Brown

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BECKLEY

ANTHONY BROWN,

Plaintiff,

v. CIVIL ACTION NO. 5:24-cv-00152

JEREMY RICHMOND,

individually as an employee of the West Virginia

Division of Corrections and Rehabilitation and

TROY CARTER,

individually as a former employee of the West Virginia

Division of Corrections and Rehabilitation and

AARON WILLIAMS,

individually as an employee of the West Virginia

Division of Corrections and Rehabilitation,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are Motions for Summary Judgment by Defendant Troy Carter [ECF 200],

filed November 20, 2025, as well as by Defendant Aaron Williams [ECF 202] and Defendant

Jeremy Richmond [ECF 204], both filed November 21, 2025. Plaintiff Anthony Brown

(“Plaintiff”) responded to each motion [ECF 209–211], to which Defendants Carter, Williams, and

Richmond filed their respective replies [ECF 215; ECF 214; ECF 216]. Also pending is Plaintiff

Anthony Brown’s Motion for Partial Summary Judgment [ECF 206], filed November 21, 2025.

Defendants Carter, Williams, and Richmond responded in opposition [ECF 208; ECF 212; ECF

213], to which Plaintiff did not reply. Also pending are additional motions identified and

adjudicated at the conclusion. The matters are ready for adjudication.

I.

A. Underlying Facts

On March 26, 2022, Mr. Brown was an inmate incarcerated at Southern Regional

Jail (“SRJ”). [ECF 158 ¶ 16]. Mr. Brown alleges fellow inmates launched an attack on him while

he was asleep in his cell. [Id. ¶ 17]. He was “stabbed between 12 and 15 times” with homemade

weapons. [Id.]. As a result, Mr. Brown “suffered actual physical injury, extreme mental and

emotional injury and distress, physical pain and suffering, and bears permanent scarring . . . .” [Id.

¶ 37]. Mr. Brown asserts the attack was possible due to “inmates not being secured for nightly

lockdown in violation of SRJ policy/operating procedure, the failure to maintain adequate

supervision and . . . safety checks,” and the defective cell door lock mechanism. [Id. ¶¶ 17–18].

On March 26, 2024, Mr. Brown instituted this action against several defendants,

including Defendant Betsy Jividen, the former Commissioner of the West Virginia Division of

Corrections and Rehabilitation (“WVDCR”), Defendant Michael Francis, the former

Superintendent of the WVDCR, Defendant Larry Warden, the Commanding Correctional Officer

at SRJ, and Defendant Jeff Sandy, the former Cabinet Secretary of the West Virginia Department

of Homeland Security. [ECF 1]. On May 9, 2024, Mr. Brown filed an Amended Complaint, adding

WVDCR Defendants Justin Mullins, Michael Pack, Jeremy Richmond, Harold Withrow, and Nick

Burton, who were all Correctional Officers at SRJ at the time of the alleged attack. [ECF 23].

On March 31, 2025, the Court dismissed Mr. Brown’s Amended Complaint and

provided him leave to replead. [ECF 155]. On April 16, 2025, Mr. Brown filed a Second Amended

Complaint (“Complaint”) against Defendants Francis and Richmond and against Defendants Troy

Carter and Aaron Williams, who were Correctional Officers at SRJ at the time of the alleged attack.

[ECF 158]. Defendant Michael Francis was voluntarily dismissed on May 15, 2025. [ECF 164].1

Mr. Brown alleges the following claims against remaining Defendants Carter,

Williams, and Richmond: (1) Count I – “Eighth and Fourteenth Amendment Violations under 42

U.S.C. § 1983,” (2) Count II – “Conspiracy to Commit Eighth and Fourteenth Amendment

Violations under 42 U.S.C. § 1983,” (3) Count III – “Failure to Intervene/Bystander Liability under

41 U.S.C. § 1983,” (4) Count IV – “Negligence,” (5) Count V – “Gross Negligence,” (6) Count

VI – “Intentional Infliction of Emotional Distress/Tort of Outrage,” (7) Count VII – “Common

Law Civil Conspiracy.” [Id. ¶¶ 41–108].

Defendants Carter, Williams, and Richmond each moved to dismiss the Complaint,

[see ECF 169; ECF 167; ECF 165], contending: (1) the action is either barred by res judicata or

should be enjoined based upon the release of claims in the Rose Settlement Agreement, [ECF 170

at 6–7; ECF 168 at 19–20; ECF 166 at 18–19], (2) the claims are barred by the applicable statute

of limitations, [ECF 170 at 3–6; ECF 168 at 4–11; ECF 166 at 6–8], (3) Plaintiff failed to exhaust

administrative remedies, [ECF 170 at 6–7; ECF 166 at 11], (3) the officers are entitled to qualified

immunity, [ECF 168 at 12–14; ECF 166 at 15–18], and (4) the Complaint fails to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF 170 at 7–11; ECF 168 at 12–19; ECF

166 at 10–15].

Before the Court’s resolution of the motions to dismiss, Defendants Carter,

Williams, and Richmond filed the subject motions for summary judgment reasserting the

arguments from their respective motions to dismiss in support of summary judgment. [See ECF

201; ECF 203; ECF 205]. Plaintiff contends he is entitled to partial summary judgment with

1 In accordance with the Stipulation of Partial Dismissal as to Defendant Francis, the

Motion to Dismiss [ECF 161] is DENIED as moot.

respect to his § 1983 claims (Counts I, II and III) as well as his state law negligence and common

law civil conspiracy claims (Counts IV and VII) based principally upon an affidavit by Defendant

Carter, which was previously filed in Rose et al. v. Sandy et al. -- a class action challenging the

conditions of confinement at SRJ. [ECF 206-2 (Troy Carter Affidavit); Rose et al. v. Sandy et al.,

Civ. Action No. 22-cv-405, ECF 1308-2 (same)].

