# Domestic Violence Survivors Support Group, Inc. v. Crouch

> District Court, S.D. West Virginia · October 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10729327

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** October 19, 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/10729327

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

DOMESTIC VIOLENCE SURVIVORS
SUPPORT GROUP, INC., d/b/a
DOMESTIC VIOLENCE COUNSELING
CENTER, and ELIZABETH CRAWFORD,

Plaintiffs,

v. Civil Action No. 2:18-cv-00452

BILL E. CROUCH, in his official
Capacity as Secretary of the West
Virginia Department of Health and Human
Resources; PATRICIA BAILEY, individually
and in her official capacity as Chairperson
of the Family Protection Services Board, an
entity of the West Virginia Department of
Health and Human Resources; WEST VIRGINIA
DEPARTMENT OF HEALTH AND HUMAN RESOURCES;
THE FAMILY PROTECTION SERVICES BOARD; and
WEST VIRGINIA COALITION AGAINST DOMESTIC
VIOLENCE, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the plaintiffs’ motion for leave to amend
their complaint, filed May 10, 2020 (ECF No. 45).
I. Background
The plaintiffs in this case are the Domestic Violence
Survivors Support Group, Inc., a West Virginia non-profit
corporation doing business as the Domestic Violence Counseling
Center (“DVCC”), and Elizabeth Crawford, an African-American
woman who founded and serves as the executive director of DVCC.
ECF No. 1 ¶¶ 1–2. On March 17, 2018, the plaintiffs filed an
eight-count complaint against five defendants: the West Virginia
Department of Health and Human Services (“DHHR”); Bill E.

Crouch, in his official capacity as the Secretary of DHHR; the
Family Protection Services Board (the “Board”); Patricia Bailey,
individually and in her official capacity as the Board’s
chairperson; and the West Virginia Coalition Against Domestic
Violence, Inc. (the “Coalition”). See id. at 1–17.
The complaint alleges the defendants, particularly Ms.

Bailey and the Board, denied the plaintiffs’ pre-application to
be licensed as a domestic violence program on the ground that
the plaintiffs’ proposed program did not include a physical
shelter component for domestic violence victims. See id. ¶¶ 11,
14. The plaintiffs allege that the stated reason for the denial
was a pretext, as the relevant statutes and regulations do not
require the program to have a physical shelter but, instead,
allow licensed programs to refer victims to other entities that
have a physical shelter. See id. ¶¶ 11-20. The real reason for
the denial, the complaint alleges, was racial discrimination.
See id. ¶ 14.
The complaint further alleges that the Coalition, a
non-profit organization operating licensed domestic violence
centers in West Virginia, aided and abetted the other defendants
in their discrimination against the plaintiffs. See id. ¶¶ 7,
34. The complaint alleges that the Coalition’s members engaged

in a campaign to spread rumors that DVCC was an unsafe program,
to persuade public officials to deny DVCC public funding and
recognition, to exclude Ms. Crawford from public events
regarding domestic violence, and to verbally and emotionally
abuse her. See id. ¶¶ 35-41, 45. The complaint also alleges
that the Coalition’s conduct was motivated by racial animus.
See id. ¶ 42.

The defendants moved to dismiss the complaint pursuant
to Fed. R. Civ. P. 12(b)(1) and (6), arguing that the plaintiffs
lacked standing, that some of the defendants were entitled to
sovereign or qualified immunity, and that the complaint failed
to state claims for which relief could be granted. See ECF No.
24; ECF No. 26; ECF No. 31. The court granted one of the
motions and granted two others in part and denied them in part.
See ECF No. 50 at 75–76. The court concluded that only one of
the complaint’s claims, Count 3, survived the motions and only
against Secretary Crouch and Ms. Bailey in their official
capacities. See id. at 76. The court thus dismissed Count 3 as
to the other defendants and dismissed the remaining seven counts
as to all the defendants. See id. at 75–76.

In the meantime, the plaintiffs filed the current
motion for leave to amend their complaint. See ECF No. 45. The
proposed amendment is premised on the March 27, 2020 enactment
of the Coronavirus Aid, Relief, and Economic Security Act
(“CARES Act”), Pub. L. No. 116-136 (2020), in response to the
COVID-19 pandemic. See ECF No. 45-1 ¶ 2; see also id. ¶¶ 3-4,
7–10, 12. The proposed amended complaint alleges that the CARES
Act included funding for state domestic violence programs and
that, in West Virginia, DHHR is responsible for distributing

those funds. See id. ¶¶ 3–4. It alleges that the plaintiffs
requested funds to provide telehealth counseling to their
clients, see id. ¶ 7, but were “all but inform[ed]” that “no
CARES Act funds would be forthcoming” for them, id. ¶ 8. The
proposed amended complaint further alleges that the plaintiffs’
clients are primarily from the African-American community, which
is disproportionately affected by the COVID-19 pandemic. See
id. ¶¶ 6–7. It also alleges that domestic violence centers
associated with the Coalition have received CARES Act funds from
DHHR, see id. ¶ 9, and that Secretary Crouch is aware that the
plaintiffs’ largely minority clients are more susceptible to
coronavirus, see id. ¶ 10. Based on these allegations, the
proposed amended complaint would assert six counts, five of
which expressly correspond to counts brought in the initial
complaint.1 See id. ¶¶ 13-25.

