Spurling v. Metropolitan Life Insurance Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

DONNA R. SPURLING,

Plaintiff,

v. CIVIL ACTION NO. 2:24-cv-00614

METROPOLITAN LIFE INSURANCE COMPANY, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court are three motions: (1) a Motion to Dismiss by Defendant

Fairmont State University Board of Governors (“FSUBOG”), (ECF No. 13); (2) a Motion to

Dismiss by Defendant West Virginia Board of Risk and Insurance Management (“WVBRIM”),

(ECF No. 12); and (3) a Motion to Amend by Plaintiff Donna Spurling (“Plaintiff”), (ECF No.

53). For the reasons discussed below, FSUBOG’s Motion to Dismiss, (ECF No. 13), is

GRANTED, WVBRIM’s Motion to Dismiss, (ECF No. 12), is GRANTED, and Plaintiff’s

Motion to Amend, (ECF No. 53), is DENIED.

I. BACKGROUND

This matter arises out of an asbestos contamination in the State of West Virginia. (See

generally ECF No. 1-4.) According to the Second Amended Complaint, the State became aware

of the existence and dangers of asbestos in certain hospitals, colleges, and universities as early as

1984. (See, e.g., id. at 15–16, ¶¶ 20–24.) In response, the State allegedly obtained insurance

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coverage for employees exposed to asbestos. (Id. at 25–26, ¶ 50.) It is undisputed that the State

did not obtain insurance for nonemployees exposed to asbestos—i.e., students. (Id.; ECF No. 32

at 9; ECF No. 33 at 14.) This gap in insurance coverage prevents students who have been exposed

to asbestos in State facilities from recovering damages from the State through a lawsuit. W. Va.

Code § 29-12-5(a)(4) (“[N]othing herein shall bar a state agency . . . from relying on the

Constitutional immunity granted the State of West Virginia against claims or suits . . . not covered

by . . . insurance.”).

Plaintiff is one of these students. In February 2022, Plaintiff was diagnosed with incurable

lung cancer, which will ultimately kill her. (ECF No. 1-4 at 11–12, ¶¶ 1, 6.) As a lifelong non-

smoker, (id. at 12, ¶ 6), she blames this diagnosis on her alleged exposure to asbestos while she

was a nursing student at Fairmont State University from 1998 through 2004,1 (id. at 14, ¶ 17).

Despite the State’s preservation of sovereign immunity under West Virginia Code § 29-

12-5(a)(4), Plaintiff filed a lawsuit in the Circuit Court of Kanawha County, West Virginia on

January 12, 2024. (ECF No. 1-1 at 2.) The Second Amended Complaint names Metropolitan

Life Insurance Company (“MetLife”), Monongalia County General Hospital Company D/B/A

Mon General Hospital (“Mon General Hospital”), United Hospital Center, Inc. (“United

Hospital”), West Virginia Health System, Inc. D/B/A West Virginia University Health System

(“WVU Health”), Fairmont State University Board of Governors (“FSUBOG”), and West Virginia

1 Specifically, Plaintiff claims she was exposed to asbestos at the following hospitals and medical facilities during her

nursing education program: (1) Mon General Hospital in Morgantown, West Virginia; (2) Chestnut Ridge Center in

Morgantown, West Virginia; (3) Fairmont Medical Center in Fairmont, West Virginia; and (4) United Hospital Center

in Clarksburg, West Virginia. (ECF No. 1-4 at 14, ¶ 17.) Plaintiff also claims that she was exposed to asbestos in

various buildings at Fairmont State University. (Id., ¶ 18.)

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Board of Risk and Insurance Management (“WVBRIM”) as defendants, (see ECF No. 1-4 at 10),

and asserts eighteen (18) causes of action against these defendants,2 (see id. at 36–78).

Relevantly, the Second Amended Complaint alleges that FSUBOG has allowed asbestos-

containing materials to remain inside its campus buildings, despite having knowledge of the

serious health hazard it poses to students and employees since at least 1984. (Id. at 14, 26 ¶¶ 19,

52.) Plaintiff asserts that FSUBOG does not inform or warn anyone of this hazard. (Id. at 33, ¶¶

67–68.) Plaintiff also claims that FSUBOG has never requested insurance coverage for students

exposed to asbestos in its buildings. (Id. at 32–33, ¶ 63.)

In a similar vein, Plaintiff states that WVBRIM is responsible for securing adequate

insurance coverage for liabilities of state agencies, including universities. (Id. at 13, ¶ 13 (citing

W. Va. Code § 29-12-5, et seq.).) Yet, despite being aware of the asbestos contamination in the

State’s public buildings, WVBRIM allegedly declined to purchase insurance to cover students’

injuries caused by the asbestos. (Id. at 23–24, ¶¶ 43, 45.) The Second Amended Complaint

seems to imply that WVBRIM intentionally secured insurance that excluded nonemployees in

order to avoid liability under West Virginia Code § 29-12-5(a)(4). (See id. at 25–26, ¶ 50; see

also id. at 33, ¶ 64; id. at 61–62, ¶ 175.)

On October 25, 2024, FSUBOG removed this action. (ECF No. 1.) Although the causes

of action in the Second Amended Complaint are unclear, to say the least, the following fourteen

counts remain: (1) Count One: Negligence against “Premises Owner Defendants;”3 (2) Count

Two: “Intentional Tort” against Premises Owner Defendants; (3) Count Three:

2 Because MetLife was later voluntarily dismissed as a defendant, (ECF No. 77), only fourteen (14) counts remain.

3 Although the Second Amended Complaint does not define which defendants constitute the “Premises Owner

Defendants,” (see generally ECF No. 1-4), these defendants appear to be Mon General Hospital, United Hospital, and

WVU Health. (See id. at 34–35.)

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“Misrepresentations” against the Premises Owner Defendants; (4) Count Four: undefined claim

against Mon General Hospital; (5) Count Five: undefined claim against WVU Health; (6) Count

Six: undefined claim against United Hospital; (7) Count Seven: undefined claim against FSUBOG;

(8) Count Twelve: “Fraudulent Concealment and Misrepresentation” against FSUBOG; (9) Count

Thirteen: Substantive Due Process violation under 42 U.S.C. § 1983 against FSUBOG and

WVBRIM; (10) Count Fourteen: Procedural Due Process violation under 42 U.S.C. § 1983 against

FSUBOG and WVBRIM; (11) Count Fifteen: Conspiracy to violate Substantive and Procedural

Due Process under 42 U.S.C. § 1983 against FSUBOG and WVBRIM; (12) Count Sixteen:

Violation of the Americans with Disabilities Act (“ADA”) against FSUBOG; (13) Count

Seventeen: Violation of the ADA against WVBRIM; (14) Count Eighteen: Violation of Equal

Protection Clause under 42 U.S.C. § 1983 against FSUBOG and WVBRIM. (ECF No. 1-4 at 36–

78.)

On December 9, 2024, WVBRIM filed the pending motion to dismiss. (ECF No. 12.) A

response, (ECF No. 30), and reply, (ECF No. 33), were filed.4 Also on December 9, 2025,

FSUBOG filed the pending motion to dismiss. (ECF No. 13.) A response, (ECF No. 27), and

reply, (ECF No. 34), were filed. Both FSUBOG and WVBRIM assert sovereign immunity in

their motions.

Plaintiff then moved to amend her complaint on January 22, 2025, seeking to add Jennifer

Kinty (“Kinty”), Chairperson of FSUBOG, and Joseph Price (“Price”), Chairman of WVBRIM,

4 Plaintiff also filed a Motion for Leave to File a Limited Surreply. (ECF No. 37.) Generally, a surreply is permitted

when a party seeks to respond to new material that an opposing party has introduced for the first time in its reply brief.

