Ivery v. Correctional Officer Keys

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DONTRELL IVERY,

Plaintiff,

v. Civil Action No. 2:23-cv-00733

WEST VIRGINIA DIVISION OF

CORRECTIONS AND

REHABILITATION, CORRECTIONAL

OFFICER KEYS, and

CORRECTIONAL OFFICER DOES

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are defendant West Virginia Division of

Corrections and Rehabilitation’s Motion to Dismiss, see ECF No.

3 (Motion to Dismiss), 4 (memorandum of law) (hereinafter “WVDCR

Mot.”), and defendant Correctional Officer Keys’s Partial Motion

to Dismiss, see ECF No. 5 (Partial Motion to Dismiss), 6

(memorandum of law) (hereinafter “Keys Mot.”), both filed on

November 17, 2023. Plaintiff timely responded in opposition to

defendant Keys’s Motion to Dismiss. See ECF No. 9 (“Pl. Resp.”)

(filed December 1, 2023). Defendant Keys replied in support of

his motion. See ECF No. 10 (filed December 8, 2023). Plaintiff

has not opposed defendant West Virginia Division of Corrections

and Rehabilitation’s Motion to Dismiss.

I. Background

The following allegations are drawn from the

plaintiff’s complaint and are regarded as true for the purposes

of the motions to dismiss.

Plaintiff Dontrell Ivery (“Ivery” or “plaintiff”) is a

citizen of West Virginia and was incarcerated at Saint Mary’s

Correction Center (“Saint Mary’s”) in Pleasants County, West

Virginia, at all times relevant to this complaint. Compl. ¶ 1,

6 ECF No. 1-1. At such times, defendant Keys (“Keys”) was

employed by defendant West Virginia Division of Corrections and

Rehabilitation (“WVDCR”) as a correctional officer at Saint

Mary’s. Id. Unnamed defendant Does were also “employed by”

WVDCR. Id.

Plaintiff alleges that, while he was an inmate, he

“was on the phone when [Keys] hung up the phone and ordered

plaintiff to get on the wall.” Id. at ¶ 7. Plaintiff complied,

and then, as he turned his head toward Keys, Keys “sprayed

plaintiff with OC.”1 Id. At the time he was sprayed, plaintiff

had not disobeyed any order; posed no threat; and did not

present “any risk to himself, [Keys], or to any state property.”

1 Plaintiff varyingly refers to this substance as “OC” or “OC/pepper spray,”

without clarifying what the spray actually was. See Compl. ¶ 2, 7, 11, 13.

The court understands either description to refer to a type of pepper spray.

2

Id. ¶ 7, 8.

Plaintiff alleges that “after spraying plaintiff,

defendant2 placed plaintiff in an intake cell where he was left

overnight.” Id. at ¶ 8. At some unspecified point when he was

in the intake cell, plaintiff requested “that he be

decontaminated.” Id. at ¶ 11. Nonetheless, after being

sprayed, plaintiff “was not properly decontaminated and

continued to suffer the effects of the spray for days,”

including “burning of skin, shortness of breath, and impairment

of his vision.” Id. Defendants “at no time made efforts to

decontaminate plaintiff.” Id. at ¶ 9; see also id. at ¶ 11.

Plaintiff alleges that this “conduct was unwarranted,

unnecessary and unjustified,” “carried out with malice,” and

done “with the intent to inflict unnecessary harm, humiliation,

embarrassment, and emotional distress upon” plaintiff. Id. ¶

11. Plaintiff also alleges that he has “exhausted all

administrative remedies.” Id. at ¶ 3.

On July 27, 2023, Plaintiff filed this suit against

WVDCR, Keys, and the Does in state court, and, on November 13,

2 The complaint does not specify whether this “defendant” was defendant Keys

or a defendant Doe, but context indicates it was defendant Keys.

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2023, it was removed to federal court. See ECF No. 1.

Plaintiff alleges three counts: in Counts I and II,

which are combined, plaintiff alleges under 42 U.S.C. § 1983

that defendants Keys and the Does used excessive force in

violation of the Eighth Amendment and were deliberately

indifferent in violation of the Eighth Amendment;3 and in Count

III, plaintiff alleges WVDCR is “vicariously liable for the

failure to decontaminate the plaintiff.” Id. at ¶ 10-16.

Plaintiff seeks compensatory damages from all defendants, and

plaintiff seeks punitive damages from defendants Keys and the

Does but not from WVDCR. Id. at 16. Though the complaint is

far from clear, under a broad reading of Counts I and II,

plaintiff appears to allege that defendants Keys and Does used

excessive force both when pepper spraying him and when failing

to decontaminate him and that the same defendants were

deliberately indifferent by failing to decontaminate him. Id.

at 10-12.