B. Rose Settlement 2

On September 21, 2022, former inmates and/or pre-trial detainees at SRJ instituted

an action on behalf of themselves and other similarly situated individuals challenging the

conditions of confinement at SRJ. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF

1 (Complaint); ECF 7 (First Amended Complaint); ECF 433 (Second Amended Complaint). In

relevant part, Plaintiffs in Rose alleged the following claims: Count I – Eighth Amendment

Violations (Conditions of Confinement); Count III – Conspiracy to Commit Eighth Amendment

Violations; Count IV – Fourteenth Amendment Violations (Conditions of Confinement); Count

VI – Conspiracy to Commit Fourteenth Amendment Violations; Count VII – Failure to

Intervene/Bystander Liability; Count VIII – Negligence; Count IX – Gross Negligence; Count XI

– Intentional Infliction of Emotional Distress (“IIED”); and Count XII – Common Law Civil

Conspiracy. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 433. The relevant

2 The 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); Goldfarb v. Mayor & City Council of

Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (citing Fed. R. Evid. 201(b)) (stating, in relevant part,

that a “court may judicially notice a fact that is not subject to reasonable dispute because it” “can

be accurately and readily determined from sources whose accuracy cannot reasonably be

questioned”); McNulty v. Casero, 479 F. Supp. 3d 200, 224 n.4 (D. Md. 2020) (“At the summary

judgment stage, the Court may consider matters over which it may take judicial notice.”) (citation

omitted); see also Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“The most

frequent use of judicial notice . . . is in noticing the content of court records.”) (citation omitted

and internal quotation marks omitted). As a matter of public record, the Court takes judicial notice

of Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405.

claims were based upon, inter alia, harm to inmates as a result of the “[l]ack of [p]risoner [s]afety”

caused by (1) being “forced to live and sleep unprotected on the dayroom floor,” (2) “broken cell

doors,” (3) the failure to implement lockdown procedure at night, (4) faulty or nonfunctioning

“call boxes” in inmate cells, and (5) faulty or nonfunctioning “buttons and intercoms on the

communication board/panel in correctional officer ‘tower[s].’” Id., ECF 433 at 30–31.

On December 8, 2023, the “Settling Parties,” including named plaintiffs

“individually and on behalf of a putative class of others similarly situated” and “Settling

Defendants” “Jeff S. Sandy, individually and in his official capacity as the former Cabinet

Secretary of the West Virginia Department of Homeland Security, William K. Marshall III,

individually and in his official capacity as the Commissioner of the [WVDCR], Betsy Jividen,

Brad Douglas, and Michael Francis,” filed a Joint Motion for Preliminary Approval. Id., ECF 849;

849-1 at 8. The Joint Motion for Preliminary Approval also included the Settlement Agreement

and Release, the Claim Form, the Email Notice, and the Long Form Notice to be sent to potential

class members. Id., ECF 849; ECF 849-2 (Claim Form); ECF 849-3 (Email Notice); ECF 849-4

(Draft Long Form Notice). [ECF 216-1 (Final Long Form Notice)]. The Settlement Agreement

and Release defined “Claim Form” as “the form a Class Member must validly and timely submit

to receive a Settlement Payment under this Agreement.” Id., ECF 849-1 at 4; see also id., ECF

1059-1 at 4. “Email Notice” was defined as “the Class Notice summarizing the proposed

Settlement terms as agreed upon by Settling Parties and approved by the Court, to be provided to

Class Members via electronic mail.” Id., ECF 849-1 at 5–6; see also id., ECF 1059-1 at 5–6. “Long

Form Notice” was defined as “the Class Notice of the proposed Settlement terms, as agreed upon

by Settling Parties and approved by the Court, that the Claims Administrator is to provide to Class

Members under this Settlement Agreement on the Settlement Website.” Id., ECF 849-1 at 6; see

also id., ECF 1059-1 at 6. [See ECF 216-1].

On July 19, 2024, the Court entered a Preliminary Approval Order certifying a

settlement class under Rule 23(a) and (b)(1)(B). See Rose et al. v. Sandy et al., Civ. Action No.

22-cv-405, ECF 936 at 5. In its order of preliminary approval, the Court preliminarily approved

the Settlement as fair, reasonable, and adequate under Rule 23(e). See id., ECF 936 at 2–4. The

Court further approved the form, manner, and content of the class notice. See id., ECF 936 at 10–

11. The Court concluded the method of providing class notice constituted sufficient notice to the

class and that the class notice and notice plan satisfied the requirements of due process and Rule

23. See id., ECF 936 at 10 (“The Notice Plan is reasonably calculated under the circumstances to

apprise the Class of the pendency of the Class Action, the terms of the Settlement Agreement,

Class Counsels’ request for an award of attorneys’ fees and costs and request for incentive awards

for Class Representatives, and their rights to object to the Settlement.”). The Court directed the

parties to notify class members (1) of the settlement, (2) of the procedure and requirements for

objection, and (3) of the date of a hearing to determine the fairness, reasonableness, and adequacy

of the settlement. See id., ECF 936 at 10–12.

On September 24, 2024, the parties submitted a Joint Motion for Final Approval

and the final Settlement Agreement And Release. See id., ECF 1059; ECF 1059-1. After the

objection deadline passed, the court conducted the fairness hearing on October 25, 2024. See id.,

ECF 1141. On December 5, 2024, the Court entered the Final Approval Order approving the

settlement, incorporating “the release set forth in the Settlement Agreement,” and enjoining class

members from pursuing “Released Claims” against the “Released Parties.” See Rose et al. v. Sandy

et al., Civ. Action No. 22-cv-405, ECF 1202. The Settlement Agreement and Release defined

“Released Parties” as “Settling Defendants, together with the State of West Virginia, the West

Virginia Department of Homeland Security, the West Virginia Division of Corrections, and each

of their respective affiliates, agents, employees, officers, directors, parents, subsidiaries, attorneys,

representatives, advisors, administrators, predecessors, successors, insurers, accountants, advisors,

or anyone acting on their behalf.” Id., ECF 1059-1 at 8 (emphasis added). “Released Claims” was

defined as:

the claims against Settling Defendants that Plaintiffs and Class Members shall

release. This includes all damages arising out of continuous or repeated exposure

to substantially the same general conditions at Southern Regional Jail between

September 22, 2020, and [October 25, 2024,] the date of the Final Settlement

Hearing . . . . This includes any action, cause of action, claim, demand, right suit,

obligation, agreements, promises, liabilities, damages (including punitive or any

other form of exemplary damages), charges, fines, penalties, losses, costs,

expenses, and attorneys’ fees, asserted, or which could have been asserted in the

class action complaint. Released Claims does not include occurrences or claims

which are unknown or could not have been asserted in the class action complaint[.]

Id., ECF 1059-1at 7.

II.

Federal Rule of Civil Procedure 56 provides that summary judgment is proper

where “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden is on the nonmoving

party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 246 (1986). “The nonmoving party must do so by offering ‘sufficient proof in

the form of admissible evidence’ rather than relying solely on the allegations of her pleadings.”

Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v.

Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)). The Court must “view the evidence in the

light most favorable to the [nonmoving] party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal

quotation marks and citation omitted); Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651,

659 (4th Cir. 2018).

