Falkner v. Barkley

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

BRENDA ANDERSON, Administratrix of the Estate

of Kimberly Anderson,

Plaintiff,

v. Civil Action No. 2:19-cv-00198

NATHANIEL BARKLEY, individually and in his

official capacity as a correctional officer of

the West Virginia Division of Corrections and

Rehabilitation;

THE WEST VIRGINIA DIVISION OF CORRECTIONS AND

REHABILITATION, an agency of the State of West

Virginia;

JAMES E. JAMISON, individually and in his

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

DEVIN M. BROWN, individually and in his

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

SGT. ROBERTA M. EVANS, individually and in her

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

SGT. MARK A. GOODMAN, individually and in his

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

ADMINISTRATOR DEBRA MINNIX, individually and

in her official capacity as administrator of

The West Virginia Division of Corrections and

Rehabilitation; and

JOHN DOE, unknown person or persons, individually

and in their official capacity as correctional

officers of the West Virginia Division of Corrections

and Rehabilitation,

Defendants.

KARA FALKNER,

Plaintiff,

v. Civil Action No. 2:19-cv-00199

NATHANIEL BARKLEY, individually and in his

official capacity as a correctional officer of

the West Virginia Division of Corrections and

Rehabilitation;

THE WEST VIRGINIA DIVISION OF CORRECTIONS AND

REHABILITATION, an agency of the State of West

Virginia;

JAMES E. JAMISON, individually and in his

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

DEVIN M. BROWN, individually and in his

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

SGT. ROBERTA M. EVANS, individually and in her

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

SGT. MARK A. GOODMAN, individually and in his

official capacity as a correctional officer of

The West Virginia Division of Corrections and

Rehabilitation;

ADMINISTRATOR DEBRA MINNIX, individually and

in her official capacity as administrator of

The West Virginia Division of Corrections and

Rehabilitation; and

JOHN DOE, unknown person or persons, individually

and in their official capacity as correctional

officers of the West Virginia Division of Corrections

and Rehabilitation,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are defendant Devin M. Brown’s motions to

dismiss filed in the related above-styled cases on January 31,

2020 (Mot. to Dismiss, Anderson v. Barkley, No. 2:19-cv-00198,

ECF No. 47; Mot. to Dismiss, Falkner v. Barkley, No. 2:19-cv-

00199, ECF No. 53).

I. Background

The original plaintiffs, Kimberly Anderson1 and Kara

Falkner, initiated separate civil actions in Kanawha County

circuit court against defendants the West Virginia Division of

Corrections and Rehabilitation (“WVDCR”), Nathaniel Barkley, in

his individual capacity and official capacity as a WVDCR

correctional officer, and other, unnamed WVDCR correctional

officers, individually and in their official capacities. See

Anderson, ECF No. 1 at 2; Falkner, ECF No. 1 at 2. Both actions

were removed to this court on March 21, 2019. See Anderson, ECF

No. 1; Falkner, ECF No. 1

Anderson and Falkner both filed amended complaints on

November 5, 2019, adding as defendants five additional WVDCR

1 Brenda Anderson, the administratrix of the estate of the

original plaintiff, Kimberly Anderson, was substituted as the

plaintiff in No. 2:19-cv-00198 following Kimberly’s death. See

Anderson, ECF No. 122.

officers, including Devin M. Brown and James E. Jamison, in both

their individual capacity and in their official capacity as

WVDCR correctional officers.2 See Anderson, No. 2:19-cv-00198,

ECF No. 47 (hereinafter, “AAC”) ¶¶ 5-9; Falkner No. 2:19-cv-

00199, ECF No. 53 (hereinafter, “FAC”) ¶¶ 5-9.

In their amended complaints, the plaintiffs allege the

following. Anderson and Falkner were female inmates residing at

Tygart Valley Regional Jail (“Tygart Valley”) in Randolph

County, West Virginia. See AAC ¶ 2; FAC ¶ 2. Since it opened

in 2005, there has existed at Tygart Valley a “continuing

practice and pattern of sexual harassment, sexual abuse and

sexual exploitation visited upon female residents at the hands

of correctional staff and deliberate indifference thereto.” AAC

¶ 16; accord FAC ¶ 16. Defendant Barkley, in particular, had a

pattern of “act[ing] inappropriately with the female inmates at

[Tygart Valley], including committing sexual assault, sexual

harassment, sexual abuse, sexual exploitation, and other

illegal, threatening, or oppressive behavior.” AAC ¶ 19; FAC

¶ 19. Both Anderson and Falkner allege that Barkley “sexually

assaulted [them], sexually harassed [them], sexually abused

2 Two other civil actions by different plaintiffs allege similar

claims against defendant Barkley and employees of WVDCR. See

Haney v. Barkley, No. 2:19-cv-00200; Smith v. Barkley, No. 2:19-

cv-00201. These two cases have been dismissed.

