Russell v. Butcher

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

LERMON RUSSELL

Plaintiff,

v. CIVIL ACTION NO. 2:19-cv-00918

COMMISSIONER LOLITA BUTCHER, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is a Motion to Dismiss, [ECF No. 9], and a Renewed

Motion to Dismiss, [ECF No. 48], filed by Defendants Donald Ames, David Ballard,

Lolita Butcher, Betsy Jividen, and the West Virginia Division of Corrections and

Rehabilitation (“WVDOCR”) (collectively “Defendants”). The Motions, [ECF Nos. 9,

48], are GRANTED in part and DENIED in part for the reasons that follow.

I. Introduction

This case involves a series of alleged assaults and other serious abuses—some

allegedly motivated by race—that Plaintiff claims took place during his incarceration.

(a) The parties

Plaintiff is in the custody of WVDOCR. Pl.’s Amend. Compl. [ECF No. 44] ¶ 1.

At all times relevant to this action, Plaintiff was housed in administrative segregation

on the Quilliams II unit within Mount Olive Correctional Complex (“MOCC”).

At the time of the alleged attack by Inmate Jacob Samples upon Plaintiff,

Defendant Lolita Butcher was the Commissioner of the WVDOCR and Defendant

David Ballard was the Warden/ Superintendent of MOCC. at ¶¶ 2, 4. At the time

of the alleged assault of the Plaintiff by Defendants Bell and Benson, Defendant

Betsy Jividen was the Commissioner of WVDOCR and Defendant Donald Ames was

the Warden/Superintendent of MOCC. at ¶¶ 3, 5. At all relevant times alleged in

the Amended Complaint, Defendants Dylan Hayhurst, Matthew Hypes, Benjamin

Elmore, Jesse Smith, Richard Toney, Dustin Bell, and Dakota Benton (collectively

“Defendant Correctional Officers”) were MOCC correctional officers posted or called

to Quilliams II segregation unit. at ¶ 6. Defendants Nurse Joyce Coleman and

Nurse Joshua Gregory are, and at all relevant times alleged in the Amended

Complaint were, registered nurses employed by Wexford Health Sources, Inc., and

contracted by WVDOCR to provide medical services at MOCC. at ¶ 6.

(b) Procedural background

On December 31, 2019, Plaintiff filed his Complaint. [ECF No. 1]. On March

27, 2020, Defendants Ames, Ballard, Butcher, Jividen, and WVDOCR, filed a Motion

to Dismiss. [ECF No. 9]. On March 31, 2020, Defendants Bell, Benton, Hayhurst, and

Toney, filed a Motion to Dismiss or in the Alternative a Motion for Summary

Judgment. [ECF No. 11]. On June 4, 2020, Plaintiff filed an Amended Complaint.

[ECF No. 44]. The Amended Complaint voluntarily dismissed claims against

Defendant the WVDOCR, identified Defendant “John Doe 1” as Correctional Officer

Matthew Hypes, and dropped all requests for injunctive relief. [ECF Nos. 1, 44].

On June 5, Defendants Hayhurst, Toney, Bell, and Benton renewed their Motion to

Dismiss and in the Alternative Motion for Summary Judgment, incorporating their

prior memorandum in support. [ECF No. 46]. On June 14, 2020, Defendants Ames,

Ballard, Butcher, and Jividen renewed their Motion to Dismiss. [ECF No. 48]. On

June 15, 2020, Defendant Smith joined in Defendant Correctional Officers’ Motion to

Dismiss. [ECF Nos. 11, 49].

