Stutler

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

ARIC STUTLER,

Plaintiff,

v. CIVIL ACTION NO. 2:25-cv-00469

WEST VIRGINIA DIVISION OF

CORRECTIONS AND REHABILITATION,

et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed Defendant Correctional Officer Devon Toppings’ Motion to

Dismiss Plaintiff’s Complaint (Document 4), the Memorandum of Law in Support of Defendant

Correctional Officer Devon Toppings’ Motion to Dismiss Plaintiff’s Complaint (Document 5),

Defendant West Virginia Division of Corrections and Rehabilitation’s Motion to Dismiss

Plaintiff’s Complaint (Document 6), the Memorandum of Law in Support of Defendant West

Virginia Division of Corrections and Rehabilitation’s Motion to Dismiss (Document 7),

Defendants Timothy Tibbs, Michael Costello, and Correctional Officer David McBrayer’s Motion

to Dismiss (Document 8), Defendants Timothy Tibbs, Michael Costello, and Correctional Officer

David McBrayer’s Joinder in the Memorandum of Law in Support of Defendant WVDCR’s Motion

to Dismiss (Document 9), the Plaintiff’s Memorandum Response to Defendant West Virginia

Division of Corrections and Rehabilitation’s Motion to Dismiss and Defendant Costello,

McBrayer, and Tibbs’ Motion to Dismiss by Joinder (Document 10), Plaintiff Aric Stutler’s

Memorandum in Opposition to Defendant Devon Toppings’ Motion to Dismiss (Document 11),

the Reply in Support of Defendant Correctional Officer Devon Toppings’ Motion to Dismiss

Plaintiff’s Complaint (Document 12), and the Reply in Support of Defendant West Virginia

Division of Corrections and Rehabilitation’s Motion to Dismiss (Document 13), as well as the

Complaint (Document 1-1). For the reasons stated herein, the Court finds that Defendant

Toppings’ and Defendants Tibbs, Costello, and McBrayer’s motions to dismiss should be denied,

and Defendant WVDCR’s motion to dismiss should be granted.

FACTUAL ALLEGATIONS

The Plaintiff, Aric Stutler, initiated this action in the Circuit Court of Kanawha County,

West Virginia, on or about February 20, 2025. He named as Defendants West Virginia Division

of Corrections and Rehabilitation (WVDCR), Lt. Timothy Tibbs, Michael Costello, Correctional

Officer Devon Toppings, and Correctional Officer David McBrayer. Mr. Stutler was incarcerated

at the North Central Regional Jail (NCRJ) during the events at issue. WVDCR is responsible for

overseeing the jails and correctional facilities in West Virginia. Defendants Lt. Tibbs, Costello,

Toppings, and McBrayer were employed as correctional officers at NCRJ. The Defendants

removed the matter to federal court on July 28, 2025.

On or about February 23, 2023, Mr. Stutler requested the medication he had previously

been receiving at Central Regional Jail. A nurse told him to shut up and an argument ensued.

Lt. Tibbs threatened Mr. Stutler for arguing with the nurse and directed transport officers to bring

Mr. Stutler to him once Mr. Stutler returned from court. Upon his return to NCRJ, Lt. Tibbs and

Officer McBrayer were waiting for Mr. Stutler, and he was informed by Lt. Tibbs that he was

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being placed in the hole. Mr. Stutler was handcuffed and shackled with a belly chain and taken

to the shower by Defendants Tibbs and McBrayer.

At the shower, Mr. Stutler’s handcuffs were removed but he was still shackled, preventing

him from removing his pants and fully stripping out. Defendant Toppings entered the room and

screamed at Mr. Stutler to strip out. While trying to explain that he was still shackled, Mr. Stutler

was sprayed, without warning, in the face with OC spray by Defendant Toppings. Defendants

Tibbs, Toppings, and McBrayer then entered the shower and began to kick and beat Mr. Stutler.

He was taken to the ground, and Defendant Toppings sprayed Mr. Stutler again while he was

screaming for help. Mr. Stutler’s shackles and pants were removed by the Defendants, and

Defendant Toppings sprayed Mr. Stutler in his genitals while he was held down by the other

Defendants.

After being handcuffed and shackled by Defendant Tibbs, Mr. Stutler was placed in a cell.

