Hallman-Warner v. Bluefield State College Board of Directors

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

SHELIA HALLMAN-WARNER,

Plaintiff,

v. CIVIL ACTION NO. 1:22-00243

BLUEFIELD STATE COLLEGE

BOARD OF GOVERNORS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are defendants’ motions to

dismiss. See ECF Nos. 21, 24, and 26. For the reasons

expressed below, those motions are GRANTED.

I. Background

Plaintiff Shelia Hallman-Warner, acting pro se, filed the

instant complaint on May 31, 2022. See ECF No. 2. In her

complaint, Hallman-Warner complains of events occurring on

December 23, 2020, at Bluefield State College in Bluefield, West

Virginia. See id. The complaint is written on a form available

on the court’s website and is entitled “COMPLAINT FOR VIOLATION

OF CIVIL RIGHTS (Non-Prisoner Complaint). See id.

A recent decision by West Virginia’s Intermediate Court of

Appeals provides background relevant to plaintiff’s instant

complaint:

Ms. Hallman-Warner was a professor at Bluefield

State. On August 20, 2018, Ms. Hallman-Warner, by

counsel, filed the underlying complaint [in the

Circuit Court of Kanawha County] against Bluefield

State alleging that its representatives intentionally

provided false and misleading information to the

county prosecutor in order to maliciously prosecute a

misdemeanor charge against her for discharging a stun

gun at the college. Bluefield State allegedly

provided the false and misleading information in

retaliation for Ms. Hallman-Warner voicing concerns

about institutional management issues at the college.

On December 16, 2020, the parties participated in

a court-ordered mediation. The parties mediated for

three full days, finally agreeing near the close of

business on December 18, 2020, that Ms. Hallman-Warner

would immediately resign or retire; Bluefield State

would pay an agreed upon monetary sum certain to Ms.

Hallman-Warner and would pay for the mediator; the

settlement agreement would be confidential to the

extent allowed by law; and the settlement agreement

would include a non-disparagement clause.

On January 19, 2021, Ms. Hallman-Warner executed

a confidential release and settlement agreement

memorializing the parties’ agreement at mediation.

Settlement checks were sent to her then counsel on

February 2, 2021. On February 4, 2021, Ms. Hallman-

Warner returned Bluefield State’s tablet. On February

12, 2021, the circuit court entered an order

dismissing the case, with prejudice, on the basis that

the parties had reached a settlement of all claims.

On February 16, 2021, the settlement checks were

cashed.

Hallman-Warner v. Bluefield State Coll. Bd. of Governors, No.

22-ICA-38, 2023 WL 2367454, at *1 (W. Va. Ct. App. Mar. 6,

2023).1

1 A few months after entering into the settlement agreement,

Hallman-Warner moved to invalidate it. The circuit court denied

that motion and the intermediate court of appeals affirmed. See

Hallman-Warner, 2023 WL 2367454, at *1-3.

2

Hallman-Warner’s complaint in this matter picks up after

she settled in her state court case. According to the

allegations of the Complaint, which are taken as true at this

stage of the proceedings, plaintiff states:

Court ordered mediation was held on 12/16/20,

demanding resignation alleged to be discrimination and

retaliation for engaging in Whistleblower activity,

2015-Present. Plaintiff resigned on 12/23/20 under

threats of termination, bullying, duress, coercion.

Plaintiff was threatened with arrest if attempted to

enter her faculty office prior to arranged date and

time. On 12/23/20, approximately 1:00 p.m. plaintiff

arrived on campus to be met with police officer

present while cleaning out office, escorted out of

building and off campus. Brent Benjamin ordered the

escort, depriving plaintiff of entitled freedoms; Ted

Lewis was present and returned periodically to assess

progress of police escort. Robin Capehart and Board

of Governor’s [sic] are allegedly complicit in

violation of constitutional rights including the right

to be free of defamation of character. Every citizen

has inalieable [sic] rights including freedom from

harassment, discrimination, retaliation, toxic work

environment, whistleblower protections, that reject

defendant being allowed to make plaintiff to be

punished. All efforts futile to hold to account.

ECF No. 2 at 4.

That form complaint informs plaintiff that “[u]nder 42

U.S.C. § 1983, you may sue state or local officials for the

‘deprivation of any rights, privileges, or immunities secured by

the Constitution and [federal laws].’” Id. at 3. The form asks

plaintiff “what federal or statutory right(s) do you claim

3

is/are being violated by state or local officials?” Id. She

responded:

Violation of due process and equal protections, 5th &

14th Amendment, violation of 1st Amendment rights,

denial of right to pblic [sic] space; denial of right

to prvacy [sic], denied freedom of movement at

institution of public higher eductation [sic]

receiving federal and state taxpayer funding[,]

Defamation[,] Libel in state court records-State +

federal

Id.

Named as defendants in plaintiff’s complaint are Garry

Moore, Chair of the Bluefield State College Board of Governors;

Robin Capehart, former President of Bluefield State; Brent

Benjamin, Vice-President and General Counsel for Bluefield

State; and Ted Lewis, Vice-President for Academic Affairs for

Bluefield State. See id. at 2-3. All were sued in their

official capacity. See id. Plaintiff has also sued Capehart,

Benjamin, and Lewis in their individual capacity.2 See id.

In her prayer for relief, Hallman-Warner asks for:

Damages, punitive, compensatory, pecuniary, non-

pecuniary as deemed appropria[te] by jury. No dollar

amount will restore the pain, suffering, physical

deterioration of appearance, weight loss as a result

of the extreme trauma and stress endured based on

willful, deliberate intent to cause emotional

2 Plaintiff’s complaint is confusing as to whether she is suing

Lewis in his individual capacity as she checked the box to do so

on the form but then marked it out. See id. at 3. The court

has proceeded as though plaintiff is suing Lewis in his

individual capacity as well as his official capacity.

4

distress, mental anguish to achieve goal of

Constructive discharge, engaged in since 1015 [sic].

Punitive damages could not be excessiv[e] enough to

punish these individuals and ensure no human being is

treated in the manner in which plaintiff has been.

Additionally, recently deceased spouse (March 13,

2022) endured waiting and witnessing police escort of

spouse of 32 years.

Id. at 5.

Defendants Moore, Lewis, and Benjamin have all filed

motions to dismiss. They argue that the claims against them in

their official capacity are barred by the Eleventh Amendment.

They also maintain that the complaint fails to state a claim

against them and that, even if it does, they are entitled to

qualified immunity.

In opposing the motions to dismiss, plaintiff argues that,

as a recipient of federal funding, Bluefield State “cannot claim

sovereign immunity if sued in federal court.” See, e.g., ECF

No. 31 at 2; ECF No. 54 at 2.