(c) Factual allegations

Plaintiff is a Black man, who according to him, was the only African American

housed in his Pod (Pod 4) at MOCC. at ¶ 13. According to Plaintiff, he was

frequently subjected to the use of racial slurs and racist remarks by both fellow

inmates and correctional officers. at ¶ 12. The Amended Complaint states that

Plaintiff’s Pod was also populated with members of the Aryan Brotherhood, which “is

the nation’s oldest major white supremacist prison gang and a national crime

syndicate.” at ¶ 15. The Amended Complaint specifically identifies four alleged

Aryan Brotherhood members housed in Pod 4: Inmates Steven Branscome, Gregory

Burdette, James Zell, and Jacob Samples. at ¶ 16. Plaintiff’s Amended Complaint

claims that these inmates frequently used racial epithets towards him and

threatened physical violence against him. at ¶¶ 17–23. Plaintiff further claims

that Inmate Samples had previously been allowed to enter the cell of a fellow inmate,

Mike Connor, and attack him. ¶ 24.

The Amended Complaint alleges the following incident. Defendant

Correctional Officers Hayhurst and Hypes escorted Plaintiff to shower. at ¶ 29.

Upon arrival to the shower area, Inmate Samples burst out of a hiding area and

attacked Plaintiff, “while Defendants Hayhurst and Hypes stepped several feet away”

leaving Inmate Samples “an unobstructed path towards” Plaintiff. at ¶¶ 31–32.

Plaintiff claims that Inmate Samples repeatedly stabbed him with a sharp foreign

object, jammed his thumb into Plaintiff’s eye and attempted to gouge out Plaintiff’s

eyeball, and repeatedly struck Plaintiff in the face and head. at ¶¶ 33, 35, 36. At

this time, Plaintiff had his hands cuffed behind his back and leg irons restraining his

ankles, while Inmate Samples was unrestrained. at ¶¶ 28, 32, 33. During the

assault both Inmate Samples and Defendants Hayhurst and Hypes yelled racial slurs

at Plaintiff, including the use of the n-word. at ¶¶ 33, 34. Specifically, Plaintiff

recalls the correctional officers screaming “kill that monkey.” at ¶ 34. During this

attack, Plaintiff claims that neither Defendant Hayhurst nor Defendant Hypes

intervened to stop the assault. at ¶ 37. The Amended Complaint alleges that only

once Inmate Samples “tired and removed himself voluntarily from atop” Plaintiff did

Defendants Hayhurst and Hypes begin to deploy Oleoresin Capsicum (“OC”) gas

spray towards the both Inmate Samples and Plaintiff. at ¶¶ 39–41. At that point,

Plaintiff claims he lost consciousness only to be “roused awake by a jarring kick to

the side of his body by Defendant Hayhurst.” at ¶ 44.

The Amended Complaint alleges Defendants Hayhurst and Hypes then took

Plaintiff to be medically evaluated by Defendant Nurse Coleman. at ¶ 45. Plaintiff

claims that Defendant Toney was present for the medical evaluation. Plaintiff

states that he was not provided with any substantive medical care and instead was

merely told that “he was in shock” and “that he would be fine.” at ¶¶ 47–48.

“Plaintiff expressed to Defendant Toney his grievance and reasonable belief that his

attack had been arranged for and ordered by the Aryan Brotherhood.” at ¶ 49.

According to Plaintiff, “Defendant Toney dismissed Plaintiff’s grievance, and

responded by saying ‘this conversation is over and this incident never happened.’”

at ¶ 50. Plaintiff was allegedly “not allowed until over an hour later to take a shower

and rinse off the OC gas that was burning his body.” at ¶ 52.

In the weeks that followed the incident, Plaintiff claims he made continued

requests for additional medical treatment and expressed that he feared for his safety

in Pod 4. at 53–57. Plaintiff alleges that he never received additional medical

treatment. at 53–56. The Amended Complaint also claims that his grievances

were ignored until “approximately five months after he was attacked by Inmate

Samples, Plaintiff was transferred out of Pod 4 only after Inmate Branscome

specifically threatened to stab the Plaintiff.” at ¶ 57.

According to Plaintiff, Inmate Samples informed Plaintiff that Defendants

Hayhurst, Hypes, Elmore, Smith, and Toney knew of the Aryan Brotherhood’s plan

to attack Plaintiff. at ¶ 64. The Amended Complaint contains allegations that

Defendants Smith and Elmore used racial slurs, including the n-word, against

Plaintiff and that they tried to incite tension between Plaintiff and the Aryan

Brotherhood members. at ¶¶ 58–62.

