Worley v. Ewing

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

RONNIE WORLEY,

Plaintiff,

v. Case No. 2:19-cv-00543

DAVID EWING, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is a Motion to Dismiss filed by defendants Joshua

Ward, Jonathan Frame, Donald Ames, and Betsy Jividen [ECF No. 14]. By Standing

Order, this matter is referred to the Honorable Dwane L. Tinsley, United States

Magistrate Judge for submission of proposed findings and a recommendation for

disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons appearing to the Court,

it is hereby ORDERED that the referral of this motion to the Magistrate Judge is

WITHDRAWN.

I. The Plaintiff’s Allegations and the Defendants’ Motion to Dismiss.

This matter is proceeding on the Amended Complaint [ECF No. 12], filed by

the plaintiff, Ronnie Worley (“Worley”), on September 25, 2019. According to the

Amended Complaint, on January 23, 2019, Worley was strip searched in his cell at

the Mount Olive Correctional Complex (“MOCC”) by correctional officers David

Ewing (“Ewing”) and Charles Johnson (“Johnson”) prior to being escorted to the

medical unit for a pre-segregation assessment. Worley claims that the location of his

cell left him in a direct line of site of the pod officer, the Unit Team office, exterior

windows, [and] the front area of the pod.” [ at 6]. When Worley complained that

such exposure constituted a violation of Prison Rape Elimination Act (“PREA”)

standards, Ewing allegedly responded, “I don’t give a f---. Nobody’s even looking up

here.” [ ]

Following the strip search, Ewing and Johnson applied mechanical restraints

to Worley’s hands behind his back, allegedly without engaging the double-locking

mechanism, and then escorted him to the medical unit. [ at 7]. Worley alleges

that, as they walked down the hallway, Ewing and Johnson made belittling and

humiliating comments about him in front of other officers and inmates. [ ] When

Worley told him to “shut up,” Ewing allegedly tightened his grip on Worley’s right

arm and said, “don’t tell me to shut up you punk ass bitch.” [ ] Worley states that

he turned his head to ask Ewing why he was using such language, and Ewing and

Johnson “violently slammed him down into the mud and gravel.” [ at 7-8].

Worley alleges that his head hit the gravel, cutting his left eyebrow, and

causing ringing in his left ear. He further claims that “the defendant C.O.’s weight

was placed on his lower back” causing “long-lasting injury” and the handcuffs

“tightened to the point of numbness in his right hand,” which has allegedly continued

since that time. [ at 8]. Worley alleges that, when he arrived at the medical unit,

he attempted to report this incident, but was told to “be quiet and go to your hearing.”

[ ] He further suggests that Ewing and Johnson falsified their subsequent incident

reports. [ at 6].

Worley claims that the defendants’ conduct violated his rights under the Fifth,

Eighth, and Fourteenth Amendments of the United States Constitution and PREA.

In addition to Ewing and Johnson, the Amended Complaint names as defendants

Major Joshua Ward, Chief of Security at MOCC (“Ward”); Jonathan Frame, Associate

Superintendent of Security at MOCC (“Frame”); Donald Ames, Superintendent of

MOCC (“Ames”); and Betsy Jividen, Commissioner of the West Virginia Division of

Corrections and Rehabilitation (“WVDCR”) (“Jividen”). However, he does not allege

that any of them were personally involved in the events of January 23, 2019.

Rather, he claims that Frame and Ward, as supervisors of Ewing and Johnson,

knew or should have known that their subordinates had engaged in a pattern or

practice of misconduct, including use of excessive force, submission of fraudulent

incident reports, and violation of policy directives and PREA standards, and that

Frame and Ward failed to investigate this misconduct and failed to properly train,

supervise, and discipline their officers. [ at 11]. Beyond identifying their titles,

and a general statement that they are “legally responsible” for the overall operations

of MOCC and the WVDCR, the Amended Complaint contains no allegations

whatsoever concerning specific conduct by Ames and Jividen. Worley seeks monetary

damages, a declaratory judgment, and injunctive relief in the form of requiring the

video recording of all instances where inmates at MOCC are restrained and escorted

about the prison. [ at 12].

The defendants’ Motion to Dismiss asserts that Ward, Frame, Ames, and

Jividen, in their official capacities, are not “persons” who can be sued under 42 U.S.C.

