The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JUSTIN DAVID ROGERS,
Plaintiff,
v. CIVIL ACTION NO. 1:23-00074
MCDOWELL COUNTY COMMISSION,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendants’ motion to dismiss.
ECF No. 3. For the reasons explained below, the motion is
GRANTED.
I. Background
This case is before the court under its removal
jurisdiction, 28 U.S.C. § 1441, after defendants removed the
case from the Circuit Court of McDowell County, West Virginia.
See ECF No. 1. Plaintiff alleges that defendants “Correctional
Officer[s] Green [sic] and Culbertson . . . were employed as
Correctional Transportation Officers by the McDowell County
Commission[,]”1 ECF No. 1, Ex. 1 at ¶ 2, and that “[o]n or about
October 13, 2020, the Plaintiff was transported by van and told
1 Plaintiff misspells Officer Greene’s last name. The complaint
also omits the officers’ full names and where they worked.
Defendants clarify that their names are Randall Greene and
Nicolas Culbertson and that they worked at Stevens Correctional
Center in McDowell County. See ECF No. 4 at 1-2.
to exit the vehicle. The vehicle was not properly maintained
and did not have a step for plaintiff to step on to exit the
vehicle. The defendants were using a milk crate that collapsed
or toppled over. Plaintiff was handcuffed and shackled and
unable to protect himself from falling and being injured.
Plaintiff suffered injuries to his neck, back, ribs, and leg[,]”
id. at ¶ 4. Plaintiff also alleges that “the Defendants were
responsible for safely transporting plaintiff and assisting him
out of the vehicle[,] id. at ¶ 5, and that “[t]he individual
defendants, [sic] wrongfully failed to maintain the vehicle so
that it was safe and wrongfully failed to ensure the safety of
plaintiff as he was exiting the vehicle[,]” id. at ¶ 6.
Plaintiff contends that “[t]he Defendants owed a duty unto the
Plaintiff to properly maintain the vehicle, to operate said
vehicle in a safe manner, and assist plaintiff in exiting the
vehicle[,]” id. at ¶ 7, and that “[t]he Defendants breached all
of the aforesaid duties owed to the Plaintiff while acting under
the color of state law[,]” id. at ¶ 8.
Plaintiff initially alleged claims against both the
McDowell County Commission and the individual defendants,
Officers Greene and Culbertson. See id. at Counts I-IV.
Plaintiff has since, however, withdrawn his claims against the
McDowell County Commission. See ECF No. 6 at 2 n.1. His
remaining claims against the individual defendants are for (1)
“Reckless Conduct” in violation of West Virginia Code § 29-12A-
5(b)(2) and (2) “Deliberate Indifference” in violation of 42
U.S.C. § 1983. See ECF No. 1, Ex. 1 at Counts II and IV.
Defendants have moved this court to dismiss those claims under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing
(1) that West Virginia’s Governmental Tort Claims and Insurance
Reform Act (“GTCIRA”), W. Va. Code § 29-12A-1 (1986) et seq.,
immunizes the individual defendants from plaintiff’s “Reckless
Conduct” claim brought under state law and (2) that plaintiff
fails to allege sufficient facts to support a claim under 42
U.S.C. § 1983.
II. Legal Standard
“The purpose of a Rule 12(b)(6) motion is to test the
[legal] sufficiency of a complaint; importantly, [a Rule
12(b)(6) motion] 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, 243–44 (4th Cir.
1999) (citations and internal quotation marks omitted). A Rule
12(b)(6) defense asserts that even if all the factual
allegations in a complaint are true, they remain insufficient to
establish a cause of action. This court is also mindful that
“[w]hether a particular ground for opposing a claim may be the
basis for dismissal for failure to state a claim depends on
whether the allegations in the complaint suffice to establish
that ground, not on the nature of the ground in the abstract.”
Jones v. Bock, 549 U.S. 199, 215 (2007).