Plaintiff’s Amended Complaint alleges a second series of incidents which took

place in March of 2019. The incidents are alleged as follows. Defendant Correctional

Officers Benton and Bell repeatedly threw Plaintiff’s breakfast on the floor while

repeatedly yelling racial slurs, including the n-word, at him. ¶¶ 69–76. At one

point, Defendant Benton allegedly threw a pitcher of hot coffee on Plaintiff through

the bean hole in his cell, causing burns to Plaintiff’s stomach and groin areas. at

¶ 72. At another point, Defendant Benton “flipped the [food] tray in the air to make

it appear that the Plaintiff had thrown his tray at Defendants Benton and Bell.

Defendant Benton then rushed into Plaintiff’s cell and began spraying him with a

chemical agent known as phantom gas until the large cannister was empty, causing

severe burning” to Plaintiff’s body. at ¶¶ 75, 76. Defendants Benton and Bell then

allegedly shackled Plaintiff hands and feet and removed him from his cell. The

Amended Complaint claims that “Defendants Benton and Bell [then] began falsely

and loudly proclaiming that the Plaintiff was resisting, and these officers then threw

the Plaintiff to the floor head-first and began punching and kicking him while he was

fully restrained.” at ¶¶ 77, 78. Plaintiff claims that after this assault he was taken

to Defendant Nurse Joshua Gregory, who allegedly failed to provide any substantive

treatment of his injuries. at ¶ 82.

The Amended Complaint also includes several allegations regarding a photo

that was released in December 2019 “depicting more than thirty (30) correctional

officers employed by the WVDOCR giving a Nazi salute.” at ¶ 87–91.

In the Amended Complaint, Plaintiff alleges the following claims1: Eighth

Amendment violations and violations of “the Constitutions, statutes and common law

1 The Amended Complaint is not clear as to the causes of action alleged in Counts I,

II, IV, VII, VIII. Furthermore, it is not clear which Defendants Plaintiff brings Counts

of the State of West Virginia and the United States of America” (Count I); “violations

of clearly established rights secured to Plaintiff under the Constitutions, statutes and

common law of the State of West Virginia and the United States of America” (Count

II) against Defendants Hayhurst and Hypes; Eighth Amendment violations for use of

excessive force (Count III) against Defendants Bell and Benson; Eighth Amendment

violations and/or negligence for failure to provide medical care (Count IV); civil

conspiracy (Count V) against Defendants Hayhurst, Hypes, Elmore, Smith, and

Toney; Equal Protection Clause of the Fourteenth Amendment violations (Count VI)

against all Defendants; supervisory liability (Count VII) 2 against Defendants

Butcher, Jividen, Ballard and Ames; and supervisory liability (Count VIII) against

Defendants Butcher, Jividen, Ballard, and Ames. [ECF No. 44].

Defendants now move to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) all claims made against them.

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

I, IV, VI against. I construe, as do Defendants, the Amended Complaint to allege only

Counts VII and VIII against Defendants Butcher, Jividen, Ballard and Ames. These

Counts are the only Counts that specifically name these Defendants and the only

Counts to include any factual assertions about their involvement.

2 Plaintiff’s Amended Complaint refers to a “Joseph Braddock”; however, I assume,

as do Defendants, that the Amended Complaint meant to refer to Plaintiff Lermon

Russell.

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.”

Courts are limited to the pleadings in evaluating a motion to dismiss. But when

a Defendant submits evidentiary documents at the motion to dismiss stage, the

motion may be converted to a motion for summary judgment. Fed. R. Civ. P. 12(d).

Rule 12(d) dictates that when a motion to dismiss is converted into a motion for

summary judgment, “[a]ll parties must be given a reasonable opportunity to present

all the material that is pertinent to the motion.”

In this case, Defendants provide on a series of grievances submitted by

Plaintiff to the prison, which they attach as Exhibit B–J to their Motion. [ECF No.

