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 are the Motions to Dismiss filed by defendants David

Ewing [ECF No. 32] and Charles Johnston (who was incorrectly identified in the

Amended Complaint as “Charles Johnson”) [ECF No. 46]. By Standing Order, this

matter was 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 these motions to the Magistrate Judge is

WITHDRAWN and the undersigned will proceed to rule thereon.

I. The Plaintiff’s Allegations and the Defendants’ Motions 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 Johnston (“Johnston”) 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 to the pod officer, the Unit Team office, exterior

windows, [and] the front area of the pod” while he was strip searched. [ at 6].

When Worley complained that such exposure constituted a violation of the Prison

Rape Elimination Act (“PREA”), 34 U.S.C. § 30301 ., standards, Ewing allegedly

responded, “I don’t give a f---. Nobody’s even looking up here.” [ ]

Following the strip search, Ewing and Johnston 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 Johnston 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

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

Johnston “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 [believed

to be Ewing] weight was placed on his lower back” causing “long-lasting injury” and

that 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 Johnston falsified their

subsequent incident reports. [ at 6]. His Amended Complaint further states:

The two corrections officers . . . (a) violated the Prison Rape Elimination

Act (PREA) standards prior to placing the Plaintiff into custody; (b)

verbally abused the Plaintiff; (c) employed unreasonable and excessive

force while maintaining custody of the Plaintiff; and (d) composed

fraudulent incident reports in an attempt to validate their actions, all in

violation of Plaintiff’s rights under the Fifth, Eighth, [and] Fourteenth

Amendments and the PREA standards.

[ at 6].1

The defendants’ motions to dismiss assert that, in their official capacities, they

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 defendants

contend that the Amended Complaint fails to state any plausible claim upon which

relief can be granted against them in their individual capacities and that they are

entitled to qualified immunity on Worley’s claims against them. Worley responded

to each motion [ECF Nos. 40 and 49] and the defendants each filed a reply [ECF Nos.

41 and 50]. The motions are ripe for adjudication.

II. Standards of Review

A. Motions to dismiss under Rule 12(b)(1) and 12(b)(6).

The defendants’ motions are filed pursuant to Rule 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

1 The Amended Complaint also contained claims against various supervisory officials which were dismissed

by Memorandum Opinion and Order entered on August 12, 2020. [ECF No. 34].

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, “[t]he 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), [of the Federal Rules of Civil Procedure], 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).

Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff must

prove by a preponderance of the evidence the existence of subject-matter

jurisdiction ., 776 F.3d 271, 272

(4th Cir. 2015). A defendant may challenge subject matter jurisdiction

facially or factually. , 585 F.3d 187, 192 (4th

Cir. 2009). In a facial challenge, a defendant asserts that the allegations,

taken as true, are insufficient to establish subject-matter jurisdiction.

The court then effectively affords a plaintiff “‘the same

procedural protection as he would receive under a rule 12(b)(6)

consideration,” taking the facts as true and denying the Rule 12(b)(1)

motion if the complaint “alleges sufficient facts to invoke subject matter

jurisdiction.” . (quoting , 697 F.2d 1213, 1219 (4th Cir.

1982)). In a factual challenge, a defendant asserts that the jurisdictional

allegations are false, and the court may look beyond the complaint to

resolve the disputed jurisdictional facts without converting the motion

to one for summary judgment. , 585 F.3d at 192-93.

., No. 1:19-cv-130, 2020 WL 1516537, at *5

(M.D.N.C. Mar. 30, 2020). Thus, although not specifically pled by the defendants, the

court will address their argument for dismissal as a Rule 12(b)(1) facial challenge as

well.

B. Qualified immunity.

The defendants’ motions to dismiss further assert 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).

“To determine if the right in question was clearly established, we first look to

cases from the Supreme Court, this Court of Appeals, or the highest court of the state

in which the action arose.” , 878 F.3d 89, 99 (4th

Cir. 2017) (citing , 372 F.3d 267, 279 (4th Cir. 2004)).

Absent “directly on-point, binding authority,” courts may also consider whether “the

right was clearly established based on general constitutional principles or a

consensus of persuasive authority.” , 855 F.3d at 543; , 372 F.3d at 279

(“[T]he absence of controlling authority holding identical conduct unlawful does not

guarantee qualified immunity.”) The “nonexistence of a case holding the defendant’s

identical conduct to be unlawful does not prevent denial of qualified immunity

[because] ‘qualified immunity was never intended to relieve government officials from

the responsibility of applying familiar legal principles to new situations.’”

