# LaRue v. WV Division of Corrections and Rehabilitation

> District Court, S.D. West Virginia · August 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10729170

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** August 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10729170

## How later opinions describe it (automated extraction)

- holding, “[a] ‘slip and fall,’ without more, does not amount to cruel and unusual punishment.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

WILLIAM A. LARUE,

Plaintiff,

v. CIVIL ACTION NO. 2:20-cv-00151

WV DIVISION OF CORRECTIONS AND REHABILITATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff’s Complaint under 42 U.S.C. § 1983 against the West Virginia
Division of Corrections and Rehabilitation (“WVDCR”). (ECF No. 3.) By Standing Order
entered in this case on February 27, 2020, this action was referred to United States Magistrate
Judge Dwane L. Tinsley for submission of proposed findings and a recommendation for
disposition (“PF&R”). (ECF No. 8.) Magistrate Judge Tinsley entered his PF&R on April 6,
2020, recommending that the Court find that the WVDCR is not a person under § 1983 and, thus,
is entitled to immunity from suit under the Eleventh Amendment to the United States Constitution.
(ECF No. 17.) Additionally, the PF&R recommends that this Court dismiss the Complaint for
failure to state a claim upon which relief can be granted because it does not “identify conduct by
any specific individuals employed by the WVDCR that would give rise to a deliberate indifference
claim” under § 1983. (Id.) On April 17, 2020, Plaintiff filed timely objections to the PF&R and
moved for leave to amend his complaint. (ECF Nos. 19, 20.)
For the reasons discussed more fully herein, the Court OVERRULES Plaintiff’s
objections, (ECF Nos. 19, 20), ADOPTS the PF&R, (ECF No. 17), and DENIES Plaintiff’s
motion for leave to amend the complaint, (ECF No. 20).
I. BACKGROUND

Plaintiff alleges that on March 18, 2019, he slipped and fell into a drainage culvert in the
recreation yard at Mount Olive Correctional Complex (“MOCC”). He was promptly taken to the
hospital, where he underwent surgery to repair a broken femur, for which he claims to suffer
continued pain and loss of mobility. Plaintiff alleges that the WVDCR did not take steps to
remedy this safety hazard and has “failed to properly maintain the property at [MOCC].” (ECF
No. 3 at 11). In his Complaint, Plaintiff contends that the WVDCR was deliberately indifferent
to his right to reasonable safety in violation of the Eighth Amendment to the United States
Constitution. In addition, he seeks monetary damages and injunctive relief to “fix all dangerous
slip and fall areas on the main prison recreation yard[.]” (Id. at 16–17.)
II. LEGAL STANDARD

The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and a party’s right to appeal this Court’s
Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct
a de novo review when a party “makes general and conclusory objections that do not direct the Court
to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982).
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III. DISCUSSION
Plaintiff, first, argues that the magistrate judge erroneously concluded that the WVDCR is
immune from suit in federal court under the Eleventh Amendment. (ECF No. 19.) He cites
several cases where civil rights claims were maintained against other state corrections departments,

like the WVDCR. (Id. at 1–2.) Plaintiff is misguided.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. Though its language might suggest otherwise, the Eleventh Amendment has
long been construed to extend to “suits brought in federal courts [against a state] by [its] own
citizens as well as by citizens of another State.’” Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995)
(citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). “This immunity extends as well to state
agencies and other government entities properly characterized as ‘arm[s] of the State.’” Id. (citing
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)); Quern v. Jordan,

440 U.S. 332, 337 (1979) (holding, the Eleventh Amendment bars “a suit in a federal court by
private parties seeking to impose [monetary] liability which must be paid from public funds in the
state treasury . . . .”); Berry v. Rubenstein, No. 1:07-cv-00535, 2008 WL 1899907, at *2 (S.D. W.
Va. Apr. 25, 2008) (holding, “the WVDOC is an arm of the state and is therefore immune from
suit under the Eleventh Amendment.”).
Additionally, to successfully establish a § 1983 claim, “a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of state law.” Crosby v. City of

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Gastonia, 635 F.3d 634, 639 (4th Cir. 2011) (quoting West v. Atkins, 487 U.S. 42, 48 (1988))
(emphasis added). The United States Supreme Court has made clear that “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989). Thus, the magistrate judge correctly found that the