Accordingly, Federal Rule of Civil Procedure 8(a)(2)
requires that “a pleading . . . contain a ‘short and plain
statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677—78 (2009)
(citing Fed. R. Civ. P. 8(a)(2)). The purpose of Rule 8(a)(2)
is to ensure that “the defendant [receives] fair notice of what
the . . . claim is and the grounds upon which it rests.” Conley
v. Gibson, 355 U.S. 41, 47 (1957). A plaintiff must allege
“enough facts to state a claim to relief that is plausible on
its face” and “raise a right to relief above the speculative
level.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,
615 n.26 (4th Cir. 2009).
The United States Supreme Court has maintained that
“[w]hile a complaint . . . does not need detailed factual
allegations, . . . a plaintiff’s obligation to provide the
grounds of his entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations and internal quotation marks
omitted). The court need not “accept as true unwarranted
inferences, unreasonable conclusions, or arguments.” E. Shore
Mkts., Inc. v. J.D. Assocs. Ltd P’ship, 213 F.3d 175, 180 (4th
Cir. 2000). Courts must also take care to avoid confusing the
veracity or even accuracy underlying the allegations that a
plaintiff has leveled against a defendant with the allegations’
likelihood of success. While “the pleading must contain
something more . . . than . . . a statement of facts that merely
creates a suspicion [of] a legally cognizable right of action,”
5 C. Wright & A. Miller, Federal Practice and Procedure § 1216
(3d ed. 2004), “assum[ing]” of course “that all the allegations
in the complaint are true (even if doubtful in fact),” Twombly,
550 U.S. at 555, it is also the case that “Rule 12(b)(6) does
not countenance . . . dismissals based on a judge’s disbelief of
a complaint’s factual allegations.” Neitzke v. Williams, 490
U.S. 319, 327 (1989). Therefore, courts must allow a well-
pleaded complaint to proceed even if it is obvious “that a
recovery is very remote and unlikely.” Scheuer v. Rhodes, 416
U.S. 232, 236 (1974).
III. Discussion
a. GTCIRA Immunity
The GTCIRA states that “[i]ts purposes are to limit
liability of political subdivisions and provide immunity to
political subdivisions in certain instances and to regulate the
costs and coverage of insurance available to political
subdivisions for such liability.” W. Va. Code § 29-12A-1. A
county commission is a political subdivision under the Act. See
W. Va. Code § 29-12A-3(c). The Act also provides broad immunity
to employees of political subdivisions:
(b) An employee of a political
subdivision is immune from liability unless
one of the following applies:
(1) His or her acts or omissions were
manifestly outside the scope of employment
or official responsibilities;
(2) His or her acts or omissions were with
malicious purpose, in bad faith, or in a
wanton or reckless manner; or
(3) Liability is expressly imposed upon the
employee by a provision of this code.
W. Va. Code § 29-12A-5. This statute makes clear that political
subdivision “employees are presumptively immune from liability
outside [these] three enumerated exceptions.” Davis v. Milton
Police Dep’t, No. 3:20-0036, 2020 WL 2341238, at *5 (S.D.W. Va.
May 11, 2020) (citing Kelley v. City of Williamson, 655 S.E.2d
528, 535 (W. Va. 2007)). Under this statute, “the fact that an
individual or entity is immune does not necessarily connote an
absence of otherwise actionable tortious conduct; tortious
conduct theoretically may have occurred for which an individual
or entity has simply been granted immunity from its effects.”
Monongahela Power Co. v. Buzminsky, 850 S.E.2d 685, 694 (W. Va.
2020) (citing W. Va. Code § 29-12A-5).
Plaintiff alleges that the officers’ conduct falls within
the second exception to this immunity because it “was wanton,
willful and reckless while violating policy and procedures
established by the McDowell County Commission as well as state
legislative rules[,]” ECF No. 1, Ex. 1 at ¶ 13, and that their
“wanton and reckless dereliction of their responsibilities
proximately caused plaintiff’s damages,” id. at ¶ 15.
Plaintiff’s sole argument in response to defendants’ motion
to dismiss this claim is that “[b]ecause Plaintiff has asserted
that Defendants’ intentional conduct was reckless, wanton and
intentional, Defendants’ [sic] Green [sic] and Culbertson are
not entitled to immunity and defendants’ motion should be
denied.” ECF No. 6 at 5. This is incorrect. Plaintiff cannot
merely recite the elements of the claim; he must allege facts
supporting the elements.