§ 1983 and are further entitled to sovereign immunity under the Eleventh

Amendment. Additionally, the Motion to Dismiss contends that the Amended

Complaint fails to state a claim upon which relief can be granted against these

defendants in their individual capacities and that they are entitled to qualified

immunity on Worley’s claims against them. These defendants further assert that

Worley failed to exhaust the available administrative remedies with respect to his

claims against them. Worley responded to the Motion to Dismiss [ECF No. 19] and

the defendants filed a reply [ECF No. 22]. The motion is ripe for adjudication.

II. Standard of Review

The defendants’ motion is filed pursuant to Rules 12(b)(1) and 12(b)(6) of the

Federal Rules of Civil Procedure. A motion filed under Rule 12(b)(6) tests the legal

sufficiency of a complaint or pleading. , 521 F.3d 298, 302 (4th

Cir. 2008). A pleading must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard

“does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” , 556

U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 555 (2007)).

When “faced with a Rule 12(b)(6) motion to dismiss . . . courts must . . . accept all

factual allegations in the complaint as true.”

, 551 U.S. 308, 322 (2007).

To survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” ,

556 U.S. at 678 (quoting , 550 U.S. at 570). To achieve facial plausibility,

the plaintiff must plead facts allowing the court to draw the reasonable inference that

the defendant is liable, moving the claim beyond the realm of mere possibility.

Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of

action” are insufficient. , 550 U.S. at 555.

Additionally, the defendants’ motion asserts that, to the extent that the official

capacity claims against them may not proceed based upon the sovereign immunity

granted by the Eleventh Amendment, those claims are entitled to dismissal for lack

of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil

Procedure. “The Fourth Circuit has not resolved whether a motion to dismiss based

on the Eleventh Amendment is properly considered pursuant to Rule 12(b)(1) or

12(b)(6), but the recent trend appears to treat Eleventh Amendment immunity

motions under Rule 12(b)(1).” ., No. 3:19-cv-

0462, 2020 WL 521851, at *3 (S.D. W. Va. Jan. 31, 2020), citing

, No. 3:13-cv-01706, 2013 WL 3716673, at *3 (S.D. W. Va. July 12, 2013) (internal

quotation marks and citations omitted).

III. Discussion

A. Official Capacity Claims and Sovereign Immunity

Worley’s Amended Complaint specifies that he is suing each defendant in both

their official and individual capacities. However, an individual who is employed by

an arm of the State and sued in his official capacity is immune from suit in federal

court under the Eleventh Amendment. , No. 18-6489, 2020 WL

4046025, *8-9 (4th Cir. Jul. 20, 2020); , 828 F.3d

239, 250 (4th Cir. 2016), (July 8, 2016). 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. Such immunity protects both the State itself and its

agencies, divisions, departments, officials, and other “arms of the State.” ;

, 134 U.S. 1, 9 (1980).

Thus, the Eleventh Amendment of the United States Constitution bars a suit

in a federal court by private parties, such as Worley, seeking to impose monetary

liability upon a state or state officials, which may be paid from public funds in the

state treasury. , 440 U.S. 332, 337 (1979). Absent consent, federal

suits against a state by a citizen of that state or another state are prohibited by the

Eleventh Amendment. , 473 U.S. 159, 199 (1985);

, 465 U.S. 89, 99-100 (1984).

Furthermore, in , 491 U.S. 58, 71 (1989),

the Supreme Court held that a state, its agencies, and its officials acting in their

official capacity, are not “persons” under 42 U.S.C. § 1983. The vehicle for asserting

Worley’s claims in federal court is § 1983. Thus, the defendants, in their official

capacities, are not persons who can be sued thereunder. Accordingly, I FIND that

dismissal of all claims against the defendants in their official capacities is warranted.

B. Individual Capacity Claims and Qualified Immunity

Worley’s claims against these defendants are asserted as claims of supervisory

liability. Worley essentially alleges that Ward, Frame, Ames, and Jividen, as Ewing

and Johnson’s supervisors, should be held liable for their conduct. 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). However, the burden of proof on a supervisory liability

claim is weighty. , 556 U.S. at 677.

“Liability in this context is not premised on , 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.” , 436 U.S. 658, 691 (1978);

, 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...”). Three elements are 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 791, 799 (4th Cir. 1994).

To establish the first element, a 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 second element may be established “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 he “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.

Worley’s Amended Complaint does not plausibly connect, to the extent

necessary to demonstrate “tacit authorization,” the conduct of these defendants to the

alleged constitutional violations by Ewing and Johnson.1 , 737 F.2d at 372.

