The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ROBERT A. CHESTER,
Plaintiff,
v. Case No. 2:22-cv-00289
BETSY JIVIDEN, .,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss filed by Defendants Betsy
Jividen and Donald Ames [ECF No. 3].1 By Standing Order, this matter is referred
to the Honorable Dwane L. Tinsley, United States Magistrate Judge for submission
of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. §
636(b)(1)(B). For reasons appearing to the Court, it is hereby ORDERED that the
referral of this motion to the Magistrate Judge is WITHDRAWN. However, the
matter shall otherwise remain referred to Magistrate Judge Tinsley. For the reasons
stated herein, it is hereby ORDERED that Defendants’ motion to dismiss [ECF No.
3] is GRANTED.
1 The Motions to Dismiss filed by Defendants Jonathan Frame, Ashley Hollingsworth, Jarred Wilson, and
Jonathan Ward [ECF Nos. 5 and 27] will be addressed by separate Memorandum Opinion and Order.
Defendants James Crocker, Michael Dempsey, and Marshall Tincher filed an Answer to the Complaint [ECF
No. 26] and the claims against them warrant further development through discovery. Defendant Brian
Penick has not been successfully served with process and has not made an appearance herein.
I. The Plaintiff’s Allegations and the Defendants’ Motions to Dismiss
This matter was removed from the Circuit Court of Kanawha County on July
14, 2022. [ECF No. 1]. According to the complaint, on March 9, 2021, Plaintiff was
moved from general population to segregation at the Mount Olive Correctional
Complex (“MOCC”) after a substance alleged by an investigator2 to be “fentanyl” was
found in his cell. [ECF No. 1, Attach. 2 (hereinafter ECF No. 1-2) at 10]. Plaintiff
claimed that the substance was “flour” and refused to disclose where he obtained it.
[ ] Plaintiff alleges that, when he was removed from general population, he was
taken to the medical unit and, while handcuffed and shackled, was “slammed, kicked
in my face, spit on, and verbally assaulted” by Defendants Crocker, Dempsey, and
Tincher. [ ]
Plaintiff further claims that this incident was reported to the shift commander,
Brian Penick, as well as Associate Wardens Jonathan Frame and Jonathan Ward,
and Plaintiff alleges that he was ultimately wrongfully charged with a disciplinary
rule violation for assault stemming from this incident. [ ] Plaintiff further alleges
that the institutional magistrate, Jarred Wilson, found him guilty of the “fictitious
assault” and placed him in segregation for two months. [ ] That decision was
upheld on appeal by Warden Donald Ames and Commissioner Betsy Jividen. [ ]
Plaintiff further summarily alleges that Defendant Jividen “knows this happens all
the time” but, nonetheless, denied both Plaintiff’s grievances and his disciplinary
appeal. [ ]
2 Although not specified in the complaint, it appears that Defendant Ashley Hollingsworth was the
investigator involved.
Although Plaintiff fails to identify any specific legal bases for his claims, a
liberal construction of the complaint suggests that he is alleging an Eighth
Amendment excessive force claim against Defendants Crocker, Dempsey, and
Tincher that will be further developed in additional proceedings. The claims against
the remaining defendants appear to be based upon the alleged filing of false
disciplinary charges against Plaintiff and supervisory liability.
Defendants’ motion documents 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. [ECF No. 4 at 5]. Additionally,
Defendants contend that the 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. [ at 6-10].
On August 18, 2022, Plaintiff responded to the motion to dismiss filed by
Defendants Jividen and Ames. [ECF No. 8]. Those Defendants then filed a reply
brief on August 25, 2022. [ECF No. 10]. However, on September 2, 2022, Plaintiff
filed an additional brief concerning the claims against these Defendants, which the
Court has construed and authorized as a sur-reply. [ECF No. 14]. Defendants were
further granted leave to respond to the sur-reply. [ECF No. 20]. Defendants’ motion
is fully briefed and ripe for adjudication.
II. Standard of Review
Defendants’ motion is 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
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). Thus, although not specifically pled by Defendants, the court will address
their argument for dismissal of the official capacity claims under Rule 12(b)(1) as
well.
III. Discussion
A. Official Capacity Claims and Sovereign Immunity
Plaintiff’s complaint does not specify whether he is suing Defendants Jividen
and Ames in either their official or individual capacities, or both. However, to the
extent that Plaintiff is suing these Defendants in their official capacities, they are
immune from suit. An individual who is employed by an arm of the State and sued
in his official capacity is immune from suit in federal court under the Eleventh
Amendment. , No. 18-6489, 2020 WL 4046025, *8-9 (4th Cir. Jul.
