Young v. Muncy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

JOSHUA A. YOUNG,

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00829

CORPORAL ARTHUR MUNCY, et al.,

Defendants.

MEMORANDUM AND OPINION ORDER

Pending before the court are Defendants Muncy’s and Thompson’s Motions to

Dismiss [ECF Nos. 16, 28]. For the reasons that follow, the Motions are GRANTED

in part and DENIED in part.

I. Background

Plaintiff Joshua A. Young brought the current action against Defendant

Arthur Muncy, a correctional officer of the rank of Corporal at South Central Reginal

Jail and Correctional Facility (“South Central”), and Defendant Ronnie Thompson, a

correctional officer of the rank of Captain at South Central. At the time of the incident

at issue, Plaintiff Joshua A. Young was a thirty-seven year old, pretrial detainee held

at South Central in Charleston, West Virginia. Plaintiff is no longer incarcerated.

According to the Complaint, on April 25, 2018, while incarcerated at South

Central as a pretrial detainee, Plaintiff was subjected to a sexual assault by

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Defendant Muncy. Defendant Muncy, angry at the inmates of Pod C4, including

Plaintiff, entered Plaintiff’s cell without another officer, in violation of protocol. While

in Plaintiff’s cell, Defendant Muncy allegedly backed Plaintiff against the wall,

grabbed his genitals, and squeezed extremely forcefully. Defendant Muncy told

Plaintiff that if he had any more trouble from him, he would rip off Plaintiff’s penis

and “fuck” Plaintiff in his “ass” with it. Defendant Muncy then made additional

sexually assaultive statements, including that if he could, he would have Plaintiff

and others transferred to general population, where they would “all get fucked,” and

referring to Plaintiff and others as “PC whores.”

Thereafter, Plaintiff was left in excruciating pain. Plaintiff, who was locked in

his cell, hit the emergency call button over and over, seeking to summon assistance

from an officer or nurse. After approximately an hour, a correctional officer came

through Plaintiff’s pod to do a routine check, and Plaintiff told the guard he wanted

to file a Prison Rape Elimination Act (“PREA”) complaint. Plaintiff was provided with

a form and taken to meet with a lieutenant at South Central, who questioned him

about the incident and accepted his PREA complaint. At no time was Plaintiff

provided a way to report the abuse and harassment to an entity that was not part of

the West Virginia Division of Corrections and Rehabilitation (“WVDCR”), in violation

of PREA. Plaintiff was not provided with contact information for outside victim

advocates for emotional support services, in violation of PREA. Plaintiff’s PREA

report was also not provided to the agency PREA coordinator, as required by the

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Department of Military Affairs and Public Safety (“DMAPS”) policy, and no

investigation was initiated by the DMAPS Investigations Unit.

For days after the alleged incident, Plaintiff heard nothing further regarding

his PREA complaint. Finally, Defendant Thompson summoned Plaintiff to his office

and informed Plaintiff that he had investigated the allegation, determined that it was

unfounded, and threatened Plaintiff that if he continued to “lie” about what

happened, he would face disciplinary sanctions. When Plaintiff protested, Defendant

Thompson informed him that no further investigation would be done. Despite

knowing that Defendant Muncy was aware of Plaintiff’s allegations, Defendant

Thompson continued to allow Defendant Muncy to work on Plaintiff’s pod.

Defendant Muncy harassed Plaintiff in retaliation for his PREA complaint. He

told Plaintiff the only thing filing the PREA complaint did was “make your time here

a lot harder.” Defendant Muncy harassed Plaintiff in the following ways:

(a) Directing Plaintiff to pack all his belongings and then transporting him to

an interview room, where he left Plaintiff overnight with no explanation, until

a new shift of officers arrived, who then returned him to his cell;

(b) Approaching Plaintiff while he was showering and demanding he exit the

shower with no cause, creating great apprehension for Plaintiff; and

(c) Grabbing Plaintiff by the arm and twisting it painfully behind his back

without justification.

On or around May 31, 2018, Plaintiff filed a grievance through South Central’s

grievance system, reporting that Defendant Muncy was continuing to harass him and

had put his hands on him two times that week. Plaintiff requested Defendant Muncy

be kept away from him. That grievance was not responded to until July 7, 2018, at

which point Defendant Thompson stated that “this has already been addressed with

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you,” apparently in reference to the PREA complaint. Defendant Thompson did not

take steps to protect Plaintiff from retaliation by Defendant Muncy.

