# Ivery v. Correctional Officer Keys

> District Court, S.D. West Virginia · April 4, 2024

URL: https://www.frixlaw.com/law-library/cases/10731503

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** April 4, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
3
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.
4
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.”
5
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.”).

6
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
7
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
8
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
9
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
10
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
11
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.

12
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.

13
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
14
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.

15
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

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10731503. Public record. Not legal advice.