Chester v. Crocker

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 are a Motion to Dismiss filed by Defendants Jonathan

Frame, Ashley Hollingsworth, and Jarred Wilson [ECF No. 5], and a Motion to

Dismiss filed by Defendant Josh Ward [ECF No. 27].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that the referral of these specific motions to the Magistrate Judge is WITHDRAWN.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’ motions to

dismiss [ECF Nos. 5 and 27] are GRANTED.

1 The Motion to Dismiss filed by Defendants Betsy Jividen and Donald Ames [ECF No. 3] 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. Factual Background and Procedural History.

A. Plaintiff’s complaint.

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 powdery 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 further alleges that, when he was removed from general

population, he was taken to the medical unit where, while handcuffed and shackled,

he was “slammed, punched in my face, spit on, and verbally assaulted” by James

Crocker (“Crocker”), Michael Dempsey (“Dempsey”), and Marshall Tincher

(“Tincher”). [ ]

Plaintiff further claims that this incident was reported to the shift commander,

Brian Penick (“Penick”), as well as Associate Wardens Jonathan Frame (“Frame”)

and Jonathan Ward (“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

(“Wilson”), found him guilty of this “fictitious assault” and placed him in segregation

for two months. [ ] That decision was allegedly upheld on appeal by Warden

Donald Ames (“Ames”) and Commissioner Betsy Jividen (“Jividen”). [ ] Plaintiff

2 Although not specified in the complaint, it appears that Defendant Ashley Hollingsworth was the

investigator involved.

further claims that Defendant Jividen “knows this happens all the time” but

nonetheless denied both Plaintiff’s grievance and his disciplinary appeal. [ ]

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, which will be further developed in additional proceedings. The claims

against the remaining Defendants appear to be grounded in the alleged filing of false

disciplinary charges against Plaintiff and supervisory liability.

B. Defendants’ motions to dismiss and related briefing.

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. 6 at 5-6; ECF No. 28

at 5-6]. 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. [ECF No. 6 at 6-7; ECF

No. 28 at 6-7].

On August 18, 2022, Plaintiff responded to the motions filed by Defendants

Jividen, Ames, Frame, Hollingsworth, and Wilson. [ECF Nos. 8 and 9].3 Thereafter,

those Defendants filed reply briefs. [ECF Nos. 10 and 11]. However, on September

2, 2022, Plaintiff filed additional briefs, which the Court has construed and

3 Because Defendant Ward was served with process on a later date, his motion to dismiss [ECF No. 27],

which was timely filed on November 18, 2022, was separately briefed. Plaintiff filed a response to his

motion [ECF No. 30] on December 5, 2022. Ward did not file a reply brief.

authorized as sur-replies. [ECF Nos. 13 and 14]. Defendants were further granted

leave to respond to the sur-replies. [ECF No. 16, 18, and 20]. Defendants’ motions

are now fully briefed and ripe for adjudication.

II. Standard of Review

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

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, the Fourth Circuit has yet to decide “whether a dismissal on

Eleventh Amendment immunity grounds is a dismissal for failure to state a claim

under Rule 12(b)(6) or a dismissal for lack of subject matter jurisdiction under Rule

12(b)(1).” , 201 F.3d 521, 525 n.2 (4th Cir. 2000);

, No. 2:21-cv-01090-JMC-MGB, 2022 WL 3718602, at *2 n.1 (D.S.C. July 27,

2022). However, “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 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 each Defendant in

either their official or individual capacities, or both. However, to the extent that he

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, at *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, as asserted by Defendants [ECF

No. 6 at 6; ECF No. 28 at 6], all Defendants, in their official capacities, are not persons

who can be sued thereunder. Accordingly, I FIND that dismissal of all claims against

Defendants in their official capacities is warranted.