See United States v. Purdue Pharma L.P., 2012 WL 12930668, * 1 (S.D. W. Va. May 7, 2012) (J. Berger) (allowing

the filing of a surreply concerning new evidence the opposing party did not have the opportunity to contest).

Whereas, in this instance, Plaintiff seeks to file a surreply to provide additional evidence in “further support for [her]

previously stated position.” (ECF No. 37 at 1.) Therefore, Plaintiff’s motion, (ECF No. 37), is DENIED.

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as defendants in an attempt to defeat the sovereign immunity arguments. (ECF No. 53.)

WVUBRIM and FSUBOG filed responses. (ECF Nos. 60, 62.) Plaintiff did not file a reply.

As such, these three motions are fully briefed and ripe for adjudication.

II. LEGAL STANDARD

It is axiomatic that a court must find it has jurisdiction before determining the validity of

any claims brought before it. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). “The

burden of showing the existence of subject matter jurisdiction rests on the plaintiff.” Adkins v.

United States, 923 F. Supp. 2d 853, 857 (S.D. W. Va. 2013) (citation omitted). “If the plaintiff

fails to meet this burden, then the claim must be dismissed.” Welch v. United States, 409 F.3d

646, 651 (4th Cir. 2005) (citing Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001)).

It is firmly established that the Eleventh Amendment bars an individual citizen from

bringing a suit in federal court against a sovereign state. Roach v. W. Va. Reg’l Jail & Corr.

Facility Auth., 74 F.3d 46, 48 (4th Cir. 1996) (citation omitted); see also Port Auth. Trans–Hudson

Corp. v. Feeney, 495 U.S. 299, 304 (1990) (construing the Eleventh Amendment “to establish that

an unconsenting State is immune from suits brought in federal courts by her own citizens as well

as by citizens of another state” (internal quotation marks and citation omitted)). While sovereign

immunity is “not a true limit on the subject-matter jurisdiction of federal courts, the Eleventh

Amendment is a block on the exercise of that jurisdiction.” Id. (quotation marks and citations

omitted). “Given this nexus between subject matter jurisdiction and sovereign immunity, the

Fourth Circuit has not yet resolved whether a motion to dismiss based on sovereign immunity is

properly considered pursuant to Rule 12(b)(1) or Rule 12(b)(6).” A.M. v. Demetro, Civ. Act. No.

2:22-00421, 2024 WL 218139, at *1 (S.D. W. Va. Jan. 19, 2024) (citation omitted). Still, “the

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trend has been to treat the assertion of Eleventh Amendment immunity as motions under Rule

12(b)(1).” Wriston v. W. Virginia Dep’t of Health & Hum. Res., No. 2:20-CV-00614, 2021 WL

4150709, at *2 (S.D. W. Va. Sept. 13, 2021) (Johnston, J.); see also Cornell v. W. Virginia Div. of

Corr. & Rehab., No. 2:24-CV-00120, 2024 WL 4368991, at *3 (S.D. W. Va. Oct. 1, 2024) (Berger,

J.) (quoting Skaggs v. W. Reg’l Jail, No. 3:13-3293, 2014, WL 66645, at *4 (S.D. W. Va. Jan. 8,

2014) (Chambers, J.)).

Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: (1) a

facial attack or (2) a factual attack. See Evans v. United States, 105 F.4th 606, 615 (4th Cir. 2024).

Under a facial attack, “the defendant contends that the allegations in the complaint are insufficient

to confer subject-matter jurisdiction.” Id. (citing Kerns v. United States, 585 F.3d 187, 192 (4th

Cir. 2009)). In such a case, “the plaintiff, in effect, is afforded the same procedural protection as

he would receive under a Rule 12(b)(6) consideration.” Kerns, 585 F.3d at 192 (quoting Adams

v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Thus, “the facts in the complaint are taken as true,

and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter

jurisdiction.” Id. However, before giving allegations the presumption of truth, the court first

“identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Saunders v. Jividen, No. 2:21-cv-00250, 2024 WL 3307849, at *3 (S.D.

W. Va. May 24, 2024) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

If, on the other hand, the defendant makes a factual challenge and asserts the plaintiff’s

jurisdictional allegations are simply untrue, the plaintiff’s allegations are given less procedural

protection. Kerns, 585 F.3d at 192 (citation omitted). In those cases, the court ordinarily does

not apply the presumption of truthfulness, and the court may “decide disputed issues of fact with

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respect to subject matter jurisdiction.” Id. In doing so, the “court may then go beyond the

allegations of the complaint and in an evidentiary hearing determine if there are facts to support

the jurisdictional allegations, without converting the motion to a summary judgment proceeding.”

Id. (internal quotation marks and citation omitted).

Yet, a third situation exists when facial and factual challenges are indivisible because “the

jurisdictional facts are intertwined with the facts central to the merits of the dispute.” Id. at 193

(internal quotation marks and citations omitted). In those instances, a court should presume the

truthfulness of the allegations. Id. Additionally, the court should provide “the plaintiff the

procedural safeguards—such as discovery—that would apply were the plaintiff facing a direct

attack on the merits.” Id.

In summary, the Fourth Circuit held that for facial challenges “the trial court must apply a

standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.” Id. For

factual challenges, “the trial court may go beyond the complaint, conduct evidentiary proceedings,

and resolve the disputed jurisdictional facts.” Id. For inextricably intertwined challenges, “the

court should resolve the relevant factual disputes only after appropriate discovery, unless the

jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous.” Id.

(citation omitted).

III. DISCUSSION

The Defendants move to dismiss all claims against them in the Second Amended

Complaint. Both argue that, as West Virginia state agencies, they are entitled to sovereign

immunity under the Eleventh Amendment. (ECF No. 14; ECF No. 21 at 4–11.) As discussed

below, FSUBOG and WVBRIM must be dismissed because they are entitled to sovereign

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immunity.5 Although Plaintiff seeks to add individual board members to defeat the Defendants’

sovereign immunity arguments, such an amendment would be futile. Each issue is discussed in

turn below.

A. Sovereign Immunity

“The Eleventh Amendment bars suits in federal court by citizens against unconsenting

states and state agencies.” Jemsek v. Rhyne, 662 F. App’x 206, 210 (4th Cir. 2016) (citing

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100); see also Edelman v. Jordan, 415

U.S. 651, 662–63 (1974). However, “[t]he Eleventh Amendment bar to suit is not absolute.”

Feeney, 495 U.S. at 304 (1990). Three narrow exceptions exist to that constitutional limitation.

Lee-Thomas v. Prince George’s Cnty. Public Schools, 666 F.3d 244, 248 (4th Cir. 2012).

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 (2001) (internal quotation marks and

alterations omitted). Second, the State may waive its right to immunity and consent to suit.

Lapides v. Bd. of Regents Univ. Sys. of Ga., 535 U.S. 613, 618 (2002). Third, “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 (2004); Gibbons v. Gibbs, 99

F.4th 211, 214 (4th Cir. 2024) (explaining that the Ex parte Young exception also “allows suits for

declaratory or injunctive relief against state officers in their official capacities”) (quotation marks

removed).

5 WVBRIM also asserts that Plaintiff’s § 1983 and ADA claims fail as a matter of law. (ECF No. 21 at 11–20.)

Because suit is barred by the Eleventh Amendment, the Court only addresses the sovereign immunity argument.

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In this case, the parties do not dispute that FSUBOG and WVBRIM are state agencies.6

(See ECF Nos. 1-4 at 13, ¶¶ 13–14; 14 at 3; 21 at 4.) Plaintiff offers various theories on how

FSUBOG and WVBRIM, respectively, are not protected by sovereign immunity. (See ECF Nos.

27, 30.) However, as discussed below, none of the exceptions to sovereign immunity exist in this

case.