, 337 F.3d 392, 403 (4th Cir. 2003) (quoting , 275 F.3d 391, 405

(4th Cir. 2001) (Michael, J. concurring)); , 536 U.S. 730, 741

(2002) (“[O]fficials can still be on notice that their conduct violates established law

even in novel factual circumstances.”).

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. July 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 (1890).

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). The defendants,

in their official capacities, are entitled to Eleventh Amendment immunity.

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, on the face of

the Amended Complaint, I FIND that dismissal of all claims against the defendants

in their official capacities is warranted.

B. Individual Capacity Claims and Qualified Immunity

To the extent that Worley’s Amended Complaint alleges that the defendants

violated “PREA standards” when they allegedly forced him to undergo a strip search

in the line of sight of other individuals, 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. PREA is a federal law designed to reduce incidents of

sexual misconduct in our nation’s correctional facilities through federal funding and

educational initiatives. It requires corrections and law enforcement agencies to

enhance education, investigation, protection, prevention, and prosecution of sexual

offenses. In 2012, the U.S. Department of Justice published national PREA

standards for all prisons, jails, lockups, and detention facilities in the United States.

However, these provisions do not create any private right of action for prisoners to

sue correctional staff for alleged sexual misconduct. , 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 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.”). Thus, Plaintiff’s Amended Complaint fails to state a plausible claim

upon which relief can be granted on this basis.

To the extent that Worley’s Amended Complaint cites to the Fifth and

Fourteenth Amendments, it is presumed that he is referring to the due process

clauses contained in each amendment. However, the Fifth Amendment is not

implicated because its due process clause only pertains to conduct taken by federal

officials. , 402 F. App’x 204, 205 (9th Cir. 2010) (the

Fifth Amendment's Due Process and Equal Protection Clauses apply only to the

federal government, not to state actors); , 399 F.3d 993, 1002

n.5 (9th Cir. 2005) (holding that “[t]he Fifth Amendment prohibits the federal

government from depriving persons of due process, while the Fourteenth Amendment

explicitly prohibits deprivations without due process by the several States.”);

, No. 219-cv-01235JADEJY, 2020 WL 3840555, at *2 (D. Nev. July 8,

2020) (same). Because Worley was a sentenced state prisoner at the time of the

conduct in question, his due process claims, if any, are governed instead by the

Fourteenth Amendment.

The Fourteenth Amendment’s due process clause prohibits a state from

depriving any person of “life, liberty, or property without due process of law.” U.S.

CONST., Amend. XIV. “The first inquiry in any due process challenge is whether the

plaintiff has been deprived of a protected interest in property or liberty that was

accomplished by state action.” , No. 1:18-cv-332-FDW, 2019 WL

1332379, at *5 (W.D.N.C. Mar. 25, 2019) (citing

., 290 F.3d 620, 628 (4th Cir. 2002); .,

855 F.2d 167, 172 (4th Cir. 1988)). Absent such a protected interest, a prisoner has

no federal right to particular due process protections.

, 472 U.S. 445, 454 (1985) (noting substantive requirement for prison

discipline proceedings implicating the Due Process Clause); , 418

U.S. 539, 556 (1974) (noting the same about procedural requirements). “Unless there

has been a ‘deprivation’ by ‘state action,’ the question of what process is required and

whether any provided could be adequate in the particular factual context is

irrelevant, for the constitutional right to ‘due process’ is simply not implicated.”

, 855 F.2d at 172.

Here, Worley has not sufficiently pled that the defendants’ conduct denied him

a protected liberty or property interest. At best, Worley summarily alleges that

Ewing and Johnston “composed fraudulent incident reports in an attempt to validate

their actions” and that he “was placed in isolated segregation for an extended period

of time.” [ECF No. 12 at 6, 9]. Even liberally construing those allegations to be

asserting that Worley was placed in segregation because of the defendants’ alleged

false incident reports, Worley has not sufficiently established the deprivation of a

protected interest that would give rise to due process requirements.