[them], threatened [them] and oppressed [them] under threat of

retaliation” on multiple occasions. AAC ¶ 25; FAC ¶ 25; see AAC

¶¶ 26–27.

Anderson and Falkner allege that other WVDCR officers

were aware of Barkley’s conduct. For instance, Barkley had

previously been reprimanded by his supervisors for engaging in

this kind of conduct with female inmates. See AAC ¶ 22; FAC

¶ 22. And, Barkley had been removed from supervising female

inmates in certain areas of Tygart Valley because of this

conduct, but he eventually returned to working there. See AAC

¶¶ 23-24; FAC ¶¶ 23-24. Further, in some instances, Barkley

engaged in this conduct “openly in front of other officers,”

including defendant Brown. AAC ¶ 20; accord FAC ¶ 20.

On April 1, 2017, Defendants Brown and Jamison were

“sitting at the desk in the booking area and talking with . . .

Barkley,” when Barkley ordered Anderson and Falkner to enter a

laundry storage room with him. AAC ¶ 31; accord FAC ¶ 29; see

AAC ¶ 28; FAC ¶ 26. The laundry storage room did not have

surveillance cameras. See AAC ¶¶ 28-29; FAC ¶¶ 26-27. In the

laundry storage room, Barkley “cornered [Anderson] and placed

her hand on his crotch area on the outside of his pants,” AAC

¶ 30; accord FAC ¶ 28, while Falkner “was made to watch” FAC

¶ 28. Barkley then told Anderson and Falkner “to kiss and

perform sexual acts on each other.” AAC ¶ 30; accord FAC ¶ 28.

Barkley then “put his hand down [Anderson]’s pants and inserted

his finger into her vagina.” AAC ¶ 30.

Brown and Jamison both “observed . . . Barkley remain

in the laundry storage room with the female inmates for

approximately 27 seconds.” AAC ¶ 32; accord FAC ¶ 30. After 27

seconds, “Jamison called out for . . . Barkley to return to the

booking desk.” AAC ¶ 32; accord FAC ¶ 30. After he had left

the laundry storage room, Barkley tried to re-enter while

Anderson and Falkner were still in the room, but Jamison started

a conversation with him to prevent him from doing so. See AAC

¶ 33; FAC ¶ 31.

Anderson and Falkner allege Brown “knew or should have

known” that Barkley should not be alone in a room with female

inmates and that doing so was a violation of the WVDCR code of

conduct and other policies. AAC ¶¶ 35-36; accord FAC ¶¶ 34-35.

They allege Brown knew or should have known that Barkley “was

committing inappropriate conduct, including sexual assault,

sexual harassment, sexual abuse, and rape,” and that he had an

affirmative duty to report Barkley’s violation in writing to his

supervisors. AAC ¶¶ 37–38; accord FAC ¶¶ 36–37. Despite his

knowledge, Anderson and Falkner allege that Brown “knowingly and

deliberately ignored the situation and failed to report . . .

Barkley to [his] supervisors.” See AAC ¶ 38; accord FAC ¶ 37.

Based on these allegations, the amended complaints

assert claims against Brown for: (1) cruel and unusual

punishment in violation of the Eighth Amendment and Fourteenth

Amendment pursuant to 42 U.S.C. § 1983;3 (2) cruel and unusual

punishment in violation of Article III, Section 5 of the West

Virginia constitution; (3) battery; (4) assault; (5) intentional

infliction of emotional distress; and (6) civil conspiracy. See

AAC ¶¶ 52-71; FAC ¶¶ 49-68. Both amended complaints seek

compensatory and punitive damages, see AAC at 15; FAC at 14, but

only up to the amount of “coverage afforded by applicable

liability insurance policies,” AAC ¶ 1; accord FAC ¶ 1.

Brown filed Fed. R. Civ. P. 12(b)(6) motions to

dismiss the complaints as to him.4 See Anderson, ECF No. 80;

3 As part of their § 1983 claims, Anderson and Falkner also

allege that they were unconstitutionally deprived of their

“liberty interests, bodily integrity, right to equal protection

of law and right to due process, and right to be protected from

discrimination at the hands of [WVDCR] staff based upon [their]

gender.” See AAC ¶ 54; FAC ¶ 51.

4 Brown also argues in passing that Falkner’s claims against him

should be dismissed pursuant to Fed R. Civ. P 12(b)(1) for lack

of subject-matter jurisdiction. However, Brown does not develop

this point in his motion or briefing.