11]. These grievances, however, constitute evidence outside the pleadings and thus

in order for me to consider them, the instant Motion would have to be converted to a

motion for summary judgment. Plaintiff argues that he has not had adequate

discovery at this stage to present all material that pertains to the issue of

administrative exhaustion. I agree. Plaintiff represents to the court, both in the

Amended Complaint and his response to the instant Motion, that there are additional

grievances, which may be relevant to his claims that have not been submitted by

Defendants. Amend. Compl. [ECF No. 44] ¶ 54 (“Plaintiff submitted grievances

regarding Inmate Samples’ attack, and in part, requested that he be transferred from

Pod 4 because he feared for his safety and that he would be attacked yet again by

members of the Aryan Brotherhood.”); Amend. Compl. [ECF No. 44] ¶ 84

(“Plaintiff filed a grievance regarding Officers Benton and Bell’s assault, which on

information and belief, led to an investigation.”); Pl.’s Resp. [ECF No. 17] 10–

11. Out of an abundance of caution, I find that it would be premature to decide

Defendants’ Motion as a motion for summary judgment at this stage in the litigation.

I treat the Motion as a motion to dismiss and do not consider the Exhibits provided

by Defendants.

III. Discussion

(a) Sovereign Immunity

In their Motion, [ECF No. 9], Defendants argue that Defendant WVDORC is

entitled to sovereign immunity under the Eleventh Amendment. Plaintiff’s Amended

Complaint voluntarily dismissed all claims against WVDOCR. [ECF Nos. 22, 44].

Accordingly, Defendants’ Motion to Dismiss and Renewed Motion to Dismiss, [ECF

Nos. 9, 48], are DENIED as MOOT as to the WVDOCR.

(b) Injunctive relief

Defendants move to dismiss Plaintiff’s claims for injunctive relief as

speculative and on the bases that he lacks standing. Plaintiff’s Amended Complaint

removed his prior requests for injunctive relief. Accordingly, Defendants’ Motion to

Dismiss and Renewed Motion to Dismiss, [ECF Nos. 9, 48], Plaintiff’s requests for

injunctive relief are DENIED as MOOT.

(c) Capacity to be sued under 42 U.S.C. § 1983

Defendants next argue that they are not “persons” under the meaning of 42

U.S.C. § 1983 and therefore do not have the capacity to be sued for money damages.

Defendants are correct that in order to state a claim for damages under 42 U.S.C.

§ 1983, an aggrieved party must sufficiently allege that she was injured by “the

deprivation of any [of her] rights, privileges, or immunities secured by the [United

States] Constitution and laws” by a “person” acting “under color of state law.” 42

U.S.C. § 1983; , 436 U.S. 658, 691 (1978).

Defendants would undoubtedly be correct if the Amended Complaint had sued

Defendants in their official capacities. , 502 U.S. 21, 26

(1991). The Amended Complaint, however, clearly sues Defendants Butcher, Jividen,

Ballard, and Ames in their individual capacities. Pl.’s Amend. Compl. [ECF No. 44]

¶¶ 2–4. Dismissal on this basis is therefore improper.

(d) Exhaustion

Defendants argue Plaintiff’s Amended Complaint should be dismissed because

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

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

(“WVPLRA”). Administrative exhaustion is a threshold question that must be decided

before determining the merits of a case. Whether an administrative remedy has

been exhausted for purposes of the PLRA “is a question of law to be determined by

the judge.” , No. 2:14-cv-10648, 2017 WL 4004579, at *3 (S.D. W. Va.

2017) (citing , 604 F.3d 778, 782 (3d Cir. 2010)). “Failure to

exhaust available administrative remedies is an affirmative defense, not a

jurisdictional requirement, and thus inmates need not plead exhaustion, nor do they

bear the burden of proving it.” , 517 F.3d 717, 725 (4th Cir. 2008).

Failure to exhaust may be a basis for a dismissal for a failure to state a claim.