II. Standards of Review

A. 12(b)(1)

A motion to dismiss pursuant to Rule 12(b)(1) asks whether

a court may hear and adjudicate the claims before it. Federal

courts are courts of limited jurisdiction and can act only in

those specific instances authorized by Congress. See Bowman v.

White, 388 F.2d 756, 760 (4th Cir. 1968).

5

The plaintiff bears the burden of proving the existence of

subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166

F.3d 642, 647 (4th Cir. 1999). When considering a motion to

dismiss under Rule 12(b)(1), “the court may consider the

evidence beyond the scope of the pleadings to resolve factual

disputes concerning jurisdiction.” Williams v. United States, 50

F.3d 299, 304 (4th Cir. 1995); see also Evans, 166 F.3d at 647

(“When a defendant challenges subject matter jurisdiction

pursuant to Rule 12(b)(1), ‘the district court is to regard the

pleadings as mere evidence on the issue, and may consider

evidence outside the pleadings without converting the proceeding

to one for summary judgment.’”) (quoting Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765,

768 (4th Cir. 1991)).

B. 12(b)(6)

"[A] motion to dismiss for failure to state a claim for

relief should not be granted unless it appears to a certainty

that the plaintiff would be entitled to no relief under any

state of facts which could be proved in support of his claim."

Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th

Cir. 1989) (citation omitted) (quoting Conley v. Gibson, 355

U.S. 41, 48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355

(4th Cir. 1969)). "In considering a motion to dismiss, the

6

court should accept as true all well-pleaded allegations and

should view the complaint in a light most favorable to the

plaintiff." Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130,

1134 (4th Cir. 1993); see also Ibarra v. United States, 120 F.3d

472, 474 (4th Cir. 1997) (same).

In evaluating the sufficiency of a pleading, the cases of

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

Iqbal, 556 U.S. 662 (2009), provide guidance. When reviewing a

motion to dismiss, under Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim upon which relief may be

granted, a court must determine whether the factual allegations

contained in the complaint “give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests,”

and, when accepted as true, “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (quoting Conley,

355 U.S. at 47; 5 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1216 (3d ed. 2004)). “[O]nce a

claim has been stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the

complaint.” Id. at 563. As the Fourth Circuit has explained,

“to withstand a motion to dismiss, a complaint must allege

‘enough facts to state a claim to relief that is plausible on

7

its face.’” Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342,

350 (4th Cir. 2013) (quoting Twombly, 550 U.S. at 570).

According to Iqbal and the interpretation given it by our

appeals court,

[L]egal conclusions, elements of a cause of action,

and bare assertions devoid of further factual

enhancement fail to constitute well-pled facts for

Rule 12(b)(6) purposes. See Iqbal, 129 S.Ct. at 1949.

We also decline to consider “unwarranted inferences,

unreasonable conclusions, or arguments.” Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.

26 (4th Cir. 2009); see also Iqbal, 129 S. Ct. at

1951-52.

Ultimately, a complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 129

S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007)). Facial plausibility is established once the

factual content of a complaint “allows the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. In other

words, the complaint's factual allegations must

produce an inference of liability strong enough to

nudge the plaintiff's claims “‘across the line from

conceivable to plausible.’” Id. at 1952 (quoting

Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

Satisfying this “context-specific” test does not

require “detailed factual allegations.” Id. at

1949-50 (quotations omitted). The complaint must,

however, plead sufficient facts to allow a court,

drawing on “judicial experience and common sense,” to

infer “more than the mere possibility of misconduct.”

Id. at 1950. Without such “heft,” id. at 1947, the

plaintiff's claims cannot establish a valid

entitlement to relief, as facts that are “merely

consistent with a defendant's liability,” id. at 1949,

fail to nudge claims “across the line from conceivable

to plausible.” Id. at 1951.

8

Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250,

255-56 (4th Cir. 2009); see also Midgal v. Rowe Price-Fleming

Int’l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (“The presence of

a few conclusory legal terms does not insulate a complaint from

dismissal under Rule 12(b)(6) when the facts alleged in the

complaint cannot support the legal conclusion.”).

C. Failure to Serve

Under Rule 4, service must be perfected upon a defendant

within 90 days of filing the complaint. See Fed. R. Civ. P.

4(m). If the plaintiff has not completed service within 90

days, the court must determine whether the plaintiff has shown

good cause for failing to timely effect service. See id.

The Fourth Circuit has explained that “good cause” in the

context of Rule 4(m) “requires some showing of diligence on the

part of the plaintiffs . . . [and] generally exists when the

failure of service is due to external factors, such as the

defendant's intentional evasion of service.” Attkisson v.

Holder, 925 F.3d 606, 627 (4th Cir. 2019). A “plaintiff bears

the burden . . . of demonstrating good cause for any delay.”

Iskander v. Baltimore Cty., Md., 2011 WL 4632504, at *1 (D. Md.

Oct. 3, 2011). Courts often look to several factors to guide

their determination of whether plaintiffs have shown good cause,

9

which “include whether: 1) the delay in service was outside the

plaintiff's control, 2) the defendant was evasive, 3) the

plaintiff acted diligently or made reasonable efforts, 4) the

plaintiff is pro se or in forma pauperis, 5) the defendant will

be prejudiced, or 6) the plaintiff asked for an extension of

time under Rule 6(b)(1)(A).” Scott v. Maryland State Dep't of

Labor, 673 F. App'x 299, 306 (4th Cir. 2016) (citations

omitted). “What constitutes ‘good cause’ for purposes of Rule

4(m) ‘necessarily is determined on a case-by-case basis within

the discretion of the district court.’” Collins v. Thornton,

782 F. App'x 264, 267 (4th Cir. 2019) (quoting Scott, 673 F.

App'x at 306 (4th Cir. 2016)).

However, “even if there is no good cause shown . . .

[district] courts have been accorded discretion to enlarge” the

period for service. Henderson v. United States, 517 U.S. 654,

662 (1996) (quoting Advisory Committee's Notes); see, e.g.,

Escalante v. Tobar Constr., Inc., 2019 WL 109369, at *3 (D. Md.

Jan. 3, 2019). Courts have identified several non-exhaustive

factors that guide the discretionary decision of whether to

enlarge the service period. Such factors include “(i) the

possibility of prejudice to the defendant, (ii) the length of

the delay and its impact on the proceedings, (iii) the reason(s)

for the delay and whether the delay was within the plaintiff's

10

control, (iv) whether the plaintiff sought an extension before

the deadline, (v) the plaintiff's good faith, (vi) the

plaintiff's pro se status, (vii) any prejudice to the plaintiff,

such as by operation of statutes of limitation that may bar

refiling, and (viii) whether time has previously been extended.”

Robinson v, G D C, Inc., 193 F. Supp. 3d 577, 580 (E.D. Va.