Mr. Stutler was not decontaminated prior to being placed in the cell and begged for assistance

because he was burning and struggling to breathe. Mr. Stutler eventually awoke to Defendant

Costello hitting him in the face while telling him that there was nothing wrong with him. Mr.

Stutler was not properly decontaminated for a number of days despite being sprayed multiple

times.

Mr. Stutler was not resisting and not a threat to himself, the Defendants, or anyone else

when he was sprayed and beaten. As a result of being sprayed and beaten, Mr. Stutler suffered

serious physical and emotional pain. Defendants Tibbs and Costello have a history of using

excessive and unnecessary force on inmates and have been involved in using excessive force

against at least dozens of inmates while employed as correctional officers at NCRJ.

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The Complaint contains the following counts: Count I – Outrageous Conduct; Count II –

Violation of 42 U.S.C. § 1983; and Count III – Vicarious Liability.

STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or

pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.

P. 8(d)(1).

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’

but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544,

555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further

factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal

quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual

inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,

244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the

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assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,

the court need not “accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as

a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff

to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis,

588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint,

“articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling

him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining

whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to

dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679.

DISCUSSION

The Defendants separately presented arguments for dismissal based on failure to exhaust

administrative remedies, qualified immunity and lack of vicarious liability. Where legal arguments

of multiple defendants overlap, the Court has considered them jointly. As required for 12(b)(6)

analysis, the Court has accepted the factual allegations to be true and has drawn all reasonable

inferences from the facts in the Plaintiff’s favor.

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A. Exhaustion of Administrative Remedies

The Defendants argue that the Plaintiff failed to exhaust his administrative remedies.

Specifically, the Defendants argue that the Plaintiff failed to follow proper grievance procedures.

To support their argument, the Defendants have attached a copy of the procedures for inmate

grievances and two sworn affidavits from a WVDCR prison official indicating that a search of the

WVDCR grievance system showed that no grievance was filed by the Plaintiff during the 2023

calendar year.

The Plaintiff argues that he exhausted all administrative remedies. Specifically, the

Plaintiff argues that he has exhausted all available remedies because he had been denied the

opportunity to file a grievance. The Plaintiff further argues that the Defendants are unable to meet

their burden of showing that he failed to exhaust his administrative remedies at this stage of

litigation because he has pled that he did so, and such factual allegations must be accepted as true.

Under the Prison Litigation Reform Act (PLRA), a prison inmate is prohibited from

bringing a Section 1983 action in federal court “until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). A prison inmate is entitled to bring suit in federal court

only if the inmate has “utilized all available remedies ‘in accordance with the applicable procedural

rules.’” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (quoting Woodford v. Ngo, 548

U.S. 81, 88 (2006)). Failure to exhaust administrative remedies is an affirmative defense that the

defendant bears the burden of raising and proving. Curtis v. Davis, 851 F.3d 358, 361 (4th Cir.

2017) (citing Jones v. Block, 549 U.S. 199, 216 (2007)). “[A] prisoner’s complaint may be

dismissed for non-exhaustion ‘in the rare case where failure to exhaust is apparent from the face

of the complaint.’” Id. (quoting Jones, 549 U.S. at 216); see also Leichling v. Honeywell Int’l,

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Inc., 842 F.3d 848, 850-51 (4th Cir. 2016) (“An affirmative defense permits 12(b)(6) dismissal if

the face of the complaint includes all necessary facts for the defense to prevail.”).

The Fourth Circuit in Germain declined to affirm a dismissal at the pleadings stage when

Germain pled that he had exhausted all administrative remedies, even though the defendants

submitted affidavits indicating otherwise, explaining that it was required to accept Germain’s

factual allegations as true. Germain v. Shearin, 725 Fed.Appx. 225, 226-27 (4th Cir. 2018). As

in Germain, the Plaintiff here has stated in his complaint that he has exhausted all administrative

remedies. Because this Court is bound to accept all factual allegations in the Plaintiff’s complaint

as true, the Defendants have not met their burden of showing that the Plaintiff failed to exhaust his

administrative remedies.1 In addition, because the Plaintiff has argued that he has been denied the

opportunity to file a grievance and, therefore, exhausted all available administrative remedies, it

would be premature for this Court to grant the Defendants’ motion to dismiss on this basis at this

stage of the proceedings. See Curtis, 851 F.3d at 362 (“It may equally imply that he attempted,

but could not, exhaust his administrative remedies—and thus, that he exhausted all remedies that

were available to him.”). Accordingly, the Defendants’ motions to dismiss for failure to exhaust

administrative remedies must be denied.