, 549 U.S. 199, 216 (2007); , No. 2:16-CV-01371,

2017 WL 722604, at *2 (S.D.W. Va. Feb. 23, 2017) (granting a motion to dismiss a

prisoner’s claims for failure to exhaust under the PLRA and WVPLRA). But “only in

rare cases will a district court be able to conclude from the face of the complaint that

a prisoner has not exhausted his administrative remedies and that he is without a

valid excuse.” , 517 F.3d 717, 725 (4th Cir. 2008) (quoting

, 479 F.3d 1257, 1260 (10th Cir.2007)).

Both PLRA and WVPLRA require inmates to exhaust their administrative

remedies before they bring a lawsuit. 42 U.S.C. § 1997e(a); W. Va. Code § 25-1A-2a(i).

Under the PLRA, “[n]o action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has interpreted

the PLRA broadly, stating that the “PLRA’s exhaustion requirement applies to all

inmate suits about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or some other wrong.”

, 534 U.S. 516, 532 (2002).

Similarly, the WVPLRA makes it mandatory for an inmate to first exhaust

administrative remedies provided by the inmate’s correctional facility before

instituting a civil action challenging the inmate’s confinement. W. Va. Code § 25-1A-

2; , 618 S.E.2d 423, 431 (W. Va. 2005) (“[B]efore an inmate

may bring a civil action challenging the conditions of his/her confinement, he/she

must first exhaust the administrative remedies provided by the correctional facility

in which he/she is housed.”). The WVPLRA provides that: “[a]n inmate may not bring

a civil action regarding an ordinary administrative remedy until the procedures

promulgated by the agency have been exhausted.” W. Va. Code § 25-1A-2(c). An

“ordinary administrative remedy” is “a formal administrative process by which an

inmate submits a grievance seeking redress or presenting concerns regarding any

general or particular aspect of prison.” § 25-1A-2(a).

The WVDOCR sets the uniform procedures for filing an inmate grievance.

W. Va. Code § 25-1A-2. If an inmate fails to fully comply with the provisions of those

rules, the inmate “shall not be considered to have taken full advantage of

administrative remedies afforded him/her and therefore has not exhausted

administrative remedies.” , No. 2:16-CV-05637, 2018 WL 736044,

at *5 (S.D.W. Va. Feb. 6, 2018) (citing Policy Directive 335.00(V)(D)(4)).

The procedure for filing an inmate grievance is as follows:

An inmate may file a grievance using forms provided by the

prison “within fifteen (15) days of any occurrence that

would cause him/her to file a grievance.” Only one issue or

complaint may be grieved per form, and the inmate must

submit the form to his or her unit manager. Upon receipt

of the grievance form, the unit manager logs the grievance

and assigns it a number. The unit manager is required to

return an answer to the grievance back to the inmate

within five days. If the unit manager fails to answer or

reject the grievance within five days, the inmate may treat

the non-response as a denial and proceed to the next level

of review. Appeals from the unit manager’s response (or

non-response, as the case may be) are submitted “to the

Warden/Administrator within five (5) days from delivery of

the response.” “The Warden/Administrator shall respond

to the appeal ... within five (5) days.” Finally, if the

warden’s response is unsatisfactory, or if the warden does

not respond within the applicable time, the inmate may

appeal to the Commissioner of the Division of Corrections

within five days of the warden’s response or after the

applicable time has passed. The Commissioner is allotted

ten days to respond to the appeal.

. (quoting Policy Directive 335.00) 3

Policy Directive 335.00 specifically states that, “‘[e]xhaustion’ shall mean

submitting an accepted grievance and properly appealing an accepted grievance fully

and receiving a final response thereto by the Commissioner. Rejections do not

constitute exhaustion. Remands are not final responses unless expressly stated in the

3 Defendants in this case point to Section 90 of the West Virginia Code Regulations

as the authority which outlines the grievance procedure process. Section 90, however,

was repealed in 2016.

decision.” , No. 2:17-CV-02054, 2018 WL 6036433, at *9

(S.D.W. Va. Aug. 8, 2018), report and recommendation adopted, No. 2:17-CV-02054,

2018 WL 4628321 (S.D.W. Va. Sept. 27, 2018) (quoting Policy Directive

335.00(V)(D)(4)). The Policy Directive further provides that “[a]ny inmate who fails

to fully and properly comply with the provisions set forth in this Policy Directive shall

not be considered to have taken full advantage of administrative remedies afforded

him/her and therefor has not exhausted administrative remedies.” (quoting Policy

Directive 335.00(V)(A)(5)).