2016).

D. Pro se filings

Courts are required to liberally construe pro se

complaints, such as the one filed in this action. See Erickson

v. Pardus, 551 U.S. 89, 94 (2007). Even under this less

stringent standard, however, the complaint must contain

sufficient factual allegations to support a valid legal cause of

action. See Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761,

765 (4th Cir. 2003). The court may not rewrite the pleading to

include claims that were never presented, Parker v. Champion,

148 F.3d 1219, 1222 (10th Cir. 1998), construct the plaintiff's

legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18

(7th Cir. 1993), or “conjure up questions never squarely

presented” to the court. Beaudett v. City of Hampton, 775 F.2d

1274, 1278 (4th Cir. 1985).

11

III. Analysis

A. Robin Capehart

On April 16, 2024, the court entered an Order informing

plaintiff that the docket in this action reflected that service

had not been obtained upon the defendants and ordering her to

demonstrate good cause for not serving defendants with process.

See ECF No. 15. Plaintiff was also informed that “[f]ailure to

respond to this order within ten days or an insufficient showing

of good cause will result in dismissal without prejudice.” Id.

Plaintiff responded to the Order by providing proof of

service for defendants Benjamin, Moore, and Lewis. See ECF Nos.

16, 17, 18, and 28. She also filed a motion seeking additional

time to serve defendant Capehart. See ECF No. 19. That motion

was granted and she was given until July 20, 2024, to serve

Capehart. See ECF No. 34.

Plaintiff never provided proof of service for Capehart.

Accordingly, by Order entered on February 10, 2025, the court

ordered plaintiff to provide proof of service for Capehart or

the complaint would be dismissed as to him without prejudice.

See ECF No. 58. Plaintiff did not respond to that Order.

“‘Good cause’ as used in Rule 4(m) refers to a legally

sufficient ground or reason based on all relevant

circumstances.” Robinson, 193 F. Supp.3d at 580 (citing

12

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 342 (1991)).

“A plaintiff's pro se status is not sufficient to establish good

cause.” Shirley v. Staubs, 812 F. App'x 162, 162 (4th Cir.

2020).

Here, plaintiff has failed to state good cause for her

failure to serve Capehart. Nor has she asked for additional

time or indicated that she will be able to serve defendant

Capehart in the foreseeable future. As such, any further

extension of the service period would be futile.

The court also notes that plaintiff alleges no specific

acts of wrongdoing on the part of defendant Capehart. Her sole

allegation as to him is that “Capehart and Board of Governor’s

[sic] are allegedly complicit in violation of constitutional

rights.” ECF No. 2 at 4.

“[W]hen a jurisdictional attack is filed in conjunction

with other Fed. R. Civ. P. 12 motions, the court should consider

the jurisdictional attack before addressing any attack on the

merits.” Tang v. University of Baltimore, 782 F. App’x 254, 256

(2019) (“Addressing the jurisdictional attacks (improper service

and Eleventh Amendment immunity) first, we find that that the

claims . . . against the individual Defendants in their official

capacities are barred by the Eleventh Amendment [and] that Tang

has failed to meet his burden of showing proper service. . . .

13

Accordingly, because the district court lacked subject matter

jurisdiction and/or personal jurisdiction over Tang’s claims the

court lacked the jurisdiction to consider the Defendants’

arguments as to the merits of the complaint. Accordingly, we

modify the district court’s order to show that the dismissal is

based on jurisdictional grounds and is without prejudice[.]”).

Given that Capehart has not been served, he is DISMISSED

from this action without prejudice. See Davis v. Wells Fargo

Auto, Case No. 5:21-CV-00205-M, 2022 WL 54549, at *6 (E.D.N.C.

Jan. 5, 2022) (dismissing claims against certain defendants

without prejudice pursuant to Rule 4(m)).

B. 1983 Claims

To prevail on her claim under 42 U.S.C. § 1983, Hallman-

Warner must establish that a person acting under the color of

state law deprived her of a right secured by the Constitution or

laws of the United States. See American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49-50 (1999); Thomas v. The Salvation

Army Southern Territory, 841 F.3d 632, 637 (4th Cir. 2016).

“The doctrine of qualified immunity shields [law

enforcement] officers from civil liability so long as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” City of Tahlequah, Oklahoma v. Bond, 595 U.S. 9, 12

14

(2021) (cleaned up). Qualified immunity “balances two important

interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan, 555 U.S.

223, 231 (2009).

The Supreme Court laid out a two-step process for resolving

the qualified immunity claims of government officials. See

Saucier v. Katz, 533 U.S. 194, 201 (2001). First, a court must

decide whether the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right. See id.

Second, a court must decide whether the right at issue was

“clearly established” at the time of defendant's alleged

misconduct. Id. Courts may exercise discretion in deciding

which of the two Saucier prongs “should be addressed first in

light of the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236. “That means that we may grant

qualified immunity on the ground that the purported right was

not clearly established without resolving the ‘often more

difficult question whether the purported right exists at all.’”

Atkinson v. Godfrey, 100 F.4th 498, 504 (4th Cir. 2024) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). “In the Fourth

Circuit, we have a split burden of proof for the qualified-

15

immunity defense. The plaintiff bears the burden on the first

prong, and the officer bears the burden on the second prong.”

Stanton v. Elliott, 25 F.4th Cir. 227, 233 (4th Cir. 2022)

(citing Henry v. Purnell, 501 F.3d 374, 377-78 & n.4 (4th Cir.

2007)).

A clearly established right is one that is “sufficiently

clear that every reasonable official would have understood that

what he is doing violates that right.” Reichle v. Howards, 566

U.S. 658, 664 (2012) (cleaned up). “We do not require a case

directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Ashcroft

v. al–Kidd, 563 U.S. 731, 741 (2011). “Qualified immunity gives

government officials breathing room to make reasonable but

mistaken judgments and protects all but the plainly incompetent

or those who knowingly violate the law.” Stanton v. Sims, 571

U.S. 3, 6 (2013) (cleaned up).

Whether a right is clearly established is a question of

law. Ray v. Roane, 948 F.3d 222, 228 (4th Cir. 2020). “[T]o

determine whether a right was clearly established, we first look

to cases from the Supreme Court, this Court, or the highest

court of the state in which the action arose.” Id.

“While qualified immunity provides a defense to liability,

it is also intended to free officials from litigation concerns

16

and disruptive discovery.” Atkinson v. Godfrey, 100 F.4th 498,

504 (4th Cir. 2024). The Supreme Court has “emphasized that

qualified immunity questions should be resolved at the earliest

possible stage of litigation” given that the immunity exists “to

protect public officials from the broad-ranging discovery that

can be peculiarly disruptive of effective government.” Anderson

v. Creighton, 483 U.S. 635, 646 n.6 (1987) (cleaned up); see

also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the

plaintiff's allegations state a claim of violation of clearly-

established law, a defendant pleading qualified immunity is

entitled to dismissal before the commencement of discovery”

because “even such pretrial matters as discovery are to be

avoided if possible[.]”); Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982) (“Until the threshold immunity question is resolved,

discovery should not be allowed.”).

