Hamilton v. Hill

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

CHRISTIAN HAMILTON,

Plaintiff,

v. CIVIL ACTION NO. 2:20-cv-00368

CORRECTIONAL OFFICER RYAN HILL, et al.,

Defendants.

MEMORANDUM AND OPINION ORDER

Pending before the court is Defendant West Virginia Division of Corrections

and Rehabilitation’s Motion to Dismiss. [ECF No. 5]. For the reasons that follow, the

Motion is GRANTED in part and DENIED in part.

I. Background

Plaintiff Christian Hamilton is a resident of West Virginia who was

incarcerated at the Northern Correctional Facility. Plaintiff was no longer

incarcerated at the time he filed his Complaint. Defendant West Virginia Division of

Corrections and Rehabilitation (“WVDOCR”) is the state agency that employed the

individual defendants, Correctional Officers Ryan Hill and Allen Cooley.

As alleged in the Complaint, while Plaintiff was an inmate at Northern

Correctional Center, Defendant Hill pepper sprayed Plaintiff directly in the face with

OC Spray, without any just cause, after they had argued about Plaintiff talking to

another inmate. Compl. [ECF No. 1-1] ¶ 7. Defendant Hill made no efforts to temper

prior to spraying Plaintiff in the face and upper body. After spraying Plaintiff,

Defendant Hill asked Plaintiff to walk towards the door; Plaintiff complied and was

pepper sprayed again. This occurred on or about January 31, 2018.

According to the Complaint, on or about January 13, 2020, Defendant Cooley

also pepper sprayed Plaintiff without any attempt to temper or warn because Plaintiff

had kicked his door. Plaintiff was not kicking the door at the time he was sprayed.

For both pepper sprays, the Complaint alleges that Plaintiff was not a threat

to the defendants or other inmates. Plaintiff was behind a locked door when both

defendants pepper sprayed him. at ¶ 14. The Complaint is unclear when this

occurred, but it also says Plaintiff was sprayed while handcuffed in a restraint chair

and left without proper decontamination. at ¶ 15. Defendants also laughed at

Plaintiff after he was sprayed. at ¶ 8. The Complaint further states that Defendant

Hill was discharged as a result of improper conduct while employed by WVDOCR,

but Defendant Cooley was not disciplined. at ¶ 7.

Plaintiff brings the instant Complaint against Defendants WVDOCR, Hill, and

Cooley for Battery (Count I); 42 U.S.C. § 1983 Excessive Force under the Eighth

Amendment (Count II); and Reckless Violation of Legislative Rules (Count III).

Defendant WVDOCR brought a Motion to Dismiss Amended Complaint on June 5,

2020, [ECF No. 6], which I will address now.

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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

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) Count I, Battery

Though Plaintiff does not clarify in the Complaint, Plaintiff writes in his

Response that his battery claim against WVDOCR arises from its vicarious liability

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for its employees’ conduct. Pl.’s Resp. [ECF No. 9] 1. However, Plaintiff provides no

explanation or argument in his Response for why he thinks WVDOCR should be held

vicariously liable for battery here.

Although “[p]olitical subdivisions are liable for injury, death, or loss to persons

or property caused by the performance of acts by their employees while

acting within the scope of employment,” they are not liable “for any intentional

malfeasance on the part of its employee.” , No. CIV.A.

2:11-0032, 2012 WL 3580056, at *8 (S.D.W. Va. Aug. 17, 2012) (quoting

, 477 S.E.2d 525, 533 (W. Va. 1996)) (emphasis added).

Here, I find the battery claim based on Defendants Hill and Cooley’s alleged

unlawful use of pepper spray is an intentional act outside the scope of Hill and

Cooley’s employment. , No.

2:18-CV-01074, 2019 WL 1428694, at *3 (S.D.W. Va. Mar. 29, 2019) (“[T]he court finds

that no reasonable factfinder could conclude that the purposeful and malicious

attacks alleged in the plaintiff’s complaint could serve the purpose of WVRJCFA.”).