When faced with cross-motions for summary judgment, the Court applies the above

standard and must consider “each motion separately on its own merits to determine whether either

of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523

(4th Cir. 2003) (internal quotation marks omitted). “The court . . . cannot weigh the evidence or

make credibility determinations.” Jacobs v. N.C. Admin. Off. of the Courts, 780 F.3d 562, 569 (4th

Cir. 2015); see Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017).

III.

A. Res Judicata

Defendants contend Mr. Brown’s claims are barred by res judicata because (1) the

settlement in Rose et al. v. Sandy et al., Civil Action No. 22-cv-405, ECF 1059-1; ECF 1202 at

10, is a previous final judgment on the merits, (2) the claims in the instant action are based upon

the same claims alleged in Rose inasmuch as Mr. Brown’s allegations likewise stem from harm as

a result of the lack of prisoner safety caused by faulty cell doors, locks, and call buttons, and (3)

there is an identity of parties in the two actions inasmuch as Mr. Brown was a class member in

Rose. [See ECF 201 at 8–9; ECF 203 at 10–11; ECF 205 at 10–12].

Mr. Brown first responds the instant case should not be precluded because “it would

be unacceptable to require an inmate to elect between joining an ongoing class suit and thereby

forfeiting his right to seek individual damages, on the one hand, and removing himself from the

class (. . . risking exclusion from any equitable relief granted) in order to preserve the possibility

of bringing a subsequent damage action, on the other.” [ECF 209 at 6–7 (citing Crowder v. Lash,

687 F.2d 996, 1008 (7th Cir. 1982); ECF 210 at 6–7 (citing Crowder, 687 F.2d at 1008); ECF 211

at 7–8 (citing Crowder, 687 F.2d at 1008)]. Second, Mr. Brown responds his individual damages

action is not precluded by participation in a class action where the class notice in Rose failed to

provide notice that he was required to adjudicate his damage claims as part of the prior class action

suit. [ECF 209 at 6 (citing Wright v. Collins, 766 F.2d 841, 847 (4th Cir. 1985); ECF 210 at 7

(citing Wright, 766 F.2d at 847); ECF 211 at 7 (citing Wright, 766 F.2d at 847)].

Defendants maintain (1) the class notice in Rose was sufficient to advise Mr. Brown

of the impact of the settlement, [ECF 215 at 7; ECF 214 at 8; ECF 216 at 8–10], and (2) Mr. Brown

acknowledged his receipt of the class notice in Rose and submitted a claim form. [ECF 215 at 7

(“Plaintiff’s own testimony in this case confirms that he received formal notice of the class

settlement, submitted his claim form, and is litigating his claim through the administration process”

in Rose.); ECF 214 at 8 (“Plaintiff in fact is litigating his claim through the class administration

process in Rose—potentially subjecting him to double recovery.”); ECF 216 at 9 (citing ECF 204-

3 at 44) (noting that Mr. Brown “confirmed he received formal notice of the class settlement and

submitted his claim form” in his deposition testimony)].

“The doctrine of res judicata precludes the assertion of a claim when a judgment

on the merits in a prior suit bars further claims by parties or their privies based on the same cause

of action.’” Brooks v. Arlington Hosp. Ass’n, 850 F.2d 191, 195 (4th Cir. 1988) (cleaned up).

“Under the doctrine of res judicata, or claim preclusion, ‘a final judgment on the merits of an

action precludes the parties or their privies from relitigating . . . [what was] or could have been

raised in that action.’” Providence Hall Assocs. Ltd. P’ship v. Wells Fargo Bank, N.A., 816 F.3d

273, 276 (4th Cir. 2016) (cleaned up) (quoting Pueschel v. United States, 369 F.3d 345, 354 (4th

Cir. 2004) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981))). Res

judicata bars claims that “existed at the time of the first suit and ‘might have been offered’ in the

same cause of action. . . . ” Aliff v. Joy Mfg. Co., 914 F.2d 39, 43–44 (4th Cir.1990).

For res judicata to apply, there must be: “‘(1) a final judgment on the merits in a

prior suit; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an

identity of parties or their privies in the two suits.” Providence Hall Assocs. Ltd. P’ship, 816 F.3d

at 276 (quoting Pueschel, 369 F.3d at 354–55); see also Duckett v. Fuller, 819 F.3d 740, 744 (4th

Cir. 2016). “Along with these ‘three formal elements’ of res judicata, ‘two practical considerations

should be taken into account,’” including (1) “whether the party or its privy knew or should have

known of its claims at the time of the first action,” and (2) “whether the court that ruled in the first

suit was an effective forum to litigate the relevant claims.” Providence Hall Assocs. Ltd. P’ship,

816 F.3d at 276 (citing Grausz v. Englander, 321 F.3d 467, 473–74 (4th Cir. 2003)).

“The preclusive effect of a federal-court judgment is determined by federal

common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (quoting Semtek Int'l Inc. v. Lockheed

Martin Corp., 531 U.S. 497, 507–508 (2001)). By “precluding parties from contesting matters that

they have had a full and fair opportunity to litigate,” the doctrine of res judicata minimizes “the

expense and vexation attending multiple lawsuits, conserve[s] judicial resources, and foster[s]

reliance on judicial action by minimizing the possibility of inconsistent decisions.” Sturgell, 553

U.S. at 892 (internal quotations omitted).

1. Elements of Res Judicata

a. Final Judgment on the Merits

The first prong is satisfied inasmuch as the Court’s Final Approval Order in Rose

was a final judgment on the merits. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF

1202. The Court approved the settlement agreement, incorporated the settlement agreement’s

release enjoining the class members from pursuing related claims against certain released parties,

reserved “the Court’s jurisdiction . . . for the purpose of enforcing and administering” the

settlement agreement, and directed that the judgment “be deemed final pursuant to Rule 54(b) of

the Federal Rules of Civil Procedure.” Id., ECF 1202 at 9–11. See In re MI Windows & Doors,

Inc., Prods. Liab. Litig., 860 F.3d 218, 224 (4th Cir. 2017) (citing Young-Henderson v.

Spartanburg Area Mental Health Ctr., 945 F.2d 770, 773 (4th Cir. 1991)) (“[F]inal consent orders

incorporating parties’ settlement agreements are judgments ‘on the merits’ for purposes of res

judicata.”). A factual adjudication regarding the merits of the claims alleged did not occur in Rose.

Neither was it required for the judgment to have a preclusive effect. See e.g., id.; Orca Yachts,

L.L.C. v. Mollicam, Inc., 287 F.3d 316, 319 (4th Cir. 2002) (concluding adjudications based on

default judgment and dismissals for failure to prosecute pursuant to Rule 41 have a claim

preclusive effect on subsequent litigation).

b. Identity of Claims

“Claims arise out of the same cause of action when they ‘arise out of the same

transaction or series of transactions . . . or the same core of operative facts.’” Schwartz v. J.J.F.