Therefore, this court has instructed lower courts to “give

a qualified immunity defense at the dismissal stage of

litigation a hard look [or] it risks unwittingly the forfeiture

of some protections afforded by that defense.” McVey v. Stacy,

157 F.3d 271, 275 (4th Cir. 1998); see also Putney v. Likin, 656

F. App'x 632, 641 (4th Cir. 2016) (A “district court must, at

the outset, address the defendants' claim of qualified immunity,

because such immunity is designed to protect the defendants from

17

both discovery and trial.”) (Niemeyer J., concurring in part,

dissenting in part, and concurring in the judgment). “It is

therefore incumbent on the courts to review the immunity defense

critically at an early stage of the proceedings to determine the

legal questions of whether the plaintiff has asserted a

violation of a constitutional right and, if so, whether the

constitutional right allegedly violated was clearly established

at the time the defendant acted.” McVey, 157 F.3d at 275; see

also Oliver v. Roquet, 858 F.3d 180, 188 (3rd Cir. 2017)

(“[Q]ualified immunity may be implicitly denied when a

government official otherwise entitled to immunity is

nonetheless subjected to ‘the burdens of such pretrial matters

as discovery.’”) (quoting Behrens v. Pelletier, 516 U.S. 299,

308 (1996) (internal quotation marks omitted)).

Plaintiff alleges that defendants violated multiple

constitutional rights. The court considered each right

allegedly violated to see if plaintiff has stated a claim upon

which relief may be granted. Having done so, for the reasons

explained below, the court finds that plaintiff has not.

1. Eleventh Amendment

“The Eleventh Amendment bars suits in federal court against

a state by its own citizens, citizens of other states, and

citizens of other countries.” Doe v. Coastal Carolina Univ.,

18

359 F. Supp.3d 367, 378 (D.S.C. 2019). Specifically, the

Eleventh Amendment provides:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

“State sovereign immunity bars all claims by private citizens

against state governments and their agencies, except where

Congress has validly abrogated that immunity or the state has

waived it.” Biggs v. N.C. Dep’t Pub. Safety, 953 F.3d 236, 241

(4th Cir. 2020) (cleaned up).

Furthermore, “[i]t has long been settled that the reference

to actions ‘against one of the United States’ encompasses not

only actions in which a State is actually named as the

defendant, but also certain actions against state agents and

state instrumentalities.” Regents of the Univ. of California v.

Doe, 519 U.S. 425, 429 (1997) (quoting Poindexter v. Greenhow,

114 U.S. 270, 287 (1885)); see also Coastal Carolina, 359 F.

Supp.3d at 378 (“Eleventh Amendment immunity also extends to

arms of the State and state employees acting in their official

capacity”) (internal quotation and citation omitted).

“In deciding whether public state universities are arms of

the state, courts ‘[a]lmost universally . . . answer . . . in

the affirmative.’” Coastal Carolina, 359 F. Supp.3d at 379

19

(quoting Md. Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d

255, 262 (4th Cir. 2005) (citations omitted)). In an earlier

case involving plaintiff, this court has already found that

Bluefield State College is an arm of the State of West Virginia

and entitled to sovereign immunity under the Eleventh Amendment.

See Hallman-Warner v. Bluefield State College, Case No. 1:17-cv-

02882, 2018 WL 1309748, at *7 (S.D.W. Va. Jan. 19, 2018) (“[T]he

law is well-settled that BSC is an arm of the State of West

Virginia.”); see also State ex rel. West Virginia Bd. of Ed. v.

Sims, 101 S.E.2d 190, 193 (W. Va. 1957) (holding that “Bluefield

State College is an arm of the state and has no existence

independent of the state.”).

As our appeals court has recognized, “[t]he Eleventh

Amendment bar to suit is not absolute[.]” Lee-Thomas v. Prince

George’s Cnty. Pub. Sch., 666 F.3d 244, 248-49 (4th Cir. 2012).

There are three exceptions to that constitutional bar.

First, “Congress may abrogate the States'

Eleventh Amendment immunity when it both unequivocally

intends to do so and acts pursuant to a valid grant of

constitutional authority.” Bd. of Trustees of Univ.

of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955,

148 L.Ed.2d 866 (2001) (internal quotation marks and

alterations omitted). . . . Second, “the Eleventh

Amendment permits suits for prospective injunctive

relief against state officials acting in violation of

federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S.

431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). . . .

Third, “[a] State remains free to waive its Eleventh

Amendment immunity from suit in a federal court.”

20

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535

U.S. 613, 618, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).

Id. at 249.

“Congress has not abrogated sovereign immunity for § 1983

suits[.]” Biggs, 953 F.3d at 241. As the Supreme Court has

recognized:

Section 1983 provides a federal forum to remedy

many deprivations of civil liberties, but it does not

provide a federal forum for litigants who seek a

remedy against a State for alleged deprivations of

civil liberties. The Eleventh Amendment bars such

suits unless the state has waived its immunity. . .

or unless Congress has exercised its undoubted power

under § 5 of the Fourteenth Amendment to override that

immunity. That Congress, in passing § 1983, had no

intention to disturb the States’ Eleventh Amendment

immunity and so to alter the federal-state balance in

that respect was made clear. . . .

Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989)

(internal citations omitted); see also In re Secretary of Dept.

of Crime Control and Public Safety, 7 F.3d 1140, 1149 (4th Cir.

1993) (“While Congress may abrogate a State’s Eleventh Amendment

immunity by express statutory language, . . . it has long been

settled that 42 U.S.C. § 1983 . . . does not effect such an

abrogation.”).

Nor has the State of West Virginia consented to be sued in

federal court. See Legg v. Putnam Co. Sheriff Office, Case No.

3:20-cv-00778, 2021 WL 2046432, at *4 (S.D.W. Va. Mar. 4, 2021)

(“Historically, the State of West Virginia has not waived its

21

sovereign immunity in federal cases brought pursuant to § 1983,

and there is no indication that the State would do so now.”);

Underwood v. West Virginia Dept. of Health and Human Res., Civil

Action No. 2:11-cv-00506, 2013 WL 2319253, at *5 n.2 (S.D.W. Va.