In response, the defendants argue that the plaintiffs’
motion for leave to amend should be denied because the proposed
amendment would be futile, as all the counts would be subject to
dismissal under Rule 12(b). See ECF No. 46; ECF No. 47. The
motion has been fully briefed and is ripe for disposition.

II. Legal Standard
Although the plaintiffs’ motion is styled as a motion
for leave to amend pursuant to Fed. R. Civ. P. 15(a), the
proposed amended complaint is premised on events that happened

1 Counts 1, 2, 5, and 6 of the proposed amended complaint
expressly correspond to Counts 1, 2, 7, and 8, respectively, of
the initial complaint. See ECF No. 45-1 ¶¶ 13, 17, 23, 25.
Count 4 of the proposed amended complaint expressly corresponds
to both Counts 5 and 6 of the initial complaint. See id. ¶ 20.
Although Count 3 of the proposed amended complaint does not
expressly correspond to any count in the initial complaint, it
is similar in language and structure to Count 3 of the initial
complaint. Compare id. at 4–5, with ECF No. 1 at 13–14. The
plaintiffs state that no count of their proposed amended
complaint corresponds to Count 4 of the initial complaint
because Count 4 “concerned the lack of an appeal process for
licensing” that “does not appear applicable to receipt of CARES
Act funds.” ECF No. 45-1 ¶ 20 n.*.
It appears that Count 1 and Count 4 of the proposed
amended complaint would be brought only by DVCC and not by Ms.
Crawford, while Count 6 would be brought only by Ms. Crawford
and not by DVCC. See ECF No. 45-1 ¶ 13, 20–21, 24–25.
after the plaintiffs filed their initial complaint, and the
motion is thus properly construed as a motion for leave to file
a supplemental complaint under Fed. R. Civ. P. 15(d). See
Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. 2002); Ohio
Valley Env’t Coal. v. U.S. Army Corps of Eng’rs, 243 F.R.D. 253,

255–56 (S.D.W. Va. 2007); 6 Charles Alan Wright et al., Federal
Practice and Procedure § 1473 (3d ed. 2020). The distinction is
largely immaterial, however, as the court assesses motions for
leave to amend and motions for leave to supplement under “nearly
identical” standards. Franks, 313 F.3d at 198 n.15; see also
Ohio Valley, 243 F.R.D. at 255–56; Wright et al., § 1473.

For a motion requesting leave to supplement the
complaint, leave should be freely granted unless good reason
exists to deny it. See Franks, 313 F.3d at 198 n.15; see also
Ohio Valley, 243 F.R.D. at 256. Good reason to deny a plaintiff
leave to supplement the complaint exists when, among other
things, the proposed supplement would be futile. See Durstein
v. Alexander, No. 3:19-0029, 2020 WL 4741094, at *2 (S.D.W. Va.
Aug. 14, 2020); Harwood v. Arch Coal, Inc., No. 2:19-cv-00577,
2020 WL 1977124, at *2 (S.D.W. Va. Apr. 24, 2020); Estate of
Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp.
2d 636, 644 (M.D.N.C. 2004). “‘A proposed [supplement] is
futile when it is clearly insufficient or frivolous on its
face.’” Harwood, 2020 WL 1977124, at *3 (quoting Save Our Sound
OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 228 (4th Cir.
2019)). A proposed supplement is also futile if the proposed
supplemental complaint fails to satisfy the requirements of the
federal rules, such as Rule 12(b)(1) and Rule 12(b)(6). See

Durstein, 2020 WL 4741094, at *2; Harwood, 2020 WL 1977124, at
*3; see also United States ex rel. Ahumada v. NISH, 756 F.3d
268, 274, 279, 282 (4th Cir. 2014).
A. Rule 12(b)(1) Lack of Subject Matter Jurisdiction

Rule 12(b)(1) allows a defendant to challenge a
complaint for lack of subject matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). Federal district courts are courts of limited
subject matter jurisdiction, possessing “only the jurisdiction
authorized them by the United States Constitution and by federal
statute.” U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347
(4th Cir. 2008) (citing Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 552 (2005)). “[T]here is no presumption

that a federal district court has jurisdiction.” Pinkley, Inc.
v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999). The
facts essential to show jurisdiction must be affirmatively
alleged in the complaint. Dracos v. Hellenic Lines, Ltd., 762
F.2d 348, 350 (4th Cir. 1985). If the court lacks subject
matter jurisdiction over any claim, the claim must be dismissed.
See Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006).

Constitutional standing is generally addressed under
Rule 12(b)(1) because “Article III [of the United States
Constitution] gives federal courts jurisdiction only over cases
and controversies, and standing is an integral component of the
case or controversy requirement.” CGM, LLC v. BellSouth
Telecommunications, Inc., 664 F.3d 46, 52 (4th Cir. 2011)
(internal citation and quotation marks omitted). To meet the
constitutional standing requirement, a plaintiff must satisfy
three elements: (1) the plaintiff must have suffered an “injury

in fact,” which is an invasion of a legally protected interest
that is “concrete and particularized,” and “actual or imminent,
not conjectural or hypothetical”; (2) there must be “a causal
connection between the injury and the conduct complained of,”
meaning that the injury must be “fairly traceable to the
challenged action of the defendant,” and not the result of the
independent action of some third party not before the court; and
(3) it must be “likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Friends
of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (internal citations and quotation marks
omitted) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–
61 (1992)).

To determine standing at the pleading stage, “general
factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that
general allegations embrace those specific facts that are
necessary to support the claim.” Lujan, 504 U.S. at 561
(internal citations omitted). The court may accept as true
allegations that are supported by adequate factual matter to
render them plausible on their face. Beck v. McDonald, 848 F.3d
262, 270 (4th Cir. 2017) (citing Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). The same presumption of truth does not apply
to conclusory statements and legal conclusions contained in the
complaint. Id. (citing Iqbal, 556 U.S. at 678).
B. Rule 12(b)(6) Failure to State a Claim

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 Iqbal, 556 U.S. at 678 (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 plaintiff’s complaint. Edwards, 178 F.3d at 244.
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
The court finds it useful to assess the proposed
amended complaint by separating the defendants into two groups.

A. The Board, Ms. Bailey, and the Coalition

(1) Standing
Except for Count 6, the proposed amended complaint
premises all its claims on allegations that the plaintiffs’
request for CARES Act funding has been denied. See ECF No. 45–1
¶¶ 7–8, 12–23; see also ECF No. 45 at 1 (explaining that the

“plaintiffs move for leave to amend their [c]omplaint for [the]
defendants’ conduct related to . . . [the] []CARES[] Act”). The
proposed amended complaint also expressly alleges that “the
vehicle for distribution of [CARES Act] funds is . . . []DHHR[]”
through an agency, the Bureau for Children and Families, that is
not named as a defendant in this suit. ECF No. 45–1 ¶ 4
(emphasis added). And, it alleges that the plaintiffs requested
CARES Act funding “from DHHR” and that a “DHHR [official],”
informed the plaintiffs that no CARES Act funding would be
forthcoming. Id. (emphasis added).
The proposed amended complaint contains virtually no
factual allegations regarding the Board’s, Ms. Bailey’s, or the
Coalition’s involvement in the denial of the plaintiffs’ request
for CARES Act funding. It contains no factual allegations
regarding the Board, and in fact, makes no reference to the

Board at all outside the case caption. It contains no factual
allegations regarding Ms. Bailey and only refers to her in
passing twice. See id. ¶¶ 13, 25. Aside from a conclusory
allegation, neither of the two references to Ms. Bailey indicate
that she has had any role in the denial of the plaintiffs’
request for CARES Act funds. See id. The proposed amended
complaint contains a single factual allegation regarding the
Coalition, namely, that it received CARES Act funding from DHHR.
See id. ¶ 9. But, again, aside from conclusory allegations, the
three other references to the Coalition in the proposed amended
complaint do not indicate that it has had any role in the denial
of the plaintiffs’ request for CARES Act funding. See id. ¶¶

13–14, 25.
The proposed amended complaint thus fails to allege
that the injury complained of—the denial of CARES Act funding—
can be fairly traced to the conduct of the Board, Ms. Bailey, or
the Coalition. With respect to these three defendants, the
plaintiffs fail to allege the necessary causal connection
between their asserted injury and the conduct complained of
largely because the proposed amended complaint does not actually
complain of conduct taken by the Board, Ms. Bailey, or the
Coalition. In the few instances in which the proposed amended
complaint objects to the conduct of these three defendants, it

does so only in conclusory terms. See id. ¶ 13 (asserting that
DVCC brings a “claim . . . against [Ms.] Bailey . . . and [the
Coalition] for conspiracy under color of state law . . . to deny
DVCC its rightful shares of CARES Act funds due to racial
discrimination”); id. ¶ 14 (asserting that “the nature of th[e]
conspiracy involves” the same allegations in the initial
complaint that the “Coalition . . . racially discriminat[ed]
against [the plaintiffs]”). But conclusory allegations like
these are insufficient for purposes of standing at the pleading
stage. See Beck, 848 F.3d at 270.

