Wilson v. U.S. Department of Justice et al

Filing 18

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO VACATE ORDER OF SUBSTITUTION, GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF'S MOTION TO STAY RULING ON MOTION TO DISMISS: It is O RDERED that Plaintiff's 13 Motion to Vacate Order of Substitution is DENIED, Plaintiff's Motion for Extension of Time to Respond is GRANTED, and Plaintiff's Motion to Stay Ruling on Motion to Dismiss is DENIED AS MOOT. Plaintiff sh all file any response to 9 Motion to Dismiss within 14 days from entry of this Order. The Government shall file any reply no more than 7 days from the date Plaintiff's response is filed. Signed by District Judge Irene M. Keeley on 2/29/16. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELISSA WILSON,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:15CV18
(Judge Keeley)

UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES OF AMERICA,
Defendants.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

Pending before the Court is the motion to vacate the order of
substitution (dkt. no. 13) filed by the plaintiff, Melissa Wilson
(“Wilson”). For the reasons that follow, the Court DENIES the
motion.
I. BACKGROUND
This case arises as a consequence of alleged actions by
several employees of the United States Department of Justice,
Bureau of Prisons (“BOP”), all of whom worked at the United States
Penitentiary Hazelton (“USP Hazelton”). Wilson originally sued
those

employees

by

name

and

now

challenges

the

government’s

certification that those employees acted within the scope of their
employment and that the United States should be substituted in
their place.

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO
A.

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

Factual Background
Wilson has worked as a correctional officer at USP Hazelton

for approximately nine (9) years; during that time, she has also
served as the President of the Employees’ Club. At some point,
another

correctional

(“Thomas”),

officer

“demanded”

that

at

the

Wilson

prison,

give

him

Richard
money

Thomas

from

the

Employees’ Club “to help support his family.” (Dkt. No.1 at 4).
Wilson declined, a decision that allegedly resulted in a “year-long
harassment

campaign”

against

her

by

Thomas.

The

harassment

included confrontational communications, efforts by Wilson to
obtain a peace order against Thomas, and audits of the Employees’
Club books. Id.
Apparently, Thomas was not the only employee at USP Hazelton
with whom Wilson had difficulties. She has alleged that the prison
warden, Terry O’Brien (“O’Brien”), undermined her authority over
the inmates by returning to them privileges she had taken away. She
also asserts that the associate warden, William Odom (“Odom”),
permitted Thomas to keep working inside the prison, even after
Wilson had requested a threat assessment against him in August
2012.

2

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

After requesting the threat assessment, Wilson regularly
checked on its status, but claims she was told only that it
remained pending. During this time, she also filed an Equal
Employment Opportunity (“EEO”) sex discrimination complaint with
the BOP, and expressed to her supervisors and the human resources
department her concern that Thomas might “instigate [] an inmate
attack on her.” (Dkt. No. 1 at 6).
On

March

4,

2013,

Odom

provided

Wilson

with

a

written

memorandum she has characterized as a "bogus threat assessment."
(Dkt. No. 1 at 7). O’Brien then advised Wilson that he would keep
her separated from Thomas during working hours. Unsatisfied, Wilson
reiterated her fear of an inmate attack incited by Thomas. She then
received an addendum to the threat assessment, which alluded to
“additional

issues”

that

would

be

addressed

in

the

future.

Believing she had yet to see the real threat assessment, Wilson
made several requests for it with her various supervisors. On April
9, 2013, O’Brien allegedly informed Wilson that, if she dropped her
discrimination complaint, he would provide her with the real threat
assessment. Wilson agreed.
On May 14, 2013, Wilson, who still had not received the real

