Darr v. Stout et al
MEMORANDUM OPINION. Signed by US Magistrate Judge Pamela Meade Sargent on 11/14/2023. (Opinion mailed to Pro Se Party via US Mail)(tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
WILLIAM ALLEN DARR, JR.,
C/O R. STOUT, et al.,
Civil Action No. 7:23cv00298
By: Hon. Pamela Meade Sargent
United States Magistrate Judge
Plaintiff, William Allen Darr, Jr., (“Darr”), a Virginia inmate proceeding pro
se, filed this civil action under 42 U.S.C. § 1983 against Correctional Officer R.
Stout, (“Stout”), Harold W. Clarke, (“Clarke”), and Warden Phillip White,
(“White”), alleging violations of his rights under the Eighth and Fourteenth
Amendments. The case was transferred to the undersigned magistrate judge upon
the consent of the parties, pursuant to 28 U.S.C. § 636(c)(1). The case is before the
court on the defendants’ motion to dismiss, (Docket Item No. 10) (“Motion”). For
the reasons stated below, the Motion will be granted in part and denied in part.
In his Complaint, (Docket Item No. 1), Darr alleges that on February 5, 2022,
Stout slammed his arm in the tray slot of his cell door at Augusta Correctional Center
(“Augusta”), causing severe pain. Darr alleges that the use of force occurred after he
requested to speak to a supervisor, and Stout threatened to break his arm if he did
not remove it from the tray slot. Based on these allegations, Darr claims that Stout
violated his Eighth Amendment right to be free from cruel and unusual punishment,
as well as his Fourteenth Amendment rights to equal protection and due process.
In addition to suing Stout in his individual and official capacities under
§ 1983, Darr’s Complaint names Clarke and White as defendants in their official
capacities. At the time of the events giving rise to this action, Clarke was the Director
of the Virginia Department of Corrections, (“VDOC”), and White was the Warden
of Augusta. In support of his claim against Clarke, Darr states that he “feels that . . .
Clarke has some responsibility” for Stout’s actions and “some liability” for the
alleged violation of the Eighth Amendment. (Docket Item No. 1 at 5.) Darr seeks
declaratory and injunctive relief, in addition to compensatory and punitive damages.
In response to a question on the form Complaint, Darr indicates that he filed
a grievance regarding the facts of the Complaint. He describes the result of the
grievance as “Expired Filing Period.” (Docket Item No. 1 at 3.) The Complaint is
accompanied by several exhibits, including a Written Complaint signed by Darr on
February 5, 2022; an Investigation Completion Notice addressed to Darr on March
1, 2022, which advised him that an investigation had been conducted concerning the
allegations made on February 5, 2022; Offender Requests submitted in February and
March 2022; and a Regular Grievance signed on January 11, 2023, which was
rejected as untimely since it was not submitted within 30 days of the original
In his response in opposition to the Motion, (Docket Item No. 15)
(“Response”), Darr alleges that he communicated with several people regarding
Stout’s actions, including Clarke and White. Darr alleges that White told him that
the incident “was being special investi[gated] in Richmond” and that Darr “need not
. . . go any further reaching out to anyone.” (Docket Item No. 1 at 6.)
In the Motion, the defendants argue that Darr’s Complaint should be
dismissed under Federal Rules of Civil Procedure Rule 12(b)(6) for failing to state
a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6)
tests the legal sufficiency of a complaint. See Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff’s allegations “allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. The
complaint must contain “more than labels and conclusions” or a “formulaic
recitation of the elements of a cause of action,” and it must allege enough facts to
raise a right to relief above the speculative level. Twombly, 550 U.S. at 555.
When a complaint is filed by a plaintiff proceeding pro se, it must be liberally
construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Pro se complaints are
held to a less stringent standard than those drafted by attorneys. See Erickson, 551
U.S. at 94. “Principles requiring generous construction of pro se complaints are not,
however, without limits.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985). A pro se complaint “must still ‘state a claim to relief that is plausible on
its face.’” Sakyi v. Nationstar Mortg., LLC, 770 F. App’x 113, 113 (4th Cir 2019)
(quoting Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014)).
The defendants argue that the Complaint should be dismissed in its entirety
on the basis that Darr failed to properly exhaust his administrative remedies. They
contend that the Complaint “shows that Plaintiff did not comply with the deadline
requirements of VDOC’s grievance procedures.” (Docket Item No. 11 at 4.)
The Prison Litigation Reform Act of 1995, (“PLRA”), “mandates that an
inmate exhaust ‘such administrative remedies as are available’ before bringing suit
to challenge prison conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting
42 U.S.C. § 1997e(a)). “There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549
U.S. 199, 211 (2007). The Supreme Court has held that “proper exhaustion of
administrative remedies is necessary” and that “[p]roper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 83, 91 (2006).