Falkner, ECF No. 84. The motions have been fully briefed and

are ready for disposition.

II. Legal Standard

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires that a pleader provide “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). Rule 12(b)(6) correspondingly permits a

defendant to challenge a complaint when it “fail[s] to state a

claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). The purpose of a Rule 12(b)(6) motion to dismiss is

to test the sufficiency of a complaint. Edwards v. City of

Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).

Specific facts are not necessary in a pleading, “but

only enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). The pleading “must give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.”

Id. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining

that the Rule 8 pleading standard “does not require ‘detailed

factual allegations,’ but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation”).

“[W]hen ruling on a defendant's motion to dismiss, a

judge must accept as true all of the factual allegations

contained in the complaint.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (citing Twombly, 550 U.S. at 572). However, the court

is not required to accept as true the legal conclusions set

forth in a complaint. Edwards, 178 F.3d at 244. The motion

should only be granted if, “after accepting all well-pleaded

allegations in the plaintiff's complaint as true and drawing all

reasonable factual inferences from those facts in the

plaintiff's favor, it appears certain that the plaintiff cannot

prove any set of facts in support of his claim entitling him to

relief.” Id.

To survive a Rule 12(b)(6) 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.’” See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 570). To contain sufficient factual matter to make a claim

plausible, the factual allegations must “allow[] the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id.

III. Discussion

Defendant Brown moves to dismiss all the claims

against him in both cases pursuant to Rule 12(b)(6) for failure

to state a claim for which relief can be granted. See Anderson,

ECF No. 81 (“Anderson Mem.”) at 1; Falkner, ECF No. 85 (“Falkner

Mem.”) at 1. The court addresses his arguments in turn.

A. Eleventh Amendment Immunity

Brown first argues that the claims against him in his

official capacity should be dismissed on the ground that he is

immune from such claims under the Eleventh Amendment. See

Anderson Mem. at 4 (citing Kentucky v. Graham, 473 U.S. 159

(1985); Brandon v. Holt, 469 U.S. 464 (1985)). The plaintiffs

do not contest the issue.

Claims against state officials in their capacity as

officials are generally treated as claims against the state.

See Hafer v. Melo, 502 U.S. 21, 27 (1991); Graham, 473 U.S. at

165-66. Absent the state’s waiver or consent, “[t]he Eleventh

Amendment immunizes states from suits seeking money damages,”

and thus it also bars such suits “against a public servant in

his official capacity.” Adams v. Ferguson, 884 F.3d 219, 224

(4th Cir. 2018) (quotation marks omitted) (quoting Brandon, 469

U.S. at 471–72); see also Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 117–21 (holding Eleventh Amendment

immunity applies to pendent state-law claims).

Here, there appears no dispute that Brown, in his

official capacity, is an officer of a state agency and is thus,

absent waiver or consent, entitled to Eleventh Amendment

immunity. See Jeffers v. W. Va. Div. of Corr. & Rehab., No.

3:19-cv-00462, 2020 WL 521851, at *4 (S.D.W. Va. Jan. 31, 2020)

(holding “correction officers” employed by WVDCR are “immune

from suit in federal court in their official capacities” because

they are “employed by an arm of the state and [are] sued in

[their] official capacity”). There is also no dispute that the

plaintiffs seek monetary damages for the claims asserted against

Brown.

However, a state may voluntarily waive Eleventh

Amendment immunity by statutorily waiving sovereign immunity

with respect to certain claims brought in its own courts, being

sued for such a claim in its own court, and removing that case

from state court to federal court. See Lapides v. Bd. of

Regents, 535 U.S. 613, 618–24 (2002); Stewart v. North Carolina,

393 F.3d 484, 488–90 (4th Cir. 2005). That appears to be what

has happened here. By statute, West Virginia has enacted an

exception to its sovereign immunity, such that “‘[s]uits . . .

alleg[ing] that recovery is sought under and up to the limits of

the State's liability insurance coverage, fall outside the

traditional constitutional bar to suits against the State.’”

Syl. pt. 4, W. Va. Lottery v. A-1 Amusement, Inc., 807 S.E.2d

760, 761 (W. Va. 2017) (quoting Syl. pt. 2, Pittsburgh Elevator

Co. v. W. Va. Bd. of Regents, 310 S.E.2d 675, 676 (W. Va.