B. Individual capacity claims and qualified immunity.

Aside from Defendants Crocker, Dempsey, and Tincher, Plaintiff has not

alleged that any of the other Defendants were personally involved in the alleged

assault on March 9, 2021. While Plaintiff’s response to Defendant Ward’s motion

suggests, for the first time, that defense counsel informed him that Defendants

Crocker, Dempsey, and Tincher were “ordered to assault the Plaintiff” by Defendant

Ward [ECF No. 30 at 2], he cannot assert new claims or amend his current pleading

through briefing. “The ordinary rule in federal courts is that an argument raised for

the first time in a reply brief or memorandum will not be considered.”

, 451 F. Supp.2d 731, 734 (D. Md. Sept. 11, 2006)

(citing , 445 F.3d 724, 736 n.6 (4th Cir. 2006)).

All the allegations against the remaining Defendants concern conduct that

occurred after the alleged assault and there are no allegations in the complaint that

any of these other Defendants has actual knowledge of a serious risk of harm to

Plaintiff to which they were deliberately indifferent before the assault occurred.

Thus, there is no basis for an Eighth Amendment claim against these other

Defendants arising out of the alleged assault.

Rather, with respect to the remaining Defendants, the complaint appears to

allege only an abstract claim arising out of the post-assault investigation and Plaintiff

being charged with a “fictitious assault.” However, the complaint does not allege any

specific facts concerning each Defendants’ conduct. Instead, Plaintiff just summarily

asserts that “they allowed this to happen to me.” [ECF No. 1-2 at 10].4

4 Plaintiff’s initial response to Frame, Hollingsworth and Wilson’s motion to dismiss clarifies that he

is asserting that Defendants violated his constitutional rights “by having [him] charged with a

fictitious assault and not having assault investigated.” [ECF No. 9 at 1]. He claims that these

Defendants “had the chance to right the wrong and still have not as of today.” [ ] Plaintiff’s sur-

As noted by Defendants’ motion documents, however, there is no clearly

established federal constitutional right at issue here. [ECF No. 6 at 3-5; ECF No. 28

at 4-5]. First, “[w]hile prison officials have a duty to protect inmates from assault,

, 511 U.S. 825, 833 (1994), there is no constitutional requirement

for them to investigate in a manner satisfactory to the plaintiff.”

, No. 21-cv-01276-RM-NRN, 2022 WL 3234763, at *4 (D. Colo. July 12,

2022), , No. 21-cv-

01276-RM-NRN, 2022 WL 3227620 (D. Colo. Aug. 10, 2022) (other citations omitted);

, No. 5:12-CT-3204-D, 2015 WL 10910481, at *8 (E.D.N.C. Mar.

20, 2015) (standing alone, after-the-fact knowledge of and failure to investigate

alleged assault amounted, at most, to violation of prison policy, not constitutional

violation).

Moreover, to the extent that Plaintiff asserts that the Defendants herein failed

to comply with prison policies or regulations, those provisions are “primarily designed

to guide correctional officials in the administration of a prison,” and are “not designed

to confer rights on inmates.” , 515 U.S. 472, 481-82 (1995);

, 624 F.3d 1322, 1329 (10th Cir. 2010). Thus, any failure to

investigate Plaintiff’s claims pursuant to policy does not establish that a

constitutional violation occurred. , 536 F. App’x 356, 357 (4th

reply further contends that he “repeatedly raised the issue that he was being assaulted, beaten,

abused, and mistreated by named institutional and WVDCR personnel” and that Defendants Frame,

Hollingsworth and Wilson had a mandatory duty to protect him from such conduct. [ECF No. 13 at

5]. However, the complaint itself references only a singular assault and no prior awareness by these

Defendants of any substantial risk of harm to Plaintiff before that assault occurred.

Cir. 2013) (“prison officials’ failure to follow internal prison policies [is] not actionable

under [section] 1983 unless the alleged breach of policy rises to the level of a

constitutional violation.”).