1. Fairmont State University Board of Governors

In her response in opposition to FSUBOG’s motion to dismiss, Plaintiff asserts three

reasons why FSUBOG is not protected by sovereign immunity. (ECF No. 27 at 5.) These

theories, which all fail, are discussed below.

i. Insurance Coverage

To start, Plaintiff appears to argue that the State of West Virginia has waived sovereign

immunity under West Virginia Code § 29–12–5. (ECF No. 27 at 6–7.). In the Fourth Circuit, “a

state’s removal of a suit to federal court waives [State] sovereign immunity only if the state has

consented to suit in its own courts.” Biggs v. N.C. Dep’t of Pub. Safety, 953 F.3d 236, 241 (4th

Cir. 2020). This requires a “clear statement (like in a statute or regulation) to indicate such

consent.” Id. To that extent, West Virginia Code § 29–12–5 contains a direct and explicit waiver

of immunity:

Any policy of insurance purchased or contracted for by the board shall provide that

the insurer shall be barred and estopped from relying upon the constitutional

immunity of the State of West Virginia against claims or suits: Provided, That

nothing herein shall bar a state agency or state instrumentality from relying on the

constitutional immunity granted the State of West Virginia against claims or suits

arising from or out of any state property, activity or responsibility not covered by a

policy or policies of insurance: Provided, however, That nothing herein shall bar

6 To be clear, though, FSUBOG is regulated under W. Va. Code § 18B-2A-1 et seq., which makes it an arm of the

State, see W. Va. Code § 18B-1-2; W. Va. Code § 18B-2A-1(b). WVBRIM is also a state agency. See State ex rel.

Hum. Res. Dev. And Emp., Inc. v. Bd. of Risk & Ins. Mgmt. of W. Virginia, 590 S.E.2d 653, 655 (W. Va. 2003).

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the insurer of political subdivisions from relying upon any statutory immunity

granted such political subdivisions against claims or suits.

W. Va. Code § 29-12-5(a)(4).

Section 29-12-5(a)(4) thus provides an exception to sovereign immunity under the West

Virginia Constitution where (1) a state agency has acquired liability insurance with legislative

authorization and (2) the plaintiff suing the agency seeks recovery only “under and up to the limits”

of the available insurance coverage. See Pittsburgh Elevator Co. v. W. Va. Bd. of Regents, 310

S.E.2d 675, 688 (W. Va. 1983). Consequently, “the State is still constitutionally immune from

claims arising out of any activity or responsibility that is not covered under its policy.” Wrenn v.

W. Va. Dept. of Transp., 686 S.E.2d 75, 79 (W. Va. 2009) (emphasis added); Davari v. W. Va.

Univ. Bd. of Governors, 857 S.E.2d 435, 442–43 (W. Va. 2021) (noting that where a claim falls

outside of the State’s insurance coverage, the State and its agencies remain constitutionally

immune). The Supreme Court of Appeals of West Virginia (“SCAWV”) has also held that this

exception to sovereign immunity “applies only to immunity under the West Virginia Constitution.”

W. Va. Bd. of Educ. v. Marple, 236 W. Va. 654, 662 (2015);7 see also Hood v. W. Virginia Dep’t

of Health & Hum. Res., No. 2:22-CV-00265, 2023 WL 350409, at *3 (S.D. W. Va. Jan. 20, 2023)

(Goodwin, J.) (collecting cases that held that § 29-12-5 only waives the state’s immunity from suit

in state court).

In this case, Plaintiff argues that FSUBOG is not entitled to sovereign immunity to the

extent that she is seeking damages “under and up to the limits of [FSUBOG’s] liability insurance

coverage.” (ECF No. 27 at 6; see also ECF No. 1-4 at 79, ¶ 269.) Although FSUBOG counters

7 Because a state’s waiver of sovereign immunity involves a question of state law, the federal courts are obligated to

defer to the decision of the state’s highest court on the issue. Palmer v. Ohio, 248 U.S. 32, 34 (1918).

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that it “lacks insurance coverage” for Plaintiff’s claims, (ECF Nos. 14 at 3; 32 at 3), Plaintiff asserts

that this “position is new,” (ECF No. 27 at 6).8 Plaintiff further contends that the Court must

accept as true her allegations “that the FSUBOG has insurance coverage and that insurance

coverage applies to this case.” (Id.)

Well, ask and ye shall receive. Accepting Plaintiff’s allegations as true, the State of West

Virginia “opted not to purchase insurance” for her asbestos exposure claims. (ECF No. 1-4 at 12,

¶ 4; see also id. at 23, ¶ 42 (“[T]he state does not maintain insurance coverage against exposure to

toxic substances such as asbestos.”).) Specifically, the Second Amended Complaint repeatedly

states that FSUBOG does not have insurance for her asbestos exposure claims. (See e.g., id. at

32–33, ¶ 63; id. at 57, ¶¶ 148–55; id. at 63, ¶¶ 182, 184; id. at 57, ¶ 197; id. at 59, ¶ 206; id. at 71–

72 ¶¶ 221–22, 224–28; id. at 77–78 ¶¶ 254, 260.)

It is true that two times, in the entire 70-page Second Amended Complaint with 270

paragraphs, Plaintiff requests damages “under and up to the limits of [FSUBOG]’s liability

insurance coverage.” (Id. at 49; 79, ¶ 269.) However, prayers for relief are not factual

allegations, see Allegation, Black’s Law Dictionary (12th ed. 2024), and Plaintiff’s simple

recitation of language from West Virginia Code § 29-12-5 in her requested relief—which is clearly

nothing more than a feeble attempt to defeat FSUBOG’s sovereign immunity protection—cannot

undermine her constant allegations that FSUBOG does not have insurance for her asbestos

exposure claims.9

8 The Court notes that FSUBOG previously moved to dismiss the First Amended Complaint because Plaintiff did not

allege that FSUBOG had insurance, which included a letter from AIG, dated January 26, 2024, indicating that

Fairmont State University did not have insurance coverage. (See ECF No. 1-4 at 4, ¶ 13.) Plaintiff moved to amend

the First Amended Complaint specifically to “allege facts and claims showing that FSUBOG’s sovereign immunity

defense is meritless.” (Id. ¶ 14.) So, FSUBOG’s alleged lack of insurance coverage is far from a “new” position.

9 This also begs the question: what damages would Plaintiff be entitled to if the award is limited to “under and up to

the limits of” something that does not exist? Zero? That’s just bad lawyering.

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As a last-ditch effort, Plaintiff suggests that FSUBOG may have additional insurance based

on prior settlement negotiations and further demands discovery in order to defeat FSUBOG’s

sovereign immunity protection. (ECF No. 27 at 6.) Citing to Kerns, Plaintiff claims discovery

is warranted to resolve the factual dispute of whether FSUBOG has insurance coverage for

asbestos exposure. (Id.) Plaintiff is wrong.

As discussed above, Kerns addressed the divergent approaches to resolving subject matter

jurisdiction challenges. In this case, FSUBOG does not dispute any of the jurisdictional facts

alleged in Plaintiff’s Second Amended Complaint. (See ECF Nos. 14, 32.) Why would it? The

Second Amended Complaint states that FSUBOG does not have insurance coverage for asbestos

exposure. (See generally ECF No. 1-4.) So, based on the Second Amended Complaint, there is

no factual dispute that FSUBOG does not have insurance coverage. (See id; see also ECF No.

14, 32.) Thus, FSUBOG’s motion to dismiss is assessed under the Rule 12(b)(6) standard, and

Plaintiff is not entitled to discovery. See Evans, 105 at 615 (citing Kerns, 585 F.3d at 192).