May 28, 2013) (“The Fourth Circuit has determined that the West

Virginia statute concerning liability insurance (W. Va. Code §

29-12-5) only waives sovereign immunity from suit in state

court.”); Noe v. West Virginia, Civil Action No. 3:10-CV-38

(BAILEY), 2010 WL 3025561, *4 (N.D.W. Va. July 29, 2010) (“Here,

however, the plaintiff has sued the State of West Virginia in

federal court, where the State has not consented to be sued.

Under these circumstances, the immunity provided by the Eleventh

Amendment remains intact as a bar to suing the State of West

Virginia in the federal forum.”).

Finally, the Ex Parte Young exception does not apply as

Hallman-Warner is not seeking prospective relief. For all these

reasons, her claims against defendants in their official

capacity are barred by the Eleventh Amendment and their motions

to dismiss on that basis are GRANTED.

2. Failure to State a Claim

In her complaint, defendants Lewis and Benjamin are alleged

to have violated multiple constitutional rights of plaintiff.

The claims are asserted in a generalized, conclusory fashion

22

without any discussion as to how the conduct complained of

violates those rights. The court has nevertheless attempted to

discern plaintiff’s arguments as to how the conduct complained

of, i.e., a police escort for an employee who has resigned when

cleaning out her office, violates the enumerated constitutional

rights.

At the outset, however, the court notes that the claims

against defendant Lewis are subject to dismissal for failure to

state a claim upon which relief may be granted. The complaint

does not allege that Lewis ordered the escort but only that he

“was present and returned periodically to assess progress of

police escort.” ECF No. 2 at 4. “Although § 1983 must be read

against the background of tort liability that makes a man

responsible for the natural consequences of his actions,

liability will only lie where it is affirmatively shown that the

official charged acted personally in the deprivation of the

plaintiffs' rights.” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th

Cir. 1977) (cleaned up). “The doctrine of respondeat superior

has no application under this section.” Id.

a. Fifth Amendment

Plaintiff is unable to state a claim under the Fifth

Amendment. A due process cause of action under the Fifth

Amendment against state actors is not actionable under section

23

1983. The Fifth Amendment's Due Process Clause applies to the

federal government, while the Fourteenth Amendment's Due Process

Clause applies to state and local governments. Section 1983 is

a vehicle by which plaintiffs can assert claims against state

actors, making the Fourteenth Amendment the proper

constitutional amendment to assert due process protections

claims. To the extent plaintiff pursues her claims under the

Fifth Amendment, they are not actionable under section 1983 and

must be dismissed. See Overcash v. Shelnutt, 753 F. App’x 741,

746-47 (11th Cir. Oct. 12, 2018) (“Overcash attempts, as he did

in the district court, to bring a Fifth Amendment claim against

certain state-actor defendants. The district court denied this

claim without prejudice, reiterating that the Due Process Clause

of the Fourteenth Amendment prohibits the States from depriving

any person of property without due process of law. . . . Where

the acts complained of are committed by state (as opposed to

federal) officials, as all acts here were, the Fifth Amendment

obviously does not apply.”).

b. Fourteenth Amendment

i. Substantive due process

Our appeals court has explained the contours of a

substantive due process claim as follows:

24

The Fourteenth Amendment Due Process Clause protects

individuals from states that would “deprive any

person of life, liberty, or property without due

process of law.” U.S. Const. amend. XIV, § 1. The

Supreme Court has interpreted that Clause to provide

substantive rights which “protects individual

liberty against certain government actions

regardless of the fairness of the procedures used to

implement them.” Collins v. City of Harker Heights,

503 U.S. 115, 125 (1992) (internal quotation marks

omitted). Thus, a plaintiff asserting a § 1983

substantive due process claim must allege both the

deprivation of his life, liberty or property

interest by a state actor, and that the deprivatin

of this interest was “arbitrary in the

constitutional sense.” Id. at 129; see also Equity

in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91,

109 (4th Cir. 2011).

Callahan v. North Carolina Dep’t of Public Safety, 18 F.4th Cir.

142, (4th Cir. 2021). “The touchstone of due process is

protection of the individual against arbitrary action of

government.” “Arbitrary action,” however, is used in a

constitutional sense, which encompasses “only the most egregious

official conduct,” namely that which “shocks the conscience.”

Slaughter v. Mayor and City Council of Baltimore, 682 F.3d 317,

321 (4th Cir. 2012). “The Due Process Clause does not convert

state-law tort claims into constitutional violations actionable

under § 1983.” Callahan, 18 F.4th Cir. at 148. Therefore, both

the Fourth Circuit and the Supreme Court “have warned against

‘constitutionalizing’ state tort law through the Due Process

Clause.” Id. at 145 (quoting Collins, 503 U.S. at 128).

25

“[T]o plead a due process claim against a state actor, the

plaintiff must allege the state deprived him or her of life,

liberty or property.” See id. at 146. Plaintiff’s complaint

fails to do so. Even a broad reading of plaintiff’s complaint

does not suggest that she has been deprived of her life or

liberty. The only property interest arguably implicated in her

filing is her employment with Bluefield State.3 However, most

3 In a later motion seeking to amend her complaint, plaintiff

complains about the loss of her “intellectual property” because

of her inability to access her office computer. See ECF No. 56.

However, even if defendants intentionally caused the loss of

Hallman-Warner's property, she cannot maintain a due process

claim when meaningful post-deprivation procedures are in place.

Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“Accordingly, we

hold that an unauthorized intentional deprivation of property by

a state employee does not constitute a violation of the

procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy for

the loss is available.”); Carter v. Lassiter, No. 1:18-CV-275-

FDW, 2019 WL 6048043, at *5 (W.D.N.C. Nov. 14, 2019) (“Where a

state employee's random, unauthorized act deprives an individual

of property, either negligently or intentionally, the individual

is relegated to his state post-deprivation process, so long as

the State provides an adequate post-deprivation remedy.”). The

ability to file state court claims for loss of the property has

been held to constitute a meaningful post-deprivation remedy.

See Kidd v. Bradley, 578 F. Supp. 275, 276–77 (N.D.W. Va. 1984).

As explained in Kidd:

Under the common law of West Virginia, “[t]he tortious

or unlawful taking of personal property, and the

exercise of ownership and dominion over it, against

the consent of the owner is . . . a conversion of the

property for which ... [a cause of action] will lie.”

The common law likewise recognizes a cause of action

for the negligent deprivation of, or injury to, one's

personal property rights. Inasmuch as these common law

26

courts “have held that tenured public employment is not a

fundamental property interest entitled to substantive due

process protection.” Guthrie v. McClaskey, Civil Action No.

1:11cv00061, 2012 WL 5494457, *6 (W.D. Va. Nov. 13, 2012); see

also Copenny v. City of Hopewell, 7 F. Supp.3d 635, 639 (E.D.