To the extent that Plaintiff in this case argues 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). Exhaustion

is still required for the types of claims made by Plaintiff. ,

, 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).

In this case, Defendants argue Plaintiff failed to exhaust administrative

remedies under the PLRA and WVPLRA. As previously stated, Defendants rely on

grievances attached as exhibits as integral to their argument. [ECF No. 11]. These

exhibits reflect that the grievances submitted by Plaintiff were rejected for not

following proper procedure, either because they were untimely and/or because the

single envelope included multiple grievances. Exhibit B–J [ECF No. 11–2–10]. As

Defendants correctly indicate, a rejected grievance does not exhaust available

administrative remedies. It is clear to the court, at this point in the litigation, that if

these grievances were the only grievances submitted by Plaintiff then Plaintiff failed

to satisfy exhaustion under the PLRA and WVPLRA. However, because Plaintiff

claims that other grievances exist and that further discovery is needed to recover

them, it would be premature to consider Defendants’ Motion as a motion for summary

judgment. At the motion to dismiss stage, it is improper to consider evidence external

to the pleadings. I do not consider the exhibits provided by Defendants at this time.

Absent this evidence, I find that Defendants have not sufficiently

demonstrated their affirmative defense that Plaintiff failed to exhaust administrative

remedies. Accordingly, dismissal on this basis is not warranted at this time.

(e) Qualified immunity

Defendants next argue that they are entitled to qualified immunity. I am

frustrated with the notable lack of clarity in the Plaintiff’s Amended Complaint as to

the causes of action brought therein. In both Count VII and Count VIII, Plaintiff

asserts that Defendants violated the “Constitutions, statutes and common law of the

State of West Virginia and the United States of America” without specifying which

statutes and laws. Amend. Compl. [ECF No. 44] ¶¶ 153, 159.

The Amended Complaint alleges two claims, Count VII and Count VIII,

against Defendants. These Counts appear functionally indistinguishable from one

another. Count VII claims that “Defendants Butcher, Jividen, Ballard and Ames

owed a duty of care to the Plaintiff pursuant to the Constitutions, statutes and

common laws of the State of West Virginia and the United States of America to

prevent the constitutional deprivations he suffered related to the attack by Inmate

Samples and his assault by Defendants Bell and Benson.” Amend. Compl. [ECF No.

44] ¶ 150. Count VII alleges that Defendants breached that “duty of care” by the

following:

(1) failing to provide sufficient and adequately trained

staff at Quilliams II on the day the Plaintiff was

attacked by Inmate Samples; (2) failing to properly

screen and segregate the Plaintiff from Inmate

Samples, despite knowledge of the specific threat

Inmate Samples posed to the Plaintiff and Inmate

Samples’ significant history of violence; (3) failing to

establish policies related to the use of excessive force by

correctional officers; (4) failing to provide and establish

reasonable and acceptable safety procedures; (5) failing

to provide and establish necessary and appropriate

security measures; (6) failing to develop and implement

a reasonable and acceptable classification system and

corresponding housing plan at MOCC; (7) failing to

adopt reasonable and acceptable policies and

procedures related to the intervention of MOCC staff to

prevent the attack of the Plaintiff perpetrated by

Inmate Samples; (8) failing to adopt reasonable and

acceptable policies and procedures related to providing

adequate and timely medical care to the Plaintiff; and

(9) by otherwise acting or failing to act in other manners

that are in contravention to the Constitutions, statutes

and common law of the State of West Virginia and the

United States of America.

at ¶ 151. Count VIII alleges that Defendants “Butcher, Jividen, Ballard and Ames

owed the Plaintiff a duty to use due care in the supervision and training of

correctional officers at MOCC.” at ¶ 156. Plaintiff alleges that “the

implementation and existence of customs, policies and acts of these Defendants”

breached of this duty resulting in “deprivation of the constitutional and other legal

rights of the Plaintiff.” at ¶ 157. In both Count VII and Count VIII, Plaintiff alleges

the Defendants’ actions constitute “negligence, recklessness, and deliberate

indifference to the rights of the Plaintiff.”