Plaintiff cannot circumvent this standard by arguing, in her Response, that FSUBOG may

have insurance coverage. This flies in the face of the allegations in the Second Amended

Complaint, which Plaintiff specifically filed to defeat FUSBOG’s claims of sovereign immunity.10

(See ECF No. 1-4 at 4, ¶¶ 13–14.) If Plaintiff’s counsel wanted to try, again, to fix this issue, a

10 In her Motion for Leave to File a Second Amended Complaint, Plaintiff asserts that FSUBOG suddenly withdrew

from settlement negotiations, contending “for the very first time that it had no insurance coverage.” (ECF No. 1-4 at

4, ¶¶ 12, 14.) Thus, Plaintiff moved to file the Second Amended Complaint so she could “allege facts and claims

showing that FSUBOG’s sovereign immunity defense is meritless.” (Id., ¶ 14.) Specifically, Plaintiff claimed that

her “amendment alleges what she believed all along,” which is that “FSUBOG has applicable coverage and is not

immune to litigation.” (Id. at 5, ¶ 18.) Curiously, though, instead of alleging that FSUBOG had insurance coverage,

Plaintiff specifically alleged FSUBOG does not have insurance but hedged her requested relief, as discussed above.

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rogue about-face in a response to a motion to dismiss is far from proper procedure.11 See

generally Fed. R. Civ. P. 15.

Thus, because the Second Amended Complaint only alleges that FSUBOG does not have

insurance coverage for Plaintiff’s claims, Plaintiff’s argument based on West Virginia Code § 29–

12–5 fails.

ii. Ex parte Young

Next, Plaintiff argues that the Ex parte Young exception applies to her § 1983 and ADA

claims. “The Ex parte Young exception ‘allows suits against state officers for prospective

equitable relief from ongoing violations of federal law.’” Doe v. Univ. of N. Carolina Sys., 133

F.4th 305, 318 (4th Cir. 2025) (quoting Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir. 2001)); cf.

Edelman, 415 U.S. at 668 (explaining that the Eleventh Amendment prohibits a claimant from

seeking retrospective relief that “requires payment of state funds, not as a necessary consequence

of compliance in the future with a substantive federal-question determination, but as a form of

compensation” for the past wrong). Under this exception, a state official who acts in violation of

federal law is “stripped of his official or representative character and is subjected in his person to

the consequences of his individual conduct.” Ex parte Young, 209 U.S. 123, 160 (1908). To

determine whether a suit may proceed under Ex parte Young, “a court need only conduct a

straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of

Md., 535 U.S. 635, 645 (2002) (internal quotation marks omitted) (quoting Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring)).

11 In fact, in Plaintiff’s Motion for Leave to File a Third Amended Complaint, Plaintiff still does not allege that

FSUBOG has insurance coverage for her asbestos exposure claims. (See generally ECF No. 53-1.)

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Plaintiff claims “[t]hat is exactly what [she] has alleged here.” (ECF No. 27 at 7.) It is

unclear whether Plaintiff’s counsel does not remember what he alleged or has a fundamental

misunderstanding of the law and/or the English language. Regardless, a straightforward inquiry

answers that the Ex Parte Young exception absolutely does not apply here.

To start, Plaintiff does not seek equitable relief under Counts Thirteen, Fourteen, or Fifteen

for FSUBOG’s alleged violations of § 1983. (See ECF No. 1-4 at 65, 68, 69 (all seeking “an

amount deemed just and proper by the jury to adequately compensate Plaintiff for Plaintiff’s

damages with interest and cost of suit”).) In fact, she seeks retrospective damages, (see id.), which

is the opposite of the Ex parte Young exception, see Edelman, 415 U.S. at 668. As such, the Ex

parte Young exception does not apply to Counts Thirteen, Fourteen, or Fifteen.

Plaintiff’s ADA claim under Count Sixteen and § 1983 claim under Count Eighteen fair no

better. While Plaintiff does seek injunctive relief under these counts, she seeks such equitable

relief from FSUBOG—not a state official, (ECF No. 1-4 at 72, ¶ 228; id. at 78, ¶ 260), and it is

well-settled that the Ex parte Young exception does not apply to state agencies, see, e.g., Alabama

v. Pugh, 438 U.S. 781 (1978) (holding that, unless a State has waived its Eleventh Amendment

immunity or Congress has overridden it, a State cannot be sued directly in its own name regardless

of the relief sought); Missouri v. Fiske, 290 U.S. 18, 27 (1933) (explaining that the Eleventh

Amendment applies “to suits in equity” when such equitable remedies are asserted “by an

individual against a State”); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 146 (1993) (explaining that the Ex parte Young exception “has no application in suits

against the States and their agencies, which are barred regardless of the relief sought”). As such,

the Ex Parte Young exception does not apply to Counts Sixteen or Eighteen.

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Therefore, regardless of whether the Second Amended Complaint asserts a viable, ongoing

violation of federal law,12 Plaintiff’s invocation of the Ex Parte Young exception fails.

iii. Collateral Estoppel

Lastly, Plaintiff argues that FSUBOG is collaterally estopped from asserting sovereign

immunity. (ECF No. 27 at 9.) For support, Plaintiff asserts that the State of West Virginia did

not raise the prospect of sovereign immunity in a 1987 state court case related to asbestos

contamination in state college campuses, State v. AAER, et al., 86-C-458 (W. Va. Mon. Cnty. Cir.

Ct. 1987). (Id.) Plaintiff theorizes that, because the defense of sovereign immunity “was not

raised” by the State in that case, the State, and by extension FSUBOG, is collaterally estopped

from asserting it now. (Id.)

This argument is borderline sanctionable.

The doctrine of collateral estoppel “bars successive litigation of an issue of fact or law

actually litigated and resolved in a valid court determination essential to the prior judgment, even

if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008)

(internal quotations and citations omitted) (emphasis added). However, as Plaintiff

acknowledges, the issue of sovereign immunity was not even raised—not to mention determined—

in State v. AAER. (See, e.g., ECF No. 27 at 11 (arguing that the State “had a full and fair

opportunity to claim sovereign immunity” but “did not”).) FSUBOG fully engages with the

ridiculous nature of Plaintiff’s collateral estoppel argument, (see ECF No. 32 at 12), but the bottom

line is this: it is nonsensical. The Court has no difficulty concluding that FSUBOG is not

collaterally estopped from claiming sovereign immunity.

12 The parties dispute the exact nature and viability of Plaintiff’s constitutional claims. (See, e.g., ECF Nos. 27 at 7–

9; 32 at 7.)

15

Therefore, because FSUBOG is entitled to sovereign immunity, its motion to dismiss, (ECF

No. 13), is GRANTED.

2. West Virginia University Board of Risk and Insurance Management

In her response in opposition to WVBRIM’s motion to dismiss, Plaintiff asserts four

reasons why WVBRIM is not protected by sovereign immunity. (See ECF No. 30 at 4–8.) These

theories, which all fail, are discussed below.

i. Waiver by Prior Conduct

Plaintiff first argues that WVBRIM has waived sovereign immunity by paying claims,

which were not covered by insurance, in the past. (ECF No. 30 at 5–6 (claiming that WVBRIM

“has a history of waiving the immunity . . . . and going to great efforts to ensure the scheme goes

undetected by unsuspecting claimants and their counsel”).) Plaintiff also argues that the State has

waived sovereign immunity by engaging in settlement negotiations with her. (See id. at 6–7.)

These arguments fail because any waiver of this sovereign immunity must be

“unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980), (quoting United

States v. King, 395 U.S. 1, 4 (1969)). The Supreme Court has noted “that limitations and

conditions upon which the Government consents to be sued must be strictly observed and

exceptions thereto are not to be implied.” Soriano v. United States, 352 U.S. 270, 276 (1957)

(emphasis added); see also United States v. Kubrick, 444 U.S. 111, 117–18 (1979); Lehman v.

Nakshian, 453 U.S. 156, 160–61 (1981). Plaintiff’s allegations that FSUBOG engaged in

settlement negotiations and that WVBRIM has voluntarily paid out claims not covered by

insurance fall well short of an unequivocal expression of waiver.

