Rutter v. Tibbs

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

DAMIEN RUTTER,

Plaintiff,

v. CIVIL ACTION NO. 2:24-cv-00026

LT. TIMOTHY TIBBS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendant Steve Caudill’s Motion to Dismiss, [ECF

No. 9]. Plaintiff Damien Rutter (“Plaintiff”) timely responded, [ECF No. 11], and

Defendant Caudill replied, [ECF No. 12]. For the following reasons, Defendant

Caudill’s Motion to Dismiss, [ECF No. 9], is GRANTED.

I. Background

Plaintiff filed suit in this court on January 10, 2024, against Defendants

Timothy Tibbs, Michael Costello, and Steve Caudill. [ECF No. 1, ¶ 2]. His Complaint

states four claims: (1) outrageous conduct; (2) excessive force in violation of the Eighth

Amendment to the United States Constitution, brought under 42 U.S.C. § 1983; (3)

deliberate indifference/supervisory liability; and (4) conspiracy to commit fraud.

¶¶ 12–36. Only the third and fourth counts are directed at Defendant Caudill.

Plaintiff seeks compensatory and punitive damages as well as attorneys’ fees and

costs. ¶ 15.

At all times relevant to this matter, Plaintiff was incarcerated at North Central

Regional Jail (“NCRJ”). ¶ 1. Plaintiff alleges that on or about November 30, 2022,

he was housed in the C-Unit at NCRJ and was called into the hallway where

Defendants Tibbs and Costello asked him what was in his sock. ¶ 7. Plaintiff told

them that he had “his telephone numbers and his jail pin” inside his sock. At this

point, Plaintiff alleges that Defendant Tibbs instructed him to hand Defendant Tibbs

what was in the sock and that when he reached down to comply, Defendant Tibbs

pepper-sprayed him without warning. After being pepper-sprayed, Plaintiff got on

the ground to surrender, and Defendants Tibbs and Costello “proceeded to kick,

punch, knee, and strike Plaintiff as he laid on the ground and was not resisting.”

Defendant Costello allegedly pepper-sprayed Plaintiff while both Defendants were

beating him, and he was laying on the ground.

After this beating and second use of pepper-spray, Defendants Tibbs and

Costello allegedly handcuffed Plaintiff and placed him in a holding cage during which

time they discussed their failure to fully cover Plaintiff with pepper-spray. ¶ 9.

Defendant Tibbs then asked Plaintiff “what his problem was,” to which Plaintiff

replied that he didn’t know what it was that Defendant Tibbs thought he had done

but that he was sorry. In response, Defendant Tibbs allegedly deployed pepper-

spray two more times in Plaintiff’s face and mouth while he was handcuffed,

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shackled, and secured inside a holding cage. He then exclaimed to Defendant

Costello that he “got him.”

Defendant Caudill, who is located in Charleston, West Virginia, was not

present for this incident. Rather, he is the Director of Security for the West Virginia

Division of Corrections and Rehabilitation (“WVDCR”). ¶ 2. In his role as Director

of Security, Defendant Caudill reviews use-of-force reports. Plaintiff alleges that

during a one-year period, Defendant Caudill received over 100 reports accusing

Defendants Tibbs and Costello, and other officers at NCRJ of use of force. Plaintiff

claims that, due to the number of use-of-force reports Defendant Caudill reviewed, he

was on notice that “Defendants Tibbs and Costello ha[d] been involved in an excessive

number of use of force events[,] . . . that Tibbs, Costello, and other Correctional

Officers presented a clear and present danger to the inmates,” and “that excessive

force events were routinely taking place at NCRJ,” but he failed to intervene to

prevent constitutional violations from occurring.

On April 26, 2024, Defendant Caudill filed the instant Motion to Dismiss,

arguing that Plaintiff’s Complaint should be dismissed against him for failure to state

a claim upon which relief can be granted under Federal Rules of Civil Procedure 8,

9(b) and 12(b)(6). [ECF No. 9, at 1]. Specifically, Defendant Caudill contends that “the

Complaint does not set forth a sufficient factual basis to state a plausible claim

against [him] for deliberate indifference or conspiracy to commit fraud.”

Alternatively, Defendant Caudill seeks dismissal on the basis of qualified immunity.

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II. Legal Standard

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. , 521 F.3d 298, 302 (4th Cir. 2008). The

Federal Rules of Civil Procedure require that a complaint make only “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 ruling on a motion to dismiss, courts must accept as true all of the

factual allegations contained in the complaint and draw all reasonable inferences in

favor of the plaintiff.” , No. 2:18-cv-

01334, 2019 WL 956806, at *1 (S.D. W. Va. Feb. 27, 2019) (citing

, 637 F.3d 435, 440 (4th Cir. 2011)). Thus, “a

complaint is to be construed liberally so as to do substantial justice.”

, 846 F.3d 757, 777 (4th Cir. 2017).