The plaintiffs attempt to avoid this result by arguing
that their initial complaint sufficiently alleges the role these
three defendants have played in causing the plaintiffs’ injury.
See ECF No. 48 at 1–2; ECF No. 49 at 1–2. However, the initial
complaint does nothing to clarify the plaintiffs’ allegations
against these three defendants with respect to the alleged
denial of CARES Act funding. The initial complaint alleges the
Board’s and Ms. Bailey’s conduct in denying the plaintiffs’ pre-
application for a domestic violence program license resulted in
the loss of public and private funding opportunities. See ECF
No. 1 ¶ 67. But neither the initial complaint nor the proposed
amended complaint allege that the denial of a license resulted
in the denial of CARES Act funding, and the proposed amended

complaint in fact alleges that the decision to deny CARES Act
funding was made not by the Board or Ms. Bailey but by DHHR and
another state agency not named as a defendant in this matter.
See ECF No. 45-1 ¶ 4. Likewise, although the initial complaint
generally alleges that the Coalition has lobbied public
officials to deny DVCC public funding, see ECF No. 1 ¶ 36,
neither the initial complaint nor the amended complaint alleges
that the Coalition lobbied any public official to deny the
plaintiffs’ request for CARES Act funding.

Because the plaintiffs’ proposed amended complaint
fails to plausibly allege the injury complained of can be fairly
traced to the conduct of the Board, Ms. Bailey, or the
Coalition, the court concludes that the plaintiffs would lack
standing to bring the first five counts against these three
defendants and that supplementing the complaint to bring these
counts against these defendants would therefore be futile.
Accordingly, the court denies the motion for leave to amend
insofar as the motion seeks to supplement the complaint by
adding the first five counts of the proposed amended complaint
against the Board, Ms. Bailey, and the Coalition.2

(2) Failure to State a Claim
Count 6 of the proposed amended complaint states in
relevant part:
In a similar manner as Count Eight of the
original [c]omplaint [Ms.] Bailey . . . and the
[Coalition] continue or have yet to cease and desist
from the mean-spirited, racially motivated and
humiliating conduct toward Ms. Crawford to the extent
it causes this plaintiff emotional distress and often
physical illness. By virtue of it never ceasing and
continuing without remorse, apology or even civil
restraint Ms. Crawford doubles her earlier claim for
emotional damages to $100,000.00 against these
particular defendants . . . .
ECF No. 45-1 ¶ 25.
Thus, Count 6 of the proposed amended complaint merely
reasserts Count 8 of the plaintiffs’ initial complaint and seeks
to add, at most, that the alleged conduct of Ms. Bailey and the
Coalition underlying Count 8 has continued. In its October 7,
2020 memorandum opinion and order, the court concluded that Ms.

2 It is not clear whether Count 1 of the proposed amended
complaint is intended to be brought against the Board. Compare
ECF No. 45-1 ¶ 13–15 (specifically naming all other defendants),
with id. at 4 (asking for order directed against all defendants
in prayer for relief for Count 1). To the extent the plaintiffs
intend for Count 1 to be brought against the Board, the court
denies their motion for leave to amend to do so for the reasons
set out above.
Crawford had standing to bring Count 8 and that Ms. Bailey was
not entitled to qualified immunity with respect Count 8. See
ECF No. 50 at 12, 27–28, 45. The court understood Count 8 to
advance a claim for either intentional or negligent infliction
of emotional distress and concluded that the allegations of the

complaint were insufficient to support either claim under the
Rule 12(b)(6) standard. See id. at 68–75.
The proposed amended complaint provides no further
allegations that would be sufficient to support claims for
intentional or negligent infliction of emotional distress under
Rule 12(b)(6). Accordingly, the court concludes that Count 6 of

the proposed amended complaint would be subject to dismissal for
failure to state a claim and that supplementing the complaint to
add Count 6 would therefore be futile. The court thus denies
the motion for leave to amend the complaint to the extent the
plaintiffs seek to amend the complaint to add Count 6.
B. DHHR and Secretary Crouch

(1) Standing

The proposed amended complaint would assert its first
five counts against DHHR and Secretary Crouch. See ECF No. 45-1
¶¶ 13–23. The court turns next to addressing the plaintiffs’
standing to bring these claims.
(i) Count 4

The proposed amended complaint expressly states that
Count 4 corresponds to both Counts 5 and 6 of the initial
complaint. See id. ¶ 20. With respect to Count 4, the proposed
amended complaint asserts that the defendants’ denial of CARES
Act funding “constitutes an unlawful restraint of trade,” in
violation of 15 U.S.C. § 15, and seeks an injunction preventing
the defendants from engaging in “conduct of this nature in
restraint of trade,” pursuant to 15 U.S.C. § 26. Id. at 5.
Counts 5 and 6 in the initial complaint asserted violations of
the antitrust laws under the Sherman Act, 15 U.S.C. § 1 et seq.,

for which the plaintiffs sought damages and injunctive relief
under 15 U.S.C. §§ 15, 26. See ECF No. 30 at 5-6.
As the court explained in its October 7, 2020
memorandum opinion and order, “‘[i]n a private antitrust action,
a plaintiff must go beyond a showing that it meets the Article
III standing requirements of injury, causation, and