1983)). The plaintiffs have expressly restricted the recovery

they seek to the amounts of any applicable insurance policy

limits and thus were not barred from pursuing their claims in

West Virginia state courts. Defendant WVDCR consented to

removal of both cases to this court, along with the then other

named defendants. See Anderson, ECF No. 1 at 1, 3; Falkner, ECF

No. 1 at 1, 3. Thus, West Virginia has waived its sovereign

immunity in these cases, and, consequently, Brown is not

protected by Eleventh Amendment immunity and is subject to suit

in his official capacity. See Spry v. West Virginia, No. 2:16-

cv-01785, 2017 WL 440733, at *13 n.10 (S.D.W. Va. Feb. 1, 2017)

(employing same analysis); Bosley v. Lemmon, No. 3:07-cv-142,

2008 WL 11451630, at *2 (N.D.W. Va. Sept. 17, 2008) (same).

B. Qualified Immunity

Brown next argues that he is entitled to qualified

immunity for the § 1983 claims as well as all the state-law

claims. This argument thus implicates two qualified-immunity

doctrines: one with respect to the federal claim and one with

respect to the state-law claims.

(1) Section 1983 claim

Under federal law, qualified immunity only applies to

Brown in his individual capacity. See Kentucky, 473 U.S. 166-

67. “‘Qualified immunity shields federal and state officials

individually from money damages unless a plaintiff pleads facts

showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.’” Fauconier

v. Clarke, 966 F.3d 265, 280 (4th Cir. 2020) (internal quotation

marks and brackets omitted) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011)). ”[F]or a right to be clearly

established, it must be ‘sufficiently clear that every

reasonable official would have understood that what he is doing

violates that right.’” Id. (quoting Mullenix v. Luna, ___ U.S.

___, 136 S. Ct. 305, 308 (2015)).

The court concludes that the amended complaints

sufficiently plead facts showing that Brown violated Anderson’s

and Falkner’s Eighth Amendment rights. The Eighth Amendment

prohibits “cruel and unusual punishments,” U.S. Const. amend.

VIII, and thus requires “reasonable protection against

unreasonable risk of harm in a prison environment.” Hite v.

Leeke, 564 F.2d 670, 673 (4th Cir. 1977). “A prison official’s

‘deliberate indifference’ to a substantial risk of serious harm

to an inmate violates the Eighth Amendment.” Farmer v. Brennan,

511 U.S. 825, 828 (1994). To be liable for deliberate

indifference, “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. “[A]n Eighth Amendment claimant need not show that a

prison official acted or failed to act believing that harm

actually would befall an inmate; it is enough that the official

acted or failed to act despite his knowledge of a substantial

risk of serious harm.” Id. at 842.

Because ”gratuitously allowing” prisoners to be

“beat[en] or rap[ed] . . . serves no legitimate penological

objective,” Farmer, 511 U.S. at 833 (internal quotation marks

and brackets omitted), under the Eighth Amendment, “prisoners

have a right to be free from sexual abuse, whether at the hands

of fellow inmates or prison guards.” Jackson v. Holley, 666 F.

App’x 242, 244 (4th Cir. 2016) (per curiam) (quoting Austin v.

Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)); see Boxer X v.

Harris, 437 F.3d 1107, 1111 (11th Cir. 2006) (“[S]evere or

repetitive sexual abuse of a prisoner by a prison official can

violate the Eighth Amendment.”), abrogated on other grounds by

Wilkins v. Gaddy, 559 U.S. 34 (2010), as recognized by Sconiers

v. Lockhart, 946 F.3d 1256 (11th Cir. 2020); id. (collecting

cases from Second, Eighth, and Tenth Circuits). Thus, prison

officials violate the Eighth Amendment by being deliberately

indifferent to the substantial risk that a prisoner will be

sexually assaulted by other prisoners. See Doe v. Roe, 907 F.2d

1137, 1990 WL 86285, at *3 (4th Cir. 1990) (unpublished table

decision); see also Howard v. Waide, 534 F.3d 1227, 1235–41

(10th Cir. 2008); Spruce v. Sargent, 149 F.3d 783. 785–87 (8th

Cir. 1998); Roland v. Johnson, 856 F.2d 764, 769–70 (6th Cir.

1988); Villante v. Dep’t of Corr., 786 F.2d 516 (2d Cir. 1986);

Riley v. Jeffes, 777 F.2d 143, 146 (3d Cir. 1985); Leonardo v.

Moran, 611 F.2d 397, 398–99 (1st Cir. 1979); Little v. Walker,

552 F.2d 193, 197 (7th Cir. 1977). A violation likewise occurs

when prison officials are deliberately indifferent to the

substantial risk that a prisoner will be sexually assaulted by

prison officials. See Castillo v. Day, 790 F.3d 1013, 1020

(10th Cir. 2015); Beers-Capitol v. Whetzel, 256 F.3d 120, 142

n.15 (3d Cir. 2001); Daskalea v. District of Columbia, 227 F.3d

433, 441–42 (D.C. Cir. 2000).