Va. 2014) (“Copenny’s public employment, therefore, is not a

fundamental interest entitled to substantive due process

protection.”); Logar v. West Virginia Univ. Bd. o, f Governors,

Civil Action No. 1:13-CV-145, 2013 WL 4501052, *6-9 (N.D.W. Va.

Aug. 21, 2013) (citing numerous authorities).

Hallman-Warner does not allege nor do her factual

allegations suggest that defendants deprived her of life,

actions provide the Plaintiff at bar with an adequate

post-deprivation remedy, the Court finds that the

Plaintiff has not stated a cause of action under

Section 1983.

Id. (citations omitted); see also Goodman v. Ramey, No. CIV.A.

2:12-0439, 2012 WL 5966642, at *4 (S.D.W. Va. Nov. 29, 2012)

(holding that an inmate failed to state a constitutional claim

for the loss of his property when he could have challenged the

taking “in a garden-variety tort claim in state court.”).

Because West Virginia offers an adequate post-deprivation remedy

for the alleged loss of intellectual property, plaintiff’s due

process claims regarding the loss fail. See Sutton v. Sinclair,

Case No. C19-1119-BJR-MLP, 2020 WL 7248463, at *10 (W.D. Wash.

Sept. 28, 2020) (holding that plaintiff’s procedural and

substantive due process claims alleging the confiscation of

“intellectual property” failed because an adequate state post-

deprivation remedy existed).

27

liberty, or property rights guaranteed by the Constitution.

Therefore, her substantive due process claim fails.

ii. Procedural Due Process

Her procedural due process claim fares no better. “The

procedural component of due process imposes constraints on

governmental decisions which deprive individuals of ‘liberty’ or

‘property’ interests within the meaning of the Due Process

Clause.” D.B. v. Cardall, 826 F.3d 721, 741 (4th Cir. 2016)

(internal quotation marks omitted). A procedural due process

claim requires a plaintiff to show “(1) a cognizable liberty or

property interest; (2) the deprivation of that interest by some

form of state action; and (3) that the procedures employed were

constitutionally inadequate.” Shirvinski v. U.S. Coast Guard,

673 F.3d 308, 314 (4th Cir. 2012).

Insofar as plaintiff attempts to assert a procedural due

process claim, it is deficient. Plaintiff has failed to plead a

violation of her procedural due process rights as she does not

even allege that she was deprived of adequate process. Her

failure to point to any process that she was allegedly denied is

fatal to her claim.

iii. Equal Protection

“The Equal Protection Clause, which prohibits States from

denying persons ‘the equal protection of the laws,’ U.S. Const.

28

amend. XIV, § 1, ‘keeps governmental decisionmakers from

treating differently persons who are in all relevant respects

alike[.]” Fauconier v. Clarke, 966 F.3d 265, 277 (4th Cir.

2020) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “To

succeed on an equal protection claim, a plaintiff must first

demonstrate that he has been treated differently from others

with whom he is similarly situated and that the unequal

treatment was the result of intentional or purposeful

discrimination.” King v. Rubenstein, 825 F.3d 206, 220 (4th

Cir. 2016).

Plaintiff asserts that her rights to equal protection have

been violated but she has failed to offer any instances of

persons who were treated differently or any facts to support her

claim. For this reason, she has failed to state an equal

protection claim. See Lowe v. City of Charleston, 597 F.

Supp.3d 855, 860 (D.S.C. 2022) (“When a plaintiff provides no

evidence that she was treated differently from others who are

similarly situated, the plaintiff’s equal protection claim must

fail.”).

c. First Amendment

The First Amendment provides that “Congress shall make no

law . . . abridging the freedom of speech.” U.S. Const. amend.

I. This protection also “ensures against intrusion by the

29

states.” Porter v. Board of Trustees of North Carolina State

University, 72 F.4th 573, 588 (4th Cir. 2023) (Richardson J.,

dissenting).

“‘[A]s a general matter the First Amendment prohibits

government officials from subjecting an individual to

retaliatory actions’ for engaging in protected speech.” Nieves

v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quoting Hartman v.

Moore, 547 U.S. 250, 256 (2006)). To prove a First Amendment

retaliation claim, a plaintiff must show that (1) “that

[plaintiff's] speech was protected”; (2) “defendant's alleged

retaliatory action adversely affected the plaintiff's

constitutionally protected speech”; and (3) “a casual

relationship exists between [plaintiff's] speech and the

defendant's retaliatory action.” Tobey v. Jones, 706 F.3d 379,

387 (4th Cir. 2013) (quoting Suarez Corp. Indus. v. McGraw, 202

F.3d 676, 685 (4th Cir. 2000)).

The extent of plaintiff’s First Amendment claim is that

“[d]efendant continues to allegedly violate 1st Amendment right

to free speech in the monitoring of social media posts.” ECF

No. 2 at 4. Insofar as plaintiff intended to assert a § 1983

retaliation claim based on her exercise of her First Amendment

right, she fails to allege sufficient facts against any named

defendant to adequately state such a claim. Her vague

30

allegations do not provide the court with any basis to find that

plaintiff was speaking on a matter of public concern. Moreover,

by plaintiff's own admission, the “monitoring of social media

posts” has occurred after plaintiff’s employment ended and she

does not allege a retaliatory action. See, e.g., Smith v. City

of Quincy, No. CV-09-328-RMP, 2011 WL 611669, at *8 (E.D. Wash.

Feb. 11, 2011) (explaining that “[n]o retaliatory action could

have occurred because Smith was no longer employed by the [state

employer]”). In sum, the court has no basis to find plaintiff's

speech was protected or that any of the named defendants have

retaliated against her. See Robinson v. Kitchen Worker Kathren,

Case No. 23-cv-02661-JPG, 2023 WL 12056618, at *3 (S.D. Ill.

Sept. 29, 2023) (dismissing First Amendment retaliation claim

where plaintiff described “no retaliatory action taken against

him . . . and also fails to indicate whether the [defendant]’s

comments deterred him from exercising his First Amendment

rights”).

IV. Motion to Amend

Hallman-Warner sought to amend her complaint on two

occasions. First, she asked to amend her complaint to assert a

Title VII retaliation claim. See ECF No. 32. The second time

she attempted to pursue a state law claim for unlawful

restraint. See ECF No. 56.

31

Under Rule 15(a) of the Federal Rules of Civil Procedure,

unless a party is permitted to amend its pleading as a matter of

course, it “may amend its pleading only with the opposing

party's written consent or the court's leave. The court should

freely give leave when justice so requires.”

In Foman v. Davis, 371 U.S. 178, 182 (1962), the United

States Supreme Court noted that amendment under Rule 15(a)

should be freely given absent “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc.”

A. Title VII retaliation claim

Plaintiff sought to amend her complaint to add a Title VII

retaliation claim almost two years after her original complaint

was filed. According to her, that “complaint was completed at

the same time of the current matter before the court yet was

inadvertently omitted in the May 2022 filing.” ECF No. 32.