redressability; it must also demonstrate antitrust standing.’”
ECF No. 50 at 22 (quoting Novell, Inc. v. Microsoft Corp., 505
F.3d 302, 310 (4th Cir. 2007)). “It is not enough . . . for a
plaintiff merely to allege that the defendant violated the
antitrust laws and that he was injured. The injury suffered by
the plaintiff must be of the type the antitrust laws were
intended to forestall.” Blue Shield of Va. v. McCready, 457
U.S. 465, 486 (1982) (internal citations omitted). The Fourth
Circuit applies a five-factor analysis to determine whether a
plaintiff has antitrust standing:
(1) the causal connection between an antitrust
violation and harm to the plaintiffs, and whether that
harm was intended; (2) whether the harm was of a type
that Congress sought to redress in providing a private
remedy for violations of the antitrust laws; (3) the
directness of the alleged injury; (4) the existence of
more direct victims of the alleged antitrust injury;
and (5) problems of identifying damages and
apportioning them among those directly and indirectly
harmed.
Kloth v. Microsoft, 444 F.3d 312, 324 (4th Cir. 2006) (internal
citations and quotation marks omitted).
The court concluded that, for Counts 5 and 6 of the
initial complaint, the plaintiffs had “fail[ed] to demonstrate
that the alleged harm is the type of harm that Congress sought
to redress in providing a private remedy for violations of the
antitrust laws” because they “fail[ed] to specify which
antitrust laws the defendants are alleged to have violated” and
provided “no plausible allegations that . . . the alleged
actions of the defendants produce anticompetitive results in the
relevant market” or “a monopoly.” ECF No. 50 at 24. The court
therefore concluded that the plaintiffs had failed to
sufficiently allege antitrust standing and accordingly dismissed
Counts 5 and 6 for lack of subject matter jurisdiction. See id.
at 24–25.

Count 4 of the proposed amended complaint would fail
for the same reasons identified by the court’s October 7, 2020
memorandum opinion and order with respect to Counts 5 and 6 of
the initial complaint. Neither the initial complaint nor the
proposed amended complaint specifies how the defendants’ conduct
violates the antitrust laws or plausibly alleges that the
defendants’ conduct produces anticompetitive results or a
monopoly. Thus, the plaintiffs have failed to allege that their
injury—denial of CARES Act funds—is the kind of injury that

Congress sought to redress by providing a private remedy for
violation of the antitrust laws. Accordingly, the court
concludes that the plaintiffs would lack standing to bring Count
4, which would be subject to dismissal for lack of subject
matter jurisdiction. The court thus denies the motion for leave
to amend to the extent the plaintiffs seek to amend the
complaint to add Count 4.

(ii) Count 5
The proposed amended complaint expressly states that
Count 5 corresponds to Count 7 of the initial complaint. See
id. ¶ 23. With respect to Count 5, the proposed amended
complaint asserts that “the defendants have caused DVCC to lose
what it estimates $75,000.00 to date in CARES Act funds through
their unlawful acts and asks for compensatory damages in that
same amount.” Id.

Count 7 of the initial complaint similarly asserted
that the defendants had “unlawfully depriv[ed] plaintiff DVCC”
of benefits causing it to lose funding and sought damages “for
unlawful conduct by [the] defendants.” ECF No. 1 at 16. In its
October 7, 2020 memorandum opinion and order, the court
concluded that, because neither the allegations of the initial
complaint nor the plaintiffs’ briefing on the motions to dismiss
“ articulate[d] any legally-protected interest,” the plaintiffs

failed to allege an “invasion of [an] interest to establish an
injury-in-fact for standing” and that “it is only speculative
that the alleged injury will be redressed by a favorable
decision.” ECF No. 50 at 27. Accordingly, the court dismissed
Count 7 for lack of subject matter jurisdiction.
Count 5 of the proposed amended complaint would be

subject to dismissal for the same reasons identified by the
court with respect to Count 7 of the initial complaint. Count
5’s reference to “unlawful conduct” does not articulate any
legally-protected interest that can form the basis of an injury
in fact or non-speculative relief for purposes of standing.
Neither the initial complaint nor any of the plaintiffs’
briefing provides useful clarification. Accordingly, the court
concludes that the plaintiffs would lack standing to bring Count
5, which would be subject to dismissal for lack of subject
matter jurisdiction. The court thus denies the motion for leave
to amend to the extent the plaintiffs seek to amend their

complaint to add Count 5.
(iii) Counts 1, 2, and 3

The proposed amended complaint expressly states that
Counts 1 and 2 correspond to Counts 1 and 2, respectively, of
the initial complaint. See ECF No. 45–1 ¶¶ 13–17. Although the
proposed amended complaint does not state that Count 3
corresponds to any count of the initial complaint, it asserts a
claim that in language and structure is similar to Count 3 in
the initial complaint. Compare ECF No. 45-1 at 4–5, with ECF
No. 1 at 13–14. Counts 2 and 3 of the proposed amended
complaint assert that, by denying the plaintiffs’ request for
CARES Act funding, the defendants, including DHHR and Secretary

Crouch, acting under color of state law, deprived the plaintiffs
of property on the basis of race in violation of their
Fourteenth Amendment due-process and equal-protection rights and
42 U.S.C. § 1983. See EFC No. 45-1 at 4–5. Count 1 of the
proposed amended complaint asserts that the defendants,
including DHHR and Secretary Crouch, acting under color of state
law, conspired to deny the plaintiffs’ request for CARES Act
funding on the basis of race in violation of the Fourteenth
Amendment and 42 U.S.C. § 1985. See id. at 3–4.