As a result of the injury to his genitals, Plaintiff continues to suffer testicular

pain. Five days after the incident, Plaintiff was seen by a psychologist who noted he

was depressed, anxious, and restless during the appointment. On or about August 9,

2018, Plaintiff was seen by a urologist at Charleston Area Medical Center (“CAMC”)

who diagnosed Plaintiff with “chronic testicular pain that is likely a cord spasm and

nerve related pain from trauma.” The physician told Plaintiff the pain would likely

be permanent and that the only potential cure would be to amputate Plaintiff’s

testicles. To treat the ongoing pain, the physician prescribed Gabapentin. Afterwards,

Plaintiff was provided his prescription for Gabapentin by South Central for a total of

only three days, resulting in Plaintiff’s testicular pain to continue. Plaintiff’s pain

increases if he engages in physical activities. Plaintiff is unable to sustain an erection.

On November 22, 2019, Plaintiff filed the instant Complaint alleging the

following claims: (Count I) 42 U.S.C. § 1983 Excessive Force Claim; (Count II)

Intentional Infliction of Emotional Distress; and (Count III) Assault and Battery.

Defendant Muncy filed a Motion to Dismiss on February 12, and Defendant

Thompson filed a Motion to Dismiss on March 2. I will address both motions now.

II. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). “When ruling on a motion to dismiss, courts must accept as true all of the

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factual allegations contained in the complaint and draw all reasonable inferences in

favor of the plaintiff.” , No. 2:18-CV-

01334, 2019 WL 956806, at *1 (S.D.W. Va. Feb. 27, 2019) (citing

, 637 F.3d 435, 440 (4th Cir. 2011)).

To survive a motion to dismiss, the plaintiff’s factual allegations, taken as true,

must “state a claim to relief that is plausible on its face.”

, 679 F.3d 278, 288 (4th Cir. 2012) (quoting , 556 U.S. 662,

678 (2009)). The plausibility standard is not a probability requirement, but “asks for

more than a sheer possibility that a defendant has acted unlawfully.” , 556 U.S.

at 678 (citing , 550 U.S. 544, 556 (2007)). Although “the

complaint must contain sufficient facts to state a claim that is plausible on its face, it

nevertheless need only give the defendant fair notice of what the claim is and the

grounds on which it rests.” , 846 F.3d 757, 777 (4th Cir. 2017).

Thus, “a complaint is to be construed liberally so as to do substantial justice.”

III. Discussion

a) Exhaustion of Administrative Remedies

Defendants first argue Plaintiff’s Complaint should be dismissed because he

did not exhaust his administrative remedies as required under the Prison Reform

Litigation Act (“PLRA”) and the similar West Virginia Prison Litigation Reform Act

(“WVPLRA”). “Failure to exhaust available administrative remedies is an affirmative

defense, not a jurisdictional requirement, and thus inmates need not plead

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exhaustion, nor do they bear the burden of proving it.” , 517 F.3d

717, 725 (4th Cir. 2008).

Once a prisoner has been released from custody, the PLRA no longer applies.

, , 247 F. App’x 413, 414 (4th Cir. 2007) (“Because Cofield

was not a prisoner when he filed his complaint, the PLRA exhaustion requirement is

not applicable to his § 1983 action.”). Similarly, the WVPLRA applies to “inmates,”

defined as anyone “confined in a correctional facility.” W. Va. Code § 25-1A-1(c).

Here, it is uncontested that Plaintiff was no longer an inmate when he filed his action.

Therefore, PLRA and WVPLRA exhaustion requirements do not apply.1

Even assuming, arguendo, that exhaustion requirements would apply, “an

administrative remedy is not considered to have been available if a prisoner, through

no fault of his own, was prevented from availing himself of it.” , 517 F.3d at

725. The Supreme Court has held that administrative remedies are considered

unavailable “when prison administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or intimidation.”

, 136 S. Ct. 1850, 1860 (2016).