Furthermore, Defendants correctly contend that “[t]he act of filing false

disciplinary charges does not itself violate a prisoner’s constitutional rights.” (ECF

No. 6 at 4-5; ECF No. 28 at 4-5) (citations omitted). The Fourth Circuit has recognized

that, generally, false disciplinary charges cannot serve as the basis of a constitutional

claim. , 66 F.3d 316, 1995 WL 552018, at *1 (4th Cir. 1995)

(citing 808 F.2d 949 (2d Cir.1986) (holding that bare claim of

false charges does not state a § 1983 claim)); , 631 F. App’x 185 (4th

Cir. Feb. 1, 2016); , 492 F. App’x 395, 396 (4th Cir. Aug 1, 2012);

, No. 2:14-cv-64, 2015 WL 9875842, at *10 (N.D. W. Va. Nov. 2,

2015), , No. 2:14-cv-64, 2016 WL 237125 (N.D.

W. Va. Jan. 20, 2016), , 668 F. App’x 508 (4th Cir. 2016) (“The act of filing false

disciplinary charges does not itself violate a prisoner’s constitutional rights.”);

No. 1:07-cv-1080, 2008 WL 3992637, *4 n.6 (E.D. Va. Aug. 27,

2008) (“To the extent the plaintiff claims that he was falsely accused, he fails to state

a § 1983 claim because ‘[t]he prison inmate has no constitutionally guaranteed

immunity from being falsely or wrongly accused of conduct which may result in the

deprivation of a protected liberty interest.’”) (internal citations omitted);

No. 082708, 2009 WL 2711885 *4 (D. Md. Aug. 24, 2009);

No. 5:11–0868, 2012 WL 4119674, *5 (S.D. W.Va. Aug. 22, 2012) (inmates

have no constitutional right prohibiting false charges against them). [ ]

Nonetheless, such allegations may give rise to a constitutional claim when

accompanied by allegations of retaliation or a denial of due process. As noted by the

Court in :

Such allegations may not stand on their own, but they do state claims

when the guards’ actions are allegedly motivated by a desire to retaliate

for a prisoner’s having filed lawsuits against officials.

870 F.2d 450 (8th Cir.1989); 861 F.2d 943 (6th

Cir.1988); 854 F.2d 584 (2d Cir.1988). The complaint

contained the allegation of retaliatory motive with regard to this claim,

but the district court failed to address this fact or note that it might

mandate a different outcome. 808 F.2d

949 (2d Cir.1986) (holding that bare claim of false charges does not state

a § 1983 claim), 485 U.S. 982 (1988) [

] 854 F.2d 584 [(2d. Cir. 1988)] (holding that false charges plus

retaliatory motive states § 1983 claim).

1995 WL 552018, at *1.

Here, however, the complaint does not allege that any of these Defendants

acted in retaliation to protected conduct taken by Plaintiff, as necessary to state a

plausible First Amendment retaliation claim. While Plaintiff’s sur-reply attempts to

state, for the first time and in a conclusory manner, that Defendants’ actions in

“electing not to fulfill their mandated duties” were “retaliatory in nature” [ . at 6],

as noted above, he cannot amend his complaint by adding new allegations in a

response or reply brief. , , 451 F. Supp.2d at 734. Thus, his

attempts to assert new allegations of retaliation or due process violations in his sur-

reply is inappropriate.

Likewise, Plaintiff’s complaint does not allege that he was denied any

procedural guarantees during his disciplinary proceedings, in order to state a

plausible due process claim under the Fourteenth Amendment.

, 418 U.S. 539 (1974); , 904 F.2d 925, 929 (4th Cir. 1990)

(“due process requires written notice to the inmate of the charges, an opportunity for

the inmate to call witnesses and present documentary evidence in his defense, and a

written statement by the fact finders of the evidence relied upon and the reasons for

the disciplinary action.”) Plaintiff has not alleged that any of these requirements

were not met. In sum, as noted in Defendants’ reply, Plaintiff has not offered

sufficient legal or factual support for his broad assertion that Defendants should be

held liable for allegedly falsely charging him with a disciplinary violation or not

properly investigating the alleged assault. [ at 2-4].