3

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

threat assessment from O’Brien, was attacked by an inmate, Shelton
Harris (“Harris”), who punched her eleven (11) times around the
head and neck. As a result of the attack, Wilson suffered “a black
eye, laceration under her right eye, a concussion, swelling to the
right side of her face, and contusion to her neck, shoulders and
back.” (Dkt. No. 1 at 10).
After she recovered from these injuries, Wilson returned to
work on June 17, 2013, and finally received the real threat
assessment,

which

ironically

concluded

that

“there

is

no

significant threat posed to the safety and wellbeing of Mrs. Wilson
by inmates in the general population at USP Hazelton.” (Dkt. No.1
at 10). The following day, she was allowed to return to her office
within the prison walls. Later on that day, however, O’Brien pulled
her from her office. Id.
Two days later, on June 20, 2013, O’Brien informed Wilson that
she would not be allowed to return to work inside the prison walls
because of newly obtained information that her safety was at risk.
(Dkt. No. 1 at 11). At some point, Wilson also learned from a
special investigative agent, Shawn Burchett (“SIA Burchett”), that
her attacker had been “paid off” to “take Wilson out,” and that the

4

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

assault was meant to be a stabbing. (Dkt. No. 1 at 11).
B.

Procedural Background
On January 31, 2014, Wilson filed a claim with the BOP seeking

damages of $500,000 as a consequence of the May 14, 2013, attack.
On March 25, 2014, the BOP responded that, “[u]nder the provisions
of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675, we have
six months from the date of receipt of your claim in this office,
to review, consider, and adjudicate your claim.” (Dkt. No. 1-2 at
2). The BOP allegedly then lost Wilson’s claim, and ultimately
directed her either to resubmit it or to file a claim in federal
district court.
Accordingly, on February 2, 2015, Wilson filed a complaint in
this Court, naming as defendants the BOP, O’Brien, Odom, and
Thomas. In the “short and plain statement of the grounds for the
court’s jurisdiction,” required by Fed. R. Civ. P. 8(a)(1), Wilson
explained that her complaint was filed pursuant to the FTCA. She
asserted the following counts:
•

Count One - Deliberate
O’Brien, and Odom;

intention

against

the

BOP,

•

Count Two - Racial
O’Brien, and Odom;

discrimination

against

the

BOP,

5

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

•

Count Three - Sex discrimination
O’Brien, and Odom; and

against

the

BOP,

•

Count Four - Punitive damages against all the defendants.

Notably, Wilson failed to name Thomas in any of the substantive
accounts of the complaint; he is, however, presumptively included
in Count Four, a stand alone claim for punitive damages against
“all defendants.”
On March 5, 2015, the United States filed a “Notice of
Substitution”

and

a

“Certification

of

Scope

of

Employment,”

pursuant to 28 U.S.C. § 2679(d)(1). Based on the language of the
statute, the Court immediately entered an order dismissing the
individual

defendants

and

substituting

the

United

States

as

defendant in their place.1 Subsequently, on March 9, 2015, the
United

States

reasons:

1)

moved

the

to

Court

dismiss
lacks

Wilson’s

subject

complaint

matter

for

three

jurisdiction,

as

Wilson’s claims are preempted by federal law; 2) Wilson has failed
to exhaust her administrative remedies;

and 3) Wilson has failed

to state a claim upon which relief may be granted (dkt. no. 9). At
Wilson’s request (dkt. no. 11), the Court extended her response

1

The Department of Justice remained a party defendant because
the government’s notice did not seek its dismissal.
6

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

time until April 2, 2015 (dkt. no. 12).
On that deadline, rather than responding to the motion to
dismiss, Wilson moved (1) to vacate the order of substitution, (2)
to extend further her time to respond to the government’s motion to
dismiss, and (3) to stay any ruling on the motion to dismiss until
after the Court ruled on the motion to vacate substitution (dkt.
no. 13). Wilson argued that she should be permitted to contest the
government’s certification of scope of employment. In its response
to Wilson’s motion to vacate, the United States contended that the
order of substitution had been correctly entered based on the
certification of scope of employment, and that Wilson should not be
permitted to contest the certification. (dkt. no. 17). Wilson’s
motion to vacate is fully briefed and ripe for review.
II. APPLICABLE LAW
Under

the

Federal

Employees

Liability

Reform

and

Tort

Compensation Act of 1988, also known as the Westfall Act, federal
employees are absolutely immune from tort claims “arising out of
acts they undertake in the course of their official duties.”
Osborne v. Haley, 549 U.S. 225, 229 (2007); see 28 U.S.C. §
2679(b)(1). The Act prescribes the process by which the United