1 To the extent that Worley’s Amended Complaint alleges that the defendants violated PREA

standards, such allegations are insufficient to support a plausible claim for relief because there is no

private cause of action under § 1983 to enforce a PREA violation. , No. CV JKB-18-

3418, 2020 WL 886600, at *3 (D. Md. Feb. 24, 2020); , Civ. No. DKC-15-1891, 2016

WL 810707, at *7 (D. Md. Mar. 2, 2016) (“Nothing in the PREA suggests that Congress intended to

Worley does not plausibly allege that any of these defendants had prior knowledge of

widespread abuses by defendants Ewing and Johnson at MOCC, and simply alleging

that these defendants failed to investigate grievances, as he asserts against Ames

and Jividen, 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).

Moreover, although his response to the motion to dismiss summarily asserts

that Ward, Frame, Ames, and Jividen were aware that “this particular series of

events is not an isolated incident” and that “individual officers had routinely engaged

in a pattern of, and practice of, misconduct,” he fails to provide specific factual

allegations to establish a basis for supervisory liability on the part of these four

defendants. Rather, his Amended Complaint insufficiently relies solely on his own

incident and bald, unsupported assertions of widespread misconduct.

, No. 2:19-CV-00757, 2020 WL 4195005, at *7 (S.D.W. Va. July

21, 2020) (dismissing supervisory liability claim where plaintiffs failed to plead

specific facts concerning “repeated acts of misconduct”); , No. 2:19-cv-

00829, 2020 WL 1521799 at *5 (S.D. W. Va. Mar. 30, 2020) (quoting , 13 F.3d at

799) (“the plaintiff ‘cannot satisfy his burden [] by pointing to a single incident or

create a private right of action for inmates to sue prison officials for noncompliance with the Act.”);

, Civ. No. JGM-07-229, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008) (“The PREA

is intended to address the problem of rape in prison, authorizes grant money, and creates a commission

to study the issue. The statute does not grant prisoners any specific rights.”).

isolated incidents.’”). These are precisely the type of conclusory allegations that the

Supreme Court found to be proper for dismissal in and .

The defendants’ Motion to Dismiss further asserts that these defendants are

entitled to qualified immunity on all of Worley’s claim against them. Qualified

immunity “shields government officials from liability for civil damages provided their

conduct does not violate clearly established statutory or constitutional rights within

the knowledge of a reasonable person.” , 961 F.3d 654, 660 (4th Cir.

2020); , 713 F.3d 723, 731 (4th Cir. 2013). The following test

is used to determine whether a defendant is entitled to qualified immunity: (1) taken

in the light most favorable to the party asserting the injury, do the facts alleged show

the defendant’s conduct violated a constitutional right; and (2) was that right clearly

established such that a reasonable person would have known that their conduct was

unlawful. , 555 U.S. 223, 236 (2009); ,

855 F.3d 533, 538–39 (4th Cir. 2017). A defendant is “entitled to a qualified immunity

defense so long as ‘the law did not put the [defendant] on notice that his conduct

would be clearly unlawful.’” , 475 U.S. 335, 341 (1986);

, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Because Worley’s Amended

Complaint fails to state a plausible violation of any clearly established constitutional

right by these defendants, I FIND that they are entitled to qualified immunity on

Worley’s claims against them.2

2 Because I have found that the Amended Complaint fails to state plausible claims for relief against these

defendants, I find it unnecessary to address their arguments concerning exhaustion of administrative

remedies and the appropriateness of injunctive relief.

IV. Conclusion

For the reasons stated herein, I FIND that Worley’s Amended Complaint fails

to state any claim upon which relief can be granted against defendants Frame, Ward,

Ames, and Jividen, and the claims against them are ripe for dismissal. Accordingly,

it is hereby ORDERED that the Motion to Dismiss filed by defendants Joshua Ward,

Jonathan Frame, Donald Ames, and Betsy Jividen (ECF No. 14) is GRANTED.

However, this matter shall remain referred to the Magistrate Judge for additional

proceedings concerning the claims against defendants David Ewing and Charles

Johnson.

The court DIRECTS the Clerk to send a copy of this Memorandum Opinion

and Order to counsel of record and any unrepresented party.

ENTER: August 12, 2020

Ie

G 6G

pe STATES DISTRICT JUDGE

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