Accordingly, I GRANT Defendant WVDOCR’s Motion to Dismiss Count I’s battery

claim based on vicarious liability. , No. 2:18-CV-00913, 2019

WL 3887547, at *2–4 (S.D.W. Va. Aug. 15, 2019) (“Accordingly, the Court

DISMISSES any vicarious liability claims against the WVDOC that are premised on

the intentional actions of any Defendant….”).

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

Again, though not clarified in the Complaint, Plaintiff writes in his Response

that he “is not asserting a claim pursuant to 42 U.S.C. § 1983 against Defendant

WVDOCR.” Pl.’s Resp. [ECF No. 9] 1. Accordingly, I DENY as MOOT Defendant

WVDOCR’s Motion to Dismiss Count II.

c) Count III, Reckless Violation of Legislative Rules

Plaintiff’s Complaint has alleged that Defendant WVDOCR recklessly violated

legislative rules by failing to conduct the requisite background checks and

psychological evaluations to determine Defendants’ suitability for the position of

correctional officer. Compl. [ECF No. 1-1] ¶ 19. Plaintiff also states that Defendants

had recently been the subject of excessive force claims by another inmate, and,

pursuant to policy, WVDOCR should have removed Defendants from contact with

inmates until an investigation was completed. at ¶ 20. Without naming a single

rule, Plaintiff argues “Defendant WVDOC has strict rules to follow when hiring

correctional personnel as set forth in the legislative rules.” Compl. [ECF No. 1-1] ¶

19. “Defendant’s violation of policy proximately resulted in Plaintiff being attacked.”

Defendant WVDOCR interprets the poorly worded claim for reckless violation of

legislative rules as a state law claim for negligence. Def.’s Mem. Supp. Mot. Dismiss

[ECF No. 6] 5. I, too, interpret Plaintiff’s claim as a claim for negligence, specifically

for negligent hiring and retention.

Under West Virginia law, courts consider the following in a claim

for negligent hiring:

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When an employee was hired, did the employer conduct a

reasonable investigation into the employee’s background

vis a vis the job for which the employee was hired and the

possible risk of harm or injury to co-workers or third

parties that could result from the conduct of an unfit

employee? Should the employer have reasonably foreseen

the risk caused by hiring an unfit person?

, 344 F. Supp. 3d 869, 877

(S.D.W. Va. 2018). The court must also consider “the nature of the employee’s job

assignment, duties, and responsibilities.” The duty with respect to hiring and

retention increases “as risks to third persons associated with a particular job

increase,” such as with a police officer who is permitted to carry guns.

“Under the doctrine of qualified immunity, the discretionary actions of

government agencies, officials and employees performed in an official capacity are

shielded from civil liability so long as the actions do not violate a clearly established

law or constitutional duty.” , 796 S.E.2d 193, 198 (W.

Va. 2017). In West Virginia, “broad categories of duties such as training, supervision,

and retention easily fall within the category of discretionary governmental functions

that ordinarily entitle a defendant to qualified immunity.”

, 766 S.E.2d 751, 773 (W. Va. 2014) (internal citations

removed). Barring a showing by Plaintiff that WVDOCR violated a “clearly

established right or law” with respect to hiring or retention, Defendant WVDOCR is

entitled to qualified immunity on claims involving these discretionary acts. ;

, 2019 WL 3887547, at *3.

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To demonstrate a clearly established right was infringed upon, a plaintiff

“must do more than allege that an abstract right has been violated. Instead, the

plaintiff must make a ‘particularized showing’ that a ‘reasonable official would

understand that what he is doing violated that right’ or that ‘in the light of preexisting

law the unlawfulness’ of the action was ‘apparent.’” , 766 S.E.2d at 776 (quoting

, 483 U.S. 635, 640 (1987)).

Here, Plaintiff summarily alleges that Defendant WVDOCR recklessly

violated legislative rules, which—as I stated above—I am interpreting as a negligence

claim, by failing “to conduct the requisite background checks and psychological

evaluations to determine defendants’ suitability for the position of CO” (correctional

officer). Compl. [ECF No. 1-1] ¶ 19. Plaintiff fails to identify a single law or regulation

in his Complaint that Defendant WVDOC has violated.