7

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

States may substitute itself in place of certain federal employees:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United States
under the provisions of this title and all references
thereto, and the United States shall be substituted as
the party defendant.
28 U.S.C. § 2679(d)(1). Thus, once the Attorney General (“AG”)
files a certification that the subject employees were acting within
the scope of their office or employment, the United States is
substituted in place of those parties, and the case moves forward
pursuant to the FTCA. See Osborne, 549 U.S. at 230; Gutierrez de
Martinez v. Lamagno, 515 U.S. 417 (1995) (hereinafter Lamagno I).
Scope of employment certifications are not absolute, however.
A

plaintiff

may

challenge

the

AG’s

scope

of

employment

certification, which is then subject to review by the district
court.2 See Osborne, 549 U.S. at 230 (citing Lamagno I, 515 U.S. at

2

In Lamagno I, “the Supreme Court held that a certificate of
scope of employment is conclusive for purposes of removal only-not
substitution. Accordingly, a district court is permitted to review
the certificate relative to the matter of substitution.” Vogrin v.
U.S., 1998 WL 193108, at *1 (4th Cir. 1998). No remand question is
present in the instant matter, only whether substitution is proper.
8

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO
420,

436-37).

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]
Absent

a

challenge,

the

AG’s

certification

is

conclusive. See Gutierrez de Martinez v. Drug Enforcement Admin.,
111 F.3d 1148, 1155 (4th Cir. 1997), cert. denied, 522 U.S. 931
(1997) (hereinafter Lamagno II).3
The Fourth Circuit has clearly laid out the process by which
a district court should review scope of employment certifications:
In short, the scope-of-employment certification is prima
facie evidence that the defendant federal employee acted
within the scope of his employment, thereby placing the
burden on the plaintiff to prove otherwise. If the
plaintiff does not come forward with any evidence, the
certification is conclusive. Moreover, the plaintiff's
submission must be specific evidence or the forecast of
specific evidence that contradicts the Attorney General's

3

A brief explanation of the procedural history of Lamagno is
in order. The case was originally styled as de Martinez v. Lamagno.
There, the Fourth Circuit held that the plaintiff could not
challenge the certification and substitution of the government. On
review, the Supreme Court of the United States held that scope of
employment certifications are subject to judicial review, and
reversed and remanded the case to the Fourth Circuit, which in turn
remanded it to the district court for further proceedings. Along
the way, the style of the case changed to Gutierrez de Martinez v.
Drug Enforcement Agency.
The district court applied the ruling of the Supreme Court,
reviewed the certification, and concluded that the plaintiff had
failed to establish an improper certification. That decision was
appealed to the Fourth Circuit, which affirmed. For ease of
citation here, the Supreme Court’s opinion is denominated Lamagno
I and the Fourth Circuit’s final opinion as Lamagno II. Lamagno II
remains the Fourth Circuit’s seminal case on the issue of scope of
employment certification and review.
9

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

certification decision, not mere conclusory allegations
and speculation. If the plaintiff's evidence is
sufficient to carry the burden of proof, the defendant
federal employee or the Government may come forward with
evidence in support of the certification. At this point,
the district court may permit (and limit) any needed
discovery. Thereafter, the district court must determine
whether there are any genuine issues of fact material to
the scope-of-employment decision, and, if so, it may
conduct an evidentiary hearing to resolve these factual
issues. Once any factual issues are resolved, the
district court should weigh the evidence on each side to
determine whether the certification should stand.
Id.; see also Borneman v. United States, 213 F. 3d 819, 827 (4th
Cir. 2000) (applying the Lamagno II framework).
When confronted with the question of scope of employment
certification,
evidentiary

district

hearings

courts

to

those

should

limit

instances

in

discovery
which

or
“the

certification, the pleadings, the affidavits, and any supporting
documentary evidence [] reveal an issue of material fact.” Lamagno
II, 111 F.3d at 1155.