Here, the amended complaints sufficiently plead facts

from which the court can reasonably infer that Brown was

deliberately indifferent to the substantial risk that Anderson

and Falkner would be sexually assaulted by Barkley. They allege

that Barkley’s pattern of sexually abusing female prisoners was

so well known to other WVDCR officials that he had been

reprimanded and removed from supervising female prisoners for a

time, and they further allege that Barkley sexually abused

female prisoners openly, in front of Brown. From these

allegations, it is reasonable to infer that Brown was aware that

Barkley posed a substantial risk of serious harm to female

prisoners. The complaints plausibly allege that, despite

Brown’s knowledge of the threat posed by Barkley, he failed to

prevent Barkley from entering the laundry storage room with

Anderson and Falkner and thus allowed them to be exposed to a

substantial risk of serious harm.

Brown attempts to avoid this conclusion by arguing

that the amended complaints do not indicate that he “was aware

that . . . Barkley had a propensity to commit sexual assault or

act inappropriately towards inmates” and thus that “[t]here is

no clearly established federal constitutional or statutory

authority that a reasonable official would have known that he

violated in failing to prevent another correctional officer from

entering a room where a female inmate is present.” Anderson

Mem. at 7-8; accord Falkner Mem. at 7-8. This argument ignores

the amended complaints’ allegations that Barkley’s conduct was

well-known to prison officials and that Barkley had previously

engaged in this conduct openly in front of Brown.

Brown also attempts to avoid this conclusion by

characterizing his own conduct as nothing more than failing to

respond to a violation of WVDCR’s policies that prohibit male

prison officials from being alone with female prisoners. He

argues that alleged violations of WVDCR policies are not

tantamount to a deprivation of a clearly established

constitutional right. The court declines this characterization

of the amended complaints’ allegations. Viewed in the light

favorable to plaintiffs, the amended complaints allege that

Brown violated Anderson’s and Falkner’s rights through his

deliberate indifference to the substantial threat of sexual

assault posed by Barkley, not merely that he violated WVDCR

policy. The amended complaints do not assert a theory of

liability premised on the violation of policy; instead, the

existence of the policies support the reasonable inference that

Brown and his co-defendants were aware of risks arising from

male prison officials, like Barkley, being left alone with

female prisoners.

The court also concludes that it is clearly

established that a prison official’s deliberate indifference to

a substantial risk that a prisoner will be subjected to sexual

abuse by another prison official violates the Eighth Amendment.

Although the Fourth Circuit does not appear to have directly

addressed this specific issue, the court’s conclusion follows

from the Supreme Court’s pronouncements that the Eighth

Amendment is violated when prison officials are deliberately

indifferent to a substantial risk that prisoners will be

sexually assaulted. See Farmer, 511 U.S. at 832–34. Further,

the court notes that the Fourth Circuit, in an unpublished

opinion, as well as nearly every other circuit, has held that a

prison official’s deliberate indifference to a substantial risk

that a prisoner will be sexually abused by another prisoner

violates the Eighth Amendment. See cases cited supra at 15.

The court sees no meaningful distinction between the deliberate

indifference shown to such a risk posed by a prisoner and one

posed by a prison official: Neither “serves [a] legitimate

penological objective” or is “part of the penalty that criminal

offenders pay for their offense against society.” Farmer, 511

U.S. at 833–34 (internal quotation marks and brackets omitted).

Notably, courts that have concluded that deliberate indifference

to the risk of sexual assault committed by prison officials is a

clearly established violation of the Eighth Amendment have

relied on Farmer’s pronouncement and previous rulings that such

deliberate indifference violates the Eighth Amendment when the

threat is posed by another prisoner. See Castillo, 790 F.3d at

1020; Beers-Capitol, 256 F.3d at 142 n.15.

Because the amended complaints sufficiently plead

facts supporting a reasonable inference that Brown violated

Anderson’s and Falkner’s clearly-established Eighth Amendment

rights, Brown is not entitled to qualified immunity at this

stage.5

(2) Section 5 claim

Brown next argues that he is entitled to qualified

immunity with respect to the claims that he violated Article

III, Section 5 of the West Virginia constitution.6 Like the

Eighth Amendment, Section 5 prohibits “cruel and unusual

5 The court declines to address Brown’s assertion of qualified

immunity with respect to the § 1983 claims to the extent they

premise liability on a substantive due process theory because

the plaintiffs may not rely on that theory. See Albright v.

Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment

‘provides an explicit textual source of constitutional

protection’ against a particular sort of government behavior,

‘that Amendment, not the more generalized notion of substantive

due process, must be the guide for analyzing these claims.’”