Mgmt. Servs., Inc., 922 F.3d 558, 566–67 (4th Cir. 2019) (quoting First Union Commercial Corp.

v. Nelson, Mullins, Riley and Scarborough (In re Varat Enters.), 81 F.3d 1310, 1315–1316 (4th

Cir. 1996)). “Put simply, the suits are identical where the claims asserted in both actions are based

upon the same set of facts such that, ordinarily, one would expect them to be litigated

simultaneously.” Id.

The second prong of res judicata is also satisfied inasmuch as the claims alleged in

Rose and the claims alleged by Mr. Brown “‘arise out of the same . . . series of transactions . . . or

the same core of operative facts.’” Schwartz, 922 F.3d at 566–67 (quoting In re Varat Enters., 81

F.3d at 1315–16). The claims alleged in Rose were Eighth Amendment and Fourteenth

Amendment violations based upon the conditions of confinement within SRJ, conspiracy to

commit Eighth and Fourteenth Amendment violations, failure to intervene/bystander liability,

negligence, gross negligence, intentional infliction of emotional distress (“IIED”), and common

law civil conspiracy. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 433. The

relevant claims in Rose were based upon, inter alia, harm to inmates as a result of the “[l]ack of

[p]risoner [s]afety” caused by (1) being “forced to live and sleep unprotected on the dayroom

floor,” (2) “broken cell doors,” (3) the failure to implement lockdown procedure at night, (4) faulty

or nonfunctioning “call boxes” in inmate cells, and (5) faulty or nonfunctioning “buttons and

intercoms on the communication board/panel in correctional officer ‘tower[s].’” Id., ECF 433 at

30–31. Mr. Brown alleges precisely the same claims based upon the same factual predicate. [See

ECF 158 ¶¶ 41–108 (alleging the following claims: (1) Count I – “Eighth and Fourteenth

Amendment Violations under 42 U.S.C. § 1983,” (2) Count II – “Conspiracy to Commit Eighth

and Fourteenth Amendment Violations under 42 U.S.C. § 1983,” (3) Count III – “Failure to

Intervene/Bystander Liability under 41 U.S.C. § 1983,” (4) Count IV – “Negligence,” (5) Count

V – “Gross Negligence,” (6) Count VI – “Intentional Infliction of Emotional Distress/Tort of

Outrage,” (7) Count VII – “Common Law Civil Conspiracy”)]. Mr. Brown’s claims arise from an

attack by other inmates made possible due to “inmates not being secured for nightly lockdown in

violation of SRJ policy/operating procedure, the failure to maintain adequate supervision and . . .

safety checks,” and defective cell door lock mechanisms. [Id. ¶¶ 17–28, 30, 36, 38–40 (describing

the lack of safety to Mr. Brown caused by broken cell doors, failure to follow lockdown procedure,

and faulty or nonfunctioning equipment in inmate cells and officer towers)]. It is plain that Mr.

Brown’s claims arise from the same core of operative facts as the claims in Rose.

Additionally, Mr. Brown was (1) part of the Rose class when the underlying events

occurred on March 26, 2022, inasmuch as he was “incarcerated at [SRJ] for a period greater than

two (2) days” during the class period, which was from September 22, 2020, to December 5, 2024,

see Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 1059-1 at 5, and (2) Mr. Brown

acknowledged in his deposition testimony that he received and submitted a claim form in order to

receive a settlement payment. [See ECF 204-3 at 44 (Q. “Have you received notice of a lawsuit . .

. filed against [SRJ]?” A. “Yeah. I received one in the mail to fill out.” Q. “Okay. Did you fill that

out?” A. “Yes, Ma’am.”)]. That Mr. Brown is a class member and has participated in Rose further

supports that his claims are “based upon the same set of facts such that, ordinarily, one would

expect them to be litigated simultaneously.” Schwartz, 922 F.3d at 566–67. Accordingly, there is

an identity of the causes of action.

c. Identity of Parties or their Privies

“[T]he privity requirement assumes that the person in privity is so identified in

interest with a party to former litigation that he represents precisely the same legal right in respect

to the subject matter involved.” Andrews v. Daw, 201 F.3d 521, 525 (4th Cir. 2000). “[P]rivity

attaches only to those parties whose interests in a given lawsuit are deemed to be ‘aligned.’” Jones

v. S.E.C., 115 F.3d 1173, 1181 (4th Cir. 1997) (quoting Comite de Apoyo a los Trabajadores

Agricolas v. U.S. Dep't. of Labor, 995 F.2d 510, 514 (4th Cir. 1993)). Nevertheless, “a nonparty

may be bound by a judgment when the nonparty was adequately represented in the action by a

party with the same interests, such as in ‘properly conducted class actions, and suits brought by

trustees, guardians, and other fiduciaries.’” Duckett, 819 F.3d at 745 (quoting Sturgell, 553 U.S.

at 894). The Supreme Court of the United States has established the minimum elements of adequate

representation as follows: (1) aligned interests between “the nonparty and [his] representative,”

(2) “either the party understood [their] . . . representative capacity or the original court took care

to protect the interests of the nonparty,” and (3) “sometimes . . . notice of the original suit to the

persons alleged to have been represented.” Sturgell, 553 U.S. at 900.

The third prong of res judicata is satisfied inasmuch as (1) Mr. Brown was

adequately represented by the class representatives in Rose, and (2) Defendants Carter, Williams,

and Richmond are in privity with the unnamed correctional officers and the Settling Defendants

in Rose. Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 1202.

Mr. Brown was adequately represented by the class representatives in Rose

inasmuch as their interests were aligned, the class representatives were understood to be acting in

a representative capacity, and the Court protected the interests of the class members by requiring

notice to be distributed. See Duckett, 819 F.3d at 745 (quoting Sturgell, 553 U.S. at 894); see also

Sturgell, 553 U.S. at 900.

In Rose, numerous additional defendants were named, including a number of

officials responsible for the administration, operation, and control of the WVDCR; medical care

contractors and their employees; as well as “current and former correctional officers employed by

the WVDCR who worked, or are still working, at SRJ.” See Rose et al. v. Sandy et al., Civ. Action

No. 22-cv-405, ECF 433. However, the Settling Defendants included “Jeff S. Sandy, individually

and in his official capacity as the former Cabinet Secretary of the West Virginia Department of

Homeland Security, William K. Marshall III, individually and in his official capacity as the

Commissioner of the WVDCR, [and] Betsy Jividen, Brad Douglas, and Michael Francis[, in their

individual capacities].” Id., ECF 1059-1 at 8. Many of the Settling Defendants in Rose or their

successors were also named in this case in their individual capacities before they were dismissed,

including Jeff S. Sandy, Betsy Jividen, Brad Douglas, and Michael Francis. [See generally ECF 1

(Complaint); ECF 23 (First Amended Complaint); ECF 158 (Second Amended Complaint)].