3 In alleging Counts I and II, plaintiff varyingly asserts that these causes

of actions arise due to “Defendants’” actions, without specifying which

defendants he refers to. Compl. ¶ 10-14. Because plaintiff argues he is

entitled to “compensatory as well as punitive damages against Defendants,”

id. at ¶ 14, and later clarifies that he “is not seeking punitive damages

from [WVDCR],” id. at ¶ 16, the court believes Counts I and II to be alleged

only against Defendants Keys and Does.

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II. Applicable Law

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires a pleading to contain “a short and plain statement of

the claim showing . . . entitle[ment] to relief.” Fed. R. Civ.

P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007). A party

may test the sufficiency of a pleading by moving under Rule

12(b)(6) to dismiss it for “failure to state a claim upon which

relief can be granted.” See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555-58 (2006).

In order to defeat a 12(b)(6) motion, a complaint must

contain “enough facts to state a claim that is plausible on its

face.” Twombly, 550 U.S. at 570. The court, at this early

stage, “must accept as true all of the factual allegations

contained in the complaint.” Erickson, 551 U.S. at 94 (citing

Twombly, 550 U.S. at 555-56). Further, all reasonable

inferences are drawn in favor of the plaintiff. E. I. du Pont

de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir.

2011) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250 (4th Cir. 2009)). “Although for the purposes

of a motion to dismiss we must take all of the factual

allegations in the complaint as true, we are not bound to accept

as true a legal conclusion couched as a factual allegation.”

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Iqbal, 556 U.S. at 678.

III. Discussion

a. WVDCR’s Motion to Dismiss

On November 17, 2023, WVDCR filed its motion to

dismiss, arguing that plaintiff failed to state a claim because

WVDCR cannot be held vicariously liable in Count III under 42

U.S.C. § 1983 and that WVDCR is entitled to qualified immunity

to the extent that “[p]laintiff is also alleging that WVDCR was

negligent in supervising [Keys].” WVDCR Mot. 4. Plaintiff has

not filed a response and this motion is unopposed. Plaintiff

has thus conceded WVDCR’s arguments therein, though the court

will still address them. See Pueschel v. United States, 369

F.3d 345, 354 (4th Cir. 2004) (authorizing the district court,

after allowing plaintiff an opportunity to respond, to “rule on

the [defendant's] motion and dismiss [the] suit on the

uncontroverted bases asserted therein.”); Blankenship v. Necco,

LLC, No. 2:16-cv-12082, 2018 WL 3581092, at *9 (S.D.W. Va. July

25, 2018) (“The failure to respond to arguments raised in a

motion . . . can indicate that the non-moving party concedes the

point or abandons the claim.”).

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Defendant WVDCR contends that the court should

“dismiss the sole vicarious liability claim against the WVDCR as

there can be no successful vicarious liability claim brought

pursuant to 42 U.S.C. § 1983.” WVDCR Mot. 4. Section 1983

establishes that any “person who, under color of any

statute . . . of any State . . . subjects, or causes to be

subjected, any citizen . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law[.]” 42

U.S.C. § 1983. Neither a state nor “public entities and

political subdivisions” that are an “arm or alter ego” of a

state are “persons” under § 1983. Will v. Michigan Dept. of

State Police, 491 U.S. 58, 71 (1989). WVDCR is thus not a

“person” within the meaning of § 1983. See Dorsey v. Bolen, No.

2:21-CV-00222, 2021 WL 4993950, at *3 (S.D.W. Va. Oct. 27, 2021)

(collecting cases). Additionally, “there is no respondeat

superior liability for state agencies based on claims against

its officers [under] § 1983.” Bennett v. W. Virginia Div. of

Correction & Rehab., No. 2:23-CV-00312, 2023 WL 4353708, at *2

(S.D.W. Va. July 5, 2023).

Here, plaintiff alleges in Count III that WVDCR “is

vicariously liable for the failure to decontaminate plaintiff.”

Compl. ¶ 16. Because there is no respondeat superior liability

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for state agencies based on § 1983 claims against its officers,

plaintiff has failed to state a valid claim of vicarious

liability against WVDCR.