The West Virginia Supreme Court of Appeals has explained
that the type of conduct that falls within this exception to
immunity requires an intentional act done in disregard of a
known or obvious risk so great as to make it “highly probable”
that harm would follow. See Daugherty v. McDowell Cty. Comm’n,
No. 21-0780, 2022 WL 17444572, at *3 (W. Va. Dec. 6, 2022)
(memorandum decision). For example, in Holsten v. Massey, 490
S.E.2d 864, 877 (W. Va. 1997), that court found that a
defendant’s conduct did not fall within this exception because
“there is no evidence . . . which suggests [the defendant acted]
intentionally . . . or that he was so consciously indifferent to
the consequences . . . that he should have been certain [of the
harm].”
In this case, plaintiff includes the “wanton, willful and
reckless” allegations as labels, conclusions, and formulaic
recitations of West Virginia Code § 29-12A-5(b)(2), and this
court will not give the allegations the presumption of truth.
See Twombly, 550 U.S. at 555. The court is left to consider
only plaintiff’s nonconclusory allegations related to this
claim: that the individual officers caused “the accident,” ECF
No. 1, Ex. 1 at ¶ 3, by breaching their duties to maintain the
van, operate it safely, and help plaintiff exit it, see id. ¶¶
7-8.
These are negligence allegations; plaintiff simply alleges
that defendants breached their duty of care to the plaintiff and
caused damages. Plaintiff does not allege facts supporting a
plausible inference that the officers knew or should have known
of a high probability of harm to plaintiff or that the officers
were consciously indifferent to his safety. The individual
defendants are immune from this claim because “[t]his statutory
immunity for negligence is absolute and not qualified.”
Hamstead v. Harvey, No. 21-0410, 2022 WL 856610, at *8 (W. Va.
Mar. 23, 2022) (memorandum decision).
The court turns next to plaintiff’s § 1983 deliberate
indifference claim from which the GTCIRA provides no immunity.
See W. Va. Code § 29-12A-18(e).
b. Deliberate Indifference Claim
“In order to prevail on a [Section] 1983 claim, a plaintiff
must show that the defendant deprived him of a right secured by
the Constitution and laws of the United States and that the
defendant acted under color of state law.” Wittaker v. West
Virginia Div. of Corr. and Rehab., No. 2:22-cv-00167, 2022 WL
16701133, at *2 (S.D.W. Va. Nov. 3, 2022) (quoting Lester v.
Gilbert, 85 F. Supp. 3d 851, 857 (S.D.W. Va. 2015)). “The
Eighth Amendment, which applies to the States through the Due
Process Clause of the Fourteenth Amendment, prohibits the
infliction of ‘cruel and unusual punishments’ on those convicted
of crimes.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297–98
(1991)). “In the context of prisons, the Eighth Amendment to
the United States Constitution is violated when a corrections
official is deliberately indifferent ‘to a substantial risk of
serious harm to an inmate.’” Insco v. Wexford Health Sources,
Inc., No. 2:19-cv-00612, 2021 WL 4074483, at *5 (S.D.W. Va. Sept.
7, 2021) (quoting Farmer v. Brennan, 511 U.S. 825, 828 (1994)).
Deliberate indifference claims have an objective and
subjective element. See King v. Riley, 76 F.4th 259, 264 (4th
Cir. 2023) (citing Brennan, 511 U.S. at 834-37). “The objective
prong requires the inmate to demonstrate a ‘substantial risk of
serious harm.’” Id. (quoting Brennan, 511 U.S. at 834). The
subjective prong requires that “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.” Brennan, 511 U.S. at 837. “These requirements
spring from the text of the amendment itself; absent
intentionality, a condition imposed on an inmate cannot properly
be called ‘punishment,’ and absent severity, such punishment
cannot be called ‘cruel and unusual.’” Iko v. Shreve, 535 F.3d
225, 238 (4th Cir. 2008) (quoting Wilson, 501 U.S. at 298–300).