Plaintiff’s sur-reply also appears to suggest, for the first time, that Defendants’

conduct violated his due process rights grounded in alleged interference with his right

to petition for redress through the grievance process. [ at 4]. Nonetheless, there

is no constitutional right to a grievance process. , 40 F.3d 72, 75

(4th Cir. 1994) (inmates have no constitutional entitlement or due process interest in

access to a grievance procedure). Moreover, Plaintiff’s complaint does not allege that

these Defendants had any role in or otherwise interfered with the grievance process.

Thus, Plaintiff’s new, conclusory factual allegations do not give rise to a plausible due

process claim on this basis.

Like his claims against Defendants Jividen and Ames, in his sur-reply,

Plaintiff alleges that, when he filed and appealed his grievance, Defendants Frame

and Hollingsworth were made aware of the incidents of abuse and assaults and were

further aware of his “pleas for assistance.” [ECF No. 1 3 at 7-8]. He further contends

that these Defendants “ignored the actions of abuse and assaults by those acting

under their authority” and effectively “tacitly authorized” such conduct by taking no

action. [ at 8]. Relying on tate administrative polices and law, he further asserts

that, “once these defendants took the position as to not intervene to rectify the abuses,

or act to protect the Plaintiff[,]” they were “no longer acting under the duties and

responsibilities of their positions or office.” [ ]

Plaintiff’s sur-reply further asserts that “as facility administrators and high

level operational employees within the WVDCR, Frame, Hollingsworth, and Wilson

operate under authority of the Commissioner and within Policy Directives,

Operational Procedures, and mandates established by the [Commissioner,

Superintendent, and Legislature]. [ at 4]. The sur-reply further specifically

asserts that these Defendants violated WVDCR Policy Directive 129.00 concerning

employee codes of conduct and progressive discipline, as well as other state laws. [

at 5-6].

Defendants’ response to the sur-reply asserts, however, that Plaintiff cites only

to various provisions of state law and argues that these Defendants should be held

liable for the violation of WVDCR policies and procedures under the West Virginia

Constitution. As previously noted, an alleged violation of state law or policy, standing

alone, is insufficient to give rise to a plausible claim for relief under 42 U.S.C. § 1983,

which is premised upon violations of federal constitutional or other federal law. [ECF

No. 18 at 3-5]. Defendants further assert that, “[p]er the Complaint, Plaintiff is

referencing one alleged instance of excessive force by Correctional Officers Crocker,

Dempsey, and Tincher, and the following disciplinary charge [he] received for

assaulting these correctional officers.” [ at 2]. Thus, Plaintiff’s new references to

repeated or continuing abuses is not supported by his factual allegations.

Even liberally construing the complaint to also be alleging a supervisory

liability claim against these Defendants, Plaintiff has failed to allege facts

demonstrating that these Defendants had actual knowledge of a substantial risk of

harm to Plaintiff prior to the conduct of Defendants Crocker, Dempsey, and Tincher

on March 9, 2021. Thus, he has not alleged a plausible claim of supervisory liability

against them.

For the reasons stated herein, I FIND that Plaintiff has failed to allege any

plausible federal constitutional claims against Defendants Frame, Hollingsworth,

Wilson, or Ward arising out of his allegedly being falsely charged with a disciplinary

violation for an alleged assault or the failure to properly investigate the same.

Defendants’ motions to dismiss further assert that these Defendants are

entitled to qualified immunity on Plaintiff’s claims against them. [ECF No. 6 at 6-7;

ECF No. 28 at 6-7]. 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 Frame,

Hollingsworth, Wilson, and Ward and, thus, the claims against them are ripe for

dismissal. Accordingly, it is hereby ORDERED that, pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure, the Motion to Dismiss filed by

Defendants Frame, Hollingsworth, and Wilson [ECF No. 5] and the Motion to Dismiss

filed by Defendant Ward [ECF No. 27] are 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

G

pe STATES D{STRICT JUDGE

15