Therefore, Plaintiff’s waiver arguments based on WVBRIM’s alleged prior conduct fails.

16

ii. Removal to Federal Court

Plaintiff also argues that WVBRIM waived sovereign immunity protection by consenting

to the removal of this case to federal court. (ECF No. 30 at 7–8.) “[A] state’s removal of a suit

to federal court waives [State] sovereign immunity only if the state has consented to suit in its own

courts.” Biggs, 953 F.3d at 241. WVBRIM has not waived sovereign immunity in state court

for Plaintiff’s claims because it lacks insurance coverage, as discussed more fully below. Thus,

removal to federal court does not waive WVBRIM’s sovereign immunity.13

iii. Jurisdictional Discovery

Plaintiff yet again contends that discovery is the only way she can determine what rights

she has under West Virginia state law, such as “how she received such substantial offers of

settlement only to have them quickly ripped away.” (ECF No. 30 at 6.) Similarly, Plaintiff

argues that discovery is proper to address jurisdictional issues because “[t]his case presents many

factual questions about the validity of defendants’ immunity waiver.” (Id.) For support, Plaintiff

reiterates that FSUBOG engaged in settlement negotiations. (Id. at 7.) Uncontested by anyone,

Plaintiff asserts that she “has clearly alleged a concern that defendants are being deceptive about

their insurance coverage and payout policies.” (Id.)

As discussed above, jurisdictional discovery is inappropriate because WVBRIM does not

dispute any of the jurisdictional facts alleged in Plaintiff’s Second Amended Complaint. (See

ECF Nos. 21, 33.) The Second Amended Complaint repeatedly states that WVBRIM does not

have insurance coverage for Plaintiff’s asbestos exposure claims. (ECF No. 1-4 at 12, ¶ 4; id. at

13 Plaintiff also “reserve[d] the right to amend her complaint to include the individual members of [WV]BRIM.”

(ECF No. 30 at 9.) That’s not how amendments work under the Federal Rules of Civil Procedure, see Fed. R. Civ.

P. 15, but Plaintiff nonetheless filed a proper Motion to Amend, (ECF No. 53), which is addressed below.

17

23–24, ¶¶ 42–45; id. at 25–26, ¶ 50; id. at 61, ¶¶ 171, 175; id. at 62–64, ¶¶ 179–82, 184–86; id. at

66–67 , ¶¶ 194–96, 199; id. at 68, ¶ 206; id. at 74–76, ¶ 240, 242–44, 246–47; id. at 77, ¶ 254.)

WVBRIM agrees: it does not have insurance coverage for Plaintiff’s asbestos exposure claims.

(ECF Nos. 21 at 6; 33 at 3.) So, based on the Second Amended Complaint, there is no factual

dispute that WVBRIM does not have insurance coverage for Plaintiff’s claims. (See id; see also

ECF No. 21, 33.) Thus, WVBRIM’s motion to dismiss is assessed under the Rule 12(b)(6)

standard, and Plaintiff is not entitled to discovery. See Evans, 105 at 615 (citing Kerns, 585 F.3d

at 192).

The Court understands Plaintiff’s concerns about the State’s insurance coverage policies.

However, states are immune from suit under the Eleventh Amendment. U.S. Const. amend. XI;

Garrett, 531 U.S. at 363 (explaining that “nonconsenting States may not be sued by private

individuals in federal court”). One of the few exceptions to this jurisdictional bar is when a state

waives its right to immunity and consents to suit. See Lapides, 535 U.S. at 618. Yet, states are

not required to voluntarily waive their immunity—i.e., West Virginia was not required to

voluntarily waive its immunity and consent to suits involving claims arising out of an activity or

responsibility covered under an insurance policy. But cf. W. Va. Code § 29-12-5(a)(4). By

extension, West Virginia is not required to obtain insurance coverage for every potential claim

against it. Accord W. Va. Code § 29-12-5(a)(3) (“The board is not required to provide insurance

for every state property, activity or responsibility.”). There may be avenues of relief for Plaintiff

based on WVBRIM’s alleged discriminatory practices,14 but, as it currently stands, sovereign

immunity protects WVBRIM from this Court’s purview.

14 Plaintiff relies on State ex rel. Hum. Res. Dev. And Emp., Inc. v. Bd. of Risk & Ins. Mgmt. of W. Virginia, 590 S.E.2d

653 (W. Va. 2003) (“State v. BRIM”) for the proposition that WVBRIM’s discretion under West Virginia Code § 29-

18

Therefore, because WVBRIM is entitled to sovereign immunity, its motion to dismiss,

(ECF No. 12), is GRANTED.

B. Motion to Amend

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.”

Fed. R. Civ. P. 15(a). However, it “may deny a motion to amend when the amendment would be

prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would

be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (citing

Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)); see Drager v. PLIVA USA, Inc.,

741 F.3d 470, 474 (4th Cir. 2014) (clarifying that “[a] district court’s denial of leave to amend is

appropriate” only under these three circumstances); cf. Foman v. Davis, 371 U.S. 178, 182, (1962)

(explaining that motions to amend are to be granted in the absence of a “declared reason” “such as

undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party . . ., futility of amendment, etc.”).

“Futility is apparent if the proposed amended complaint fails to state a claim under the applicable

12-1, et seq. “does not permit the board to go so far as being discriminatory when it procures insurance for the state

and its organizations.” (ECF No. 30 at 5.) The plaintiff in that case sought a writ of mandamus to require WVBRIM

to insure a charitable organization under § 29-12-5(b) [2003]. See State v. Brim, 590 S.E.2d at 655. The SCAWV

noted that, although a writ of mandamus is usually inappropriate to control the discretion of a state office, one may

nevertheless be issued when the office acts “capricious or arbitrary or under the misapprehension of law.” Id. From

there, the SCAWV held that, under the statute at that time, WVBRIM had “no factual or legal grounds upon which to

arbitrarily base the exercise of its statutory discretion” so as to refuse to insure a charitable organization while

providing coverage to “all other such charitable entities.” Id. However, Plaintiff is seeking damages and equitable

relief—not a writ of mandamus to require WVBRIM to procure insurance for its students. So, State v. BRIM is

inapposite and inoperative in this matter.

19

rules and accompanying standards[.]” Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 (4th

Cir. 2011).

Here, Plaintiff moves to amend the Second Amended Complaint only “to correct an alleged

defect in her Second Amended Complaint that Defendants BRIM and FSUBOG are not a ‘person’

under 42 U.S.C. § 1983.” (ECF No. 53 at 2, ¶ 5.) To correct this defect, Plaintiff seeks to add

Kinty, Chairperson of FSUBOG, and Price, Chairman of WVBRIM, “in their individual

capacities,” “for depriving Plaintiff of her rights secured under the United States Constitution.”

(Id., ¶ 4.)

However, FSUBOG and WVBRIM argue that Plaintiff’s motion should be denied as futile.

(ECF Nos. 60, 62.) Specifically, both argue that, in substance, Plaintiff is suing Prince and Kinty

in their official capacities, and, as such, her § 1983 claims are still barred by sovereign immunity.

(ECF Nos. 60 at 4–5; 62 at 4–14.) FSUBOG also argues that Plaintiff’s motion should be denied

because the omission of Kinty was not a mistake. (ECF No. 60 at 5–8.) Each is discussed below.

1. Mistake

As an initial matter, FSUBOG argues that Plaintiff’s proposed third amended complaint is

not timely because it does not relate back to the date of the original complaint. (ECF No. 60 at

5.) Specifically, FSUBOG asserts that Plaintiff’s omission of Kinty was not a mistake under Rule

15(c). (See id.) This argument easily fails.