20, 2020); , 828 F.3d 239, 250 (4th Cir. 2016),
(July 8, 2016). The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend.
XI. Such immunity protects both the State itself and its agencies, divisions,
departments, officials, and other “arms of the State.” ; ,
134 U.S. 1, 9 (1980).
Thus, the Eleventh Amendment of the United States Constitution bars a suit
in a federal court by private parties, such as Plaintiff, seeking to impose monetary
liability upon a state or state officials, which may be paid from public funds in the
state treasury. , 440 U.S. 332, 337 (1979). Absent consent, federal
suits against a state by a citizen of that state or another state are prohibited by the
Eleventh Amendment. , 473 U.S. 159, 199 (1985);
, 465 U.S. 89, 99-100 (1984).
Furthermore, in , 491 U.S. 58, 71 (1989),
the Supreme Court held that a state, its agencies, and its officials acting in their
official capacity, are not “persons” under 42 U.S.C. § 1983. The vehicle for asserting
Plaintiff’s claims in federal court is § 1983. Thus, all Defendants, in their official
capacities, are not persons who can be sued thereunder. Accordingly, I FIND that
dismissal of all claims against Defendants Jividen and Ames in their official
capacities is warranted.
B. Individual Capacity Claims and Qualified Immunity
Defendants Jividen and Ames’ motion to dismiss also asserts that Plaintiff has
failed to state any plausible claim for relief against them in their individual
capacities. First, they assert that “specific acts or omissions by each defendant which
violated Plaintiff’s constitutional rights must be alleged” and Plaintiff has not alleged
any specific facts concerning their conduct in the complaint. (ECF No. 4 at 6-7, 10).
Extending their argument concerning claims against them in their official capacities,
Defendants’ memorandum of law asserts:
There is no factual allegation in the Complaint that Betsy Jividen did or
did not do something or was required to act, based upon anything other
than the fact that she is the Commissioner of the WVDCR. . . . The same
holds true for Donald Ames as Superintendent of MOCC. There are no
allegations against him individually, nor are there any direct claims for
liability against him. Because Plaintiff’s claims against Jividen and
Ames arise from their respective roles in the Administration of the
WVDCR, these claims are official capacity claims, and, as such, they
should be dismissed.
[ECF No. 4 at 6].
Defendants Jividen and Ames further presume that, if Plaintiff is alleging any
potential individual claim against them, it is an Eighth Amendment claim grounded
in “deliberate indifference” to his safety. To sustain such a claim, a prisoner must
establish: (1) a deprivation that is “objectively, ‘sufficiently serious;’” that is, “denial
of ‘the minimal civilized measure of life’s necessities;’” and (2) that the prison official
had a “sufficiently culpable state of mind;’” that is, a “deliberate indifference to
inmate health or safety.” , 511 U.S. 825, 834 (1994). In ,
the Supreme Court established that prison officials may be liable under the Eighth
Amendment for denying humane conditions of confinement only if the official “knows
that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” 511 U.S. at 847.
As asserted by Defendants, in a § 1983 action, a supervisor, such as Jividen or
Ames, may not be held liable under a theory of . [ECF No. 4 at
7-8]. Rather, Plaintiff must show that the Defendant subjectively “knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” 511 U.S. at 837.
“Deliberate indifference” requires actual, subjective consciousness of a risk. at
840. “For liability to attach, it is not enough to allege that conditions or circumstances
‘should have been’ known to a particular prison official, but, rather, evidence must be
offered of the official’s actual state of mind, specifically that the official was personally
aware of a substantial risk of serious harm to an inmate.” [ECF No. 4 at 7] (citing
, 511 U.S. at 835-47). Defendants’ brief further asserts:
[Plaintiff] has failed to demonstrate facts to support that either Jividen
or Ames had any personal knowledge of the events described in his
Complaint whatsoever (until, at best, after the events took place).
Further, Plaintiff fails to assert facts supporting a claim that he was
deprived of any of the humane conditions to which he is entitled under
the Eighth Amendment. As Plaintiff’s Complaint fails to state a
plausible claim under the Eighth Amendment against Jividen or Ames,
his claims fail as a matter of law, and these Defendants are entitled to
dismissal.
[ at 8]. Defendants’ motion to dismiss further asserts that these Defendants are
entitled to qualified immunity on Plaintiff’s claims against them. [ at 8-10].
