, Plaintiff’s claim relies on the very same facts that were

alleged to make out a claim for unlawful search under § 1983. Again, it is fatal to Plaintiff’s claim

that, throughout the Complaint, she characterizes Defendants’ actions as “reprehensible, willful,

wanton, malicious, and/or undertaken with blatant and intentional disregard of the rights owed to

the plaintiff . . . .” (Id. at 5 ¶ 34.) The only inference that can be drawn from these allegations is

that Defendants intended the consequences of their actions. That is, their unlawful entry was

undertaken for the purpose of searching Plaintiff’s home. Thus, Defendants’ alleged intentional

or willful conduct cannot support liability predicated on negligence. See e.g., Brown v. J.C.

Penney Corp., 521 F. App’x 922, 924 (11th Cir. 2013) (per curiam) (“A claim for negligence

cannot be premised solely on a defendant’s alleged commission of an intentional tort.”).

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According, Plaintiff's negligence claim is DISMISSED for failure to state a claim upon which

relief can be granted.*

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ partial Motion to Dismiss.

(ECF No. 7.) The Court DISMISSES all claims asserts against the Department and the

Commission. Further, the Court DISMISSES Counts IJ and III in their entirety and Count I

against Defendants Holcomb and Belt insofar as it is based on violations of the Eighth and

Fourteenth Amendments.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: February 24, 2020

&

4 For these same reasons, the Commission could not be subject to liability for any alleged intentional acts of Holcomb

and Belt. See supra ILC.

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