The sufficiency of the plaintiff’s evidence

is a decision solely for the court. Id. Only where a district court
finds that genuine questions of material fact exist regarding the
scope

of

employment

issue

should

the

certified

employee

be

“burdened with discovery and an evidentiary hearing.” Id.
Notably, when reviewing scope of employment certifications,

10

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

the district court should “apply the law of the state where the
conduct occurred.” Id. at 1156 (citing Jamison v. Wiley, 14 F.3d
222, 227 n.2 (4th Cir. 1994)). Thus, the Court must apply West
Virginia law, as the incidents alleged in Wilson’s complaint
occurred at U.S.P. Hazelton, which is located in Bruceton Mills,
West Virginia.
Under West Virginia law, “[a]n act specifically or impliedly
directed by the master, or any conduct which is an ordinary and
natural incident or result of that act, is within the scope of the
employment.” West Virginia Regional Jail and Correctional Facility
Authority v. A.B., 766 S.E.2d 751, 768 (W.Va. 2014)(citations
omitted).

Further,

employees

act

within

the

scope

of

their

employment when the subject 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.” Id. at 769 (quoting Restatement
(Second) of Agency § 228).
Conduct that “is different in kind from that authorized, far
beyond the authorized time or space limits, or too little actuated

11

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO
by

a

purpose

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]
to

employment. Id.
employment

1:15CV18

serve

the

master”

is

outside

the

scope

of

Finally, conduct may be within the scope of

“even

if

the

specific

conduct

is

unauthorized

or

contrary to express orders, so long as the employee is acting
within his general authority and for the benefit of the employer.”
Id. (citing Travis v. Alcon Laboratories, Inc., 504 S.E. 2d 419,
431 (W.Va. 1998)).
III. DISCUSSION
In her motion to vacate substitution (dkt. no. 13), Wilson
objects to the AG’s certification and the subsequent substitution
of the United States for the named defendants. The Court must now
review that substitution in accord with the framework provided by
the Fourth Circuit in Lamagno II.
The AG’s certification provides prima facie evidence that
O’Brien, Odom, and Thomas were acting within the scope of their
employment. Lamagno II, 111 F.3d at 1155. The burden then shifts to
Wilson “‘to prove by a preponderance of the evidence that the
[employees] were not acting within the scope of their employment.’”
Borneman, 213 F. 3d at 827 (quoting Maron v. United States, 126
F.3d 317, 323 (4th Cir. 1997)). Wilson, therefore, is required to

12

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

come forward with “specific evidence or the forecast of specific
evidence” contradicting the certification. Lamagno II, 111 F.3d at
1155. If Wilson meets her burden, the AG may present evidence to
support her own contention that the acts were indeed within the
scope of employment. Borneman, 213 F. 3d at 8274 (citing Maron, 126
F.3d at 323; Lamagno II, 111 F.3d at 1155).
The Court looks at the actions of each of the certified
employees to determine whether Wilson has established that each was
acting outside the scope of his employment under West Virginia law.
A.

Associate Warden Odom
Wilson has failed to meet her burden of establishing that Odom

acted beyond the scope of his employment. The complete breadth of
Wilson’s allegations against Odom include: (1) he knew of her
conflict with Thomas and that she was fearful of working with him
among the inmates, yet he required her to do so; and (2) he gave
her a “bogus threat assessment” in an effort to quash the situation
and get Wilson to return to work. See Dkt. No. 1 at ¶¶ 27, 34, and

4

It should be noted that, although Borneman is helpful on the
issues of applying the Lamagno II framework, it is less instructive
on the scope of employment inquiry because the court there was
applying North Carolina scope of employment law.
13