Plaintiff’s initial response to Jividen and Ames’ motion to dismiss asserts that
Jividen and Ames were “more than two times made aware of the assault” and failed
to do anything about it. [ECF No. 8 at 1]. He appears to contend that Jividen and
Ames would have been made aware of the details of the assault through the detention
or incident report on March 9, 2021, and also the appeals following his being found
guilty of the assault violation, as well as through Grievance No. 21-MOCC-Q2-275,
dated March 10, 2021. [ ] Plaintiff’s response further asserts that, despite knowing
about the physical and mental abuse he had suffered, Jividen and Ames refused to
help him, further contributing to his injury. [ at 1-2]. Plaintiff further argues that
this conduct violated Jividen and Ames’ duties under state law. [ at 2].
Defendants’ reply asserts:
Plaintiff makes no allegations against Defendants Jividen or Ames
asserting they were directly involved in the alleged tortious conduct.
The lack of any specific factual allegations against Defendants Jividen
or Ames suggests they were named in the Complaint in their official
capacities. In his Response, Plaintiff argues that Defendants Jividen
and Ames denied his grievance and refused to provide him with relief.
Plaintiff’s Response cites to West Virginia law regarding powers of the
WVDCR Commissioner. Plaintiff’s Response does nothing to remedy the
reality that he has failed to state a claim against these Defendants . . .
[ECF No. 10 at 2]. Their reply emphasizes that Plaintiff’s response alleges only that
Jividen and Ames were aware of the alleged assault through the grievance and
disciplinary appeal processes, all of which occurred after the assault allegedly
occurred. [ at 4]. They further contend:
Even accepting as true that Defendants Jividen and Ames were made
aware of the alleged assault following its occurrence, Plaintiff has not
pleaded any theory of liability to support a claim against these
Defendants. Plaintiff has not pleaded how these Defendants’ after-
acquired knowledge caused or contributed to the alleged assault.
Plaintiff has not pleaded how these Defendants’ after-acquired
knowledge caused Plaintiff any damages.
[ ]
Plaintiff’s sur-reply again asserts that “[o]n several separate occasions both
Defendants Jividen and Ames were factually made aware of the abuses and assaults
being executed upon the Plaintiff, by and at the direction of officers and/or staff
operating under the direction and/or authority of these defendants, while the Plaintiff
was [] at all times under the direct care, custody, control and authority of the abusers
as well as these defendants.” [ECF No. 14 at 2]. Plaintiff emphasizes that Jividen
and Ames were clearly made aware of the details of the alleged assault and abuse
through the grievance process and “ignored the actions of abuse and assault by those
operating under their authority and took no action to correct.” [ at 2-3]. Thus, he
claims that they “tacitly authorized” their subordinates’ actions. [ at 3]. He again
asserts that Jividen and Ames did not act in accordance with their state law duties.
[ at 3-6].
Defendants’ response to Plaintiff’s sur-reply argues that “[d]enial of grievances
is insufficient to form a basis for liability” and Plaintiff’s allegations of after-acquired
knowledge are inadequate to give rise to any Eighth Amendment liability for his
alleged physical assault and mental anguish related thereto. [ECF No. 20 at 2-4].
They further assert that Plaintiff has no constitutional right to a specific outcome to
the grievance process and that denial of an inmate grievance is within their
discretion. [ at 4-5]. Defendants re-assert that, because Plaintiff has not
sufficiently alleged any plausible violation of a clearly established federal
constitutional right against them, they are entitled to qualified immunity. [ at 3-
4].
The Court construes the claims against Jividen and Ames to be claims of
supervisory liability. While the Fourth Circuit has firmly held that “supervisory
officials may be held liable in certain circumstances for the constitutional injuries
inflicted by their subordinates,” , 737 F.2d 368, 372 (4th Cir. 1984),
the burden of proof on such a claim is weighty. , 556 U.S. at 677; ,
13 F.3d 791, 798 (4th Cir. 1994). “Liability will only lie where it is affirmatively
shown that the official charged acted personally in the deprivation of the plaintiff’s
rights,’ or where a subordinate acts pursuant to a policy or custom for which the
supervisor is responsible.” . (quoting , 550 F.2d 926, 928 (4th Cir.
1977)).
There are three elements necessary to establish supervisory liability:
(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed “a pervasive and
unreasonable risk” of constitutional injury to citizens like the plaintiff;
(2) that the supervisor's response to that knowledge was so inadequate
as to show “deliberate indifference to or tacit authorization of the alleged
offensive practices,”; and (3) that there was an “affirmative causal link”
between the supervisor's inaction and the particular constitutional
injury suffered by the plaintiff.
at 799. To establish the first element, Plaintiff must show “(1) the supervisor's
knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a
pervasive and unreasonable risk of constitutional injury to the plaintiff.” .