The Amended Complaint does not specifically refer to a single West Virginia

state policy, procedure, rule, regulation, or statute, besides “negligence.” Affording

Plaintiff the most generous reading of the Amended Complaint, I interpret any

alleged violations of the “Constitutions statutes and common law of the State of West

Virginia” made against these Defendants in Counts VII and VIII to refer to the tort

of negligence. In the opening of the Amended Complaint, Plaintiff states that he

brings his claims pursuant to 42 U.S.C. § 1983 for violations of the Eighth and

Fourteenth Amendments of the United State Constitution. I construe any alleged

violations of the “Constitutions, statutes and common law of the United States” to

refer to violations of the Eighth and Fourteenth Amendments made pursuant to §

1983.

1. State law claims

Defendants here are entitled to qualified immunity on state law claims for

negligence. Under West Virginia law, “[a] public executive official who is acting

within the scope of his authority … is entitled to qualified immunity from personal

liability for official acts if the involved conduct did not violate clearly established laws

of which a reasonable official would have known.”

, 483 S.E.2d 507, 510 (W. Va. 1996). “The doctrine of qualified or official

immunity bars a claim of mere negligence” against a state officer “acting within the

scope of his or her employment, with respect to the discretionary judgments,

decisions, and actions of the officer.” , 465 S.E.2d 374 (W. Va. 1995).

Under West Virginia law, “broad categories of training, supervision, and employee

retention, as characterized by respondent, easily fall within the category of

‘discretionary’ governmental functions.”

, 766 S.E.2d 751, 773 (W. Va. 2014) (finding that the state agency was entitled

to qualified immunity on a simple negligence claim for failure to reasonably train,

supervise, and screen employees, absent a showing that the agency violated a clearly

established law). Barring a showing by Plaintiff that Defendants violated a “clearly

established right or law” with respect to hiring, training, and developing procedures,

Defendants are entitled to qualified immunity on claims involving these discretionary

acts. .

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.’” at 776 (quoting

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

Here, the Amended Complaint does not contain any allegations that

Defendants were involved in Plaintiff’s injuries beyond their role as supervisors—

developing policies and procedures at MOCC and training, supervising, and screening

employees. These actions fall within the category of “discretionary” government

functions. Plaintiff fails to identify a specific state law or regulation in his Amended

Complaint that Defendants have violated. Defendants are entitled to qualified

immunity in so far as Plaintiff asserts that their actions were merely negligent.

Defendants’ Motion to Dismiss, [ECF No. 9], and Renewed Motion to Dismiss, [ECF

No. 48], are GRANTED as to claims made pursuant to “Constitutions, statutes and

common law of the State of West Virginia” contained in Count VII and Count VIII.

2. Federal law claims

Turning to alleged violations of the Eighth Amendment and Fourteenth

Amendment brought pursuant to § 1983, I find that Defendants are entitled to

qualified immunity. 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.2d 295, 298 (4th Cir. 1992) (quoting , 457 U.S.

800, 818 (1982)).

Thus, the court must undertake a two-part inquiry: (1) viewing the facts in the

light most favorable to the Plaintiff, the court must determine if there was a

constitutional violation; and (2) if so, whether the right violated was clearly

established at the time of the violation. , 555 U.S. 223, 231 (2009).

If the answer to either question is no, then the Defendants are entitled to qualified

immunity. The Supreme Court previously required courts to address the first prong

before the second. , 533 U.S. 194, 201 (2001). “In 2009, however,

the Court held that judges ‘should be permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.’”