1 To the extent that Plaintiff argued WVPLRA does not require an inmate to exhaust

administrative remedies for allegations of “violence, sexual assault or sexual abuse

against an inmate,” Plaintiff is incorrect. In 2013, the WVPLRA statute was amended

to say “no inmate shall be prevented from…bringing a civil or criminal action alleging

violence, sexual assault[,] or sexual abuse,

.” W. Va. Code § 25-1A-2a(i) (emphasis added). Therefore, exhaustion is

required for all inmates. , No. 2:16-CV-05637, 2018 WL

736044, at *6–7 (S.D.W. Va. Feb. 6, 2018); , No. 2:15-CV-13849,

2016 WL 538481, at *2 (S.D.W. Va. Feb. 9, 2016).

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Here, Plaintiff argues he “did grieve the sexual assault incident upon moving

to a different facility, as provided for by the West Virginia Division of Corrections

grievance policy.” Pl.’s Resp. [ECF No. 27] 8. Further, the Complaint alleges

Defendant Thompson threatened Plaintiff with disciplinary action if he attempted to

pursue a grievance on the assault or subsequent harassment by Defendant Muncy.

, 698 F. App’x 536, 537 (9th Cir. 2017) (“The threat of

retaliation for reporting an incident can render the prison grievance process

effectively unavailable.”). Defendant Thompson also told Defendant Muncy that no

further investigation would be done. , No. 3:16-CV-2123,

2018 WL 1726634, at *4 (M.D. Pa. Apr. 10, 2018) (finding administrative remedies

unavailable where prison officials refused to file plaintiffs’ grievances regarding their

coworkers). Therefore, at this stage, Defendants have not met their burden in

demonstrating that the administrative process was available to Plaintiff.

b) Count I, 42 U.S.C. § 1983 Excessive Force Claim

In Count I, Plaintiff alleges a § 1983 Excessive Force Claim. Defendants argue

they are entitled to qualified immunity. When addressing an excessive force claim

under § 1983, I must identify the constitutional right infringed upon and then

determine whether that right was clearly established at the time of the alleged

conduct. , 490 U.S. 386, 394 (1989); , 912

F.3d 154, 186 (4th Cir. 2018).

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i. Defendant Muncy

“[I]t is well established that the Due Process Clause of the Fourteenth

Amendment ‘protects a pretrial detainee from the use of excessive force that amounts

to punishment,’ and is not ‘an incident of some other legitimate governmental

purpose.’” , 665 F. App’x 242, 244 (4th Cir. 2016) (quoting

, 490 U.S. 386, 395 n.10 (1989)). “Sexual assault is ‘not a legitimate part of a

prisoner’s punishment, and the substantial physical and emotional harm suffered by

a victim of such abuse are compensable injuries’ under § 1983.” , No.

CA808CV869PMDBHH, 2009 WL 2929438, at *3 (D.S.C. Sept. 2, 2009) (citing

137 F.3d 1073, 1076 (8th Cir.1998)). “[M]ost importantly,

pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less

‘maliciously and sadistically.’” , 135 S. Ct. 2466, 2473 (2015).

“The appropriate standard for a pretrial detainee’s excessive force claim is

solely an objective one.”2 , 841 F.3d 246, 255 (4th Cir. 2016)

(quoting , 135 S. Ct. at 2473). A pretrial detainee must demonstrate only

that the “force purposely or knowingly used against him was objectively

unreasonable,” considering the “facts and circumstances of each particular case” and

“what the officer knew at the time, not with the 20/20 vision of hindsight.” ,

2 A pretrial detainee’s excessive force claim is different than an inmate’s Eighth

Amendment cruel and unusual punishment claim. , 135

S. Ct. 2466, 2473 (2015). A prison inmate’s Eighth Amendment excessive force claim

involves both an objective and a subjective component, whereas a pretrial detainee’s

excessive force claim is governed only by an objective standard.

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135 S. Ct. at 2473. Courts may consider “the relationship between the need for the

use of force and the amount of force used; the extent of the plaintiff’s injury; any effort

made by the officer to temper or to limit the amount of force; the severity of the

security problem at issue; the threat reasonably perceived by the officer; and whether

the plaintiff was actively resisting.” , 668 F. App’x 448, 449 (4th Cir.

2016) (citing ).