Once a plaintiff receives a Notice of Right to Sue letter

from the EEOC, any lawsuit arising out of those claims must be

filed within 90 days of receipt of the notice. See 42 U.S.C. §

2000e-16c; Baker v. Regan, 1:23cv91, 2024 WL 2891474, *4

(M.D.N.C. June 10, 2024) (discussing the 90-day deadline to file

32

suit). Hallman-Warner’s motion to amend falls well outside that

90-day deadline. Therefore, her Title VII retaliation claim is

barred as outside the statute of limitations. “When proposed

claims in an amendment are barred by the statute of limitations,

Rule 15(c) provides for the relation back of amendments to the

original pleading under certain circumstances.” United States

v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000). Under Rule

15(c)(2), “[a]n amendment to a pleading relates back to the date

of the original pleading when . . . the amendment asserts a

claim or defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the original

pleading[.]”

To relate back, “there must be a factual nexus

between the amendment and the original complaint.”

Grattan v. Burnett, 710 F.2d 160, 163 (4th Cir. 1983),

aff’d 468 U.S. 42 (1984). That is, “the amended

claims and the original claims [must share a core of

operative facts.” Steven S. Gensler, Federal Rules of

Civil Procedure: Rules & Commentary (“Rules &

Commentary”) Rule 15 (2022). . . .

Thus, “relation back is proper when the amended

complaint amplifies the existing allegations or makes

the existing allegations more definite and precise” by

“present[ing] additional facts.” Gensler, Rules &

Commentary Rule 15. Relation back also is proper even

if the amendment presents a “new claim [that]

involve[s] different sources of proof” or “new legal

theories,” as long as “the core facts are the same.”

Id. In contrast, relation back is not proper if the

amendment presents “new claims [that] arise from an

entirely different event or set of facts.”

33

Tynes v. Mayor and City Council of Baltimore, Civil No. 1:22-cv-

01452-ELH, 2023 WL 2664233, at *24 (D. Md. Mar. 28, 2023).

Plaintiff’s Title VII retaliation claim does not relate

back to her claims asserted in this case. A retaliation claim

does not arise out of the conduct, transaction, or occurrence

set out in the original complaint. The events surrounding the

Title VII retaliation predate the events complained of herein,

occurring on December 23, 2020. Any evidence regarding Title

VII retaliation is wholly distinct from the evidence that would

be offered in support of plaintiff’s § 1983 claim.

Plaintiff is attempting to assert a Title VII retaliation

claim long after expiration of the statute of limitations. Her

claim is time-barred and, therefore, futile. “Where the statute

of limitations bars a cause of action, amendment may be futile

and therefore can be denied.” United States v. Pittman, 209

F.3d 314, 317 (4th Cir. 2000); see also Howard v. McCrory Corp.,

601 F.2d 133, 136 (4th Cir. 1979) (affirming denial of motion to

file amended complaint setting forth an entirely new cause of

action that was not suggested in the original complaint and that

was proposed only after the statute of limitations had expired);

Baker, 2024 WL 2891474, at *6 (denying motion to amend complaint

to add untimely Title VII and FLSA claims on grounds of

futility); Silver v. Bayer Healthcare Pharmaceuticals, Inc.,

34

Civil Action No. 2:19-3495-DCN-MHC, 2022 WL 2829885, at *2

(D.S.C. Apr. 19, 2022) (finding proposed amended complaint did

not relate back to original complaint because new claims did

“not arise out of the conduct, transaction, or occurrence set

out in the” original complaint).

B. Unlawful Restraint

Citing West Virginia Code § 61-2-14g, plaintiff seeks leave

of the court to assert a complaint for unlawful restraint. West

Virginia Code § 61–2–14g(a), a criminal statute, defines

unlawful restraint as follows:

Any person who, without legal authority

intentionally restrains another with the intent that

the other person not be allowed to leave the place of

restraint and who does so by physical force or by

overt or implied threat of violence or by actual

physical restraint but without the intent to obtain

any other concession or advantage as those terms are

used in section fourteen-a of this article is guilty

of a misdemeanor and upon conviction shall be confined

in jail for not more than one year, fined not more

than $1,000, or both.

However, as defendants point out, W. Va. Code 61-2-14g is a

criminal statute that does not give rise to civil liability or

authorize a private right of action. “The Supreme Court

historically has been loath to infer a private right of action

from a bare criminal statute, because criminal statutes are

usually couched in terms that afford protection to the general

35

public instead of a discrete, well-defined group.” Doe v.

Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (cleaned up).

Nevertheless, given the nature of plaintiff’s allegations,

the court has considered whether plaintiff should be allowed to

amend her complaint to allege a violation of the Fourth

Amendment in support of her § 1983 claim. The court concludes

that she should not because doing so would be futile.

First, for the reasons discussed above, the Eleventh

Amendment bars plaintiff’s claims against defendants in their

official capacities. Plaintiff’s response to this is to argue

that “defendants are not entitled to immunity as the college is

a recip[ient] of federal funding.” ECF No. 63 at 1.4 That

argument is without merit. Second, as noted above, her

complaint still fails to provide specific instances of alleged

wrongdoing on the part of defendant Lewis; therefore, the claims

against him are entitled to dismissal for failure to state a

claim. Finally, even if plaintiff were able to state a claim

4 Plaintiff reliance on 42 U.S.C. § 2000d-7(a)(1) in support of

this argument is misplaced. Under that statute, “the acceptance

of federal funding waives the state’s Eleventh Amendment

immunity” for Title IX and other enumerated claims. Painter v.

Adams, DOCKET No. 3:15-cv-00369-MOC-DCK, 2017 WL 4678231, at *5

(W.D.N.C. Oct. 17, 2017). However, 2000d-7 does not abrogate

states’ Eleventh Amendment immunity from suits brought under 42

U.S.C. § 1983. See id.

36

under § 1983 grounded in violation of the Fourth Amendment,

defendants would be entitled to qualified immunity.5

Plaintiff admits that the police escort was a negotiated

part of her settlement agreement. See ECF No. 63 at 2 (“[A]s

respective counsels, including representative of the plaintiff,

agreed amongst themselves, without the knowledge, consent, or

input of the plaintiff, orchestrated a ‘non-negotiable’ polices

[sic] escort out during the time that the plaintiff held the

position of tenured professor.”).

The Fourth Amendment protects “against unreasonable

searches and seizures.” U.S. Const. amend. IV. In order to

pursue her § 1983 claim under the Fourth Amendment, Hallman-

Warner must plausibly allege that defendant’s actions in

ordering a police escort were a seizure of constitutional

magnitude. She has not done so.