The Supreme Court also has made clear, however, that inmates “need not
exhaust remedies if they are not ‘available,’” Ross, 578 U.S. at 636, and that
“inmates are not required to specially plead or demonstrate exhaustion in their
complaints,” Jones, 549 U.S. at 216. Instead, “failure to exhaust is an affirmative
defense” that must be raised by defendants. Jones, 549 U.S. at 216. “It follows,
therefore, that a motion to dismiss filed under Federal Rule of Procedure 12(b)(6),
which tests the sufficiency of the complaint, generally cannot reach the merits of an
affirmative defense,” such as the defense of failure to exhaust administrative
remedies. Goodman v. PraxAir, Inc., 494 F.3d 458, 464 (4th Cir. 2007). It is only
“in the relatively rare circumstances where facts sufficient to rule on an affirmative
defense are alleged in the complaint” that “the defense may be reached by a motion
to dismiss filed under Rule 12(b)(6).” Goodman, 494 F.3d at 464. “This principle
only applies, however, if all facts necessary to the affirmative defense clearly appear
on the face of the complaint.” Goodman, 494 F.3d at 464. (internal quotation marks,
brackets, and citation omitted); see also Custis v. Davis, 851 F.3d 358, 361 (4th Cir.
2017) (explaining that a court “may sua dismiss a complaint when the alleged facts
in the complaint, taken as true, prove that the inmate failed to exhaust his
administrative remedies,” but that such cases are “rare”). “And even to succeed in
these rare circumstances, the defendant must show ‘that the plaintiff’s potential
[response] to the affirmative defense [is] foreclosed by the allegations in the
complaint.’” L.N.P. v. Kijakazi, 64 F.4th 577, 586 (4th Cir. 2023) (first alteration in
original) (quoting Goodman, 494 F.3d at 466).
Here, it is not apparent from the face of the Complaint that Darr failed to
satisfy the PLRA’s exhaustion requirement. Although Darr acknowledges that the
Regular Grievance that he submitted in January 2023 was rejected as untimely, it is
unclear whether the grievance process was actually available to Darr during the 30day period following the use of force on February 5, 2022, or whether he, “through
no fault of his own, was prevented from availing himself of it.” Moore v. Bennette,
517 F.3d 717, 725 (4th Cir. 2008); see also Ross, 578 U.S. at 644 (identifying
circumstances that render administrative remedies unavailable, such as “when prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation”); Custis, 851 F.3d at 361
(concluding that an inmate’s complaint, standing alone, did not make it apparent
whether the inmate exhausted, or failed to exhaust, available administrative
remedies, where the inmate alleged that his grievance was dismissed as untimely).
This is especially true in light of Darr’s Response to the Motion, which suggests that
he may have relied to his detriment on White’s instructions indicating that he need
not take any further action since a formal investigation had been initiated. See
Toomer v. BCDC, 537 F. App’x 204, 206–07 (4th Cir. 2013) (concluding that prison
officials were not entitled to summary judgment on the issue of exhaustion since the
inmate received instructions that “essentially diverted [him] from filing a Step III
grievance”); Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002) (concluding that
the issue of exhaustion could not be decided as a matter of law in light of the inmate’s
assertion that he was induced to believe that he must wait for an investigation to be
completed before filing a formal grievance). The defendants have not shown that
Darr’s potential response to the affirmative defense of exhaustion is “foreclosed by
the allegations in the complaint.” Goodman, 494 F.3d at 466.
For these reasons, this case does not fall within the “relatively rare” category
of cases in which the affirmative defense of exhaustion may be resolved at the Rule
12(b)(6) stage of the proceedings. Goodman, 494 F.3d at 464. Accordingly, to the
extent that the defendants seek dismissal for failure to exhaust administrative
remedies, the Motion will be denied.
The defendants next move to dismiss any claims asserted against them in their
official capacities. As noted above, the Complaint names Stout as a defendant in his
individual and official capacities, and it names Clarke and White as defendants only
in their official capacities. For the following reasons, the official-capacity claims
will be dismissed for failure to state a claim upon which relief may be granted.
Whereas “[p]ersonal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law,” Kentucky v.
Graham, 473 U.S. 159, 165 (1985), “official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent,”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). “[T]he suit is ‘treated
as a suit against the entity,’ which must then be a ‘moving force’ behind the
deprivation.” King v. Rubenstein, 825 F.3d 206, 223 (4th Cir. 2016) (quoting
Graham, 473 U.S. at 166 and Polk County v. Dodson, 454 U.S. 312, 326 (1981)).