Counts 1, 2, and 3 of the initial complaint asserted
somewhat similar claims that the defendants, acting under color
of state law, had conspired to deprive the plaintiffs of
property on the basis of race by denying the plaintiffs’ pre-
application for a domestic violence program license in violation
of the Fourteenth Amendment and §§ 1983 and 1985. See ECF No. 1
at 11–14. In its October 7, 2020 memorandum opinion and order,
the court concluded that the plaintiffs had standing to bring

these claims. See ECF No. 50 at 16–19.
Here, the court likewise concludes that the plaintiffs
would have standing to bring Counts 1, 2, and 3 of the proposed
amended complaint against DHHR and Secretary Crouch. The denial
of CARES Act funding based on a state agency’s and state
official’s alleged consideration of race constitutes a

cognizable injury in fact. The injury is fairly traceable to
DHHR, which the proposed amended complaint alleges is
responsible for distributing CARES Act funds, and to Secretary
Crouch, in his official capacity as the Secretary of DHHR. And
the relief sought—an injunction to distribute CARES Act funds in
a racially neutral manner—would redress the plaintiffs’ injury.
(2) Eleventh Amendment Immunity

DHHR and Secretary Crouch assert that they would be
immune from the remaining claims asserted against them in the
proposed amended complaint under the Eleventh Amendment. See
ECF No. 47 at 6 n.4. As the court explained in its October 7,
2020 memorandum opinion and order, “[s]tates enjoy sovereign
immunity from suit,” and “[t]he Eleventh Amendment,” which
“enshrines sovereign immunity of the [s]tates by restricting the
judicial power of federal courts to hear cases” in which states
are sued, extends its protection to “arms of the state” and to
“[s]tate officers acting in their official capacity.” ECF No.

50 at 28–29. The court concluded that DHHR, as an arm of the
state, enjoys sovereign immunity in this case pursuant the
Eleventh Amendment. See id. at 30, 33. However, the court
concluded that, under Ex parte Young, 209 U.S. 123 (1908),
Secretary Crouch did not enjoy immunity from suit in his
official capacity because the relief the plaintiffs seek in
Counts 1, 2, and 3 of the initial complaint is prospective,
injunctive relief, the claims concern an ongoing constitutional
violation based on racial discrimination, and Secretary Crouch
has a sufficient connection to the state agency responsible for
the alleged violation. See id. at 33-41.
Here, for the same reasons set forth in its October 7,
2020 memorandum opinion and order, the court concludes that DHHR
is an arm of the state that enjoys sovereign immunity from the
claims asserted in the proposed amended complaint, pursuant to
the Eleventh Amendment. Accordingly, the remaining claims in

the proposed amended complaint against DHHR would be subject to
dismissal, and the court concludes that amending the complaint
to include such claims would be futile. The court thus denies
the motion for leave to amend the complaint to the extent the
plaintiffs seek to add the remaining claims against DHHR to
their complaint.

However, for the reasons set forth in its October 7,
2020 memorandum opinion and order, the court concludes that,
pursuant to Ex parte Young, Secretary Crouch is not protected by
sovereign immunity. Like Counts 1, 2, and 3 of the initial
complaint, Counts 1, 2, and 3 of the proposed amended complaint
seek prospective, injunctive relief for ongoing constitutional
violations based on racial discrimination, and Secretary Crouch
has a sufficient connection to the state agency—here, DHHR—
alleged to be responsible for the violation.

(3) Failure to State a Claim
Having concluded that the plaintiffs would have
standing to bring Counts 1, 2, and 3 of the amended complaint
against Secretary Crouch and that Secretary Crouch would not
enjoy Eleventh Amendment immunity from these claims, the court
turns to assess whether Counts 1, 2, and 3 would be subject to
dismissal for failure to state a claim pursuant to Rule
12(b)(6).

(i) Count 1

Count 1 of the initial complaint alleged that
Secretary Crouch negligently allowed racial discrimination to
occur, which resulted in the denial of the plaintiffs’ pre-
application for a domestic violence program license. See ECF
No. 1 ¶ 53. The court dismissed Count 1 of the initial
complaint against Secretary Crouch pursuant to Rule 12(b)(6).
ECF No. 50 at 50. The court explained that, “[a]cting
negligently to allow an alleged conspiracy” does not give rise
to liability because “[c]onspiracy is an intentional act, not a
negligent one.” Id. at 49–50 (citing Young v. F.D.I.C., 103
F.3d 1180, 1190 (4th Cir. 1997); Mallamo v. Town of Rivesville,