To survive a motion to dismiss, the plaintiff's factual allegations, taken as true,

must “state a claim to relief that is plausible on its face.”

, 679 F.3d 278, 288 (4th Cir. 2012) (quoting , 556 U.S. at 678). The

plausibility standard is not a probability requirement, but “asks for more than a sheer

possibility that a defendant has acted unlawfully.” , 556 U.S. at 678 (citing

, 550 U.S. at 556). To achieve facial plausibility, the plaintiff must plead

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facts allowing the court to draw the reasonable inference that the defendant is liable,

moving the claim beyond the realm of mere possibility. . at 663 (citing ,

550 U.S. at 556) Mere “labels and conclusions” or “formulaic recitation[s] of the

elements of a cause of action” are insufficient. , 550 U.S. at 555.

III. Discussion

A. Count III – Supervisory Liability/Deliberate Indifference

The Eighth Amendment to the United States Constitution prohibits “cruel and

unusual punishments.” U.S. Const. amend. VIII. “After incarceration, only the

‘unnecessary and wanton infliction of pain,’ . . . constitutes cruel and unusual

punishment.” , 430 U.S. 651, 670 (1977) (cleaned up) (quoting

, 429 U.S. 97, 103 (1976)). The prohibition of cruel and unusual

punishment gives inmates a “right to be free from malicious or penologically

unjustified infliction of pain and suffering.” , 878 F.3d 89, 102

(4th Cir. 2017) (citing , 452 U.S. 337, 346 (1981)). Pepper-

spraying an inmate who is compliant and poses no physical threat without warning

or justification violates this standard. , 984 F.3d 295, 302 (4th Cir.

2021).

Here, Plaintiff alleges that his body, face, and mouth were pepper-sprayed

multiple times and that he was beaten, all without warning or justification. [ECF No.

1, ¶¶ 7–9]. Defendant Caudill, however, is not alleged to have been an active

participant in those events but rather is only being sued for failing to prevent these

alleged acts from occurring in the first place.

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Plaintiff brings this claim against Defendant Caudill under 42 U.S.C. § 1983.

The Supreme Court has held that anyone who—while acting under the color of state

law—“deprives a person of any rights, privileges, or immunities secured by the

Constitution and laws” may be held liable under § 1983. , 520

U.S. 329, 340 (1997) (internal quotation marks omitted). It is well-established that

multiple actors can be the cause of a single constitutional injury. , 13

F.3d 791, 798 (4th Cir. 1994). Although § 1983 liability may not be premised on a

theory of , supervisory officials who are on notice that their

subordinates are acting unlawfully may be held liable if they fail to intervene and

prevent constitutional injuries, , or if their “supervisory indifference or tacit

authorization of subordinates’ misconduct [is] a causative factor in [those injuries],”

, 737 F.2d 368, 372 (4th Cir. 1984).

To succeed in a supervisory liability case, a plaintiff must demonstrate:

(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.

, 13 F.3d at 799 (internal quotation marks omitted). To establish the first

element, the plaintiff must show that “(1) the supervisor’s knowledge of (2) conduct

engaged in by a subordinate (3) where the conduct poses a pervasive and

unreasonable risk of constitutional injury to the plaintiff.” “Establishing a

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‘pervasive’ and ‘unreasonable’ risk of harm requires evidence that the conduct is

widespread, or at least has been used on several different occasions.” (quoting

, 737 F.2d at 373); , 751 F.3d 214, 226 (4th Cir.

2014).

Here, Plaintiff’s claim against Defendant Caudill is entirely conclusory in

nature, and he fails to allege facts sufficient to state a plausible claim for supervisory

liability. , [ECF No. 1, ¶¶ 2 (“Defendant Caudill was further on notice that

excessive force events were routinely taking place at the NCRJ.”), 26 (“Defendant

Caudill was aware of the pattern and practice of excessive and violent force used by

Defendants Tibbs and Costello.”)]. Plaintiff’s allegations are legal conclusions which

the court need not accept as true. , 550 U.S. at 555 (explaining how

courts “are not bound to accept as true a legal conclusion couched as a factual

allegation”) (citing , 478 U.S. 265, 286 (1986)).

In his Complaint, Plaintiff does assert a factual allegation that Defendant

Tibbs was involved in over 100 use of force events over the course of a one-year period

and that Defendant Caudill reviewed all use of force reports. [ECF No. 1, ¶ 2]. While

Plaintiff does allege that these incidents took place prior to the November 30, 2022,

pepper-spraying and beating, he fails to allege that those incidents were instances of

unwarned and unjustified pepper-spraying and beating. He pleads no facts that

establish that there was a widespread practice of these particular constitutional

violations—unwarned and unjustified pepper-sprayings and beatings—at NCRJ

prior to November 30, 2022.