Plaintiff alleges under his deliberate indifference count
that “Defendants were aware that a dangerous condition existed
with the vehicle. This condition existed over a span of time
that gave defendants ample opportunity to address and abate the
dangerous condition.” ECF No. 1, Ex. 1 at ¶ 21. He claims that
the failure to address the condition “is an act of deliberate
indifference.” Id. at ¶ 22. Plaintiff also alleges that
“Defendants had full knowledge that they were repeatedly placing
plaintiff in a dangerous environment and that such a placement
was a violation of plaintiff’s constitutional rights under the
Eighth Amendment to the United States Constitution.” Id. at ¶
23.
In plaintiff’s response to defendants’ motion to dismiss
this claim, he simply recites the complaint’s allegations and
argues that taking plaintiff’s allegations as true, this claim
“withstands the legal threshold in connection with a motion to
dismiss.” ECF No. 6 at 4. Like plaintiff’s “Reckless Conduct”
claim, however, this deliberate indifference claim is an attempt
to avoid defendants’ immunity from suit by dressing up a
negligence claim with conclusory allegations of a § 1983 claim.
His nonconclusory allegations fail to satisfy either the
objective or subjective elements of a deliberate indifference
claim.
1. Objective Risk
To satisfy this element, plaintiff must “demonstrate that
‘the deprivation alleged was, objectively, sufficiently
serious.’” Porter v. Clarke, 923 F.3d 348, 355 (4th Cir. 2019)
(cleaned up) (quoting Scinto v. Stansberry, 841 F.3d 219, 225
(4th Cir. 2016)). “To be ‘sufficiently serious,’ the
deprivation must be ‘extreme’—meaning that it poses a ‘serious
or significant physical or emotional injury resulting from the
challenged conditions,’ or ‘a substantial risk of serious harm
resulting from . . . exposure to the challenged conditions.’”
Id. The Supreme Court has explained that “only those
deprivations denying ‘the minimal civilized measure of life’s
necessities are sufficiently grave to form the basis of an
Eighth Amendment violation.’” Hudson v. McMillian, 503 U.S. 1,
9 (1992) (quoting Wilson, 501 U.S. at 298).
Plaintiff alleges that “a dangerous condition existed with
the vehicle” because defendants failed to properly maintain it.
By “dangerous condition,” the court assumes plaintiff means the
use of a milk crate to exit the van, though plaintiff includes
no allegations that defendants knew it was dangerous. Even so,
courts have rejected similar attempts to convert negligence
allegations into constitutional claims.
For example, in Wright v. Collins, 766 F.2d 841, 843 (4th
Cir. 1985), an inmate brought a § 1983 claim against a
correctional officer because the inmate fell from a ladder after
the correctional officer ordered him to clean a deep prison
“moat.” The inmate claimed “he was forced to perform a job
which [the correctional officer] knew was dangerous and
nonetheless compelled him to perform.” Id. at 849. The United
States Court of Appeals for the Fourth Circuit found that “the
facts of th[e] case d[id] not rise to the level of a
constitutional violation. At most, [the officer’s] order that
[the inmate] use an allegedly unsafe ladder was negligence . . .
.” Id.
More recently, in LaRue v. WV Div. of Corr. and Rehab., No.
2:20-cv-00151, 2020 WL 4437470, at *1 (S.D.W. Va. Aug. 3, 2020),
the Chief Judge of this district followed similar reasoning and
rejected an inmate’s deliberate indifference claim brought after
the inmate “slipped and fell into a drainage culvert in the
recreation yard” of a prison and broke his femur. The inmate
claimed that the prison showed deliberate indifference to his
safety because it “did not take steps to remedy this safety
hazard and . . . failed to properly maintain the property.” Id.
(cleaned up). The court dismissed the claim, finding that the
plaintiff failed to “allege a deprivation denying the minimal
civilized measure of life's necessities.” Id. at *3. The court
reasoned that the plaintiff’s allegations that the prison failed
to implement safety measures “is an ordinary tort that does not
rise to the level of a constitutional deprivation.” Id. (citing
Mitchell v. State of West Virginia, 554 F. Supp. 1215, 1217
(N.D.W. Va. 1983)).