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

41. Wilson’s memorandum in support of her motion to vacate states
that “[t]he attack was permitted by Terry O'Brien and William Odom
to occur because the defendants [sic] failure to properly assess
and

resolve

the

dispute

between

the

plaintiff

and

fellow

correctional officer Richard Thomas.” (Dkt. No. 14 at 1). It goes
on to reiterate paragraph 34 of her complaint regarding the “bogus
threat assessment.” Id. at 2.
There is no evidence disputing the AG’s certification that
Odom was acting within the scope of his employment at all times
relevant to the complaint. Indeed, the only conclusion one can
glean from the evidence is that Odom’s actions in directing Wilson
to work, even if unwise or negligent, were “1) the kind he is
employed to perform; 2) occur[ed] within the authorized time and
space limits; [and] 3) [was] actuated, at least in part, by a
purpose to serve [his employer].” W. Va. Regional Jail, 766 S.E.2d
at 768.
Nor is there any evidence that Odom gave Wilson a “bogus
threat assessment.” Indeed, what Wilson has submitted to the Court
amounts to nothing more than a memorandum from Odom regarding
recommendations culled from the August 20, 2012, threat assessment

14

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

— something clearly within the scope of Odom’s duties.
Further, Wilson has failed to provide evidence that Odom acted
in any way designed to advance his own independent purposes, or
that benefitted him rather than his employer. Although Wilson may
have a colorable argument that Odom acted negligently, she has
neither pleaded such, nor indicated how that would remove his
actions from the scope of his employment.
Accordingly,

Wilson

has

failed

to

meet

her

burden

of

establishing, by a preponderance of the evidence, an improper
certification

that

Odom

was

acting

within

the

scope

of

his

employment. Consequently, the Court DENIES Wilson’s motion to
vacate as it pertains to Associate Warden Odom.
B.

Warden O’Brien
Wilson also has failed to meet her burden of establishing that

O’Brien acted beyond the scope of his employment. Wilson’s claims
against O’Brien largely center around four allegations: (1) O’Brien
knew that Wilson was fearful Thomas could provoke an inmate to
attack her, did nothing, and ultimately responded to her concerns
by stating that Wilson “should get out of that institution”; (2) on
multiple occasions, O’Brien undermined her authority by returning

15

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

to inmates items that she had taken away from them; (3) O’Brien
coerced

Wilson

into

dropping

her

EEO

complaint

for

sex

discrimination in exchange for a copy of the threat assessment; and
(4) two days after Wilson returned to work, O’Brien removed her
from work inside the prison walls after receiving information that
her safety was at risk.
Wilson asserts that “[t]he attack was permitted by Terry
O'Brien and William Odom to occur because the defendants [sic]
failure to properly assess and resolve the dispute between the
plaintiff and fellow correctional officer Richard Thomas.” (Dkt.
No. 14 at 1). She then reiterates the principal allegations from
paragraphs 2, 36, 47, and 48 of her complaint regarding O’Brien.
Id. at 2.
Once again, Wilson has provided no evidence establishing - or
even suggesting — how O’Brien acted beyond the scope of his
employment. When taken as true, O’Brien’s alleged statement to
Wilson, that she should leave the prison if she was to afraid to
work,

can

be

characterized

as

no

more

than

insensitive.

Nonetheless, the warden of a federal penitentiary certainly acts
within the scope of his employment when suggesting that an officer

16

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

who truly feels unsafe might want to consider other employment.
Notably, Wilson has failed to provide any evidence of how O’Brien’s
actions served his own, independent purposes or benefitted him
rather than his employer.
That same conclusion holds true for O’Brien’s other alleged
actions as alleged by Wilson. Certainly, she cannot argue that
O’Brien acted beyond the scope of his employment when he removed
her

from

working

inside

the

prison

walls

after

receiving

information that she was in danger. To the contrary, O’Brien’s
employment required him to protect Wilson once he perceived that
she was the subject of a credible threat.
It may be true that returning items to inmates after Wilson
had taken them away undercut Wilson’s authority with those inmates.
Nevertheless, this is something that clearly was within O’Brien’s
discretion and scope of employment.
Finally, regarding whether O’Brien was aware that Wilson was
afraid to work with Thomas, or that she was concerned about an
impending inmate attack at the behest of Thomas, Wilson has failed
to show how O’Brien’s decisions fall outside the scope of his
employment. Certainly, a warden has the authority to weigh threats

17

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

and concerns, and to make decisions regarding personnel and work
assignments. Wilson has never argued that O’Brien’s decision making
was negligent, nor has she provided any evidence that he acted in
any way that served his own, independent purposes, or benefitted
him rather than his employer.
Accordingly,

Wilson

has

failed

to

meet

her

burden

of

establishing, by a preponderance of the evidence, an improper
certification that O’Brien was acting within the scope of his
employment. The Court therefore DENIES Wilson’s motion to vacate as
it pertains to Warden O’Brien.
C.