(internal quotation marks omitted) (quoting Graham v. Connor,

490 U.S. 386, 394 (1989)). The court also declines to address

qualified immunity for the plaintiffs’ claims to the extent they

are premised on the Equal Protection Clause because the parties

do not address the issue in their briefing.

6 Brown asserts qualified immunity with respect to the remaining

state-law claims as well. Because the court concludes that

those claims should be dismissed for the reasons stated infra,

the court addresses qualified immunity only with respect to the

Section 5 claims.

punishments,” W. Va. Const. art. III, § 5. The West Virginia

Supreme Court of Appeals views Section 5 as a “counterpart” to

the Eighth Amendment, State v. Vance, 262 S.E.2d 423, 432 (W.

Va. 1980), as they “originate[] in the same tradition,” State ex

rel. Harris v. Calendine, 233 S.E.2d 318, 330 (W. Va. 1977); see

also State ex rel. Pingley v. Coiner, 186 S.E.2d 220, 230–34

(merging analysis of cruel and unusual punishment under Eighth

Amendment and Section 5 in condition-of-confinement context).

Thus, as under the Eighth Amendment, a prison official violates

Section 5 by being deliberately indifferent to a substantial

risk that a prisoner will be subjected to sexual assault. See

Hackl v. Dale, 299 S.E.2d 26, 28–29 (W. Va. 1982).

Federal courts apply a state’s qualified-immunity

doctrine to claims arising under state law. See Pegg v.

Herrnberger, 845 F.3d 112, 121 (4th Cir. 2017). “Under West

Virginia law, in order to determine whether qualified immunity

applies . . . , the ‘court must determine whether [the officer]

has demonstrated that discretionary acts or omissions are in

violation of clearly established statutory or constitutional

rights or laws of which a reasonable person would have known or

are otherwise fraudulent, malicious, or oppressive.’” Ballock

v. Costlow, 430 F. Supp. 3d 146, 166 (N.D.W. Va. 2019) (brackets

and alteration omitted) (quoting State v. Chase Sec., Inc., 424

S.E.2d 591, 599–600 (W. Va. 1992)).

The West Virginia Supreme Court of Appeals does not

appear to have expounded on the availability of qualified

immunity in the context of a claim that a prison official’s

deliberate indifference to a substantial risk of serious harm

violates a prisoner’s rights under Section 5. However, “‘West

Virginia’s approach to matters concerning immunity historically

has followed federal law.’” Weigle v. Pifer, 139 F. Supp. 3d

760, 775 (S.D.W. Va. 2015) (quoting City of Saint Albans v.

Botkins, 719 S.E.2d 863, 868 (W. Va. 2011)). Applying here the

same analysis regarding Brown’s assertion of qualified immunity

under § 1983, the court concludes that Brown is not entitled to

qualified immunity with respect to the Section 5 claims. See

Ballock, 430 F. Supp. 3d at 166–67 (merging qualified-immunity

analysis for claims under federal and state constitutions).7

7 Although Brown does not appear to raise the issue explicitly,

to the extent his briefing might be read to do so, the court

notes that, when the complaint is read in the light most

favorable to the plaintiffs, Brown had sufficient opportunity to

prevent Barkley from entering the laundry storage room or to

otherwise intervene notwithstanding the brevity of the alleged

sexual assault.

C. Pleading requirements

Next, Brown argues that each of the claims raised in

the amended complaints should be dismissed because they do not

meet the pleading requirements of Rules 8 and 12(b)(6). The

court addresses the claims in turn.

(1) Section 1983 claim

As explained above, both of the amended complaints

sufficiently allege that Brown violated Anderson’s and Falkner’s

Eighth Amendment rights. To the extent Brown argues that the §

1983 claim should be dismissed for failing to state a claim, the

court rejects the argument.

(2) Section 5 claim

Brown argues that the claims for cruel and unusual

punishment in violation of Article III, Section 5 of the West

Virginia constitution should be dismissed because this court has

previously ruled that monetary damages are not available for

state constitutional violations. See Anderson Mem. at 9 (citing

S.M.B. v. W. Va. Reg’l Jail, No. 3:17-cv-1300, 2017 WL 3841894,

at *4-5 (S.D.W. Va. Sept. 1, 2017)); Falkner Mem. at 9 (same).

The West Virginia Supreme Court of Appeals has not

expressly recognized a private cause of action to seek damages

for violations of Section 5. In Harrah v. Leverette, 271 S.E.2d

322 (W. Va. 1980), the court held that other remedies are

available for alleged violation of an Article III right:

A person brutalized by state agents while in jail or

prison may be entitled to:

(a) A reduction in the extent of his confinement or

his time of confinement;

(b) Injunctive relief, and subsequent enforcement by

contempt proceedings, including but not limited

to, prohibiting the use of physical force as

punishment, requiring psychological testing of

guards, and ordering guards discharged if at a

hearing they are proved to have abused inmates;

(c) A federal cause of action authorized by 42 U.S.C.