For an amended claim to relate back to the date of the original complaint, “the amendment

[must] assert[] 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.” Fed. R. Civ. P. 15(c)(1)(B). That

20

requirement is unquestionably satisfied here.15 Further, when, as here, “the amendment changes

the party or the naming of the party against whom a claim is asserted,” Rule 15(c) has additional

requirements:

[W]ithin the period provided by Rule 4(m) for serving the summons and complaint, the

party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on

the merits; and

(ii) knew or should have known that the action would have been brought against it,

but for a mistake concerning the proper party’s identity.

Fed. R. Civ. P. 15(c)(1)(C).

The Fourth Circuit has rejected formalism in evaluating “mistake” under Rule 15(c).

Goodman v. Praxair, Inc., 494 F.3d 458, 470–71 (4th Cir. 2007). Rather than focusing on the

reason behind a plaintiff’s mistake, the Fourth Circuit found that “[t]he ‘mistake’ language is

textually limited to describing the notice that the new party had, requiring that the new party have

expected or should have expected, within the limitations period, that it was meant to be named a

party in the first place.” Id. at 471 (emphasis added). This “emphasis on notice, rather than the

type of ‘mistake’ that has occurred, saves [] courts not only from an unguided and therefore

undisciplined sifting of reasons for an amendment but also from prejudicing would-be defendants

who rightfully have come to rely on the statute of limitations for repose.” Id. at 473.

Here, though, FSUBOG does not offer any substantive argument that Kinty did not have

notice of the lawsuit. (See ECF No. 60 at 6.) Instead, FSUBOG only provides a long string cite

of cases. (See id.) Beyond being lazy, this briefing is also unpersuasive. While some of these

15 As discussed below, none of Plaintiff’s substantive allegations or claims change. Rather, the proposed third

amended complaint simply adds the names of Kinty and Price into prior allegations and claims.

21

cases discuss undue delay as a “declared reason” to deny a motion to amend, none of them involve

untimely motions under Rule 15(c).

To the extent that FSUBOG intended to raise an argument based on undue delay, bad faith,

dilatory motive, or other declared reason, such an argument is not apparent. This Court is not

required “to act as an advocate for a pro se litigant,” Gordon v. Leeke, 574 F.2d 1147, 1152 (4th

Cir. 1978), or “conjure up questions never squarely presented,” Beaudett v. City of Hampton, 775

F.2d 1274, 1278 (4th Cir. 1985). It goes without saying that the Court will certainly not do so for

presumably educated, licensed attorneys.

2. Sovereign immunity

“Cases involving the intersection of sovereign immunity, Section 1983, and the Ex parte

Young doctrine can pose difficult legal questions.” Gibbons, 99 F.4th at 216. As discussed

above, sovereign immunity bars suit against states and state agencies. Rhyne, 662 F. App’x at

210; Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989) (explaining that Eleventh

Amendment immunity protects both the state itself and its agencies, divisions, departments,

officials, and other “arms of the state”). Thus, state actors acting in their official capacity are

entitled to sovereign immunity against claims for monetary damages because “a suit against a state

official in his or her official capacity is not a suit against the official but rather is a suit against the

official’s office” and “is no different from a suit against the state itself.” Will, 491 U.S. at 71; see

also Huang v. Board of Governors, 902 F.2d 1134, 1138 (1990) (“[I]t is well settled that the

Eleventh Amendment bars a suit by private parties to recover money damages from the state or its

alter egos acting in their official capacities.” (citing Edelman, 415 U.S. at 663)); Gibbons, 99 F.4th

at 214 (explaining that “suits against state officials in their official capacity are treated as suits

22

against the State and are thus barred by sovereign immunity to the extent that they seek monetary

relief” (internal quotations and citations omitted)). The Ex parte Young exception, though,

“permits suits for prospective injunctive relief against state officials acting in violation of federal

law.” Hawkins, 540 U.S. at 437; see also Will, 491 U.S. at 71, n.10 (explaining that when “a state

official in his or her official capacity” is “sued for injunctive relief,” such “actions . . . are not

treated as actions against the State,” a distinction that is “commonplace in sovereign immunity

doctrine”) (internal quotations and citations omitted)); Reed v. Goertz, 598 U.S. 230, 234 (2023).

Section 1983 does not abrogate sovereign immunity. Quern v. Jordan, 440 U.S. 332, 342

(1979). However, this statute permits individuals to advance “individual capacity” claims against

state officials acting under color of state law. See 42 U.S.C. § 1983; Kentucky v. Graham, 473

U.S. 159, 165 (1985) (“Personal capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law.”). “A public [official] acts under color of

state law while acting in [their] official capacity or while exercising [their] responsibilities

pursuant to state law.” West v. Atkins, 487 U.S. 42, 50 (1988).

When state officials are sued in their individual capacity, they are not protected by

sovereign immunity because they “‘come to court as individuals,’ and the real party in interest is

the individual, not the sovereign.” Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995) (quoting Hafer

v. Melo, 502 U.S. 21, 27 (1991)). Thus, official capacity suits seeking money damages under §

1983 are barred by sovereign immunity, while personal capacity suits are not. Hafer, 502 U.S. at

30–31 (explaining that Section 1983 individual capacity claims are not subject to Eleventh

Amendment immunity analysis because “the Eleventh Amendment does not erect a barrier against

suits to impose individual and personal liability on state officials under § 1983”).

23

So, in short: sovereign immunity bars suit for monetary damages against a state official in

his or her official capacity. Will, 491 U.S. at 71. Sovereign immunity does not bar suit for

prospective injunctive relief against a state official in his or her official capacity. Id. at 71, n.10.

Further, sovereign immunity does not bar suit for monetary damages against a state actor in his or

her personal capacity. Hafer, 502 U.S. at 30–31.

In this case, Kinty and Price are state officials.16 Despite Plaintiff’s intent to assert claims

against Kinty and Price in their individual capacities, the proposed third amended complaint asserts

§ 1983 claims against Kinty and Price in their respective official capacities. To that extent,

Counts Thirteen, Fourteen, and Fifteen, which seek monetary damages, are barred by sovereign

immunity. Further, while Count Eighteen seeks injunctive relief, the Ex parte Young exception

does not apply. Thus, all of the § 1983 claims in the proposed third amended complaint are barred

by sovereign immunity and are, thus, futile. Each issue is discussed below.

i. Official Capacity

As noted above, there is a difference between state officials acting in their official

capacities and officials acting in their personal capacities under color of state law. Hafer, 502

U.S. at 22–23. Yet, this distinction “continues to confuse lawyers and confound lower courts,”

Graham, 473 U.S. at 165, as the state action doctrine necessarily requires an officer to act in his

official capacity, see West, 487 U.S. at 50. Thus, in Adams v. Ferguson, 884 F.3d 219 (4th Cir.

16 In West Virginia, FSUBOG and WVBRIM are state agencies, as discussed above. Because FSUBOG and

WVBRIM are considered state agencies, their employees are state employees, and the Eleventh Amendment bars any

official capacity claims seeking monetary relief. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 n.18 (1982)

(“[S]tate employment is generally sufficient to render the defendant a state actor.”).

24

2018), the Fourth Circuit provided guidance on how to determine whether a § 1983 claim is an

official capacity or individual capacity claim.17

“[T]he mere incantation of the term ‘individual capacity’ is not enough to transform an

official capacity action into an individual capacity action.” Id. at 225 (quoting Lizzi v. Alexander,

255 F.3d 128, 137 (4th Cir. 2001)). Instead, when a complaint asserts an individual-capacity suit,

the Court must determine whether anything “in the remainder of the complaint, or in the record,

undermines [that] clear statement” and shows that the state is the real party in interest. Id. In

Adams, the Fourth Circuit concluded that the defendant was, in fact, being sued in her individual

capacity, citing two facts: (1) the complaint sought “to recover damages only from [the defendant]

herself and ma[de] no mention of relief from the state;” and (2) “the complaint asserts claims

against [the defendant], rather than the current” officeholder. Id.