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Rather, Plaintiff simply alleges that Defendant Caudill knew of Defendants

Tibbs’ and Costello’s alleged tendencies to engage in unlawful conduct generally

because Caudill “personally reviewed use of force events that exceeded 100 events in

[one]-year[’]s time.” ¶ 21. In making this claim, he asks the court to jump hand-

in-hand with him to the conclusion that Defendant Caudill tacitly authorized

Defendant Tibbs’ alleged misconduct. It is not an undue burden to require that the

pleader meet the minimal standards of stating the wrong in a fashion which is

recognized as sufficient under and and the Federal Rules of Civil

Procedure. Plaintiff has not established a “widespread practice of the particular

unconstitutional conduct” which he claims he experienced. , No.

2:23-cv-00491, 2024 WL 1804388, at *3 (S.D. W. Va. Apr. 25, 2024). As such, his claim

for supervisory liability must be dismissed.

B. Count IV

Finally, Defendant Caudill moves for dismissal of Count IV—conspiracy to

commit fraud—as it relates to him. [ECF No. 9]. He alleges that, “[t]o the extent [this

count] is intended to apply to Defendant Caudill, such a claim should be dismissed as

Plaintiff has failed to make a sufficient showing to withstand the requirements of

Rule 9(b) of the Federal Rules of Civil Procedure.” [ECF No. 10, at 11].

In response, Plaintiff clarifies that he is not asserting a claim against

Defendant Caudill in Count IV. [ECF No. 11, at 1]. This, however, is not obvious in

reading the Complaint. Instead of alleging that only Defendants Tibbs and Costello

engaged in conspiratorial conduct, Plaintiff asserts that “[t]he Defendants

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conspired with one another to file false incident reports.” [ECF No. 1, ¶ 35

(emphasis added)]. Had Plaintiff not raised this point in his response brief, the court

would have presumed Count IV to apply to all defendants, including Defendant

Caudill. Although Plaintiff seeks to rectify this issue in his response brief, parties

may not amend their complaints or cure deficiencies therein through briefing.

, 713

F.3d 175, 184 (4th Cir. 2013).

Regardless, Plaintiff fails to state a claim upon which relief can be granted in

Count IV against Defendant Caudill. The Federal Rules of Civil Procedure provide

that, “[i]n alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). As it relates to

Defendant Caudill, Plaintiff has not done so here. As such, Count IV must be

dismissed as to Defendant Caudill for failure to state a claim upon which relief may

be granted.

IV. Venue

Finally, the court has concerns about whether the Southern District of West

Virginia is the most appropriate venue for this case. As a general matter, cases

arising under federal law “may be brought in (1) a judicial district in which any

defendant resides, if all defendants are residents of the State in which the district is

located; (2) a judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred,” or (3) any judicial district in which any defendant

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is subject to the court’s personal jurisdiction if there is no other district. 28 U.S.C. §

1391(b)(1).

The federal venue statute allows a district court to “transfer any civil action to

any other district or division where it might have been brought” for “the convenience

of parties and witnesses.” 28 U.S.C. § 1404(a). This statute gives courts authority to

transfer an action upon consideration of certain factors, such as

convenience of parties and witnesses, as well as whether transfer would be in the

interest of justice. 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice & Procedure §§ 3844, 3847–48 (4th ed. 2023). It is proper, however,

to first provide the parties with notice and an opportunity to be heard and present

their views about the transfer. See, e.g., , 440 F. App’x

704, 706 (11th Cir. 2011); , 446 F.2d 643, 647 (6th Cir.

2006); , 512 F.2d 918, 934 (D.C. Cir. 1974) (“[B]efore ordering

transfer the judge should, at minimum, issue an order to show cause why the case

should not be transferred, and thereby afford the parties an opportunity to state their

reasons for believing that this forum is most convenient or that the proposed

alternative forum is inconvenient or not within the ambit of § 1404(a).”).

Here, all of the alleged activities that form the basis of the Complaint occurred

at North Central Regional Jail, which is located in the Northern District of West

Virginia. Furthermore, Plaintiff makes no statement as to why he believes the

Southern District of West Virginia is the proper venue, nor has he alleged where each

Defendant resides, except for Mr. Caudill, who has now been dismissed from this

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action. In light of the foregoing, J ORDER the parties to brief me on the issue of

whether this district or the Northern District of West Virginia is the most appropriate

venue in which to litigate this case. The parties have fourteen (14) days from the

entry of this order to respond if such party would oppose a sua sponte transfer of

venue.

V. Conclusion

For the foregoing reasons, Defendant Caudill’s Motion to Dismiss, [ECF No. 9],

is GRANTED. The Defendant Caudill is hereby DISMISSED from this action. Counts

I, II, and IV, remain pending against Defendants Tibbs and Costello. 1 ORDER the

parties to submit briefs within fourteen (14) days of the entry of this order as to

whether this district or the Northern District of West Virginia is the most appropriate

venue in which to litigate this case if the party opposes a sua sponte transfer of venue.

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

any unrepresented party.

ENTER: June 4, 2024

G

ow STATES DISTRICT JUDGE

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