Defendant’s argument that plaintiff failed to state a

claim of negligent supervision of defendant Keys and the Does

because WVDCR is entitled to qualified immunity is not relevant

inasmuch as plaintiff did not allege such a claim.

b. Defendant Keys’s Partial Motion to Dismiss

Defendant Keys has moved to dismiss only plaintiff’s

claim of deliberate indifference against him. See generally

Keys Mot. Keys argues that plaintiff failed to plead sufficient

facts to support a meritorious deliberate indifference claim

under § 1983. Id. Keys argues that because Moskos v. Hardee,

24 F.4th 289 (4th Cir. 2022), holds that there is no colorable

deliberate indifference cause of action under § 1983 when the

only claim is that defendant failed to decontaminate plaintiff

and plaintiff suffered only the usual transitory effects of

pepper spray without more, Keys is entitled to dismissal

inasmuch as that is all that plaintiff alleges here. See Keys

Mot. 4-5. In response, plaintiff argues Moskos only holds that

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a short delay of decontamination from pepper spray is not

deliberate indifference, and that district precedent indicates

that a multiday delay of decontamination and the injuries

complained of herein constitute an Eighth Amendment violation.

See Pl. Resp. Keys contends that plaintiff misstates Moskos and

overextends in-district authority. See Keys Reply.

To state a claim of deliberate indifference that

violates the Eighth Amendment under § 1983, a plaintiff must

plead facts that establish (1) an “objective element: a

‘deprivation of a basic human need’ that is ‘sufficiently

serious,’” and (2) a “subjective element: ‘that the officials

acted with a sufficiently culpable state of mind.’” Moskos v.

Hardee, 24 F.4th 289, 297 (4th Cir. 2022) (quoting De'lonta v.

Johnson, 708 F.3d 520, 525 (4th Cir. 2013)); see also Beahm v.

Young, No. 5:21-CV-00547, 2023 WL 2496393 (S.D.W. Va. Mar. 14,

2023). Here, defendant Keys only argues that plaintiff failed

to plead facts that establish the objective component of this

analysis.

To establish the objective prong of the deliberate

indifference analysis, a plaintiff must “allege acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Estelle v. Gamble, 429

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U.S. 97, 106 (1976). “Not all medical delays, of course, will

meet this standard. . . . A commonplace medical delay such as

that experienced in everyday life will only rarely suffice to

constitute an Eighth Amendment violation.” Moskos, 24 F.4th at

297-98. Rather, the objective prong requires the plaintiff to

“show that the alleged delay . . . put him at a substantial risk

of serious harm, such as where the prisoner’s condition

deteriorates markedly or the ailment is of an urgent nature.”

Moskos, 24 F.4th at 298 (internal quotations omitted).

Given its centrality to the defendant’s argument,

Moskos warrants discussion. There, plaintiff was an inmate in

state prison who alleged that prison officials pepper sprayed

him and failed to decontaminate him until “90 to 120 minutes”

thereafter. 24 F.4th, at 297. He experienced “the usual

transitory effects of pepper spray for a period of, at most, 90

to 120 minutes.” Id. at 298. He “did not testify to any serious

medical reaction . . . or to any pain beyond the normal

discomfort of pepper spray,” including “that his eyes were

burning.” Id. at 298. The Fourth Circuit, affirming the

district court’s judgment as a matter of law in favor of

defendants, found that this “short delay in decontamination,

without any aggravating factors such as a serious medical

reaction,” failed to satisfy the objective prong. Id. The

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court found that such allegations “do not remotely resemble

cases where [the Fourth Circuit has] found the objective prong

to be met, as with an inmate who collapsed and subsequently died

after the use of pepper spray or an inmate who was denied

medical attention for several days while vomiting blood.” Id.

(internal citations omitted) (citing Iko v. Shreve, 535 F.3d

225, 241 (4th Cir. 2008); Scinto v. Stansberry, 841 F.3d 219,

231-32 (4th Cir. 2016)).

Conversely, Ivery relies on a district court decision

that adopted the proposed findings and recommendation of a

magistrate judge, where it is found that “[t]he denial of a

decontamination shower for a period of days, or even hours,

after an inmate is subjected to OC spray can constitute an

Eighth Amendment violation.” Saunders v. Burton, No. CV 5:21-

00322, 2022 WL 8299859, at *16 (S.D.W. Va. June 17, 2022),

report and recommendation adopted, No. 5:21-CV-00322, 2022 WL

4484012 (S.D.W. Va. Sept. 27, 2022); see Pl. Resp. 4-5. In

Saunders, the plaintiff had specifically pled that he had “been

exposed to OC spray and body fluids” from events after he was

sprayed, “suffered extreme burning pain,” and was denied a

shower even after ‘the nurse directed officers to provide’ one.”

Id. Further, in support of that claim, the court relied upon a

Fourth Circuit case that found potential genuine questions of

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material fact as to the plaintiff’s deliberate indifference

claim where he had been confined “in four-point restraints for

eight hours, without permitting him to wash off the mace, use a

toilet or receive medical attention.” Williams v. Benjamin, 77

F.3d 756, 768 (4th Cir. 1996). The Fourth Circuit in Williams

did not hold that such action satisfied the objective prong of

the deliberate indifference question, but only that a “reliable

inference of wantonness” existed where the plaintiff was

“screaming in pain as the mace ‘burned’ his face,” “begged and

pleaded for water to wash,” and was “left helpless and in

immense pain for eight hours.” Id. at 765.