§ 1983; and

(d) A civil action in tort.

Syl. pt. 4, Harrah, 271 S.E.2d at 324. Notably, the Harrah

court did not expressly foreclose the possibility of a suit for

damages for a Section 5, or other Article III, violation. And,

the court later recognized a private cause of action “where a

municipality or local governmental unit causes injury by denying

[a] person rights that are protected by the Due Process Clause

embodied within Article 3, § 10 of the West Virginia

Constitution.” Hutchison v. City of Huntington, 479 S.E.2d 649,

654 (W. Va. 1996).

Based on the holdings of Harrah and Hutchison, federal

district courts in West Virginia have held that damages are not

available for violations of the state constitution, including

for violations of Section 5. See, e.g., Nutter v. Mellinger,

No. 2:19-cv-00787, 2020 WL 401790, at *6 (S.D.W. Va. Jan. 23,

2020) (Goodwin, J.); Langley v. Arresting Officer, No. 3:17-cv-

3520, 2018 WL 4560208, at *4 (S.D.W. Va. Sept. 21, 2018)

(Chambers, J.); Jones v. White, No. 5:17-cv-100, 2018 WL

2708750, at *7 (N.D.W. Va. June 5, 2018) (Stamp, J.); Howard v.

Ballard, No. 2:13-cv-11006, 2015 WL 1481836, at *4 (S.D.W. Va.

Mar. 31, 2015) (Johnston, J.); Smoot v. Green, No. 2:13-cv-

10148, 2013 WL 5918753, at *4 (S.D.W. Va. Nov. 1, 2013)

(Copenhaver, J.). Recently, however, some federal courts have

found reason to believe that the Supreme Court of Appeals would

recognize a private cause of action for damages for violations

of constitutional rights, including under Article III, Section

5. See, e.g., Davis v. Milton Police Dep’t, No. 3:20-cv-0036,

2020 WL 2341238, at *6 (S.D.W. Va. May 11, 2020) (Chambers, J.);

Cummings v. City of Wheeling, No. 5:19-cv-271, 2019 WL 6609693,

at *5 (N.D.W. Va. Dec. 5, 2019) (Stamp, J.); Spry, 2017 WL

440733, at *9 (Johnston, J.). The courts in these latter cases

have not determined whether such a cause of action exists but

have instead expressed an interest in certifying the question to

the Supreme Court of Appeals. See, e.g., Davis, 2020 WL

2341238, at *6; Cummings, 2019 WL 6609693, at *5; Spry, 2017 WL

440733, at *9.

Whether a private cause of action for damages exists

for violations of Section 5 remains an unsettled question. Due

to the unsettled state of the law, and noting that the

plaintiffs have otherwise stated a plausible claim for relief

under § 1983, which would be analogous to their Section 5 claim,

the court will allow the Section 5 claim to continue. See Spry,

2017 WL 440733, at *9. Should the plaintiffs in these actions

continue to pursue the Section 5 claim, a certified question to

the Supreme Court of Appeals may be appropriate. See id. In

the meantime, however, the court declines to decide the issue

and accordingly denies Brown’s motions to dismiss the Section 5

claims.

(3) Intentional Infliction of Emotional Distress

To prevail on a claim for intentional infliction of

emotional distress (“IIED”), the plaintiff must establish four

elements:

(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 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.

Syl. pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W.

Va. 1998). The alleged conduct for the first element “must be

more than unreasonable, unkind or unfair; it must truly offend

community notions of acceptable conduct.” Id. at 425 (quoting

Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 383 (10th

Cir. 1988)). “[C]onduct that is merely annoying, harmful of

one’s rights or expectations, uncivil, mean-spirited, or

negligent does not constitute outrageous conduct.” Courtney v.

Courtney, 413 S.E.2d 418, 423 (W. Va. 1991).

Brown argues that the plaintiffs have failed to allege

that he engaged in conduct so extreme and outrageous as to

exceed the bounds of decency. See Anderson Mem. at 17-19;

Falkner Mem. at 17-19. The court agrees. Brown’s conduct may

have been deliberately indifferent, but his conduct does not

constitute outrageous conduct for the purposes of an IIED claim.

See Courtney, 413 S.E.2d at 423. Moreover, the amended

complaints contain no allegation that Brown acted with the

intent to cause Anderson and Falkner to suffer emotional

distress, and, to the extent that they allege he acted

recklessly, the amended complaints do not allege that he did so

when it was certain or substantially certain that emotional

distress would result. See Travis, 504 S.E.2d at 421. The IIED

claims against Brown therefore must be dismissed.