Prisoners charged with institutional rules violations are entitled to rights

under the Due Process Clause only when the disciplinary action may result in a

sanction that will infringe upon a constitutionally protected liberty interest. Thus,

unless a prison disciplinary penalty causes an inmate’s original sentence to be

enhanced, protected interests are generally limited to “freedom from restraint that

imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” , 515 U.S. 472, 484 (1995) (holding that

disciplinary segregation did not present the type of atypical, significant deprivation

in which a state might create a liberty interest); , 120 F.3d 500, 502

(4th Cir. 1997).

Ewing’s memorandum of law in support of his motion to dismiss asserts that

“Plaintiff alleges no facts asserting that Defendant David Ewing violated Plaintiff’s

Fifth or Fourteenth Amendment rights nor how Defendant David Ewing plausibly

could have.” [ECF No. 33 at 4]. Defendant Johnston’s memorandum makes the same

assertion. [ECF No. 47 at 4]. The undersigned agrees. Even under a liberal

construction, Worley’s Amended Complaint does not contain any allegations that his

segregated confinement posed an atypical and significant hardship.

Worley’s responses to the defendants’ motions fail to address his alleged due

process claims in any way. Thus, the defendants’ assertion that the Amended

Complaint fails to state a plausible Fifth or Fourteenth Amendment claim is

undisputed. The undersigned agrees that Worley’s Amended Complaint fails to state

a plausible due process claim under either the Fifth or Fourteenth Amendments of

the United States Constitution and that such claims must be dismissed under Rule

12(b)(6).

Worley’s claim concerning the excessive use of force by the defendants is most

appropriately addressed under the Eighth Amendment’s prohibition on cruel and

unusual punishment.2 The Eighth Amendment prohibits prison officials from

unnecessarily and wantonly inflicting pain on prisoners. , 727 F.3d 312,

317 (4th Cir. 2013). To succeed on an Eighth Amendment claim, the plaintiff must

establish that “the prison official acted with a sufficiently culpable state of mind

(subjective component)” and that “the deprivation suffered or injury inflicted on the

inmate was sufficiently serious (objective component).” , 535 F.3d 225,

238 (4th Cir. 2008). The objective component is “contextual and responsive to

2 The court construes this claim as only being brought under the Eighth Amendment. However, if

Worley intended to raise a separate claim under the due process clause of the Fourteenth Amendment

arising out of the defendants’ use of force against him, the law is well-settled that, where a claim for

relief is governed by a more specific protection, such as that of the Eighth Amendment’s guarantee

against cruel and unusual punishment, “the claim must be analyzed under the standard appropriate

to that specific provision, not under the rubric of substantive due process.” ,

520 U.S. 259, 272 n.7 (1997) (citing , 490 U.S. 386, 394 (1989)). In , the

Supreme Court held that where an explicit textual source of constitutional protection applies to

physically intrusive government conduct, “that Amendment, not the more generalized notion of

‘substantive due process,’” must be the guidepost for analyzing the claim. 490 U.S. at 395.

contemporary standards of decency,” and is always satisfied “[w]hen prison officials

maliciously and sadistically use force to cause harm.” , 503 U.S.

1, 8-9, 112 (1992) (internal quotation marks omitted). Thus, held that use of

excessive physical force against an inmate may constitute cruel and unusual

punishment in violation of the Eighth Amendment even when the inmate does not

suffer serious injury.

The subjective component, on the other hand, requires a showing that the

defendant prison official acted “maliciously and sadistically for the very purpose of

causing harm” rather than “in a good faith effort to maintain or restore discipline.”

, 475 U.S. 312, 320-21 (1986),

, 559 U.S. 34 (2010). The Supreme Court has identified four factors that

must be weighed in making this determination: (1) the need for application of force;

(2) the relationship between the need and the amount of force that was used; (3) the

threat reasonably perceived by the responsible official; and (4) any efforts made to

temper the severity of a forceful response. , 475 U.S. at 321;

, 77 F.3d 756, 762 (4th Cir. 1996). The Court noted that:

[I]n making and carrying out decisions involving the use of force to

restore order in the face of a prison disturbance, prison officials

undoubtedly must take into account the very real threats the unrest

presents to inmates and prison staff, in addition to the possible harms

to inmates against whom force might be used.

475 U.S. at 320. The Supreme Court has further emphasized that, “prison

administrators . . . should be accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security.” at 321-22

(quoting , 441 U.S. at 547). Thus, the Court stated that “[u]nless it

appears that the evidence viewed in the light most favorable to the plaintiff will

support a reliable inference of wantonness in the infliction of pain, under the

standard we have described, the case should not go to the jury.” at 322.