In this matter, the substance of the complaint is

somewhat sparse: plaintiff alleges that he was pepper sprayed

“while he was against a wall and posed no threat,” that he was

left overnight “in an intake unit without proper

decontamination,” that the “spray caused burning of plaintiff’s

skin and eyes as well as causing plaintiff to suffer shortness

of breath and emotional distress,” and that he “was not properly

decontaminated and continued to suffer the effects of the spray

for days.” Compl. ¶ 2, 8. At some unspecified point while in

the intake unit, “plaintiff was requesting that he be

decontaminated.” Id. § 11.

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Despite the pleading’s dearth of specificity and

clarity, the court finds that plaintiff has pled sufficient

facts to allege a medical delay that put him “at a substantial

risk of serious harm,” and his complaint thus satisfies the

objective prong of the deliberate indifference inquiry under §

1983. Moskos, 24 F.4th at 298. Though plaintiff only alleged

injuries that would be classified as “the usual transitory

effects” of pepper spray, he also alleged a multi-day delay

before he was decontaminated, which is far longer than the 90 to

120 minute “commonplace medical delay such as that experienced

in everyday life” that the Fourth Circuit found insufficient to

state a claim of deliberate indifference due to delayed

decontamination in Moskos. Id. at 297-298. At the motion to

dismiss stage, it is conceivable that the alleged burning of his

skin, shortness of breath, and impaired vision placed him at

risk of serious harm when suffered for days without

decontamination. The court concludes that plaintiff has

adequately stated a claim of deliberate indifference in

violation of the Eighth Amendment under § 1983 against Defendant

Keys.

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IV. Defendant Does

In his complaint, plaintiff alleged that certain

unnamed other correctional officers at Saint Mary’s (“defendant

Does”), like Keys, violated his Eighth Amendment rights through

the use of excessive force and deliberate indifference. See

Compl. 10-14. Plaintiff did not and still has not specified the

identity of any defendant Doe or the number of such defendants.

Nor has plaintiff certified to the court service or attempted

service of any defendant Doe. Though plaintiff has responded to

discovery requests by defendants, see ECF Nos. 16, 17, plaintiff

has not indicated to the court that he has served any discovery

requests of his own.

Federal Rule of Civil Procedure 4(m) “requires the

dismissal of defendants who remain unserved ninety days after

the filing of a complaint unless ‘the plaintiff shows good

cause.’” Attkisson v. Holder, 925 F.3d 606 (4th Cir. 2019), as

amended (June 10, 2019) (citing Fed. R. Civ. P. 4(m)). It being

244 days since this suit was filed in state court and 135 days

since it was removed to federal court, plaintiff is hereby

ordered to show cause on or before May 3, 2024, as to why the

court should not dismiss this action as to the defendant Does.

If plaintiff fails to do so, the court will dismiss without

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prejudice all claims against the defendant Does under Rule 4(m).

V. Clarity of the Complaint

The court finds it necessary to note that the joinder

of Counts I and II and, at times, the indiscriminate use of the

term “defendants” without identification in the complaint has

forced the court to surmise the claims and facts alleged and

against whom they are pled. Under Federal Rule of Civil

Procedure 10(b):

A party must state its claims or defenses in

numbered paragraphs, each limited as far as

practicable to a single set of

circumstances. . . . If doing so would promote

clarity, each claim founded on a separate

transaction or occurrence—and each defense

other than a denial—must be stated in a

separate count or defense.

Fed. R. Civ. P. 10(b). Plaintiff is hereby directed to file a

written response on or before April 15, 2024, as to whether the

court has interpreted the complaint correctly in this memorandum

opinion and order.

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VI. Conclusion

For the foregoing reasons, the court ORDERS the

following:

1. Defendant WVDCR’s Motion to Dismiss, ECF No. 3, 4,

be, and hereby, is GRANTED in full, and WVDCR is

dismissed from this case.

2. Defendant Keys’s Partial Motion to Dismiss, ECF No.

5, 6, be, and hereby is, DENIED.

3. Plaintiff is ORDERED to file the response requested

by April 15, 2024.

4. Plaintiff is ORDERED to show cause on or before May

3, 2024, as to why the court should not dismiss the

defendant Does under Rule 4(m).

The Clerk is requested to transmit this Order and

Notice to all counsel of record and to any unrepresented

parties.

ENTER: April 4, 2024

sh Aiello

Jo . Copenhaver, Jr.

Senior United States District Judge

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