“Establishing a ‘pervasive’ and ‘unreasonable’ risk of harm requires evidence that the
conduct is widespread, or at least has been used on several different occasions and
that the conduct engaged in by the subordinate poses an unreasonable risk of harm
of constitutional injury.” .
Turning to the second element, Plaintiff “may establish deliberate indifference
by demonstrating a supervisor's ‘continued inaction in the face of documented
widespread abuses.’” . (citations omitted). The Fourth Circuit has held:
The plaintiff assumes a heavy burden of proof in establishing deliberate
indifference because: [o]rdinarily, [the plaintiff] cannot satisfy his
burden of proof by pointing to a single incident or isolated incidents, for
a supervisor cannot be expected to promulgate rules and procedures
covering every conceivable occurrence within the area of his
responsibilities. Nor can he reasonably be expected to guard against the
deliberate criminal acts of his properly trained employees when he has
no basis upon which to anticipate the misconduct. A supervisor’s
continued inaction in the face of documented widespread abuses,
however, provides an independent basis for finding he either was
deliberately indifferent or acquiesced in the constitutionally offensive
conduct of his subordinates.
. (citations omitted).
The third element for supervisory liability is established “when the plaintiff
demonstrates an ‘affirmative causal link’ between the supervisor’s inaction and the
harm suffered by the plaintiff.” (citations omitted). Causation in this context
encompasses both cause in fact and proximate cause. . The Fourth Circuit has held
that the “proof of causation may be direct . . . where the policy commands the injury
of which the plaintiff complains . . . [or] may be supplied by [the] tort principle that
holds a person liable for the natural consequences of his actions.” . (citations
omitted).
The complaint herein fails to sufficiently allege the essential elements
necessary to hold Defendants Jividen and Ames liable under a supervisory liability
theory. Plaintiff has not adequately alleged that either Jividen or Ames were actually
aware of a pervasive risk of harm before Plaintiff’s assault and that their failure to
act proximately caused his assault. His singular assertion that “Jividen knows this
happens all the time” is simply too threadbare and conclusory to satisfy the
standard. Likewise, the complaint does not allege any factual allegations whatsoever
against Ames. However, even presuming that Ames was also involved in the denial
of Plaintiff’s grievance and his disciplinary appeal process, Plaintiff has failed to
sufficiently establish that his role in those actions amounted to deliberate
indifference to a substantial risk of harm to Plaintiff. Accordingly, I FIND that
Plaintiff’s complaint fails to state a plausible claim for relief against Defendants
Jividen and Ames.
C. Qualified Immunity.
Defendants’ motion also asserts that they are entitled to qualified immunity
on Plaintiff’s claims against them. [ECF No. 4 at 8-10]. Qualified immunity “shields
government officials from liability for civil damages provided their conduct does not
violate clearly established statutory or constitutional rights within the knowledge of
a reasonable person.” , 961 F.3d 654, 660 (4th Cir. 2020);
, 713 F.3d 723, 731 (4th Cir. 2013). The following test is used to
determine whether a defendant is entitled to qualified immunity: (1) taken in the
light most favorable to the party asserting the injury, do the facts alleged show the
defendant’s conduct violated a constitutional right; and (2) was that right clearly
established such that a reasonable person would have known that their conduct was
unlawful. , 555 U.S. 223, 236 (2009); ,
855 F.3d 533, 538–39 (4th Cir. 2017). A defendant is “entitled to a qualified immunity
defense so long as ‘the law did not put the [defendant] on notice that his conduct
would be clearly unlawful.’” , 475 U.S. 335, 341 (1986);
, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Because Plaintiff’s complaint
fails to state a plausible violation of any clearly established constitutional right by
these Defendants, I FIND that they are each entitled to qualified immunity on
Plaintiff’s claims against them.
IV. Conclusion
For the reasons stated herein, I FIND that Plaintiff's complaint fails to state
any claim upon which relief can be granted against Defendants Jividen and Ames
and, thus, the claims against them are ripe for dismissal. Accordingly, pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, it is hereby
ORDERED that the Motion to Dismiss filed by Defendants Jividen and Ames [ECF
No. 3] is GRANTED.
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 21, 2023
pe STATES DISTRICT JUDGE
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