477 S.E.2d 525, 533 (W. Va. 1996)). Because the plaintiffs had
alleged only negligence and had not alleged that “Secretary
Crouch in in any way participated in a joint plan of action,”
the court concluded dismissal was appropriate. Id. at 49.
Count 1 of the proposed amended complaint would also
assert that Secretary Crouch was “negligent . . . for allowing
the [alleged] racial discrimination” to occur. ECF No. 45-1 ¶
15. Neither the initial complaint nor the proposed amended
complaint alleges that Secretary Crouch participated in any way
in a joint plan of action. Accordingly, for the same reasons
set forth in its October 7, 2020 memorandum and opinion, the

court concludes that, with respect to Secretary Crouch, Count 1
would be subject to dismissal for failure to state a claim and
that amending the complaint to add Count 1 would therefore be
futile. Thus, the motion for leave to amend the complaint is
denied to the extent the plaintiffs seek to add Count 1 against
Secretary Crouch to their complaint.
(ii) Count 2

Count 2 of the proposed amended complaint would assert
a Fourteenth Amendment due process claim against Secretary
Crouch and the other defendants based on the denial of
plaintiffs’ request for CARES Act funds. See ECF No. 45–1 at 4.
To state a claim for violation of procedural due process rights,

a plaintiff must plausibly allege “(1) a cognizable . . .
property interest; (2) the deprivation of that interest by some
form of state action; and (3) that the procedures employed were
constitutionally inadequate.” Accident, Injury & Rehab., PC v.
Azar, 943 F.3d 195, 203 (4th Cir. 2019) (internal quotation
marks omitted) (quoting Iota Xi Chapter of Sigma Chi Fraternity
v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009)).

A cognizable “‘property interest must be more than a
‘unilateral expectation’; it must be a ‘legitimate claim of
entitlement.’” L.M. Everhart Constr., Inc. v. Jefferson Cnty.
Planning Comm’n, 2 F.3d 48, 51 (4th Cir. 1993) (quoting Biser v.
Town of Bel Air, 991 F.2d 100, 104 (4th Cir. 1993)). “[S]uch
interests do not arise from the Fourteenth Amendment itself but
rather stem from an independent source.” Siena Corp. v. Mayor &
City Council of Rockville, 873 F.3d 456, 461 (4th Cir. 2017)
(internal quotation marks omitted) (quoting Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972)).
The court concludes that the proposed amended
complaint does not plausibly state a due process claim because
it fails to sufficiently allege deprivation of a cognizable
property interest. Although the plaintiffs allege that they
have been deprived of a property interest, namely, “federal

funding” under the CARES Act, ECF No. 45-1 ¶ 17, they do not
allege that they are entitled to these funds or plead any facts
implying entitlement. At most, the plaintiffs allege that they
have an acute need for the funds because the primarily African-
American clientele they serve is disproportionately and more
severely affected by the COVID-19 pandemic than are other
groups. See id. ¶¶ 6–7, 10. But an “abstract need or desire”
for funding is not sufficient to show that such funding
constitutes a cognizable property interest for purposes of a due
process claim. Roth, 408 U.S. at 577. In the absence of
allegations explaining how the plaintiffs have a legitimate

claim of entitlement to CARES Act funding, Count 2 would fail to
state a claim. See Ellis v. Thornsbury, No. 2:14-cv-24641, 2015
WL 13039641, at *7 (S.D.W. Va. Sept. 25, 2015) (concluding the
complaint failed to state a cognizable property interest because
it did “not allege[] why [the plaintiffs] were entitled” to
putative property interest or provide “any elaboration
demonstrating that [putative property interest] was an
entitlement”); Herman v. Lackey, No. 2007 WL 9735415, at *3
(W.D.N.C. June 7, 2007) (dismissing due-process claim in part
because the “[c]omplaint allege[d] nothing more than a
unilateral expectation that the license would be issued”).

Accordingly, the court concludes that, with respect to
Secretary Crouch, Count 2 of the proposed amended complaint
would be subject to dismissal for failure to state a claim.
Thus, the motion for leave to amend the complaint is denied to
the extent the plaintiffs seek leave to amend their complaint to
add Count 2 against Secretary Crouch.
(iii) Count 3

Count 3 of the proposed amended complaint would
assert, pursuant to § 1983, a Fourteenth Amendment equal
protection claim against Secretary Crouch and other defendants
based on the denial of CARES Act funds. See ECF No. 45–1 at 4–
5. To state a claim for an equal protection violation, “a
plaintiff must plausibly allege first ‘that [s]he has been
treated differently from others with whom [s]he is similarly
situated and that the unequal treatment was the result of
intentional or purposeful discrimination.’” Fauconier v.
Clarke, 966 F.3d 265, 277 (4th Cir. 2020) (quoting Martin v.