Defendants Carter, Williams, and Richmond -- correctional officers employed by the WVDCR --

are the only defendants remaining. [See ECF 158].

First, Defendants Carter, Williams, and Richmond represent “precisely the same

legal right” as the unnamed correctional officers in Rose. Further, the same is true of Defendants

Carter, Williams, and Richmond and the Settling Defendants in Rose. Their interests are

“‘aligned,’” Jones, 115 F.3d at 1181 (quoting Comite de Apoyo a los Trabajadores Agricolas, 995

F.2d at 514), inasmuch as the Settling Defendants in Rose settled on behalf of themselves and the

unnamed correctional officers to ensure “Released Parties” included “Settling Defendants together

with . . . the [WVDOC], and . . . agents, employees, [and] officers” of the WVDOC. See Rose et

al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 1059-1; see also Riggleman v. Clarke, No.

7:22-CV-00018, 2023 WL 2505490, at *8 (W.D. Va. Mar. 14, 2023), aff'd sub nom. Riggleman v.

Dotson, No. 24-6995, 2025 WL 1111473 (4th Cir. Apr. 15, 2025) (concluding “prison employees

generally are in privity with other prison employees”) (collecting cases); Timpson v. Pondexter,

No. 517CV00760PMDKDW, 2017 WL 6280871, at *3 (D.S.C. Nov. 15, 2017), report and

recommendation adopted, No. CV 5:17-0760-PMD, 2017 WL 6270604 (D.S.C. Dec. 7, 2017)

(barring a subsequent suit on the basis of res judicata after concluding correctional officers sued

in the subsequent suit were in privity with the department of corrections in the prior suit inasmuch

as the department of corrections “clearly represented” the interests of the correctional officers);

Benbow v. Wall, No. CA 13-757 S, 2014 WL 652354, at *6 (D.R.I. Feb. 19, 2014) (dismissing a

prisoner’s second suit based on res judicata despite the addition of a new correctional officer

defendant who was employed by same agency as original defendants); Cruz Berrios v. Gonzalez–

Rosario, 630 F.3d 7, 14 (1st Cir. 2010) (quoting Sunshine Anthracite Coal Co. v. Adkins, 310 U.S.

381, 402–03 (1940) (“‘There is privity between officers of the same government so that a judgment

in a suit between a party and a representative of [a governmental entity] is res judicata in

relitigation of the same issue between that party and another officer of the government.’”).

Second, the rule of differing capacities does not alter this outcome inasmuch as

each Rose defendant sued in their official capacity was also sued in their individual capacity as

well. See Daw, 201 F.3d at 525 (“[A] government official in his official capacity does not represent

‘precisely the same legal right’ as he does in his individual capacity[.]”); Brooks v. Arthur, 626

F.3d 194, 201 (4th Cir. 2010) (“The rule of differing capacities is generally understood to mean

that defendants in their official and individual capacities are not in privity with one another for the

purposes of res judicata.”). Therefore, Defendants Carter, Williams, and Richmond are in privity

with the unnamed correctional officers and the Settling Defendants in Rose. Accordingly, there is

an identity of parties or their privities.

d. Grausz Factors

Finally, there are two additional “‘practical considerations’” that have been

highlighted by our Court of Appeals as a means to determine the appropriateness of the application

of res judicata. See Grausz, 321 F.3d at 473–74; Providence Hall Assocs. Ltd. P'ship, 816 F.3d at

282. Although the present case does not arise subsequent to a bankruptcy proceeding as in Grausz

and Providence Hall Assocs. Ltd. P'ship, the Court nonetheless considers the additional Grausz

factors. Specifically, the Court considers (1) “whether the court that ruled in the first suit was an

effective forum to litigate the relevant claims,” and (2) “whether the party or its privity should

have known of its claims at the time of the first action.” Providence Hall Assocs. Ltd. P'ship, 816

F.3d at 282 (citing Grausz, 321 F.3d at 473–74).

First, there is no reason to believe that this Court in Rose was an ineffective forum

to litigate the claims. Second, Mr. Brown was aware of his present claims at the time of the first

action inasmuch his claims arose on March 26, 2022, nearly six months before Rose was filed on

September 21, 2022. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 1; see also

Providence Hall Assocs. Ltd. P'ship, 816 F.3d at 283 (concluding that the inquiry focuses on the

conduct of the plaintiff in the second action or on the conduct of the privities in the first action

because to “conclude[] otherwise, . . . would effectively alter the third res judicata prong to require

a strict identity of parties rather than an identity of the parties or their privies”). Moreover, the

class representatives were well aware of the claims in the first action inasmuch as the purpose of

a class representative is to represent unnamed class members’ claims and interests on their behalf.

Thus, the class representatives represented precisely the same legal rights as the class members,

including Mr. Brown. For his part, Mr. Brown offers no argument regarding why the class

representatives could not effectively litigate in the Rose litigation. In light of the foregoing, the

Grausz factors are satisfied.

2. Additional Equitable Considerations

Although all elements of res judicata and the additional practical considerations are

satisfied, Mr. Brown nonetheless advances two arguments against the application of res judicata.

First, relying on out-of-circuit authority, Crowder v. Lash, 687 F.2d 996, 1008 (7th Cir. 1982), Mr.

Brown responds the instant case should not be precluded because “it would be unacceptable to

require an inmate to elect between joining an ongoing class suit . . . thereby forfeiting his right to

seek individual damages, on the one hand, and removing himself from the class (. . . risking

exclusion from any equitable relief granted) in order to preserve the possibility of bringing a

subsequent damage action, on the other.” [ECF 209 at 7 (citing Crowder, 687 F.2d at 1008); ECF

210 at 7 (citing Crowder, 687 F.2d at 1008); ECF 211 at 7–8 (citing Crowder, 687 F.2d at 1008)].

In Crowder, an inmate sued Indiana prison officials for individual monetary

damages based upon alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983.