B. Qualified Immunity

Defendant Toppings argues that he is entitled to qualified immunity. He argues that the

Plaintiff failed to establish that he violated the Plaintiff’s constitutional or statutory rights.

1 As the Fourth Circuit noted in a footnote in Germain, this would not preclude the possibility of the Defendants

prevailing on a motion for summary judgment as it relates to the Plaintiff’s exhaustion of administrative remedies

claim. Germain, 725 Fed.Appx at 227 n.2.

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Specifically, he contends that he was justified in deploying OC spray against the Plaintiff because

of the Plaintiff’s failure to comply with orders relating to an unclothed body search.

The Plaintiff argues that Defendant Toppings is not entitled to qualified immunity as it

pertains to both his Section 1983 claim and his outrageous conduct claim. In addition, he argues

that it was clearly established that the extensive use of chemical agents and the unjustified beating

of a prison inmate constituted excessive force at the time of the incident. The Plaintiff further

argues that he did not refuse the Defendants’ orders, but rather, as alleged in his complaint, he was

unable to comply with the request that was given.

(1) 42 U.S.C.§ 1983

When determining whether a defendant is entitled to qualified immunity for an excessive

force claim under 42 U.S.C. § 1983, courts “examine (1) whether the facts illustrate that [the

defendant] violated [the plaintiff’s] constitutional right to be free from excessive force, and (2) if

so, whether [the defendant’s] conduct was objectively reasonable in view of the clearly established

law at the time of the alleged event.” Hill v. Crum, 727 F.3d 312, 321 (4th Cir. 2013).

Beginning with the first prong, the Plaintiff has alleged that Defendant Toppings, along

with the other Defendant correctional officers, violated his Eighth Amendment rights. “An

inmate’s Eighth Amendment excessive force claim involves both an objective and a subjective

component.” Dean v. Jones, 984 F.3d 295, 302 (4th Cir. 2021). The objective component looks

at “whether the force applied was sufficiently serious to establish a cause of action.” Id. (quoting

Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019)). Force is sufficiently serious if it is

“something more than ‘de minimis’ force.” Brooks, 924 F.3d at 112. (quoting Hudson v.

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McMillian, 503 U.S. 1, 10 (1992)). Extensive use of pepper spray is sufficient to constitute

something more than de minimis force. See Iko v. Shreve, 535 F.3d 225, 238-39 (4th Cir. 2008).

The subjective component asks whether an officer “acted with a sufficiently culpable state

of mind.” Brooks, 924 F.3d at 112 (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.

1996)). Under this standard, “[t]he state of mind required. . . is ‘wantonness in the infliction of

pain.’” Iko, 535 F.3d at 239 (quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)). Whether an

inmate can establish wantonness “turns on ‘whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose of causing

harm.’” Jones, 984 F.3d at 302 (quoting Whitley, 475 U.S. at 320-21). The factors relevant to

whether an officer applied force in “good faith” or with an intent to cause harm are: “(1) ‘the need

for the application of force’; (2) ‘the relationship between the need and the amount of force that

was used’; (3) the extent of any reasonably perceived threat that the application of force was

intended to quell; and (4) ‘any efforts made to temper the severity of a forceful response.’” Iko,

535 F.3d at 239 (quoting Whitley, 475 U.S. at 321). Correctional officers apply force with intent

to harm “when they inflict pain not to protect safety or prison discipline but to punish or retaliate

against an inmate for his prior conduct.” Jones, 984 F.3d at 302 (quoting Brooks, 924 F.3d at

113). “[T]he use of force on an inmate who is ‘restrained and compliant and posing no physical

threat’ raises the specter of such an impermissible motive.” Id. (quoting Thompson v. Virginia,

878 F.3d 89, 102 (4th Cir. 2017).

The Plaintiff alleged that Defendant Toppings, without warning, sprayed him with OC

spray while he was trying to explain why he was unable to remove his pants, again after he was

taken to the ground, and in his genitals after his pants were removed. (Compl. at ¶ 8.) The Plaintiff

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further alleged that Defendant Toppings, along with the other correctional officer Defendants,

entered the shower and began to kick and beat him. (Id.) The Plaintiff states that during the

course of this incident, he was not resisting and “not a threat to himself, the Defendants, or anyone

else at the time he was sprayed or beaten.” (Id. at ¶ 8, 10.) If proven, these factual allegations are

sufficient to support a finding that Defendant Toppings violated the Plaintiff’s Eighth Amendment

rights by unjustifiably using excessive force against him while he was restrained, compliant, and

posed no threat.

Thus, assuming the Plaintiff’s factual allegations to be true, they are sufficient to establish

both the objective and subjective components of an Eighth Amendment claim. The alleged facts

are sufficient to establish the objective component because they demonstrate extensive use of OC

spray and beatings by Defendant Toppings, both of which constitute more than de minimis force.

The Plaintiff’s factual allegations also satisfy the subjective component because he alleged that he

was not resisting and was not a threat when Defendant Toppings sprayed him several times with

OC spray and beat him. It can, therefore, be reasonably inferred from the allegations that

Defendant Toppings sprayed and beat the Plaintiff maliciously to cause harm and punish him for

perceived disrespect, rather than in a good faith effort to ensure compliance.

Having found that the Plaintiff has properly alleged an Eighth Amendment violation, the

Court now addresses the second prong to determine whether Defendant Toppings’ “conduct was

objectively reasonable in view of the clearly established law at the time of the alleged event.”

Hill, 727 F.3d at 321. A correctional officer will be entitled to qualified immunity only if he can

demonstrate that the constitutional right alleged to have been violated was not “clearly

established.” Iko, 535 F.3d at 233, 238. A constitutional right is “clearly established” if

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preexisting law “gave the officials ‘fair warning’ that their conduct was unconstitutional.” Id. at

238 (quoting Ridpath v. Bd. Of Governors Marshall Univ., 447 F.3d 292, 313 (4th Cir. 2006)). It

is clearly established that “inmates have the ‘the right to be free from’ the ‘malicious’ infliction of

pain.” Brooks, 924 F.3d at 119 (quoting Thompson, 878 F.3d at 102). “The unjustified striking

or beating of a prisoner by police or correctional officials constitutes cruel and unusual punishment

which is actionable under 42 U.S.C. § 1983.” Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984).

Defendant Toppings, relying on Anderson, argues that it was not clearly established that

his use of OC spray, in light of the Plaintiff’s failure to comply, constituted a constitutional

violation. Specifically, he contends that his use of OC spray is similar to the officer’s use of a

“mandibular angle pressure point technique” against a noncompliant, restrained suspect in

Anderson, which the Fourth Circuit determined did not “run[] ‘afoul of clearly established law.’”

Anderson v. Ferguson, 2025 WL 2170729, at *5. However, while it was determined that such a

technique was not a clearly established violation, the Fourth Circuit has previously determined that

it is clearly established that the use of “chemical agents in quantities greater than necessary or for

the sole purpose of infliction of pain” constitutes an Eighth Amendment violation. Contrast

Anderson, 2025 WL 2170729, at *5, with Iko, 535 F.3d at 240. In Iko, a correctional officer

deployed several bursts of pepper spray against an inmate while attempting to extract him from

his cell. Id. at 931-32. The court determined that while the correctional officer’s initial burst

might have been warranted since the inmate failed to initially comply, the subsequent bursts were

not because the inmate attempted to comply and was not otherwise violent or confrontational. Id.

at 239-40.

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The law surrounding the Eighth Amendment violations alleged in the Plaintiff’s complaint

is clearly established. Even if the Court accepted Defendant Toppings’ disputed factual assertion

that he reasonably believed that the Plaintiff was noncompliant, the Plaintiff alleges that Defendant

Toppings continued to use force against the Plaintiff well beyond any perceived non-compliance.

As previously mentioned, the Plaintiff alleged that Defendant Toppings deployed several bursts of

OC spray against him although he was not resisting or a threat. These facts are similar to those

found in Iko, (decided years before the events presented here) and therefore, Defendant Toppings

had fair warning that his use of OC spray constituted an Eighth Amendment violation. In

addition, Defendant Toppings clearly had fair warning that his beating of the Plaintiff in the context

alleged constituted an Eighth Amendment violation. Defendant Toppings is, therefore, not

entitled to qualified immunity as it pertains to the Plaintiff’s Section 1983 claim.

(2) Outrageous Conduct

The West Virginia Supreme Court of Appeals applies the federal standard for qualified

immunity. See W. Virginia Div. of Corr. & Rehab. v. Robbins, 889 S.E.2d 88, 97 (W. Va. 2023)

(“West Virginia’s qualified immunity jurisprudence mirrors federal law.”). As a result, the

Court’s qualified immunity analysis, discussed above, is applicable to the Plaintiff’s outrageous

conduct claim and Defendant Toppings is not entitled to qualified immunity.

C. State Immunity from Vicarious Liability

Defendant WVDCR argues that the sole claim against it, vicarious liability, is not a

separate claim. In addition, Defendant WVDCR argues that it cannot be held vicariously liable

for the intentional torts of its employees because such intentional acts do not fall within the scope

of employment and argues that it is immune from vicarious liability for essentially the same reason.

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The Plaintiff argues Defendant WVDCR can be held vicariously liable for the Defendant

correctional officers’ alleged outrageous conduct. The Plaintiff contends that he properly pled

and asserted that the Defendant correctional officers’ conduct was within the scope of their

authority and for Defendant WVDCR’s benefit. He relies on the decision by the West Virginia

Supreme Court of Appeals, Crawford v. McDonald, No. 21-0732, 2023 WL 2729675 (W. Va.

Mar. 31, 2023), which involved the use of OC spray and a restraint chair against an inmate. The

Plaintiff further argues that Defendant WVDCR is not entitled to qualified immunity because the

Defendant correctional officers’ conduct was within the scope of employment but constituted a

violation of clearly established law.

The West Virginia Supreme Court of Appeals has laid out the standard for state immunity

from vicarious liability as follows:

If the plaintiff identifies a clearly established right or law which has

been violated by the acts or omissions of the State, its agencies,

officials, or employees, or can otherwise identify fraudulent,

malicious, or oppressive acts committed by such official or

employee, the court must determine whether such acts or omissions

were within the scope of the public official or employee's duties,

authority, and/or employment. To the extent that such official or

employee is determined to have been acting outside of the scope of

his duties, authority, and/or employment, the State and/or its

agencies are immune from vicarious liability, but the public

employee or official is not entitled to immunity in accordance with

State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591

(1992) and its progeny. If the public official or employee was acting

within the scope of his duties, authority, and/or employment, the

State and/or its agencies may be held liable for such acts or

omissions under the doctrine of respondeat superior along with the

public official or employee.

Syl. Pt. 12, W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 756 (W. Va.

2014). In short, the State will be immune from vicarious liability if the correctional officers were

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acting outside “the scope of their employment or duties.” Crawford, 2023 WL 2729675, at *5.

The factors used to determine whether an act is within the scope of employment include: “whether

‘the conduct 1) is of the kind [the employee] is employed to perform; 2) occurs within the

authorized time and space limits; 3) it is actuated, at least in part, by a purpose to serve the master,

and 4) if force is used, the use of force is not unexpectable by the master.’” Id. at 7 (quoting W.

Virginia Reg’l Jail v. A.B., 766 S.E.2d 751, 769 (W. Va. 2014)). “Conduct of a servant is not

within the scope of employment if it is different in kind from that authorized, far beyond the

authorized time or space limits, or too little actuated by a purpose to serve the master.” Id. “[A]n

employer may be liable for the conduct of an employee, even if the specific conduct is

unauthorized or contrary to express orders, so long as the employee is acting within the general

scope of his authority and for the benefit of the employer.” Id. (quoting Travis v. Alcon

Laboratories, Inc., 504 S.E.2d 419, 431 (W. Va. 1998)).

The Defendant emphasizes this Court’s prior opinions in Marcum and Hamrick, wherein

this Court found that intentional conduct of correctional officers fell outside the scope of

employment. Marcum v. Baily, No. 2:20-CV-00628, 2020 WL 7646977, at *5 (S.D. W. Va. Dec.

