# Worley v. Ewing

> District Court, S.D. West Virginia · March 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10729547

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 12, 2021
- **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/10729547

## How later opinions describe it (automated extraction)

- stating that the plaintiff “is bound by the allegations contained in its complaint and cannot, through the use of motion briefs, amend the complaint”
- noting the same about procedural requirements
- holding that “[v]erbal harassment of a prisoner, although distasteful, does not violate the Eighth Amendment”

## Opinion text

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WITHDRAWN and the undersigned will proceed to rule thereon.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729547. Public record. Not legal advice.