(4) Remaining State-Law Claims

Brown lastly argues that the amended complaints fail

to allege facts supporting the plaintiffs’ claims for battery,

assault, and civil conspiracy. The plaintiffs do not contest

the motions with respect to the claims for battery and assault.

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.” W. Va.

Fire & Cas. Co. v. Stanley, 602 S.E.2d 483, 494 (W. Va. 2004)

(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.”

Id. at 495 (quoting Restatement (Second) of Torts § 21 (1965)).

As Brown points out, the amended complaints fail to

include any allegation that he acted with the requisite intent

for battery or assault. The claims for battery and assault

against Brown therefore must be dismissed.

The amended complaints allege that the defendants,

including Brown, as well as “other staff[,] . . . engaged in a

course of conduct which was willful, conspiratory and intended

to deny Plaintiff[s] certain rights guaranteed by the

Constitution of the United States and of this State, federal

statutes, state statutes and the common law of West Virginia.”

AAC ¶ 63; accord FAC ¶ 60. They also allege that the

defendants’ actions were “in furtherance of a civil conspiracy,”

the purpose of which was “to avoid a criminal investigation by

federal, state and local law enforcement officials as to the

sexual exploitation of Plaintiff by Defendant Barkley and to

engage in retaliation against Plaintiff and otherwise conspire.”

See AAC ¶ 64; FAC ¶ 61.

The amended complaints do not specify whether the

conspiracy claims are brought under West Virginia law or 42

U.S.C. § 1985(3). Under West Virginia law, “[a] civil

conspiracy is a combination of two or more persons by concerted

action to accomplish an unlawful purpose or to accomplish some

purpose, not in itself unlawful, by unlawful means.” Syl. pt.

8, Dunn v. Rockwell, 689 S.E.2d 255, 259 (W. Va. 2009). “A

civil conspiracy is not a per se, stand-alone cause of action;

it is instead a legal doctrine under which liability for a tort

may be imposed on people who did not actually commit a tort

themselves but who shared a common plan for its commission with

the actual perpetrator(s).” Syl. pt. 9, Dunn, 689 S.E.2d at

259. To establish a claim for a conspiracy under § 1985(3), a

plaintiff must prove five elements:

(1) a conspiracy of two or more persons, (2) who are

motivated by a specific class-based, invidiously

discriminatory animus to (3) deprive the plaintiff of

the equal enjoyment of rights secured by the law to

all, (4) and which results in injury to the plaintiff

as (5) a consequence of an overt act committed by the

defendants in connection with the conspiracy.

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995).

Additionally, the plaintiff must show an agreement, or a

“meeting of the minds,” between the defendants to violate her

rights. Id. at 1377.

Brown argues that the plaintiffs’ amended complaints

do not identify any overt act he took in concert with another in

furtherance of a conspiracy to deprive Anderson or Falkner of

their constitutional rights. See Anderson Mem. at 20; Falkner

Mem. at 20. Brown also argues that the plaintiffs have not pled

factual allegations to support a meeting of the minds to give

rise to a conspiracy claim. See Anderson Mem. at 20; Falkner

Mem. at 20. The court agrees.

The amended complaints contain nothing more than

conclusory statements that Brown engaged in “conspiratory”

conduct and committed “acts in furtherance of a civil

conspiracy.” AAC ¶¶ 63-64; accord FAC ¶¶ 60-61. Neither

amended complaint alleges facts to show an agreement between

parties or anything resembling a conspiracy. The alleged

conspiracy is not mentioned until the listing of causes of

action, which is entirely based on conclusory allegations

unsupported by concrete facts. See A Soc’y Without A Name v.

Virginia, 655 F.3d 342, 347 (4th Cir. 2011) (affirming the

dismissal of a conspiracy claim at the motion to dismiss stage

because the allegations were “a bare assertion of a conspiracy”

and “insufficient to support a meeting of the minds by the

defendants”). Accordingly, the conspiracy claims against Brown

must be dismissed.

IV. Conclusion

For the foregoing reasons, it is ORDERED that Brown’s

motions to dismiss (Anderson, ECF No. 80; Falkner, ECF No. 84)

be, and they hereby are, denied in part and granted in part.

Specifically, the state-law claims of battery, assault,

intentional infliction of emotional distress, and civil

conspiracy against Brown are dismissed. The motions to dismiss

are denied in all other respects.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: September 30, 2020

- Mb, Lo

Jo . Copenhaver, Jr.

Senior United States District Judge

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