“Only when [an] officer, by means of physical force or show

of authority, has in some way restrained the liberty of a

citizen may we conclude that a seizure has occurred.” Florida

5 For the first time, plaintiff maintains that she is suing the

Bluefield State College Board of Governors (“BSCBOG”). See ECF

No. 63 at 3. However, the record shows that Bluefield State

College Board of Governors is not a defendant in this matter.

In her complaint, Hallman-Warner did not name BSCBOG as a

defendant. See ECF No. 2. Plaintiff never requested a summons

nor has she served BSCBOG. In any event, any § 1983 claim

against the BSCBOG would be barred by the Eleventh Amendment.

37

v. Bostick, 501 U.S. 429, 434 (1991). Courts should “examine

the totality of the circumstances in determining whether a

seizure occurred.” James v. City of Wilkes-Barre, 700 F.3d 675,

680 (3d Cir. 2012). “For Fourth Amendment rights implications

within the Fourth Circuit, an individual has been seized ‘if, in

view of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.’”

Payne v. Lee, Civil Action No. 1:15-cv-01268, 2016 WL 4009820,

at *1 (E.D. Va. July 25, 2016) (quoting Figg v. Schroeder, 312

F.3d 625, 636 (4th Cir. 2002)).

In Payne, a case very similar to this one, the court found

that the plaintiff had not been seized. See id. at *2. In that

case,

Plaintiff’s Amended Complaint merely alleges that

security guards accompanied U.S. PTO personnel to his

office during Plaintiff’s advising that he was placed

on administrative leave, that he was barred from the

U.S. PTO’s premises during that leave, and that the

same security guards escorted him off of agency

grounds. These circumstances do not amount to a

Fourth Amendment “seizure.”

During the incident at issue, Plaintiff was “free

to leave” the U.S. PTO office space. In fact,

Plaintiff’s leaving was the express goal of the U.S.

PTO officials. Plaintiff was free to go anywhere

outside the office. Plaintiff makes no claim that a

reasonable person would not have felt free to leave

during the circumstances he experienced. Figg, 312

F.3d at 636. Plaintiff was not “seized” and does not

state a plausible Fourth Amendment claim upon which

relief could be had.

38

Id.; Reaves v. Maxton Police Dept., No. 7:22-CV-204-FL, 2023 WL

2925159, at *2 (E.D.N.C. Feb. 24, 2023) (recommending dismissal

of Fourth Amendment § 1983 claim where “[t]he factual

allegations do not support that [plaintiffs] were taken into

custody or detained in any way; rather, they were escorted off

school property, which the court previously found did not amount

to a detention”); see also McClure v. Ports, 914 F.3d 866, 874

(4th Cir. 2019) (rejecting plaintiff’s “contention that his

Fourth Amendment rights were violated when police escorted him

from MTA property” because “the police acted reasonably”). Even

under plaintiff’s version of the facts, it is clear that a

reasonable person would have felt free to leave BSC on December

23, 2020. The police escort was not in place to prevent

plaintiff from leaving but, rather, was aimed at getting her off

campus.

Moreover, even if Hallman-Warner’s constitutional rights

under the Fourth Amendment were violated by the police escort

(and the court does not think they have been), defendant

Benjamin would nevertheless be entitled to qualified immunity.

Defined at the level of specificity required by the Supreme

Court and drawing inferences in favor of plaintiff, the court

must determine whether it was clearly established law in

39

December 2020, that ordering a police escort to accompany

Hallman-Warner while she was cleaning out her office was an

unconstitutional seizure where: (1) Hallman-Warner had resigned

as part of a court-ordered mediation; and (2) her attorney had

agreed to the police escort. There is simply no case that would

make it apparent to Benjamin that doing so would violate clearly

established law.

V. Motion to Reopen

Plaintiff has also filed a motion to reopen Civil Action

No. 1:17cv2882 and consolidate it with this case. See ECF No.

20. In that 2017 case, plaintiff and her husband sued Bluefield

State and twelve individuals associated with BSC alleging

retaliation in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq., as well as Fourth Amendment

and defamation claims. See Hallman-Warner v. Bluefield State

College, Case No. 1:17-cv-02882, 2018 WL 1309748 (S.D.W. Va.

Jan. 19, 2018). By Judgment Order entered March 13, 2018, the

court dismissed plaintiffs’ complaint. See ECF No. 59 in Civil

Action No. 1:17cv2882. Plaintiffs’ appeal was dismissed by the

United States Court of Appeals for the Fourth Circuit on July

30, 2018. See ECF No. 65 in Civil Action No. 1:17cv2882.

The court has construed plaintiff’s request as a motion for

relief from judgment under Federal Rule of Civil Procedure 60(b).

40

Rule 60(b) of the Federal Rules of Civil procedure provides in

pertinent part:

On motion and just terms, the court may relieve a party

. . . from a final judgment, order, or proceeding for

the following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered

evidence that, with reasonable diligence, could not

have been discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether previously called

intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party; (4) the judgment is

void; (5) the judgment has been satisfied, released, or

discharged; it is based upon an earlier judgment that

has been reversed or vacated; or applying it

prospectively is no longer equitable; or (6) any other

reason that justifies relief.

Relief from final judgment under Rule 60(b) is an extraordinary

remedy that “is only to be invoked upon a showing of exceptional

circumstances.” Pressley Ridge Schools v. Lawton, 180 F.R.D.

306, 308 (S.D.W. Va. 1998). Dispositions of Rule 60(b) motions

are reviewed for abuse of discretion. See id.

The instant motion to reopen and consolidate was filed more

than six years after the 2017 case was dismissed. Furthermore,

plaintiff has cited no legal authority that would permit the

relief she requests. Nor has she articulated a good reason to

reopen the earlier case. The issues presented in that case have

nothing to do with the events of December 23, 2020.

Accordingly, plaintiff’s motion to reopen and consolidate is

DENIED.

41

VI. Conclusion

Defendants’ motions to dismiss are GRANTED. Defendant

Capehart is DISMISSED as a defendant pursuant to Federal Rule of

Civil Procedure 4(m). The motions to amend and reopen and

consolidate are DENIED. All other motions are DENIED as moot.

To the extent that plaintiff has asserted any state law claims,

they are dismissed as the court declines to exercise

supplemental jurisdiction over them. See 28 U.S.C. § 1367 (3)

(“district courts may decline to exercise supplemental

jurisdiction . ..if .. . the district court has dismissed all

claims over which it has original jurisdiction”).

The Clerk is directed to send copies of this Memorandum

Opinion and Order to all counsel of record and unrepresented

parties.

IT IS SO ORDERED this 3lst day of March, 2025.

BNTER:

Raut O Dabo

David A. Faber

Senior United States District Judge

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