In taking the allegations in the Complaint as true, I have little trouble in

concluding it is objectively unreasonable for a correctional officer, such as Defendant

Muncy, to forcibly grab an inmate’s genitals and squeeze while threatening to rape

the inmate. Plaintiff was alone in his cell when the alleged incident occurred, and

there are no facts that any force was needed at all. The physician at CAMC said the

pain Plaintiff is enduring will likely be permanent, and the only potential cure would

be to amputate Plaintiff’s testicles. Sexual assault is not a legitimate part of a

prisoner’s punishment, particularly here, where Plaintiff is a pretrial detainee who

“cannot be punished at all, much less ‘maliciously and sadistically.’” ,

135 S. Ct. at 2473.

Furthermore, the “right of prisoners to be free from sexual abuse was

unquestionably clearly established prior to the time of this alleged assault, and no

reasonable prison guard could possibly have believed otherwise.” ,

, 204 F.3d 1187, 1197 (9th Cir. 2000); , 949 F.3d 1282,

1298 (10th Cir. 2020) (analyzing case law from the second, third, sixth, seventh,

eighth, and ninth circuits and concluding that an inmate’s right to be free from sexual

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abuse by an officer was clearly established by 2015). “Because controlling authority

clearly establishes an inmate’s right to reasonable protection from malicious assault,

[I] look no further and conclude [Plaintiff’s] right was clearly established in this

case , 878 F.3d 89, 110 (4th Cir. 2017).

Therefore, I DENY Defendant Muncy’s Motion to Dismiss Count I.

ii. Defendant Thompson

Plaintiff alleges Defendant Thompson is liable under supervisory liability for

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, “liability 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.” (internal quotations removed).

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 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

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plaintiff.

, 13 F.3d 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.”

The plaintiff can establish deliberate indifference in the second element “by

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

widespread abuses.’” (citations omitted). The plaintiff assumes a “heavy burden of

proof” because the plaintiff “cannot satisfy his burden [] by pointing to a single

incident or isolated incidents.”

The third element 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.

Here, Plaintiff has not pleaded sufficient facts to establish supervisory liability

for Defendant Thompson. Plaintiff merely makes a conclusory allegation that

“Defendant Thompson knew, or had reason to know, of Defendant Muncy’s propensity

to assault inmates, but permitted such behavior to proceed unchecked.” Compl. [ECF

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No. 2] ¶ 77. Plaintiff has not stated specific facts that Defendant Thompson had

knowledge that Defendant Muncy “was engaged in conduct that posed ‘a pervasive

and unreasonable risk’ of constitutional injury to citizens like the plaintiff.” , 13

F.3d at 799. Nor has Plaintiff demonstrated that Defendant Muncy’s conduct was

“widespread, or at least has been used on several different occasions.” .;

, 878 F.3d at 111 (affirming summary judgment dismissal of supervisory

liability where plaintiff “only makes conclusory allegations without any specific facts

that these defendants had knowledge that retaliation was taking place and that they

acquiesced in the retaliatory acts”).

In addition, an alleged failure of Defendant Thompson to investigate Plaintiff’s

grievance is not enough to establish supervisory liability. , 539 F.

App’x 78, 81 (4th Cir. 2013) (finding an alleged failure of supervisory officials to

investigate grievances was not sufficient to establish liability under § 1983). Plaintiff

has not stated that an additional sexual assault occurred after reporting the alleged

incident to Defendant Thompson. Therefore, Defendant Thompson’s Motion to

Dismiss as to Count I is GRANTED.

c) Count II, Intentional Infliction of Emotional Distress

Plaintiff next pleads a claim for Intentional Infliction of Emotional Distress

(“IIED”). To prevail on an IIED claim under West Virginia law, a plaintiff must show:

(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

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emotional distress; and, (4) that the emotional distress suffered by the plaintiff

was so severe that no reasonable person could be expected to endure it.

, No. CV 2:18-CV-00942, 2019 WL 4733552, at *7 (S.D.W. Va. Sept.

26, 2019).

These elements present a high bar to recovery. , 413

S.E.2d 418, 423 (W. Va. 1991) (“conduct that is merely annoying, harmful of one’s

rights or expectations, uncivil, mean-spirited, or negligent does not constitute

outrageous conduct.”). In analyzing the first factor, a court can “consider whether the

extreme and outrageous character of the conduct arose from an abuse by the

defendant of a position or relationship to the plaintiff, which gave the defendant

actual or apparent authority over the plaintiff or power to affect the plaintiff’s

interests.” , 504 S.E.2d 419, 421 (W. Va. 1998).

i. Defendant Muncy

In West Virginia, an IIED claim which is duplicitous with an assault and

battery claim cannot go forward. , 356 S.E.2d 620 (W. Va. 1987)

(“[I]f a jury finds that the proof sustains the appellant’s complaint, she will be able to

recover compensatory and punitive damages against the appellee as a result of the

assault and battery, including elements of emotional distress. Therefore, it would be

inappropriate to allow her to also recover damages based on the tort of IIED.”). IIED

“was conceived as a remedy for tortious conduct where no remedy previously existed.”

