The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
WILLIAM LIEBAU,
Plaintiff,
v. CIVIL ACTION NO. 2:24-cv-00587
WEST VIRGINIA DIVISION OF
CORRECTIONS AND REHABILITATION,
and LT. TIMOTHY TIBBS,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Defendant West Virginia Division of Corrections and
Rehabilitation’s Motion to Dismiss (Document 11), the Memorandum of Law in Support of West
Virginia Division of Corrections and Rehabilitation’s Motion to Dismiss (Document 12), the
Plaintiff’s Memorandum Response to Defendant West Virginia Division of Corrections and
Rehabilitation’s Motion to Dismiss (Document 16), and the Defendant’s Reply to Plaintiff’s
Memorandum Response to Defendant West Virginia Division of Corrections and Rehabilitation’s
Motion to Dismiss (Document 17), as well as the Complaint (Document 1-1). For the reasons
stated herein, the Court finds that the motion to dismiss should be granted.
FACTUAL ALLEGATIONS
The Plaintiff, William Liebau, initiated this action with a complaint filed against
Defendants West Virginia Division of Corrections and Rehabilitation (WVDCR) and Lt. Timothy
Tibbs on or about July 16, 2024. Mr. Liebau was incarcerated at the North Central Regional Jail
(NCRJ) during the events at issue. WVDCR is responsible for overseeing jails in West Virginia.
Lt. Tibbs was employed as a correctional officer at NCRJ.
A correctional officer sprayed another inmate in Mr. Liebau’s section, and that inmate was
removed from the section. The correctional officer then asked who in the section wanted their
door open. Mr. Liebau, believing that the intent was to offer inmates fresh air following use of
the OC spray, answered in the affirmative. He was taken to a non-contact visitation room.
Defendant Tibbs approached, opened the door, and sprayed him with OC spray, then cuffed him
and took him to a temporary holding cell without properly decontaminating him. Mr. Liebau was
causing no disturbance and had refused no orders when Lt. Tibbs sprayed him without warning.
He suffered burning eyes, shortness of breath, and burning skin, as well as mental anguish,
embarrassment, and humiliation.
Lt. Tibbs filed a false incident report, which caused Mr. Liebau to be placed in the hole.
Mr. Liebau was also threatened that he would be beaten if he filed paperwork or grievances related
to the incident. Lt. Tibbs “has been involved in using excessive force, most commonly through
the use of OC spray, against at least dozens of inmates while he was a correctional officer at
NCRJ.” (Compl. at ¶ 10.)
The Complaint contains the following counts: Count 1 – Outrageous Conduct; Count II –
Violation of 42 U.S.C. § 1983; and Count 3 – Vicarious Liability.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
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F.3d 298, 302 (4th Cir. 2008). 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.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544,
555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further
factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual
inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
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To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis,
588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint,
“articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling
him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining
whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to
dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
DISCUSSION
Defendant WVDCR argues that the sole claim against it, for vicarious liability, is not a
stand-alone claim and is not supported by either of the claims against Lt. Tibbs. WVDCR
contends, and the Plaintiff concedes, that vicarious liability is not available for claims pursuant to
42 U.S.C. §1983. The Defendant concedes that use of OC spray against a compliant inmate who
poses no threat, as alleged, is a violation of clearly established law. However, it contends that it
cannot be vicariously liable for the tort of outrage claim asserted against Lt. Tibbs because it
involves intentional conduct outside the scope of employment. In addition, WVDCR argues that
it is entitled to qualified immunity under West Virginia law because Lt. Tibbs’ alleged actions
were outside the scope of his employment.
The Plaintiff contends that WVDCR is vicariously liable for Lt. Tibbs’ state tort alleged in
Count One. He argues that he has sufficiently alleged facts that would support a finding that the
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conduct was within the scope of employment. He relies on a recent decision by the West Virginia
Supreme Court of Appeals, Crawford v. McDonald, 21-0732 (W. Va. Mar. 31, 2023), which also
involved the use of OC spray against an inmate. He asserts that he has properly plead that Lt.
Tibbs’ conduct was within the scope of his authority and for the benefit of WVDCR as his
employer, and whether that conduct was within the scope of employment should be left to a jury.
In addition, he argues that WVDCR is not entitled to qualified immunity because the conduct was
within the scope of employment, but clearly unlawful based on precedent regarding unnecessary
use of OC spray.