Crowder, 687 F.2d at 1008. The inmate had previously participated in class action litigation

regarding the Indiana prison’s violations of the Eighth Amendment’s prohibition on cruel and

unusual punishment that sought only declaratory and injunctive relief -- as opposed to monetary

damages. Id. Defendants sought to preclude the inmate’s subsequent suit seeking monetary

damages based upon res judicata. The United States Court of Appeals for the Seventh Circuit

declined to resolve the res judicata argument because defendants “did not properly raise their res

judicata defense in the lower court.” Id. Nevertheless, the Seventh Circuit observed that “[e]ven if

res judicata were properly before [the court], . . . [it] would reject defendant’s broad argument[s]”

in favor of the doctrine’s application. Id. The Seventh Circuit reasoned it would be “a harsh and

improper application of res judicata to hold, on the basis of the notice sent out in a previous class

action suit[,] that prisoners forfeited their rights to personal redress for lack of knowledge that

federal law . . . required that injunctive and monetary relief be sought in one action.” Id. (internal

brackets and quotation marks omitted). Therefore, the Court observed that “before a class member

may be barred from pursuing an individual claim for damages, he must have been notified that he

was required to adjudicate his damage claims as part of a prior class action suit.” Id.

The Court is not persuaded by the out-of-circuit dictum. The reasoning contained

within Crowder is inapposite inasmuch as the Rose litigation sought declaratory, injunctive, and

monetary relief. Mr. Brown, therefore, could not have been faced with the situation envisioned in

Crowder that required the inmate to choose between joining the class action and forfeiting his right

to individual damages or removing himself from the class and risking exclusion from any equitable

relief granted. See id. at 1009 (“[W]e find it unacceptable . . . to require an inmate to elect between

joining an ongoing class suit . . . thereby forfeiting his right to seek individual damages, on the

one hand, and removing himself from the class (. . . risking exclusion from any equitable relief

granted) in order to preserve the possibility of bringing a subsequent damage action, on the

other.”).

Second, relying on Wright v. Collins, 766 F.2d 841, 847 (4th Cir. 1985), Mr. Brown

urges that his individual damages action is not precluded by his participation in the class action

where the class notice in Rose failed to provide notice that he was required to adjudicate his

damage claims as part of the prior class action suit. [ECF 209 at 6 (citing Wright, 766 F.2d at 847);

ECF 210 at 7 (citing Wright, 766 F.2d at 847); ECF 211 at 7 (citing Wright, 766 F.2d at 847)].

In Wright, defendants sought application of res judicata where an inmate at a

Maryland facility sued prison officials for monetary damages for violating his constitutional rights

despite the existence of class action litigation challenging the constitutionality of prison conditions

at the same Maryland facility. Relying on the previously highlighted dictum in Crowder, our Court

of Appeals concluded application of res judicata was inappropriate because “‘before a class

member may be barred from pursuing an individual claim for damages, he must have been notified

that he was required to adjudicate his damage claims as part of a prior class action suit.’” Wright,

766 F.2d at 847 (quoting Crowder, 687 F.2d at 1008). Our Court of Appeals reasoned that the

general class notice sent in the class action litigation would not bar Wright’s individual action for

monetary damages for the personal harm he suffered because the general notice merely

“inform[ed] class members of the existence of the litigation and the questions raised by it.” Id. at

848. Our Court of Appeals further reasoned the notice failed to (1) notify class members of the

effect of class membership on an inmate’s rights or (2) specify the forms of relief sought in the

class action. Id.

Unlike in Wright, the Email Notice and Long Form Notice approved by the Court

in Rose explained the effect of class membership on an inmate’s rights in plain terms. The Email

Notice was emailed “to each Class Member for whom Defendants ha[d] an email address” while

the Long Form Notice, [ECF 216-1], was posted on the settlement website and also mailed to class

members through U.S. mail, along with a claim form and a reply envelope. See Rose et al. v. Sandy

et al., Civ. Action No. 22-cv-405, ECF 1059-1 at 5–6, 9; ECF 849-3 (Email Notice); ECF 849-4

(Long Form Notice). The Email Notice stated, inter alia, “[t]his is a limited fund settlement which

means you will not be able to sue the Settling Defendants on your own for matters covered by the

settlement, because there would not be enough funds available to litigate those claims,” id., ECF

849-3, whereas the Long Form Notice stated, inter alia, (1) “[y]our legal rights are affected even

if you do nothing,” and (2) “[t]his is a limited fund settlement which means you will not be able

to sue the Settling Defendants and other Released Parties . . . on your own for matters covered by

the settlement, because there would not be enough funds available to litigate those claims.” [ECF

216-1 at 1, 3 (emphasis added)]. The Long Form Notice further specified the capacities in which

the Settling Defendants were sued. [See ECF 216-1 at 1].

The notices in Rose did not specify the forms of relief sought in the class action --

that is, whether the action sought merely injunctive and declaratory relief or whether it also sought

monetary relief. See Wright, 766 F.2d at 848. However, the notice did much more than the notice

in Wright because it notified class members of more than the mere existence of the litigation and

the questions raised by it. At minimum, the notice (1) identified the capacities in which the Settling

Defendants were sued, (2) made clear that the action sought monetary relief, (3) explained the

class representatives’ role was to “sue on behalf of themselves and other people who have similar

claims,” and, critically, (4) provided clear, intelligible notice that participation in the class would

extinguish personal damages claims for individualized harm inasmuch as the notices notified class

members as follows: “[y]our legal rights are affected even if you do nothing” and the nature of the

settlement as a limited fund settlement, “mean[ing] you will not be able to sue the Settling

Defendants and other Released Parties . . . on your own for matters covered by the settlement,

because there would not be enough funds available to litigate those claims.” [ECF 216-1 (emphasis

added)]; see also Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 849-3 (Email Notice);

ECF 849-4 (Long Form Notice) (containing section titled “Impact on Ability to Sue Settling

Defendants – Release of Claims”). Nonetheless, the lack of literal specificity regarding the type of

relief sought within the notices makes no difference inasmuch as the Rose litigation sought

declaratory, injunctive, and monetary relief. Therefore, as previously acknowledged, Mr. Brown

simply could not have been faced with the unsatisfactory situation that notice regarding the type

of relief would have been intended to avoid. Therefore, Wright likewise does not bar the

application of res judicata since Mr. Brown was “notified that participation in the class action

would preclude a subsequent individual damage action.” Wright, 766 F.2d at 848.

Thus, inasmuch as all elements of res judicata are satisfied and the additional

equitable arguments advanced by Mr. Brown have no merit, res judicata bars Mr. Brown from

asserting his claims.