The defendants’ motions focus on the subjective component, asserting that

Worley has failed to plead facts sufficient to support a finding that they acted with

“wantonness in the infliction of pain” or “maliciously and sadistically to cause harm.”

[ECF No. 33 at 7-8; ECF No. 47 at 8]. Thus, the defendants contend that the Amended

Complaint also fails to state a plausible Eighth Amendment claim against them and

that they are entitled to qualified immunity thereon.

Plaintiff’s responses assert that the defendants acted maliciously and

sadistically and without provocation. [ECF No. 40 at 2; ECF No.49 at 2]. His

response to defendant Johnston’s motion further asserts:

Both Defendants were speaking to Petitioner in a threatening manner,

demeaning the Petitioner, attempting to demoralize the Petitioner, and

demonstrating their intentions through the language they used through

the entire incident.

[ECF No. 49 at 2].

As noted by the defendants, in an effort to save his claims, Worley’s responses

improperly attempt to rely on video footage and other extrinsic evidence that is not

proper for consideration at the motion to dismiss stage.

, 464 F.3d 480, 483 (4th Cir. 2006) (quoting

, 178 F.3d 231, 243 (4th Cir. 1999) (“The purpose of Rule 12(b)(6) is to test

the sufficiency of a complaint and not to resolve contests surrounding the facts, the

merits of a claim, or the applicability of defenses.”). [ECF Nos. 41 at 2-5; ECF No. 50

at 3-5]. Defendant Johnston’s reply further disputes that the Amended Complaint

contains any allegations that the defendants threatened Worley or spoke to him in a

demeaning manner. [ECF No. 50 at 5].3

Nonetheless, taking the allegations in the Amended Complaint as true and in

the light most favorable to Worley, the court finds that there are sufficient facts to

support an Eighth Amendment excessive force claim. As the defendants have

essentially conceded the objective component in this case, the court presumes that

prong is met here. 924 F.3d 104, 112 (4th Cir. 2019) (meeting

the objective component of an Eighth Amendment excessive force claim “is not a high

bar” and requires only the “nontrivial” application of force); ,

No. 3:18-cv-01530, 2020 WL 1891687, at *10 (S. D. W. Va. Jan. 9, 2020),

, No. 3:18-cv-01530, 2020 WL 901813 (S. D. W. Va. Feb. 25,

2020).

Turning to the subjective prong, Worley alleges that the defendants failed to

engage the double-locking mechanism on his mechanical restraints, permitting them

3 As further noted by Johnston’s reply, Worley’s response to his motion also appears to be improperly

asserting, for the first time, a new Eighth Amendment deliberate indifference claim against Ewing

and Johnston, or improperly relying upon legal authority concerning such claims to support his

excessive force claims. [ECF No. 50 at 3-5]. There are insufficient allegations in the Amended

Complaint to support a deliberate indifference claim against these defendants and Worley may not

amend his complaint through a response to a motion to dismiss.

770 F. Supp. 1053, 1068 (D. Md. 1991) (quoting , 745 F.2d 1101

(7th Cir. 1984)) (“it is axiomatic that the complaint may not be amended by the briefs in opposition to

a motion to dismiss.”); , 965 F. Supp. 741, 748 n.4 (D. Md. 1997) (stating

that the plaintiff “is bound by the allegations contained in its complaint and cannot, through the use

of motion briefs, amend the complaint”), , 141 F.3d 1162 (4th Cir. 1998).

to further tighten on his wrists, causing injury. He further claims that the defendants

repeatedly told him to shut up and used other derogatory language about him,

including calling him a “cry baby” and a “punk ass bitch,” while Ewing tightened his

grip on his elbow, and then Ewing and Johnston “violently slammed him into the mud

and gravel” for merely turning his head to speak to Ewing. Worley further claims

that one of the correctional officers (believed to be Ewing) placed weight on his lower

back to hold him down while he was restrained. Worley claims that this conduct

caused bruising and abrasions on his head, hands, and wrists; ringing in his left ear;

continual numbness in his right hand; severe pain in his left ribcage; and severe and

lingering back pain.

While verbal abuse alone would be insufficient to establish an Eighth

Amendment violation, , No. 5:18-cv-1535, 2019 WL 2896597 (S.D.

W. Va. June 10, 2019) (citing , 832 F.2d 950, 954-55 (6th Cir. 1987));

, 327 F. App’x 319, 2009 WL 1316087, (3d Cir. May 13, 2009)

(holding that “[v]erbal harassment of a prisoner, although distasteful, does not violate

the Eighth Amendment”), Worley’s allegations of contemporaneous physical and

verbal abuse while he was restrained and allegedly compliant, exhibit wantonness in

the infliction of pain. These allegations, taken as a whole and as true, are sufficient

to state a plausible Eighth Amendment claim warranting further development.

, 878 F.3d 89, 99 (4th Cir. 2017) (where

no justification is present, Eighth Amendment claim alleging defendant repeatedly

threw inmate against wall and floor of van permitted to proceed); , No.

18-cv-03338-STV, 2019 WL 4464142, at *5 (D. Colo. Sept. 18, 2019) (allegation that

defendant threw compliant inmate to floor could reasonably support a finding that

defendant acted maliciously and sadistically to cause harm); , No.

3:19-cv-00728, 2020 WL 2950414, at *11 (S. D. W. Va. May 6, 2020),

, No. 3:19-cv-0728, 2020 WL 2949783 (S.D. W. Va. June 3,

2020) (denying motion to dismiss concerning allegations that a correctional officer

slammed non-resisting, restrained inmate’s head to the ground); ,

No. 3:18-cv-492-FDW, 2018 WL 5793156, at *3 (W.D.N.C. Nov. 5, 2018) (allowing

claim that defendant threw inmate headfirst to ground, and later into cell, to continue

after initial screening).

Having found that Worley has sufficiently alleged an Eighth Amendment

violation, the court further finds that Ewing and Johnston are not entitled to qualified

immunity because, at the time in question, it was clearly established that an officer

may not use unnecessary physical force against a restrained inmate who is compliant

and not resisting. 878 F.3d at 105 (“As is apparent from

the case law of eleven federal courts of appeals, the Eighth Amendment protection

against the malicious and sadistic infliction of pain and suffering applies in a diverse

range of factual scenarios. That unifying thread provides fair notice to prison officials

that they cannot, no matter their creativity, maliciously harm a prisoner on a whim

or for reasons unrelated to the government's interest in maintaining order. That

principle applies with particular clarity to cases such as this one, where the victim is

restrained, allegedly compliant, and incapable of resisting or protecting himself, and

otherwise presents no physical threat in any way.”); , 419

F. App’x 337, 340 (4th Cir. 2011) (“takedown” of plaintiff that was “wanton” and

“unnecessary,” rather than “a good faith effort to maintain and restore discipline,”

constituted a constitutional violation); , 426 F. Supp. 3d 245 (S.D. W.

Va. Sept. 26, 2019) (finding clearly established law and denying qualified immunity

on excessive force claim by allegedly compliant, restrained inmate);

, 754 F. App’x 725 (10th Cir. 2018) (reversing grant of summary judgment

based upon qualified immunity where angry but non-resisting inmate was slammed

into a cinderblock wall, causing fractured ribs and lacerated elbow); , ,

2019 WL 4464142, at *6 (concluding that the law was clearly established that a

correctional officer could not, unprovoked, shove a handcuffed, non-resisting inmate

to the ground, from behind).

If Worley’s version of events is taken as true, then the need for the use of force

by Ewing and Johnston was not apparent, and therefore, a reasonable factfinder

could determine that the amount of force used by them was excessive under the

circumstances, which could support a finding that the conduct was malicious and

sadistic with a purpose to cause harm, and not to restore order. Thus, the court finds

that the Amended Complaint sufficiently states plausible Eighth Amendment claims

against defendants Ewing and Johnston and that they are not presently entitled to

qualified immunity.

IV. Conclusion

For the reasons stated herein, it is hereby ORDERED that the Motions to

Dismiss filed by defendants Ewing and Johnston [ECF Nos. 32 and 46] are

GRANTED in part with respect to Worley’s alleged Fifth and Fourteenth Amendment

and PREA-based claims, but DENIED in part with respect to his Eighth Amendment

claims. This matter is again referred to Magistrate Judge Tinsley for additional

proceedings concerning the Eighth Amendment claims against the defendants.

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

and Order to counsel of record and any unrepresented party.

ENTER: March 12, 2021

pe STATES DISTRICT JUDGE

19