The West Virginia Supreme Court of Appeals has outlined the test for state agency
immunity from vicarious liability for the acts or omissions of its agents and employees as follows:
If the plaintiff identifies a clearly established right or law which has
been violated by the acts or omissions of the State, its agencies,
officials, or employees, or can otherwise identify fraudulent,
malicious, or oppressive acts committed by such official or
employee, the court must determine whether such acts or omissions
were within the scope of the public official or employee's duties,
authority, and/or employment. To the extent that such official or
employee is determined to have been acting outside of the scope of
his duties, authority, and/or employment, the State and/or its
agencies are immune from vicarious liability, but the public
employee or official is not entitled to immunity in accordance with
State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591
(1992) and its progeny. If the public official or employee was acting
within the scope of his duties, authority, and/or employment, the
State and/or its agencies may be held liable for such acts or
omissions under the doctrine of respondeat superior along with the
public official or employee.
Syl. Pt. 12, W. Virginia Reg'l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 756 (W. Va.
2014). The court explained that acts “manifestly outside of the scope of [an employee’s] authority
or employment” are “notable for being driven by personal motives which in no way benefit the
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State or the public, nor is it reasonably incident to the official or agent’s duties.” Id. at 765.
However, “situations wherein State actors violate clearly established rights while acting within the
scope of their authority and/or employment, are reasonably borne by the State.” Id. The West
Virginia Supreme Court has adopted the Restatement factors for determining whether conduct is
within the scope of employment: “if the conduct is (1) of the kind he is employed to perform; (2)
occurs within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose
to serve the master, and (4) if force is used, the use of force is not unexpectable by the master.”
W. Virginia Div. of Corr. & Rehab. v. Robbins, 889 S.E.2d 88, 103 (W. Va. 2023) (emphasis
omitted). “The ‘purpose’ of the act is of critical importance.” Id. “Whether an act falls within
the scope of employment generally presents a question of fact,” unless “the facts are undisputed
and no conflicting inferences are possible.” Crawford v. McDonald, No. 21-0732, 2023 WL
2729675, at *7 (W. Va. Mar. 31, 2023). “Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized, far beyond the authorized time or space
limits, or too little actuated by a purpose to serve the master.” Id. (quoting W. Virginia Reg'l Jail
& Corr. Facility Auth. v. A.B., 766 S.E.2d at 769).
The Defendant emphasizes this Court’s previous opinion in a factually similar case finding
that “the retaliatory use of OC spray could in no way serve the purposes of the WVDOC,” and was
therefore outside the scope of employment. Marcum v. Bailey, No. 2:20-CV-00628, 2020 WL
7646977, at *5 (S.D.W. Va. Dec. 23, 2020) (Berger, J.). The Plaintiff emphasizes the West
Virginia Supreme Court’s reasoning in Crawford, finding that “a jury could reasonably find that
the correctional officers’ conduct in question was within the scope of their employment,” where
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the Plaintiff alleged unjustified use of OC spray, failure to decontaminate, and extended use of
restraints. Crawford, 2023 WL 2729675, at *7.
Mr. Liebau has alleged that Lt. Tibbs sprayed him with OC spray, despite his compliance
with all directives, when he asked for his cell door to be opened after another correctional officer
had sprayed another inmate. He asserts that the other officer, while taking him to the non-contact
visitation room, told him that he was not tough and was all talk, and that he heard Lt. Tibbs ask if
he was at the right door before deploying the spray. Those factual allegations indicate that Mr.
Liebau was sprayed in retaliation for asking for his door to be opened. No conflicting inference
can be drawn from these facts.
On appeal of denial of summary judgment, the West Virginia Supreme Court in Crawford
found that a reasonable jury could find excessive force and could find that the subject officer was
acting withing the scope of his employment based on the disputed facts presented in that case. In
contrast to Crawford, where there was evidence that the plaintiff was on drugs, refused directives
from officers, and could have been viewed as a security risk, Mr. Liebau alleges that he “…was
not a threat to himself, the Defendant, or anyone else at the time he was sprayed…was not causing
any disturbance…never refused any orders…” and was sprayed by Defendant Tibbs without any
warning. The Plaintiff further alleges that Defendant Tibbs “attempted to cover up his wrongful
conduct by filing a false incident report” and that he “was also threatened that if he attempted to
file any paperwork or grievances related to this incident that the correctional officers would beat
him.” (Compl. at ¶ 8 and 9)
Assuming the allegations to be true, no reasonable inference can be drawn that Defendant
Tibbs’ intentional wrongful conduct was done for the benefit of his employer. Although the
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conduct occurred at the time and place of employment, the factual allegations are devoid of any
possible basis for Lt. Tibbs to believe that spraying Mr. Liebau with OC spray would further the
interests of the WVDCR. Based on these allegations, Defendant Tibbs engaged in intentional
conduct outside the scope of his employment. Therefore, the Defendant’s motion to dismiss the
WVDCR must be granted.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that
Defendant West Virginia Division of Corrections and Rehabilitation’s Motion to Dismiss
(Document 11) be GRANTED and that Defendant West Virginia Division of Corrections and
Rehabilitation be DISMISSED from this case.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: _ February 14, 2025
Dire. Benger’
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA