Martin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

ROBERT MARTIN,

Plaintiff,

v. CIVIL ACTION NO. 2:25-cv-00473

LT. TIMOTHY TIBBS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Plaintiff’s Amended Complaint (Document 1-2), Defendant

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

Complaint (Document 11), the Memorandum of Law in Support of Defendant West Virginia

Division of Corrections and Rehabilitation’s Motion to Dismiss (Document 12), Defendant

Timothy Tibbs’ Motion to Dismiss (Document 13), Defendant Timothy Tibbs’ Joinder in the

Memorandum of Law in Support of Defendant WVDCR’s Motion to Dismiss(Document 14), the

Plaintiff’s Memorandum Response to Defendant West Virginia Division of Corrections and

Rehabilitation’s Motion to Dismiss and Defendant Tibbs’ Motion to Dismiss by Joinder

(Document 17), and Defendant West Virginia Division of Corrections and Rehabilitation’s Reply

in Support of Its Motion to Dismiss Plaintiff’s Complaint (Document 19).

In addition, the Court has reviewed the Motion to Dismiss on Behalf of Defendants

McFarland, Brill, Vincent, Rippy, Gier, and Blouir (Document 15), the Memorandum of Law in

Support of Motion to Dismiss on Behalf of Defendants McFarland, Brill, Vincent, Rippy, Gier, and

Blouir (Document 16), the Plaintiff’s Memorandum Response to Defendants McFarland, Brill,

Vincent, Rippy, Gier, and Blouir’s Motion to Dismiss (Document 18), and Defendants McFarland,

Brill, Vincent, Rippy, Gier, and Blouir’s Reply to Plaintiff’s Memorandum Response to Defendants

McFarland, Brill, Vincent, Rippy, Gier, and Blouir’s Motion to Dismiss (Document 20). For the

reasons stated herein, the Court finds that the motions to dismiss should be granted as to the West

Virginia Division of Corrections and Rehabilitation and denied as to the remaining Defendants.

FACTUAL ALLEGATIONS

The Plaintiff, Robert Martin, was incarcerated at North Central Regional Jail (NCRJ) at all

relevant times, although he was no longer incarcerated at the time he filed suit. He brought this

complaint against Lt. Timothy Tibbs, Correctional Officers McFarland, Daniel Brill, Vincent,

Rippie, Greer, Blouir,1 Doe, and the West Virginia Division of Corrections and Rehabilitation

(WVDCR). He alleges four separate incidents of excessive force against him at North Central

Regional Jail during a two-week period in March 2023.

On or about March 8, 2023, Mr. Martin filled out a sick call. Some of the nurses or

correctional officers believed he was attempting to hit on the nurses. Officer Greer directed Mr.

Martin to come to the bean hole in his cell. When he did so, Officer Greer sprayed him in the

face with O.C. spray without any warning. He posed no threat and had not disobeyed any order.

Mr. Martin made critical remarks about Correctional Officer Smith during a hospital stay.

On or about March 14, 2023, while he was being transported from the hospital back to NCRJ, the

correctional officers with him told him that they were going to put him in a pickle suit and place

him on suicide watch because of his negative comments about Officer Smith. When he returned

1 The Plaintiff identified this Defendant as “Correctional Officer Blaor.” The Court has used the spelling contained

in the motion to dismiss filed by the individual Defendants throughout.

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to NCRJ and stripped out in the bathroom, Officers Vincent, Rippi and Doe(s) sprayed him with

O.C. spray in the bathroom and did not properly decontaminate him. After he was placed in a

segregation cell, Officer Greer sprayed him through the bean hole without warning. He was then

removed from the cell and placed in a restraint chair. While he was restrained, Officers

McFarland, Brill, and Doe beat, punched, and tazed him repeatedly. Officer McFarland also shot

him in the foot with a PepperBall gun while he was restrained.

The next day, on or about March 15, 2023, Mr. Martin was conducting legal research in

the law library when Lt. Tibbs approached and began arguing with him. Lt. Tibbs sprayed Mr.

Martin without warning. Lt. Tibbs had not issued any orders, and Mr. Martin was not a threat to

himself or anyone else.

On or about March 23, 2023, Mr. Martin accidentally clogged the toilet in his cell, and it

began to flood. He was placed in an interview room in a restraint chair. Officer Blouir and Lt.

Tibbs beat, punched, and struck him, Lt. Tibbs using a night stick. Mr. Martin posed no threat at

the time of the beating.

Lt. Tibbs has been involved in dozens of excessive force complaints, primarily involving

the use of O.C. spray. Mr. Martin alleges that he suffered serious injury and other damages from

each incident of excessive force.

The Plaintiff asserts the following causes of action: Count One – Outrageous Conduct;

Count Two – Violation of 42 U.S.C. § 1983; and Count Three – 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

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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

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,

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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

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

stand-alone tort. It contends that it cannot be vicariously liable for the outrageous conduct claim

because it involves intentional conduct by the individual Defendants. It further argues that it is

entitled to qualified immunity under West Virginia law because the alleged actions of the

individual defendants were outside the scope of employment. In addition, WVDCR argues that

the case should be dismissed based on the Plaintiff’s failure to exhaust administrative remedies,

citing an affidavit from WVDCR’s Program Specialist, Inmate Grievance Examiner in which she

indicates that she did not find appeals of grievances from Robert Martin in 2023 in a search of the

grievance system. Lt. Tibbs joins as to the failure to exhaust administrative remedies defense.

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The remaining individual Defendants argue that they are entitled to qualified immunity. They

further contend that the Plaintiff’s assertion that they were acting within the scope of their

employment renders Counts I and II official capacity claims that can proceed only against

WVDCR.2

The Plaintiff argues that WVDCR is not entitled to qualified immunity and can be held

vicariously liable for the outrageous conduct of its employees. He argues that a jury could find

that the individual defendants were acting within the scope of employment and for the benefit of

WVDCR when they tased, physically beat, and deployed O.C. spray against the Plaintiff. The

Plaintiff further argues that he was not required to exhaust administrative remedies under the

Prison Litigation Reform Act (PLRA) because he was not incarcerated at the time he filed his

Complaint and Amended Complaint. As to the individual Defendants, he contends that clearly

established law bars use of force in the manner alleged, including use of O.C. spray, tasers, and

physical force against a compliant inmate who poses no threat. The Plaintiff further argues that

his amended complaint clearly alleged Counts One and Two against the individual Defendants in

their individual capacities, and nothing bars plaintiffs from asserting individual claims against

officers and vicarious liability claims against WVDCR.

A. Failure to Exhaust Administrative Remedies

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 former inmate who has been released is no longer

‘incarcerated or detained’ for the purposes of § 1997e(h) and therefore does not qualify as a

2 The individual Defendants also argue for dismissal of Count Three, asserting vicarious liability, to the extent it is

asserted against them. The Plaintiff’s response confirms that Count Three is alleged only against the WVDCR.

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‘prisoner’ subject to the PLRA.” Cofield v. Bowser, 247 F. App'x 413, 414 (4th Cir. 2007)

(unpublished); see also Saunders v. Kummer, No. CV 2:22-00173, 2023 WL 2025240, at *3

(S.D.W. Va. Feb. 15, 2023) (Copenhaver, S.J.) (finding that a plaintiff who filed suit while he was

not incarcerated was not subject to the exhaustion requirement, despite previous dismissal of a

similar suit for failure to exhaust). Because the Plaintiff alleges that he was no longer incarcerated

at the time of filing of his complaint, the Court finds no grounds for dismissal based on the PLRA,

and Lt. Tibbs’ motion to dismiss must be denied.

B. Qualified Immunity

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 the individual Defendants

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. 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).

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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).

Mr. Martin alleges that Officers Greer, Vincent, Rippi, and Tibbs all sprayed him with O.C.

spray without warning when he posed no threat and had not disobeyed any order. He further

alleges that Officers McFarland, Brill, Blouir and Tibbs all beat, punched, tazed, or struck him

while he was restrained. In addition, he alleges that Officer McFarland shot him with a

PepperBall gun and Lt. Tibbs hit him with a nightstick, both while he was restrained. In each

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incident of excessive force, he asserts that he posed no threat, had not disobeyed any order, and

there was no legitimate justification whatsoever for any use of force. Instead, Mr. Martin

contends that each incident constituted punishment inflicted in retaliation—for perceived flirtation

with nurses, for making negative remarks about another correctional officer, for engaging in an

argument Lt. Tibbs instigated, and for clogging a toilet. Clear precedent establishes that use of

O.C. spray, tasers, and physical beatings against a compliant, non-threatening inmate constitute

excessive force in violation of the Eighth Amendment. Given the precedent, no reasonable

correctional officer would believe that spraying an inmate with O.C. spray through the bean hole

in his cell without warning or beating him while he was secured in a restraint chair are permissible

uses of force under the Eighth Amendment.

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.”). Therefore, accepting

the Plaintiff’s factual allegations as true, the Defendants’ motions based on qualified immunity

must be denied as to both the federal and state claims against the individual Defendants.

C. Official Capacity of Individual Officers

The individual Defendants cite no law for the proposition that pleading that a state official

acted within the scope of employment in violating a plaintiff’s constitutional rights, such that the

state employer may be subject to vicarious liability, precludes a claim for relief against the

individual officer. In 1991, the Supreme Court rejected the proposition that “state officials may

not be held liable in their personal capacity for actions they take in their official capacity.” Hafer

v. Melo, 502 U.S. 21, 27 (1991). The Court explained that § 1983 is designed to redress

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deprivation of constitutional rights “by an official’s abuse of his position,” and the “official

authority” central to such suits does not insulate officials from suit in their personal capacities.

Id. at 27-28 (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). The Court found “no support”

for a distinction between actions “outside the official’s authority” and “those both within the

official’s authority and necessary to the performance of the governmental functions.” Id. at 28.

Thus, to the extent the individual Defendants seek dismissal based on the argument that the

Plaintiff’s scope of employment allegation “transforms the claims into official capacity suits as if

they are plead against the WVDCR,” the motion must be denied. (Defs.’ Mem. at 8) (Document

16.)

D. State Immunity from Vicarious Liability - WVDCR

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.

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

2014). The court explained that acts “manifestly outside of the scope of [an employee’s] authority

or employment” are “notable for being driven by personal motives which in no way benefit the

State or the public, nor is it reasonably incident to the official or agent’s duties.” Id. at 765.

However, “situations wherein State actors violate clearly established rights while acting within the

scope of their authority and/or employment, are reasonably borne by the State.” Id. The West

Virginia Supreme Court has adopted the Restatement factors for determining whether conduct is

within the scope of employment: “if the conduct is (1) of the kind he is employed to perform; (2)

occurs within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose

to serve the master, and (4) if force is used, the use of force is not unexpectable by the master.”

W. Virginia Div. of Corr. & Rehab. v. Robbins, 889 S.E.2d 88, 103 (W. Va. 2023) (emphasis

omitted). “The ‘purpose’ of the act is of critical importance.” Id. “Whether an act falls within

the scope of employment generally presents a question of fact,” unless “the facts are undisputed

and no conflicting inferences are possible.” Crawford v. McDonald, No. 21-0732, 2023 WL

2729675, at *7 (W. Va. Mar. 31, 2023). “Conduct of a servant is not within the scope of

employment if it is different in kind from that authorized, far beyond the authorized time or space

limits, or too little actuated by a purpose to serve the master.” Id. (quoting A.B., 766 S.E.2d at

769).

This Court has previously found that the use of force against inmates for no potentially

justifiable or legitimate purpose generally falls outside the scope of employment because it does

not serve the purposes of the WVDCR. See, e.g., Marcum v. Bailey, 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.

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and Rehab., No. 2:24-CV-00728, 2025 WL 781089, at *4 (S.D. W. Va. Mar. 11, 2025) (Berger,

J.).

The Plaintiff emphasizes the West Virginia Supreme Court’s reasoning in Crawford,

finding that “a jury could reasonably find that the correctional officers’ conduct in question was

within the scope of their employment,” where the Plaintiff alleged unjustified use of OC spray,

failure to decontaminate, and extended use of restraints. Crawford, 2023 WL 2729675, at *7.

However, in Crawford, the West Virginia Supreme Court concluded that a jury could find that the

subject officer was acting within the scope of his employment based on the disputed facts in that

case, including evidence that the plaintiff was on drugs, behaved erratically, refused directives

from officers, and could have been viewed as a security risk. Id. at *1-3, 7.

Mr. Martin alleges that he posed no threat and disobeyed no orders and was either in

restraints or attacked without warning in each of the four incidents. Spraying an inmate with O.C.

spray based on a perception that he was attempting to hit on a nurse by submitting a sick call in no

way furthers the interests of the WVDCR. Nor does beating and tazing an inmate in a restraint

chair. Therefore, accepting the Plaintiff’s factual allegations as true, no reasonable inference can

be drawn that the individual Defendants’ intentional wrongful conduct was done for the benefit of

the WVDCR. Although the conduct occurred at the time and place of employment, the factual

allegations are devoid of any possible basis for the individual Defendants to believe that these uses

of force would further the interests of the WVDCR. Based on these allegations, the individual

Defendants engaged in intentional conduct outside the scope of employment. Therefore, the

WVDCR’s motion to dismiss the vicarious liability claim must be granted.

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CONCLUSION

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

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

Plaintiff's Complaint (Document 11) be GRANTED as to Count III, as set forth herein, and that

Defendant West Virginia Division of Corrections and Rehabilitation be DISMISSED from this

case. The Court further ORDERS that Defendant Timothy Tibbs’ Motion to Dismiss (Document

13) and the Motion to Dismiss on Behalf of Defendants McFarland, Brill, Vincent, Rippy, Gier,

and Blouir (Document 15) be DENIED.

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

any unrepresented party.

ENTER: November 12, 2025

Dire. Benger’

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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