Duffy, 858 F.3d 239, 248 (4th Cir. 2017)). If these facts are
plausibly alleged, then “the plaintiff must also plausibly
allege that the disparity was not justified under the
appropriate level of scrutiny.” Id.
To plausibly state an equal-protection claim, then, “a
plaintiff must [allege] not only that similarly situated

individuals were treated differently,” but also that the
difference in treatment was the result of intentional or
purposeful discrimination. Cent. Radio Co., Inc. v. City of
Norfolk, 811 F.3d 625, 635 (4th Cir. 2016). Thus, if a
plaintiff asserts “that a statute has been administered . . .
discriminatorily, more must be [alleged] than the fact that a
benefit was denied to one person while conferred on another. A
violation is established only if the plaintiff [alleges] that
the state [official] intended to discriminate.” Sylvia Dev.
Corp. v. Calvert Cnty., 48 F.3d 810, 819 (4th Cir. 1995)
(emphasis in original) (internal citation omitted); see Snowden

v. Hughes, 321 U.S. 1, 8 (1944) (“The unlawful administration by
state officers of a state statute fair on its face, resulting in
its unequal application to those who are entitled to be treated
alike, is not a denial of equal protection unless there is shown
to be present in it an element of intentional or purposeful
discrimination.”). A plaintiff need not allege that
discrimination is the defendant’s sole motivation, but the
plaintiff must assert the requisite discriminatory intent with
more than mere conclusory allegations. See Pronin v. Johnson,
628 F. App’x 160, 164 (4th Cir. 2015); Johnson v. Holmes, 204 F.
Supp. 3d 880, 890 (W.D. Va. 2016).

The proposed amended complaint fails to plausibly
allege that Secretary Crouch acted with the requisite
discriminatory intent or purpose. Although, in Count 3, the
plaintiffs allege that they were denied CARES Act funding based
upon considerations of race, see ECF No. 45-1 at 4–5, the
proposed amended complaint contains no allegation suggesting
that Secretary Crouch intended to discriminate against the
plaintiffs based on race. In fact, the sole factual allegation
in the proposed amended complaint regarding Secretary Crouch
suggests just the opposite. See ECF No. 45-1 ¶ 10 (alleging
that Secretary Crouch “recognized” that the COVID-19 pandemic
has disproportionately affected minority communities and that he

sought to “assur[e] minority group leaders” that he would
“further investigat[e] . . . the matter”). The initial
complaint likewise does not allege that Secretary Crouch acted
with discriminatory intent and, in fact, contains no factual
allegations regarding Secretary Crouch aside from those
regarding his role as DHHR’s current secretary.

Further, the proposed amended complaint does not
plausibly allege that DHHR’s denial of the plaintiffs’ request
for CARES Act funding resulted from discriminatory intent. At
most, the proposed amended complaint alleges that DHHR denied
funding to plaintiffs, whose clients are primarily African
American, and granted funding to other domestic violence
programs. See id. ¶¶ 7–9. But these allegations amount to
little more than an assertion that funding was denied to some
entities and granted to others, an assertion that is
insufficient by itself to state an equal-protection claim. See
Snowden, 321 U.S. at 8; Sylvia Dev. Corp., 48 F.3d 810 at 819.
The initial complaint likewise contains no factual allegations
suggesting that DHHR has acted with discriminatory intent.3

The only allegations in the proposed amended complaint
and the initial complaint that might be understood to charge
Secretary Crouch and DHHR with discriminatory intent are wholly
conclusory and unsupported by factual allegations. See, e.g.,
ECF No. 1 ¶¶ 53, 61; ECF No. 45–1 ¶¶ 14–15. Conclusory
allegations like these are insufficient to withstand a Rule
12(b)(6) motion to dismiss. See Pronin, 628 F. App’x at 164;
Johnson, 204 F. Supp. 3d at 890.

Accordingly, the court concludes that, with respect to
Secretary Crouch, Count 3 of the proposed amended complaint
would be subject to dismissal pursuant to Rule 12(b)(6) for
failure to state a claim and that amending the complaint to

3 In its October 7, 2020 memorandum opinion and order, the court
denied the defendants’ motions to dismiss an equal-protection
claim against Secretary Crouch, in his official capacity, based
on the Board’s denial of a domestic violence program license.
See ECF No. 50 at 76. As explained therein, the court concluded
that Secretary Crouch was subject to suit based on the Board’s
discriminatory motivation in denying the license, which the
initial complaint sufficiently alleges, see id. at 61–65, in
conjunction with his role as the secretary of DHHR, in which
capacity he may be deemed responsible for the Board’s conduct,
see id. at 40, 65–66. Here, however, with respect to the denial
of CARES Act funding, the plaintiffs have failed to sufficiently
allege that DHHR acted with the discriminatory intent necessary
to make Secretary Crouch subject to an equal-protection claim
based on his role as DHHR’s secretary.
include Count 3 would therefore be futile. The plaintiffs’
motion for leave to amend their complaint is thus denied to the
extent they seek to add Count 3 against Secretary Crouch.

Iv. Conclusion

For the foregoing reasons, it is ORDERED that the
plaintiffs’ motion for leave to amend their complaint (ECF No.
45) be, and hereby it is, denied.

The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented party.

ENTER: October 19, 2020

- Mb, Lo
Jo . Copenhaver, Jr.
Senior United States District Judge

33

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729327. Public record. Not legal advice.