One might still wonder -- despite the foregoing -- whether the application of res

judicata is nonetheless inappropriate. Take the following argument as a justification against its

application: “Yes, broken doors were alleged in Rose -- but Mr. Brown’s claim is not ‘conditions

are bad,’ it is Defendants failed to protect him from a known, immediate risk, and, as a result, he

was stabbed 12–15 times.”

But res judicata is a “practical doctrine[ ]” that considers “whether the part[ies or

their privies have] previously had a fair shot with respect to the claims raised in the present action.”

SAS Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 378 (4th Cir. 2017) (citation and internal

quotation marks omitted). Importantly, res judicata serves “crucial functions in our legal system.”

Id. It operates to “preclude . . . matters that . . . [have been] full[y] and fair[ly] . . . litigate[d],”

thereby minimizing “the expense and vexation [of] attending multiple lawsuits, conserv[ing]

judicial resources, and foster[ing] reliance on judicial action by minimizing the possibility of

inconsistent decisions.” Sturgell, 553 U.S. at 892 (internal quotations omitted).

Mr. Brown’s claim arose on March 26, 2022 -- nearly six months before Rose was

filed on September 21, 2022. Moreover, Mr. Brown was a class member in Rose. Therefore, his

claim “existed at the time of the first suit and ‘might have been offered’ in the same cause of

action. . . . ” Aliff, 914 F.2d at 43–44; see also Providence Hall Assocs. Ltd. P’ship, 816 F.3d at

276 (cleaned up) (quoting Pueschel, 369 F.3d at 354 (quoting Moitie, 452 U.S. at 398)) (“‘[A]

final judgment on the merits of an action precludes the parties or their privies from relitigating . .

. [what was] or could have been raised in that action.’”). As a consequence, res judicata bars Mr.

Brown’s claims.

Accordingly, inasmuch as Defendants are entitled to judgment as a matter of law

based upon the application of res judicata, the Court GRANTS the motions for summary judgment

filed by Defendant Carter, [ECF 200], Defendant Williams, [ECF 202], and Defendant Richmond,

[ECF 204].

B. Released Claims in Rose

Defendants further maintain that Mr. Brown’s claims should be enjoined as

“Released Claims” pursuant to the Rose Settlement Agreement and Release inasmuch as the

release protects Defendants as “Released Parties” -- i.e., correctional officers who were employed

by the WVDCR between September 22, 2020, and October 25, 2024. [ECF 201 at 8 (“The

Settlement Agreement adopted by the Court protects Defendant Carter, as a former employee of

the WVDCR[.]”); ECF 203 at 10–11 (“[Mr. Brown’s] claims arising out of ‘substantially the same

general conditions’ as those alleged in Rose were released . . . and enjoined by this Court’s final

order.”); ECF 205 at 11 (“[Defendant] Richmond qualifies as a ‘Released Part[y]’ under the Rose

Settlement Agreement adopted by the Court and [he] is therefore protected from the instant

claims.”)].

“Releases, of course, are a standard feature of class action settlements. Indeed, the

release of claims that form the basis of litigation is the raison d’être of any settlement.” Berry v.

Schulman, 807 F.3d 600, 616 (4th Cir. 2015). “In class action settlements, parties may release not

only the very claims raised in their cases, but also claims arising out of the ‘identical factual

predicate.’” Id. (quoting In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242,

248 (2d Cir. 2011)). Where district courts have reserved jurisdiction for the purpose of enforcing

and administering a settlement agreement, the court may enjoin future actions brought in

contravention of such a release. See In re MI Windows & Doors, Inc., Prods. Liab. Litig., 860 F.3d

at 220 (affirming a district court’s decision to grant a motion to enforce the class action settlement

and enjoin a suit made by a class member subsequent to a class action settlement); id. at 225 (first

citing In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 367–68 (3rd Cir. 2001);

then citing TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 460 (2d Cir. 1982); and then

citing In re Corrugated Container Antitrust Litig., 659 F.2d 1332, 1335 (5th Cir. 1981)) (“In

reaching this conclusion, we join several other courts of appeals that have approved similar

injunctions.”); see also Wudi Indus. (Shanghai) Co. v. Wong, 143 F.4th 250, 258 (4th Cir. 2025)

(“[W]hen a district court has entered an order that retains jurisdiction to enforce a settlement, that

order is sufficient to grant the court jurisdiction to enforce the settlement agreement.”) (cleaned

up).

The Court incorporated the release of claims within the Settlement Agreement and

Release into the Final Approval Order. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405,

ECF 849-1; ECF 1059-1; ECF 1202 at 10. The Court further “adjudge[d] that Settling Defendants

and Released Parties are released from any and all liability as to the ‘Released Claims,’ and that

any and all such ‘Released Claims’ filed by or on behalf of any Class Member(s) in any forum

against Released Parties are or shall be enjoined to the extent they assert ‘Released Claims’ under

this Settlement Agreement, subject to performance by Settling Defendants [of] their obligations

under this Settlement Agreement.” See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF

1202 at 10. The Final Approval Order further, “[p]ermanently enjoin[ed] Class Members from

prosecuting, commencing[,] or continuing any and all ‘Released Claims’ which they had or have,

against the Released Parties in any forum, including but not limited to the Class Action.” Id., ECF

1202 at 10. Finally, the Court reserved jurisdiction over “any attempt[] by any person to assert any

claims barred under this Agreement,” “all Parties for the purpose of enforcing and administering

this Settlement Agreement,” and “any other necessary purpose.” Id., ECF 1202 at 10–11.

“Released Claims” include “the claims against Settling Defendants that Plaintiffs

and Class Members shall release,” including “all damages arising out of continuous or repeated

exposure to substantially the same general conditions at [SRJ] between September 22, 2020, and

[October 25, 2024,] the date of the Final Settlement Hearing[.]” See Rose et al. v. Sandy et al., Civ.

Action No. 22-cv-405, ECF 1059-1 at 7. The release applies to “any action, cause of action, [or]

claim, . . . [ ] including punitive or any other form of exemplary damages[ ], . . . which could have

been asserted in the class action complaint. [But] . . . does not include occurrences or claims which

are unknown or could not have been asserted in the class action complaint[.]” Id., ECF 1059-1 at

7. Moreover, “Released Parties” includes WVDOC correctional officers. Id., ECF 1059-1 at 8.

Consequently, in the alternative, even if application of res judicata was

inappropriate, Mr. Brown’s claims are nevertheless “Released Claims” pursuant to the Settlement

Agreement and Release as well as the Court’s Final Approval Order. See id., ECF 1059-1; ECF

1202; see also Wong, 143 F.4th at 258. Accordingly, inasmuch as Defendants are entitled to

judgment as a matter of law based on Mr. Brown being enjoined from bringing his claims, the

Court GRANTS the motions for summary judgment filed by Defendant Carter, [ECF 200],

Defendant Williams, [ECF 202], and Defendant Richmond, [ECF 204].