Plaintiff’s deliberate indifference claim in this case is
no different. Like Collins, plaintiff alleges only that
defendants knowingly exposed him to a “dangerous condition.”
This claim is devoid of factual enhancement elevating it above
an ordinary tort claim. The allegation alone is not
“significantly grave” to establish an Eighth Amendment
violation. Like LaRue, plaintiff claims that defendants failed
to maintain the van or remedy the alleged safety hazard. As
that court explained, these allegations without more may support
an ordinary tort claim but do not establish a constitutional
violation. Plaintiff’s threadbare allegations of a deliberate
indifference claim do not implicate the Eighth Amendment.
Plaintiff fails to satisfy the objective element of a
deliberate indifference claim.
2. Subjective Appreciation of Risk
The subjective element follows from the principle that
“only the unnecessary and wanton infliction of pain implicates
the Eighth Amendment.” Brennan, 511 U.S. at 834 (quoting
Wilson, 501 U.S. at 297). Knowledge of the “dangerous
condition” is not enough; plaintiff must allege facts supporting
an inference that each defendant “knows of and disregards an
excessive risk to inmate health and safety[.]” Brennan, 511
U.S. at 837 (emphasis added). Under this standard, deliberate
indifference requires “a form of mens rea (or ‘guilty mind’)
equivalent to criminal-law recklessness.” Campbell v. Florian,
972 F.3d 385, 395 (4th Cir. 2020) (citing Brennan, 511 U.S. at
839-40). A prison official’s deliberate indifference can be
established “by showing that a substantial risk of serious harm
was longstanding, pervasive, well-documented, or expressly noted
by prison officials in the past, and the circumstances suggest
that the defendant-official being sued had been exposed to
information concerning the risk and thus must have known about
it.” Cox v. Quinn, 828 F.3d 227, 236 (4th Cir. 2016) (cleaned
up) (quoting Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303
(4th Cir. 2004)). “An official’s failure to alleviate a
significant risk that he should have perceived but did not,
while no cause for commendation, cannot be condemned as the
infliction of punishment.” Duty v. Runyon, No. 3:21-cv-00420,
2021 WL 3413070, at *2 (S.D.W. Va. Aug. 4, 2021) (cleaned up)
(quoting Brennan, 511 U.S. at 838). Also, “evidence of
‘constructive notice’ of a substantial risk generally is not
sufficient to demonstrate deliberate indifference.” Id. (citing
Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir. 2014)). Thus,
“[d]eliberate indifference is a very high standard[.]” Grayson
v. Peed, 195 F.3d 692, 695 (4th Cir. 1999).
In this case, plaintiff alleges that defendants knew of the
“dangerous condition” and failed to correct it. The dangerous
condition alleged is presumably the use of a milk crate to exit
the vehicle, though the complaint is unclear as to precisely
what constituted the alleged dangerous condition. Regardless,
defendants’ knowledge of the dangerous condition is insufficient
to establish deliberate indifference; they must have known of
the excessive risk the alleged dangerous condition presented.
Plaintiff, however, does not allege that defendants knew of any
“substantial risk of serious harm” that use of the milk crate
presented. Plaintiff alleges no documentation of the risk,
prior instances of harm, or any other circumstantial evidence
showing that defendants knew of the alleged risk. Plaintiff
implies through his vague allegations that defendants knew of a
risk to plaintiff simply because they had used the milk crate
“for a span of time.” This would require the court to assume
the officers’ constructive knowledge of the risk presented by
that practice, which is insufficient to establish deliberate
indifference. The court cannot infer defendants’ knowledge of
excessive risk without factual allegations to support that
inference. Without alleging a conscious disregard of an
excessive risk, plaintiff’s allegations cannot establish that
defendants’ conduct constituted “punishment” under the Eighth
Amendment.
Plaintiff fails to sufficiently allege the subjective
element of a deliberate indifference claim.
Iv. Conclusion
For these reasons, defendants’ motion to dismiss (ECF No.
3) is GRANTED. The Clerk is directed to send a copy of this
Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 28th day of September, 2023.
ENTER:
Raut O Dabo
David A. Faber
Senior United States District Judge
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