WVDCR, a state agency of West Virginia, is immune from liability under the Eleventh
Amendment. Accordingly, Plaintiff’s objection is OVERRULED.
Next, Plaintiff contends that the Court should construe his Complaint as one against Donald
Ames, the superintendent of the MOCC, rather than the WVDCR. (ECF No. 20 at 1–2.) In
addition, he moves for leave to amend his complaint to name Ames as a defendant in place of the
WVDCR. (Id. at 5.) In his proposed amended complaint, like in his original complaint, Plaintiff
alleges that he slipped and fell into an open, drainage culvert in the recreation yard at MOOC,
resulting in injury to his femur. (ECF No. 20-1 ¶¶ 13–15.) Plaintiff claims that Ames’ failure to
maintain the property or install guard rails around the exposed culvert deprived him of his Eighth
Amendment right to reasonable safety. (Id. at ¶¶ 34–35.)

In the prison context, the Eighth Amendment’s proscription against cruel and unusual
punishments “protects inmates from inhumane treatment and conditions while imprisoned.” Iko
v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citation omitted). Claims under the Eighth
Amendment require a sufficiently culpable state of mind, known as “deliberate indifference.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is a higher standard than
negligence or lack of ordinary due care. Id. at 835. To state a claim of deliberate indifference, a
plaintiff must establish two elements. “First, the alleged constitutional deprivation must be,
objectively, sufficiently serious.” Id. at 834 (internal quotation marks omitted). With respect to

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an objective deprivation, the United States Supreme Court has explained that “only those
deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to
form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992)
(internal quotation marks omitted). With respect to the second element, the prison official must

have acted with “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834
(internal quotation marks omitted). In other words, “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 837.
In this case, Plaintiff does not allege a deprivation denying the minimal civilized measure
of life’s necessities. Rather, Plaintiff alleges that the defendant exposed him to unsafe conditions
by failing to install guard rails or other safety measures around an exposed drainage culvert. This
allegation is an ordinary tort that does not rise to the level of a constitutional deprivation. See
Mitchell v. State of W. Va., 554 F. Supp. 1215, 1217 (N.D. W. Va. 1983) (holding, “[a] ‘slip and
fall,’ without more, does not amount to cruel and unusual punishment.”); Wallace v. Haythorne,

2007 WL 3010755, *4 (E.D. Cal. Oct. 15, 2007) (no Eighth Amendment violation where a hole in
the floor caused inmate to fall, even if defendants knew that the hole had caused others to trip),
adopted by 2007 WL 4358230 (E.D. Cal. Dec. 11, 2007), aff’d, 328 F. App’x 467, 2009 WL
2015051 (9th Cir. 2009); Birks v. Fox, 2020 WL 1952675, at *2 (E.D. Cal. Apr. 23, 2020) (ceiling
tile that fell and struck inmate in the head did not create an Eighth Amendment violation, despite
defendants’ knowledge that ceiling was compromised), adopted by 2020 WL 3510844 (E.D. Cal.
June 29, 2020).

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Since Plaintiff's proposed amended complaint does not correct this deficiency with his
claim, the Court finds that an opportunity to amend the complaint would be futile and
unwarranted.'! See Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010)
(leave to amend a complaint should be denied “when the amendment would be futile.”); Save Our
Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 228 (4th Cir. 2019) (“A proposed
amendment is futile when it is clearly insufficient or frivolous on its face,” or “if the claim it
presents would not survive a motion to dismiss.”). Accordingly, the Court DENIES Plaintiff's
request to amend his complaint and OVERRULES Plaintiff's objection to construe the Complaint
as one against Ames.
IV. CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiffs objections, (ECF Nos. 19,
20), ADOPTS the PF&R, (ECF No. 17), and DISMISSES the Complaint for failure to state a
claim. The Clerk is DIRECTED to remove this action from this Court’s docket.
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: August 3, 2020

LS
pd

It bears noting that Plaintiff will have the opportunity to pursue his proposed claim in case number 2:20-cv-00308,
wherein he has filed a nearly identical complaint against Ames centered around these same facts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729170. Public record. Not legal advice.