A.D. v. Demetro

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

A.D.

Plaintiff,

v. CIVIL ACTION NO. 2:22-cv-00432

ANTHONY DEMETRO, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant Matthew Currence’s (“Currence”) Motion to

Dismiss. (ECF No. 17.) For the reasons discussed herein, Defendant Currence’s motion is

DENIED.

I. BACKGROUND

This matter arises out of incidents where Defendant Anthony Demetro (“Demetro”)

allegedly sexually harassed and assaulted Plaintiff while acting as her West Virginia Division of

Corrections and Rehabilitation (“WVDCR”) parole officer. (See ECF No. 1.) According to the

Complaint, Plaintiff was on supervised parole, and Defendant Demetro was assigned to supervise

Plaintiff. (Id. at 3, ¶ 7.) Plaintiff claims that Defendant Demetro sexually harassed and sexually

assaulted her while he was on duty as her parole officer. (Id. at 4, ¶¶ 10, 12.)

The Complaint identifies Defendants David Jones (“Jones”), Currence, and Robert Arnold

(“Arnold”) as supervisors of Defendant Demetro. (Id. at 2–3, ¶¶ 3–5, 8–9.) Specifically,

Plaintiff states that Defendant Jones was the Regional Director of Parole, Defendant Currence was

1

“a senior supervisor for West Virginia parole officers,” including Defendants Demetro and Jones,

and Defendant Arnold was the “Director of Parole Services, as well as the most senior in the chain

of command of supervisors for defendants DeMetro, Jones and Currence,” and had the “ultimate

supervisory authority[.]” (Id. at 2–3, ¶¶ 3–5, 9.) Yet, according to Plaintiff, Defendants Jones,

Currence, and Arnold failed to properly supervise Defendant Demetro. (Id. at 4, ¶ 11.)

Additionally, she asserts that “multiple female victims” of Defendant Demetro’s alleged sexual

abuse reported Demetro to his supervisors, who failed to take action to prevent the abuse from

continuing. (Id. at 10–11, ¶¶ 45–48.)

Plaintiff filed the present lawsuit on October 5, 2022, against Defendants Demetro, Jones,

Currence, and Arnold. (See generally id.) Plaintiff asserts three 42 U.S.C. § 1983 claims against

Defendants Demetro and Jones, (id. at 6–10) (asserting § 1983 claims for (1) “sexual abuse and

exploitation by a state official,” (2) “conspiracy to deprive civil rights,” and (3) “violation of

Eighth Amendment”), as well as supervisory liability claims under § 1983 against Defendants

Jones, Currence, and Arnold,1 (id. at 10–12).

Defendant Currence filed the pending Motion to Dismiss on November 21, 2023. (ECF

No. 17.) Plaintiff filed a timely response, (ECF No. 20), and Defendant Currence never filed a

reply. As such, this motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD

A motion to dismiss for failure to state a claim upon which relief may be granted tests the

legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). A plaintiff must allege sufficient

facts, which, if proven, would entitle him to relief under a cognizable legal claim. Bell Atl. Corp.

1 Defendant Arnold was dismissed in a previous Memorandum Opinion and Order. (ECF No. 34.)

2

v. Twombly, 550 U.S. 544, 554–55 (2007). A case should be dismissed if, viewing the well-

pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff,

the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.”

Id. at 570. In applying this standard, a court must utilize a two-pronged approach. First, it must

separate the legal conclusions in the complaint from the factual allegations. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Second, assuming the truth of only the factual allegations, the court

must determine whether the plaintiff’s complaint permits a reasonable inference that “the

defendant is liable for the misconduct alleged.” Id. Well-pleaded factual allegations are

required; labels, conclusions, and a “formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.

2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to

state a claim.” (quoting Iqbal, 556 U.S. at 679)). A plaintiff’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level,” thereby “nudg[ing] [the] claims across

the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570.

III. DISCUSSION

Defendant Currence moves to dismiss the § 1983 supervisory liability claim against him,

arguing that he is entitled to qualified immunity. (ECF No. 18 at 5–10.) Alternatively,

Defendant Currence claims that Plaintiff’s claim is time barred by the statute of limitations. (Id.

at 11.) Each is discussed in turn below.

A. Qualified Immunity

When performing discretionary functions, government officials are “entitled to qualified

immunity from liability for civil damages to the extent that ‘their conduct does not violate clearly

3

established statutory or constitutional rights of which a reasonable person would have known.’”