C. Potential Conflicts

On April 16, 2025, Mr. Brown filed a second amended complaint naming

Defendant Carter. [ECF 158]. Thereafter, on May 12, 2025, Stephen P. New, Emilee B.

Wooldridge, and the law firm Stephen New and Associates filed a Notice of Withdrawal as

Counsel based upon a “non-waivable conflict of interest” as a result of Defendant Carter being

named in the second amended complaint. [Id.]. Defendants Williams and Carter have expressed

concerns regarding former counsel Stephen P. New’s “potential conflict.” [ECF 203 at 9 n.8 (citing

ECF 202-10) (noting Defendant Carter was not named in the First Amended Complaint but “[i]t

was later disclosed that Plaintiff’s counsel Stephen P. New and Associates previously represented

[Defendant] Carter” in another proceeding); ECF 215 at 6 n.2 (“[Mr. Brown] frequently refers to

an Affidavit of Troy Carter that was authored and signed while [Defendant] Carter was represented

by Stephen P. New and Associates as a witness for conditions at SRJ in [Rose et al. v. Sandy et

al.]. Mr. New, who filed [Rose] along with [Mr. Brown’s] current counsel, withdrew after

[Defendant] Carter was named in the Second Amended Complaint. However[,] his co-counsel in

the Rose matter, who now bring suit against [Defendant] Carter, remain.”); see also ECF 221; ECF

222; ECF 224].

Of further concern to the Court are potential conflict issues as a result of Rose class

counsel’s concurrent representation of an absent class member as an individual client. In Rose, on

July 19, 2024, and December 5, 2024, respectively, the Court preliminarily and finally appointed

the following counsel and firms as class counsel for settlement purposes: Stephen P. New and

Emilee B. Wooldridge and the law firm of Stephen New & Associates, Amanda J. Taylor and the

law firm of Taylor, Hinkle & Taylor, Timothy P. Lupardus and the Lupardus Law Office, Robert

Dunlap and Robert P. Dunlap and Associates PLLC, and Zachary Kyle Whitten and Whitten Law

Office. See Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 936 at 6–9 (Preliminary

Approval Order); 1202 at 6–9 (Final Approval Order). Nevertheless, before counsel were either

preliminarily or finally appointed as class counsel, Stephen P. New and Emilee B. Wooldridge and

the law firm of Stephen New & Associates, Timothy P. Lupardus and the Lupardus Law Office,

and Zachary Kyle Whitten and Whitten Law Office already represented Mr. Brown inasmuch as

the Complaint in the instant case was filed March 26, 2024. [ECF 1].

Yet, Mr. Brown’s counsel nevertheless contend the Rose class notice -- which Rose

class counsel, that is, Mr. Brown’s counsel, assisted in preparing and disseminating -- failed to

provide sufficient notice to Mr. Brown regarding his rights. [See ECF 209 at 6–7; ECF 210 at 6–

7; ECF 211 at 7–8]. Counsel presents this argument despite (1) the fact that they were class counsel

in Rose, and (2) were representing Mr. Brown in the instant action at the time notice in Rose was

disseminated in August 2024. Rose et al. v. Sandy et al., Civ. Action No. 22-cv-405, ECF 1059-2.

This raises the specter that class counsel in Rose -- in the course of representing a class member

individually -- is collaterally attacking a class settlement for which they vigorously advocated and,

frankly, designed. This is troubling for a variety of reasons, not the least of which is found in Rule

23(g)(4): “Class counsel must fairly and adequately represent the interests of the class.” Fed. R.

Civ. P. 23(g)(4). The advisory committee notes are worth quoting:

Paragraph (1) sets out the basic requirement that class counsel be appointed if a

class is certified and articulates the obligation of class counsel to represent the

interests of the class, as opposed to the potentially conflicting interests of individual

class members. It also sets out the factors the court should consider in assessing

proposed class counsel.

. . .

Paragraph 1(B) recognizes that the primary responsibility of class counsel, resulting

from appointment as class counsel, is to represent the best interests of the class. The

rule thus establishes the obligation of class counsel, an obligation that may be

different from the customary obligations of counsel to individual clients.

Appointment as class counsel means that the primary obligation of counsel is to the

class rather than to any individual members of it.

Fed. R. Civ. P. 23 advisory committee’s note to 2003 amendment; see generally Bruce A. Green

and Andrew Kent, May Class Counsel Also Represent Lead Plaintiffs?, 72 Fla. L. Rev.

1083 (2020); Nancy J. Moore, Ethical Duties of Class Counsel Also Representing Class

Representatives, 72 Fla. L. Rev. Forum 160 (2022).

Inasmuch as Judgment is being entered today adverse to Mr. Brown and no negative

consequences are visited upon the settlement class, the Court does not further address the matter.

The concerns expressed are sufficiently worrisome, however, that they warrant a referral to the

Office of Disciplinary Counsel, which will be notified of the Court’s apprehensions. Nor does the

Court further address Defendant Carter’s identified conflict inasmuch as the matter would be more

appropriately addressed by the Office of Disciplinary Counsel.

IV.

Based upon the foregoing discussion, and having considered the entirety of the

record, the Court ORDERS as follows:

1. That Defendant Carter’s, Williams’s, and Richmond’s Motions for Summary Judgment are

GRANTED [ECF 200; ECF 202; ECF 204];

2. That Mr. Brown’s Motion for Partial Summary Judgment is DENIED [ECF 206];

3. That Mr. Francis’s Motion to Dismiss is DENIED AS MOOT [ECF 161];

4. That Defendant Carter’s, Williams’s, and Richmond’s Motions to Dismiss are DENIED

AS MOOT [ECF 169; ECF 167; ECF 165];

5. That Defendant Carter’s Motion to Vacate the Court’s scheduling order is DENIED AS

MOOT [ECF 180];

6. That Defendant Carter’s Motions in Limine are DENIED AS MOOT [ECF 181; ECF

182; ECF 183]; and,

7. That Mr. Brown’s Motions in Limine ace DENIED AS MOOT [ECF 184; ECF 217].

The Clerk is DIRECTED to transmit a copy of this written opinion and order to

Rachael L. Fletcher Cipoletti, Chief Lawyer Disciplinary Counsel (rfcipoletti@wvodc.org), all

counsel of record, and to any unrepresented party.

ENTER: March 9, 2026

Osa

“a = Chief United States District Judge

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