In this case, the proposed third amended complaint adds Price as a defendant “in his

individual capacity,” as “the Chairman of Defendant [WVBRIM],” who “acted at all relevant times

in his official capacity and under color of state law.” (ECF No. 53-1 at 5, ¶14.) Similarly, Kinty

is sued “in her individual capacity,” as “the Chairperson of Defendant [FSUBOG], who “acted at

all relevant times in her official capacity and under color of state law.” (Id. ¶ 17.) However,

these “mere incantation[s]” of the term “individual capacity” are insufficient to establish individual

17 In Martin v. Wood, 772 F.3d 192, 196 (4th Cir. 2014), the Fourth Circuit developed a five-factor test to determine

whether an FMLA suit against state officials in their individual capacities nevertheless should be treated as a suit

against the state for Eleventh Amendment immunity purposes because the state is the “real, substantial party in

interest.” WVBRIM argues that Plaintiff’s third amended complaint asserts official capacity claims under the Martin

factors. (ECF No. 62 at 7–10.) However, in Adams, the Fourth Circuit explicitly rejected applying the Martin

factors in the context of § 1983 claims. 884 F.3d at 225-26 (explaining that “[a]pplying the Martin factors, which

focus on the official character of the defendant’s actions, to § 1983 claims would” “undermine the very purpose of §

1983” by “‘absolutely immuniz[ing] state officials from personal liability for acts within their authority and necessary

to fulfilling governmental responsibilities.’”).

25

capacity claims. Adams, 884 F.3d at 225; see also Iqbal, 556 U.S. at 678 (instructing courts to

set aside legal conclusions under Rule 12(b)(6)).

Instead, “the remainder of the complaint . . . undermines [those] clear statement[s]” and

shows that Price and Kinty are being sued in their official capacities. See Adams, 884 F.3d at 225.

The proposed third amended complaint makes minimal substantive changes to Plaintiff’s claims.

Plaintiff adds the following paragraphs:

Defendant Fairmont State University Board of Governors’ policies, customs,

practices of purposefully exposing unknowing students to asbestos-containing

products is the result of intentional decisions made by Defendant Chairperson

Jennifer Kinty as the leading member and policy maker of Defendant Fairmont

State University Board of Governors.

(ECF No. 53-1 at 21, ¶ 55.)

As detailed more specifically herein, Defendant West Virginia Board of Risk and

Insurance Management’s policies, customs, practices of purposefully excluding

from insurance coverage certain individuals rendered disabled due to asbestos

exposure while insuring similarly situated disabled individuals is the result of

intentional decisions made by Defendant Chairman Joseph Price as the leading

member and policy maker of Defendant West Virginia Board of Risk and Insurance

Management.

(Id. at 28, ¶ 68.)

As WVBRIM points out, “[o]ther changes are mere modifications of prior allegations.”

(ECF No. 62 at 3.) For example:

Nevertheless, Defendant Fairmont State University Board of Governors, pursuant

to policies, procedures, and customs supported by Chairperson Jennifer Kinty, has

represented that it chose not to purchase any insurance coverage for any non-

employee injured by exposure to asbestos containing products on its campus.

(ECF No. 53-1 at 52, ¶ 174 (emphasis added).) The italicized phrase is the only change to the

same allegation in the Second Amended Complaint. (See ECF No. 1-4 at 60–61, ¶ 170.)

Similarly:

26

Likewise, as set forth more fully above, Defendant West Virginia Board of Risk

and Insurance Management, pursuant to policies, procedures, and customs

supported by Chairperson Joseph Price, chose not to purchase any insurance

coverage for any non-employee injured by exposure to asbestos containing

products in public buildings, including Fairmont State University.

(ECF No. 53-1, at 53, ¶ 175 (emphasis added).) The italicized phrase is the only change to the

same allegation in the Second Amended Complaint. (See ECF No. 1-4 at 61, ¶ 171.)

Otherwise, as WVBRIM notes, the proposed third amended complaint “does not modify

any previously asserted claims, add new facts, or impose new theories of liability.” (ECF No. 62

at 4.) Instead, Plaintiff simply inserts the names of Kinty and Price into the allegations without

any other change. (Compare ECF No. 1-4 with ECF No. 53-1; see also ECF No. 62 at 3–4

(providing a chart on the insertion of Price’s name into allegations without any other change).) In

particular, the proposed third amended complaint does not delineate the facts supporting Plaintiff’s

§ 1983 claims against FSUBOG and WVBRIM and those supporting her § 1983 claims against

Kinty and Price, (see ECF No. 53-1 at 50–62, 69–71), “indicating that the claims are for the same

alleged acts and are therefore identical,” see Dillow v. Virginia Polytechnic Inst. & State Univ.,

No. 7:22CV00280, 2023 WL 2320765, at *9 (W.D. Va. Mar. 2, 2023).

Similarly, the proposed third amended complaint does not request relief solely from Kinty

or Price. (See generally ECF No. 53-1.) In particular, all Plaintiff’s § 1983 claims request relief

from FSUBOG, Kinty, WVBRIM, and Price. Of relevance, Counts Thirteen, Fourteen, and

Fifteen request monetary damages from FSUBOG, Kinty, WVBRIM, and Price, without

specifying how the award should be prorated between these defendants. (Id. at 57, 60, 62.)

Because the factual allegations and prayers for relief are identical, it is evident that Kinty and Price

are named as extensions of the State.

27

Further, opposite of the complaint in Adams, the proposed third amended complaint seeks

to asserts claims against two current officeholders, (see ECF Nos. 60 at 1; 62 at 11; see also State

of West Virginia Board of Insurance and Risk Management, 2021 Annual Report at 205 (August

28, 2021), available at https://brim.wv.gov/Forms%20and%20Information/Documents/

Annual%202021%20Report%20with%20Minutes%20and%20Exhibits.pdf; Fairmont State

News, Kinty Appointed to Serve on Fairmont State University Board of Governors (July 21, 2021),

available at https://www.fairmontstate.edu/news/2021/07/kinty-appointed-servefairmont-state-

university-board-governors.aspx),18 as opposed to anyone who would have been an officeholder

during the State’s decision not to procure insurance for asbestos exposure, which allegedly

happened in 1987, (see ECF Nos. 1-4 at 12, ¶4; 53-1 at 3, ¶ 4). Although Plaintiff alleges that

Kinty and Price undertook actions that contributed to her injuries, (see, e.g., ECF No. 53-1 at 53,

¶ 177 (discussing “Kinty’s reckless policies, procedures, customs, and decisions not to remove its

asbestos-containing products increased exponentially from 1984 to the date of Plaintiff’s

enrollment at Fairmont State University” in 1998); see id. at 55, ¶¶ 188 (alleging that Price did not

purchase “any insurance coverage for nonemployees [he] knew as early as 1984 were being

exposed to deadly asbestos fibers”)), such claims are illogical as Kinty and Price were not

officeholders at the time of those decisions. This, too, indicates that the State is the real party in

interest.

Still, viewing the allegations in the light most favorable to the Plaintiff, see Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 554–55 (2007), it could be argued that the proposed third amended

complaint also alleges ongoing violations by Kinty and Price, (see, e.g., ECF No. 53-1 at 56, ¶ 190

18 Under Rule 12(b)(6), a court “may properly take judicial notice of matters of public record.” Philips v. Pitt Cnty.

Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (internal citations omitted).

28

(alleging that Kinty and Price are “still refusing to secure insurance coverage” for non-employees

exposed to asbestos)). Thus, unlike Adams, it may make sense to sue the current officeholders,

but only to a certain extent.19

At bottom, the proposed third amended complaint adds Kinty and Price without changing

the substance of Plaintiff’s claims or requested relief. See Dillow, 2023 WL 2320765, at *8

(“Lower courts applying Adams have emphasized the importance of the money-damages element

of the two-part analysis.” (collecting cases).) Thus, although Plaintiff names Kinty and Price in

their “individual capacit[ies],” (see ECF No. 53-1 at 5, ¶¶ 14, 17), “the remainder of the complaint

. . . undermines [those] clear statement[s]” and shows that the State is the real party in interest, see

Adams, 884 F.3d at 225.