In particular, “the entity’s policy or custom must have played a part in the violation
of federal law.” Graham, 473 U.S. at 166 (internal quotation marks and citations
Darr has not plausibly alleged that an official policy or custom played a role
in the constitutional deprivations of which he complains. At most, Darr alleges that
Stout used excessive force against him on a single occasion and that Clarke and
White had supervisory roles at the time of the incident. “It is well settled that
‘isolated incidents’ of unconstitutional conduct by subordinate employees are not
sufficient to establish a custom or practice for § 1983 purposes.” Lytle v. Doyle, 326
F.3d 463, 473 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 220 (4th Cir.
1999)). “Rather, there must be ‘numerous particular instances’ of unconstitutional
conduct in order to establish a custom or practice.” Lytle, 326 F.3d at 473 (quoting
Kopf v. Wing, 942 F.2d 265, 269 (4th Cir. 1991)). Because the Complaint does not
allege facts suggesting that an official policy or custom played a part in the alleged
violations of federal law, it fails to state a claim against the defendants in their
To the extent that the Complaint could be liberally construed as seeking relief against
Clarke and White under a theory of supervisory liability, the claims against these defendants fare
Additionally, any claim for damages against the defendants in their official
capacities is precluded by the Eleventh Amendment, which “generally bars actions
for damages against unconsenting States.” Fauconier v. Clarke, 966 F.3d 265, 279
(4th Cir. 2020). “Moreover, whereas 42 U.S.C.§ 1983 permits suit against ‘every
person’ who deprives an individual of his or her rights under color of state law,
neither States nor state officials acting in their official capacities constitute ‘persons’
within the meaning of the statute when sued for monetary relief.” Fauconier, 966
F.3d at 279-80. Thus, any claim for damages against the defendants in their official
capacities is subject to dismissal on these grounds.
Fourteenth Amendment Claim
The defendants also have moved to dismiss Darr’s claim that his “Fourteenth
Amendment rights to equal protection of the law and due process were violated when
. . . Stout slammed his arm in [the] tray slot.” (Docket Item No. 1. at 4.) The court
agrees with the defendants that the Complaint does not state a viable claim for relief
under the Fourteenth Amendment.
no better. “Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. In other words, “each
Government official, his or her title notwithstanding, is only liable for his or her own misconduct,”
and a supervisor’s “mere knowledge” that a subordinate engaged in unconstitutional conduct does
not suffice. Iqbal, 556 U.S. at 677. Instead, a plaintiff must show that “each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556
U.S. at 677. Darr’s Complaint does not satisfy this requirement with respect to Clarke or White.
Consequently, it fails to state a claim against either defendant under a theory of supervisory
liability. See King v. Riley, 76 F.4th 259, 269–70 (4th Cir. 2023) (“Nowhere does [King] identify
how each defendant violated the constitution. This is a prerequisite to a supervisory-liability claim
. . . . So King’s supervisory-liability claim fails.”).
The Equal Protection Clause of the Fourteenth Amendment provides that
“[n]o State shall . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. “It is ‘essentially a direction that all
persons similarly situated should be treated alike.’” Grimm v. Gloucester Cnty. Sch.
Bd., 972 F.3d 586, 606 (4th Cir. 2020) (quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985)). “In order to survive a motion to dismiss an equal
protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that
he was treated differently from others who were similarly situated and that the
unequal treatment was the result of discriminatory animus.” Equity in Athletics, Inc.
v. Dep’t of Educ., 639 F.3d 91, 108 (4th Cir. 2011).
Darr has not alleged facts sufficient to satisfy either element. He does not
allege that he was treated differently from others who were similarly situated or that
any disparity in treatment resulted from “intentional or purposeful discrimination.”
Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Thus, the Complaint fails
to state a claim for relief under the Equal Protection Clause.
Finally, the court concludes that the alleged use of excessive force by Stout
does not give rise to a separate claim for violation of Darr’s right to due process
under the Fourteenth Amendment. Claims of excessive force by convicted prisoners
are governed by the Eighth Amendment’s prohibition against cruel and unusual
punishment. See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). The defendants
do not challenge the sufficiency of Darr’s allegations with respect to his Eighth
Amendment claim against Stout in his individual capacity. It is well settled that “if
a constitutional claim is covered by a specific constitutional provision, such as the
Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due
process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citing Graham v.
Connor, 490 U.S. 386, 394 (1989)). The same reasoning applies to any claimed
violation of procedural due process arising from the use of force. See Rivera v.
Mathena, 795 F. App’x 169, 177 n.6 (4th Cir. 2019) (declining to reach an inmate’s
procedural due process claim since he could “obtain the entirety of the relief that he
[sought] under his Eighth Amendment conditions of confinement claim”).
Therefore, Darr’s claim that the use of force violated his right to due process will be
For the reasons stated, the court will grant in part and deny in part the
defendants’ Motion. The case will proceed solely on the Eighth Amendment claim
of excessive force asserted against Stout in his individual capacity. All other claims
will be dismissed for failure to state a claim upon which relief may be granted.
An appropriate Order will be entered.
ENTERED: This 14th day of November, 2023.
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
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