, 884 F.3d 219, 226 (4th Cir. 2018) (quoting , 555 U.S. at 236).

“Unless the plaintiff’s allegations state a claim of violation of clearly

established law, a defendant pleading qualified immunity is entitled to dismissal

before the commencement of discovery.” , 472 U.S. 511, 526 (1985).

“When determining whether a right was ‘clearly established,’ ‘[t]he dispositive

question is whether the violative nature of conduct is clearly established.’”

, No. 5:15-03589, 2016 WL 7840216, at *6 (S.D. W. Va. Dec. 13, 2016)

(quoting , 136 S. Ct. 305, 308 (2015) (per curiam)). “To be ‘clearly

established,’ ‘[t]he contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.’” (quoting

, 483 U.S. 635, 640 (1987)). Though, of course “officials can still

be on notice that their conduct violates established law even in novel factual

circumstances.” , 536 U.S. 730, 741 (2002).

The Supreme Court has “repeatedly told courts ... not to define clearly

established law at a high level of generality.” , 563 U.S. 731, 742,

(2011). Thus, courts consider whether a right is clearly established “in light of the

specific context of the case, not as a broad general proposition.” , 884 F.3d at

227 (citing , 136 S.Ct. 305, 308 (2015)).

The Fourth Circuit has firmly held that “supervisory officials may be held

liable in certain circumstances for the constitutional injuries inflicted by their

subordinates.” , 737 F.2d 368, 372 (4th Cir. 1984). “Liability in this

context is not premised on respondeat superior,

, 436 U.S. 658, 691 (1978), but on a recognition that supervisory indifference

or tacit authorization of subordinates’ misconduct may be a causative factor in the

constitutional injuries they inflict on those committed to their care.” ;

, 556 U.S. at 677 (“[i]n the context of determining whether there is a violation of

a clearly established right to overcome qualified immunity, purpose rather than

knowledge is required...”). Plaintiffs in supervisory liability cases assume a heavy

burden of proof. 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 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, Defendants are entitled to qualified immunity. First, at the outset, the

Amended Complaint barely ties the Defendants alleged conduct to a specific

constitutional violation. The Amended Complaint mentions “excessive force” and

“deliberate indifference” in Counts VII and VIII. But that language is the only clue

as to which provisions of the Constitution Defendants allegedly violated. Second, the

allegations in Counts VII and VIII do not plausibly allege that these Defendants

possessed the requisite intent to deprive Plaintiff of rights that are clearly

established. The Amended Complaint provides a long list of alleged failures in

excessive force policies, medical care policies, safety procedures, security measures,

inmate classification systems, and general training and supervision. These

allegations, however, do not provide sufficient factual assertions about or

these policies and procedures are inadequate. The Amended Complaint does not

plausibly connect, to the extent necessary to demonstrate “tacit authorization,” the

conduct of these Defendants to the alleged excessive force used against Plaintiff by

Defendants Bell and Benson and to the alleged attack by Inmate Samples.

, 737 F.2d at 372. Plaintiff does not plausibly allege that these Defendants had

knowledge of widespread abuses. Simply alleging that they failed to investigate

grievances is insufficient. , 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’s conclusory allegations on

Counts VII and VIII are not sufficient to overcome these Defendants’ qualified

immunity defense. Accordingly, Defendants’ Motion to Dismiss and Renewed Motion

to Dismiss, [ECF No. 9, 48], are GRANTED.

IV. Conclusion

Defendants Motion to Dismiss, [ECF No. 9], and Renewed Motion to Dismiss,

[ECF No. 48], are GRANTED in part and denied in part. The Motions are DENIED

as MOOT as to the WVDOCR, who is no longer a party to this case. The Motions are

DENIED as MOOT as to Plaintiff’s request for injunctive relief. The Motions are

GRANTED as to all remaining claims against Defendants Ames, Ballard, Butcher,

and Jividen. The court DIRECTS the Clerk to send a copy of this Order to counsel of

record and any unrepresented party.

ENTER: July 17, 2020

JOSEP . GOODW

pe STATES om JUDGE

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