Rish v. Johnson, 131 F.3d 1092, 1095 (4th Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). While a defendant may assert a qualified immunity defense through a Rule 12(b)(6)

motion, “the defense faces a formidable hurdle” and “is usually not successful.” Owens v.

Baltimore City State’s Attorney's Office, 767 F.3d 379, 396 (4th Cir. 2014) (internal citations

omitted). This is because, at this very early stage in the proceedings, dismissal under Rule

12(b)(6) is only appropriate if the plaintiff “fails to state a claim that is plausible on its face.” Id.

at 396 (quoting Iqbal, 556 U.S. at 678) (emphasis in original).

To determine whether qualified immunity applies, “courts engage in a two-step inquiry.”

Yates v. Terry, 817 F.3d 877, 884 (4th Cir. 2016). The first step asks whether the facts, “taken in

the light most favorable to the” nonmoving party, establish that the officer “violated a

constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the evidence establishes a

violation of a constitutional right, the second prong assesses whether the right was “clearly

established” at the time of the events at issue. Id. These steps may be done in either order.

Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the answer to either question counsels against

the nonmoving party, qualified immunity applies.

In the context of supervisor liability, which Plaintiff alleges, (see ECF No. 1 at 10–12, ¶¶

43–53), a plaintiff “must make several separate showings to demonstrate that [a defendant] lack[s]

qualified immunity,” see Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir. 1994), because supervisors

“can only be held liable for the failings of a subordinate under certain narrow circumstances,” see

Green v. Beck, 539 Fed.Appx. 78, 80 (4th Cir. 2013) (citations omitted). Absent a finding that

supervisory defendants are responsible for the alleged acts of a subordinate defendant, they will

4

be afforded qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (noting that

qualified immunity is “an immunity from suit rather than a mere defense to liability” (emphasis in

original)). There are three elements necessary to establish supervisory liability under § 1983:

(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.

Stroud, 13 F.3d at 799.

As to the first element, “[e]stablishing 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.” Id. As to the second element, a plaintiff “may establish deliberate

indifference by demonstrating a supervisor’s continued inaction in the face of documented

widespread abuses.” Id. (internal quotation marks omitted). Finally, as to the third element,

“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.” Id. (internal quotation marks and alterations omitted). In order to

overcome a motion to dismiss, a plaintiff must allege facts sufficient to plausibly suggest an

entitlement for relief under this standard.

In this case, Defendant Currence appears to only challenge the first prong of the Katz test.

Specifically, while Defendant Currence argues that Plaintiff failed to plausibly assert a claim of

supervisory liability under § 1983, (see ECF No. 18 at 6, 8), he never argues that the alleged

5

constitutional violation was not clearly established, (see generally id.). Thus, the sole question

before the Court is whether the facts in the Complaint, taken as true, are sufficient to show that

Defendant Currence plausibly violated Plaintiff’s constitutional rights.

To that extent, Defendant Currence does not argue that Defendant Demetro’s alleged

conduct did not present “a pervasive and unreasonable risk of constitutional injury” to Plaintiff.

Instead, Defendant Currence claims there are “no facts” that he had actual or constructive

knowledge of or was deliberately indifferent to Defendant Demetro’s behavior because “Plaintiff

does not allege that she reported any misconduct” to him. (See ECF No. 18 at 8–9.) Defendant

Currence also asserts that there “can be no causal link” between any of his alleged inaction and

Defendant Demetro’s alleged behavior because “Plaintiff did not even assert a timeframe” when

Demetro supposedly engaged in the misconduct against her. (See id. at 9.)

The Court disagrees. Plaintiff alleges that Defendant Currence “had actual knowledge . . .

that Plaintiff was exposed to sexual abuse and mistreatment” by Defendant Demetro and “had

notice of a pattern of unconstitutional acts” by Defendant Demetro, (ECF No. 1 at 10 ¶¶ 44–45),

which are legal conclusions that are not considered on a motion to dismiss, see Iqbal, 556 U.S. at

678. However, Plaintiff also states that “[u]pon information and belief, multiple female victims

of DeMetro reported, or attempted to report the abuse to the defendant supervisors.” (ECF No. 1

at 11, ¶ 48.) Indeed, in a related case, another plaintiff alleged that her husband “contacted the

Parkersburg Parole Office and informed Defendant Currence . . . that Defendant Demetro was

sexually harassing [her] while she was under his supervision and control,” but “Currence dismissed

[her] complaints of sexual harassment as lies.”2 K.S. v. Demetro, 2:22-cv-00422 (ECF No. 42 at

2 The Court can take judicial notice of its own docket. See Fed. R. Evid. 201; see also Colonial Penn Ins. Co. v. Coil,

887 F.2d 1236, 1239 (4th Cir. 1989) (“The most frequent use of judicial notice of ascertainable facts is in noticing the

6

14, ¶ 73.) Taking these factual allegations as true, it is plausible that Defendant Currence had

constructive or actual knowledge of Defendant Demetro’s alleged behavior that posed a pervasive

and unreasonable risk of constitutional injury to citizens, including Plaintiff.