23, 2020) (Berger, J.); Hamrick v. W. Virginia Div. of Corr. and Rehab., No. 2:24-CV-00728, 2025

WL 781089, at *4 (S.D. W. Va. Mar. 11, 2025). This Court in Marcum found that “the retaliatory

use of OC spray could in no way serve the purposes of the WVDOC,” and therefore was outside

the scope of employment. Marcum, 2020 WL 6747977, at *5. In Hamrick, this Court found that

although the alleged tasing of an inmate occurred during the time and place of employment and

tasing was among a correctional officer’s duties, no reasonable inference could be drawn that an

officer’s alleged use of a taser against an inmate who was not a threat “was done in the interest or

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for the benefit of his employer,” and therefore was outside the scope of employment. Hamrick,

2025 WL 781089, at *4. Defendant WVDCR argues the intentional conduct of the Defendant

correctional officers should result in the same finding. The Plaintiff emphasizes the West

Virginia’s Supreme Court’s opinion in Crawford finding that “a jury could reasonably find that

the correctional officers’ conduct in question was within the scope of their employment,” where

the plaintiff alleged unjustified use of O.C. spray, failure to properly decontaminate, and extended

use of a restraint chair. Crawford, 2023 WL 2729675, at *7.

As previously discussed, the Plaintiff alleged that the Defendants beat and kicked him, and

that Defendant Toppings sprayed him with OC spray in both the face and genitals, although he

was not resisting and was not a threat. The Plaintiff also alleged that the Defendants failed to

decontaminate him for several days. Further, the Plaintiff alleged that he awoke to Defendant

Costello hitting him in the face, telling him that nothing was wrong with him, after he requested

assistance due to not being properly decontaminated. None of this alleged conduct can be

perceived as serving the purposes of or benefiting Defendant WVDCR, but rather, as retaliation

for perceived disrespect and for requesting assistance.

These alleged facts are more in line with those found in Hamrick. Like the inmate in

Hamrick who, after being ordered to stand next to a gate, was tased without warning when he

leaned against a wall, even though he was not a threat, the Plaintiff here alleged that although he

was not a threat, he was sprayed with OC spray without warning and beaten after trying to explain

why he was unable to remove his pants. While the Plaintiff suggests that this Court rely on

Crawford, where the West Virginia Supreme Court found that the West Virginia Regional Jail and

Correctional Facility Authority (WVRJCFA) could be held vicariously liable for the actions of its

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correctional officers because a jury could find that the subject officer used excessive force and

acted within the scope of his employment, the alleged facts do not permit this Court to draw such

an inference here. In contrast with Crawford, where there was evidence that the plaintiff was

on drugs, explicitly and repeatedly refused to comply with an order to go into a holding cell, and

could be viewed as a potential security risk, the Plaintiff here has alleged that he was not resisting

and was not a threat during the course of the alleged conduct. And although, based on the facts

alleged, the Plaintiff did not remove his pants as directed, he alleges that he was unable to do so

because he was shackled. Toppings yelling at the Plaintiff and spraying him without warning while

the Plaintiff was trying to provide an explanation, together with the subsequent beating and

sprayings, indicate the officers’ intent to retaliate against or punish the Plaintiff.

Assuming the allegations to be true, no reasonable inference can be drawn that the

Defendant correctional officers’ intentional wrongful conduct was done to serve the purposes of

or to benefit their employer.2 While the alleged conduct occurred during the authorized time and

space, there is no factual basis that would support a reasonable inference that the force employed

by the Defendant correctional officers was for the purpose of furthering Defendant WVDCR’s

lawful interests. Based on these allegations, the Defendant correctional officers engaged in

intentional conduct outside the scope of their employment. Therefore, Defendant West Virginia

Division of Corrections and Rehabilitation’s motion to dismiss must be granted.

2 The Court makes this finding using WVDCR’s lawful purposes. If, however, this Defendant is aware of repeated

use of excessive force by its officers and condones it, either by its policies or its actions, or is simply quietly complicit,

one should question if determining whether an officer’s conduct serves WVDCR’s “purposes” is the appropriate

barometer.

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CONCLUSION

Wherefore, after thorough review and careful consideration, the Court ORDERS that

Defendant Correctional Officer Devon Toppings’ Motion to Dismiss Plaintiff's Complaint

(Document 4) and Defendants Timothy Tibbs, Michael Costello, and Correctional Officer David

McBrayer’s Motion to Dismiss (Document 8) be DENIED. The Court further ORDERS that

Defendant West Virginia Division of Corrections and Rehabilitation’s Motion to Dismiss

Plaintiff's Complaint (Document 6) be GRANTED and that Defendant West Virginia Division of

Corrections and Rehabilitation be DISMISSED from this case.

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

any unrepresented party.

ENTER: = October 24, 2025

Dire. Benger’

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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