Therefore, Counts Thirteen, Fourteen, and Fifteen are barred by sovereign immunity

because they seek monetary damages from the State.

ii. Ex parte Young

Count Eighteen seeks injunctive relief in the form of a court order requiring FSUBOG,

Kinty, WVBRIM, and Price to procure insurance for nonemployees exposed to asbestos. (ECF

No. 53-1 at 71.) The Ex parte Young “allows suits for declaratory or injunctive relief against state

officers in their official capacities.” Gibbons, 99 F.4th at 214 (internal quotations and citations

omitted). In form, that is what Plaintiff is requesting, but in substance, she is asking for much

more.

Plaintiff wants the State to procure insurance for nonemployees exposed to asbestos.

(ECF No. 53-1 at 71.) If done, these nonemployees would be able to sue the state under West

19 It is still illogical to sue them for alleged constitutional violations that occurred before they were officeholders.

29

Virginia Code § 29-12-5(a)(4). This is, in fact, Plaintiff’s desired outcome. (See ECF No. 53-1

at 70 (discussing how the State’s lack of insurance coverage bars her filing suit and seeking

damages against the State).) So, in effect, Plaintiff is seeking injunctive relief in the form of a

court order requiring the State to waive sovereign immunity.

The Ex parte Young exception does not reach so far. Rather, “Ex parte Young

jurisprudence requires careful consideration of the sovereign interests of the State as well as the

obligations of state officials to respect the supremacy of federal law.” Verizon Maryland, Inc.,

535 U.S. at 649 (Kennedy, J., concurring); see also Antrican v. Odom, 290 F.3d 178, 189 (4th Cir.

2002) (noting that “the scope of interests that Ex Parte Young protects in preventing violations of

federal law must be carefully circumscribed so as not unduly to erode the important underlying

doctrine of sovereign immunity” (internal citation omitted).) Otherwise, the Eleventh

Amendment “would become [a] legal fiction.” Verizon Maryland, 535 U.S. at 649 (Kennedy, J.,

concurring). Thus, courts “must evaluate the degree to which a State’s sovereign interest would

be adversely affected by a federal suit seeking injunctive relief against State officials.” Bragg v.

W. Virginia Coal Ass’n, 248 F.3d 275, 293 (4th Cir. 2001).

It is true that injunctive relief sought under the Ex parte Young exception “will almost

always, in some sense, affect the State itself.” Odom, 290 F.3d at 188 (citing Coeur d’Alene

Tribe, 521 U.S. at 269). Some injunctions are allowed even if they might result in an intrusion

on a state’s sovereignty. See Odom, 290 F.3d at 189. However, in some cases, special state

sovereignty interests will prevent an otherwise proper Ex parte Young action from proceeding.

See Coeur d’Alene Tribe, 521 U.S. at 283 (refusing to apply Ex parte Young because the suit

“would divest the State of its sovereign control over submerged lands, lands with a unique status

30

in the law and infused with a public trust the State itself is bound to respect”). For example, the

Ex parte Young exception does not permit federal district courts to order state officials to conform

their conduct to state law because, as the Supreme Court reasoned, “it is difficult to think of a

greater intrusion on state sovereignty than when a federal court instructs state officials on how to

conform their conduct to state law.” Pennhurst, 465 U.S. at 106.

Yet, this case presents a greater intrusion. A federal court ordering a state to waive its

sovereign immunity would be the greatest intrusion on the state’s sovereignty. This Court refuses

to do so. As such, sovereign immunity bars Count Eighteen of the proposed third amended

complaint because the Ex parte Young exception is inapplicable for the relief sought.20

Accordingly, because the § 1983 claims in the proposed third amended complaint are

barred by sovereign immunity, Plaintiff’s Motion for Leave to File a Third Amended Complaint,

(ECF No. 53), is DENIED as futile.

3. The Duty of Candor

The allegations in this case are disturbing; almost as disturbing is the fact that both Plaintiff

and the Defendants found it appropriate to assert arguments that are plainly contrary to well-

established, controlling caselaw without any attempt to distinguish the present facts from those

20 WVBRIM also argues that the Ex parte Young exception does not apply because Price is only one of a five member

board, (ECF No. 62 at 13), and, alone, does not have the authority to procure additional insurance. However, the

Fourth Circuit recently rejected this argument based on stare decisis. Gibbons, 99 F.4th at 214 (rejecting board

members’ argument that the Ex parte Young exception does not apply when the authority to act rests entirely with a

board as a whole rather than with individual members). WVBRIM also argues that forcing it to procure additional

insurance would require expenditure of state monies. (ECF No. 32 at 13.) However, the Fourth Circuit has clearly

instructed that “simply because the implementation of such prospective relief would require the expenditure of

substantial sums of money does not remove a claim from the Ex parte Young exception. Ex parte Young permits

federal courts to enjoin state officials to conform their conduct to the requirements of federal law, notwithstanding a

direct and substantial impact on the state treasury.” Odom, 290 F.3d at 185 (internal quotations and citations

omitted); see also CSX Transp. Inc., v. Bd. Of Public Works of State of W. Va., 138 F.3d 537, 541 (4th Cir.

1998) (“[T]he Fourth Circuit has explained that Ex parte Young relief may be still available despite its impact on

the state treasury.”) (citing Va. Hosp. Ass’n v. Baliles, 868 F.2d 653, 662 (4th Cir. 1989)).

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cases—and, sometimes, without even mentioning those binding cases at all. This goes beyond

advocacy. This also goes beyond being sloppy. This type of omission treads dangerously close

to the realm of violating the duty of candor. Loc. R. Civ. P. 83.7; W. Va. R. Prof. Cond. 3.3(a)(1)

(“A lawyer shall not knowingly . . . make a false statement of . . . law to a tribunal.”); see also U.S.

v. Shaffer Equipment Company, 11 F.3d 450, 458 (4th Cir.1993) (“[N]either these rules nor the

entire Code of Professional Responsibility displaces the broader general duty of candor and good

faith required to protect the integrity of the entire judicial process.”).

To be crystal clear: the duty of candor plays second fiddle to none.

This is a serious warning to all parties in this matter.21 Moving forward, this behavior will

be met with appropriate sanctions. See, e.g., 28 U.S.C. § 1927; Fed. R. Civ. P. 11; Chambers v.

NASCO, Inc., 501 U.S. 32, 45-46 (1991) (discussing the Court’s inherent authority to sanction

litigants and attorneys who violate the duty of candor to the court in bad faith, vexatiously,

wantonly, or for oppressive reasons); In re Evans, 801 F.2d 703, 706 (4th Cir. 1986) (explaining

that these sanctions include “disbar[ing] or suspend[ing] lawyers from practice”). Stop wasting

the time of the Court, opposing counsel, and your own clients. More importantly, stop

undermining the integrity of the judicial system.

IV. CONCLUSION

For these reasons, FSUBOG’s Motion to Dismiss, (ECF No. 13), is GRANTED,

WVBRIM’s Motion to Dismiss, (ECF No. 12), is GRANTED, and Plaintiff’s Motion to Amend,

(ECF No. 53), is DENIED.

IT IS SO ORDERED.

21 The Court notes that it has already, very recently, warned Steptoe & Johnson PLLC for this same behavior. See

Wickline v. Cumberledge, No. 2:23-CV-00799, 2025 WL 1426832, at *5 (S.D. W. Va. May 16, 2025) (Johnston, J.).

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

unrepresented party.

ENTER: July 3, 2025

THOMAS E. fo

UNITED STATES DISTRICT JUDGE

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