Beyond calling potential victims liars, the Complaint asserts that Defendant Currence

“failed to take any action” when presented with allegations of Defendant Demetro’s misbehavior.

(ECF No. 1 at 11.) This alleged refusal to take action in the face of multiple reports can plausibly

demonstrate deliberate indifference. See Baynard v. Malone, 268 F.3d 228, 236 (4th Cir. 2001)

(explaining that a supervisor’s “failure to respond to mounting evidence of potential [sexual]

misconduct” by a subordinate exhibited deliberate indifference).

Further, Plaintiff claimed that Defendant Currence’s failure to enforce laws and policies

directed at deterring sexual abuse “heightened the danger of sexual abuse to Plaintiff” by

Defendant Demetro, (ECF No. 1 at 11), which is sufficient to show an “affirmative causal link” at

the motion to dismiss stage. Although a delay between a supervisor’s actions and their

subordinate’s actions can affect whether there is an affirmative causal link, see, e.g., Jones v.

Wellham, 104 F.3d 620, 627 (4th Cir. 1997) (finding that the link between a supervisor’s decisions

in 1979 and 1980 and his subordinate’s rape in 1990 was “simply too attenuated”); Martinez v.

California, 444 U.S. 277, 284–85 (1980) (holding that girl’s death caused by parolee five months

after his release was “too remote a consequence of the parole officers’ action to hold them

responsible under the federal civil rights law”), the law does not require Plaintiff to plead a specific

timeframe, as Defendant Currence suggests, see Stroud, 13 F.3d at 799.

content of court records.”) (internal citation omitted); Anderson v. Fed. Deposit Ins. Corp., 918 F.2d 1139, 1141 n.1

(4th Cir. 1990) (explaining that a district court may “properly take judicial notice of its own records”).

7

Accordingly, Defendant Currence is not entitled to qualified immunity at this stage in the

proceedings.

B. Statute of Limitations

Typically, a motion pursuant to Rule 12(b)(6) “does not resolve contests surrounding the

facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178

F.3d 231, 243 (4th Cir.1999) (internal quotation marks omitted). But “in the relatively rare

circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint,”

the court may resolve the applicability of a defense by way of a Rule 12(b)(6) motion. Goodman

v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.2007). Therefore, in deciding a motion to dismiss

based on the statute of limitations, the Court can only grant the motion if it “clearly appear[s] on

the face of the complaint” that the plaintiff’s claims are time-barred. Id. (finding that the

complaint failed to allege a date on which the contract was breached or a date on which the breach

was discovered, therefore making it impossible for the court to determine from the face of the

complaint a date of claim accrual); Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir.

2005).

Here, Defendant Currence acknowledges that Plaintiff does not specify the dates of the

alleged sexual assaults or sexual harassments in her complaint. (See ECF No. 1.) It is

abundantly obvious then, that it does not “clearly appear on the face of the complaint” that

Plaintiff’s claim is time-barred.3 Goodman, 494 F.3d at 464. Accordingly, at this stage, the

Court cannot find that Plaintiff’s claim is time-barred by the statute of limitations.

3 Defendant Currence argues that the Court should dismiss the claim because “[t]he absence of any date . . . establishes

. . . that the Complaint is insufficient as it may be time barred.” (ECF No. 18 at 11 , at 10.) This argument, however,

places a burden on Plaintiff to plead that her claim arose within the applicable statutes of limitations, even though it

is well-established law that a plaintiff is not be required to “plead affirmatively in [a] complaint matters that might be

8

IV. CONCLUSION

For these reasons, Defendant Currence’s Motion to Dismiss, (ECF No. 17) is DENIED.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: June 19, 2023

&

responsive to affirmative defenses even before the affirmative defenses are raised.” Goodman, 494 F.3d at 466. The

burden to prove an affirmative defense based on the statutes of limitations lies exclusively with Defendant Currence.

See id.