, No. 2:16-CV-09298, 2018 WL 813443, at *5 (S.D.W. Va. Feb. 9,

2018). And at “the outset of a case, an assault claim encompasses claims for IIED

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arising out of the assault, such that a plaintiff may present his claim for intentional

infliction of emotional distress as a part of his assault claim.” Therefore, to the

extent that Plaintiff pleads an IIED claim for Defendant Muncy’s actions which form

the basis of his assault and battery claim, Defendant Muncy’s Motion is GRANTED.

To the extent that Plaintiff’s IIED claim arises from events after the

underlying assault and battery claim, it is not barred by . , No.

CIV.A. 2:11-00307, 2012 WL 1831845, at *2 (S.D.W. Va. May 18, 2012) (“To the extent

plaintiffs would assert that the March 25, 2010, assault and battery by defendants

also amounted to the intentional infliction of emotional distress, the latter claim is

barred by .”). However, looking only at the actions occurring after the alleged

sexual assault and battery of Plaintiff, Plaintiff has not stated a claim for IIED.

Though grabbing Plaintiff’s arm, demanding he leave the shower, and transporting

him to stay in an interview room overnight is certainly annoying and harmful

conduct, “conduct that is merely annoying, harmful of one’s rights or expectations,

uncivil, mean-spirited, or negligent does not constitute outrageous conduct.” ,

No. CV 2:18-CV-00942, 2019 WL 4733552, at *8. Plaintiff has not alleged actions that

are “so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly intolerable in a

civilized community.” , No. 2:17-

CV-01904, 2018 WL 502752, at *4–5 (S.D.W. Va. Jan. 22, 2018). Therefore, I GRANT

Defendant Muncy’s Motion to Dismiss Count II’s IIED claim.

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ii. Defendant Thompson

Plaintiff also brings an IIED claim against Defendant Thompson. To support

this claim, Plaintiff asserts that Defendant Thompson (1) did not adequately

investigate Plaintiff’s PREA complaint against Officer Muncy; (2) told Plaintiff that

filing unfounded PREA claims can result in discipline; and (3) permitted Defendant

Muncy to continue working the housing pod where Plaintiff was assigned. These

actions do not rise to the level of “extreme and outrageous” conduct to satisfy an IIED

claim. Therefore, Defendant Thompson’s Motion to Dismiss Count II is GRANTED.

d) Count III, Assault and Battery

Plaintiff also brings an assault and battery claim against Defendant Muncy.

In West Virginia, a person is liable for 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 indirectly results.” , 139 F. Supp. 3d 760, 776

(S.D.W. Va. 2015) (quoting Restatement (Second) of Torts § 13 (1965)). A person is

liable for 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.”

Here, Defendant Muncy is alleged to have intentionally grabbed and squeezed

Plaintiff’s genitals without justification and threatened Plaintiff with anal rape. I find

Plaintiff has pleaded sufficient facts to state a claim for assault and battery.

Defendant Muncy’s Motion to Dismiss Count III is DENIED.

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As to Defendant Thompson, Plaintiff “voluntarily withdraws his claim for

assault against Defendant Thompson.” Pl.’s Resp. [ECF No. 30] 15. Therefore,

Defendant Thompson’s Motion to Dismiss Count II] is GRANTED as MOOT.

IV. Conclusion

For the reasons stated herein, Defendants Muncy’s and Thompson’s Motions

to Dismiss, [ECF Nos. 16, 28], are GRANTED in part and DENIED in part. Defendant

Thompson’s Motion to Dismiss is GRANTED. [ECF No. 28]. Defendant Muncy’s

Motion to Dismiss is GRANTED as to Count II and DENIED as to Counts I and III.

[ECF No. 16]. The court DIRECTS the Clerk to send a copy of this Order to counsel

of record and any unrepresented party.

ENTER: March 30, 2020

Ie

ee STATES DISTRICT JUDGE

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