, No. 2:18-CV-01074, 2019 WL 1428694, at *4 (S.D.W.

Va. Mar. 29, 2019) (finding the plaintiff stated a sufficient claim for relief for

negligent hiring, training, and supervision against the WVRJCFA where the plaintiff

cited a specific state regulation in his complaint in connection with his allegations

against the WVRJCFA), , 2019 WL 3887547, at *3 (finding plaintiffs

failed to state a claim for negligent hiring, training, supervising, and retaining by the

WVDOC for failing to do pre-hiring or post-hiring psychological testing of correctional

officers where plaintiffs did “not identify any such law or regulation in their Amended

Complaints”) , 766 S.E.2d at 774–75 (“[R]espondent has failed to identify a

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single regulation which the WVRJCFA has violated as pertains to training,

supervision, or retention….”).

Though Plaintiff mentions C.S.R. §95-1-1 et seq. in his Response, he fails to

specify this rule or any other legislative rule which he claims was violated in the

Complaint itself. Pl.’s Resp. [ECF No. 9] 3; , 2019 WL 3887547,

at *3 (“In response, Plaintiffs direct the Court to the United States Constitution;

Article III, Section 5 of the West Virginia Constitution,…and several WVDOC policy

directives regarding hiring, training, and oversight….However, none of these are

cited in the Amended Complaints.”); , 766 S.E.2d at 774–75 (“The Court takes

the pleadings and record as it finds them.”). Even if C.S.R. §95-1-1 et seq. had been

cited in the Complaint, Plaintiff does not allege any factual connection between

WVDOCR’s alleged negligence and this regulation. , 2019 WL 3887547,

at *3 (“Further, Plaintiffs do not make any particularized showing how this alleged

failure to do testing led to the alleged violations by the Supervisory Defendants.”).

Nor has Plaintiff alleged with any particularity how Defendant WVDOCR was

negligent “other than the above mentioned alleged failure to do psychological testing,”

and the alleged failure to remove defendants in violation of policy. Although

I find it concerning that Plaintiff alleges “defendants had recently been the subject of

excessive force claims by another inmate,” Plaintiff’s conclusory allegations again fail

to name a specific policy violation and fail to allege any specific or particularized facts

as to the alleged excessive force claims.

Notably, there’s a difference between whether the defendant correctional

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officers violated a clearly established law and whether Defendant WVDOCR violated

a clearly established law in its negligent hiring and retention. The Fourth Circuit has

found that pepper spraying an inmate can violate the Eighth Amendment and is

clearly established. , 535 F.3d 225, 240 (4th Cir. 2008);

, 426 F. Supp. 3d 245, 255 (S.D.W. Va. 2019). However, Plaintiff here must

demonstrate that Defendant WVDOCR violated a “clearly established” right or law

with respect to its hiring and retention. , 766 S.E.2d at 774–75 (“[T]here is

no question that allegedly violated all manner of clearly established rights—

constitutional and otherwise—it is not his conduct which is the focus of this aspect of

the appeal.”). Because Plaintiff did not identify a single, specific law or regulation

violated by Defendant WVDOCR, Plaintiff cannot make a “particularized showing”

that WVDOCR violated a clearly established right. .;

, No. CV 3:15-9133, 2016 WL 4698547, at *4 (S.D.W. Va. Sept. 7,

2016) (“Here, as it was in , Plaintiff’s claim attacks a discretionary function and

has not alleged that the Authority has violated any clearly established statutory or

constitutional right. Thus, the Authority is entitled to immunity from Plaintiff’s

negligence claim.”).

Accordingly, Defendant WVDOCR’s Motion to Dismiss Count III’s Reckless

Violation of Legislative Rules is GRANTED.

IV. Conclusion

For the reasons stated herein, Defendant WVDOCR’s Motion to Dismiss, [ECF

No. 5], is GRANTED in part and DENIED in part. Counts I and III are GRANTED.

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Count I] is DENIED as MOOT. The court DIRECTS the Clerk to send a copy of this

Order to counsel of record and any unrepresented party.

ENTER: June 25, 2020

JOSEP . GOODW

ee STATES D{STRICT JUDGE

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