Officer Thomas
Wilson claims that Officer Thomas clearly acted in a manner

outside the scope of his employment with the BOP when he instigated
an inmate attack intended to injure Wilson. See e.g. W. Va.
Regional Jail, 766 S.E.2d at 768 (finding that sexual assault by
correction officer was “so divergent from the scope of his duties
they were made expressly felonious if committed by him in that
context”); Porter v. South Penn Oil Co., 24 S.E.2d 330, 333 (W.Va.
1943) (employee assault was not in course of employment because the
“acts

in

committing

this

assault

18

grew

out

of

his

personal

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

grievance, real or assumed, with which, by no reasonable rule of
law, can the [employer] be connected”).
Arguably, under Lamagno II, Wilson has come forward with
sufficient evidence to allow limited discovery. For example, the
deposition of SIA Burchett, who allegedly informed her that inmate
Harris told him he had been “paid off” to “take Wilson out.” Or
perhaps the deposition of Harris himself. Nevertheless, the Court
declines to exercise its discretion to order limited discovery
because, upon review, Wilson’s complaint renders the substitution
question moot as it pertains to Thomas.
Wilson’s complaint specifically asserts Counts One, Two, and
Three against “Defendant BOP, Warden O’Brien and Associate Warden
Odom.”

(Dkt. No. 1 at 11-12). Count Four asserts a claim for

punitive damages, but does not specifically name any of the
defendants, instead, simply referencing “the Defendants.” (Dkt. No.
1 at 12-13). No factual allegations are asserted against Thomas in
any of Wilson’s substantive claims.
As to Count Four, in particular, even assuming Wilson intended
to include Thomas among “the Defendants,” he cannot be held liable
in a stand-alone claim for punitive damages. “It is widely held

19

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

that there is no cause

action for punitive damages alone.” Wells

v.

872,

Smith,

297

S.E.2d

876,

878

(W.Va.

1982)

(citing

22

Am.Jur.2d, Damages § 241 (1965); Annot., 17 A.L.R.2d 527 (1951)),
overruled by Garnes v. Fleming Landfill, Inc., 413 S.E. 2d 897
(W.Va. 1991); Lyon v. Grasselli Chemical Co., 146 S.E. 57, 58
(W.Va. 1928) (“[T]he right to recover punitive damages in any case
is not the cause of action itself, but a mere incident thereto.”).
The Supreme Court of Appeals of West Virginia has explicitly
held that, without an award of compensatory damages, a plaintiff
may not recover punitive damages. See Garnes, 297 S.E.2d at 899.
(“Therefore, we overrule Syllabus Point 3 of Wells to the extent
that it stands for the proposition that a jury may return an award
for punitive damages without finding any compensatory damages.”)
Other courts have recognized Garnes’s prohibition. See e.g.
Proctor v. 7-Eleven, Inc., 180 Fed.Appx. 453, 459 (4th Cir. 2006)
(“Under

West

Virginia

law,

the

[plaintiffs]

may

not

recover

punitive damages unless they also recover compensatory damages.”);
Vanderbilt Mortg. and Finance, Inc. v. Cole, 740 S.E.2d 562, 569
(W.Va. 2013) (“ . . . Garnes, [] requires that awards of punitive
damages be conditioned on an award of actual damages . . . .”).

20

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

Here, Wilson failed to name Thomas in any of her substantive
claims for damages; thus, he cannot be held liable for compensatory
damages under any of those claims. Under Garnes, it follows, that
Wilson cannot recover an award of punitive damages from Thomas.
Under these circumstances, vacating the order of substitution as it
pertains to Thomas would be futile. Accordingly, the Court DENIES
Wilson’s motion to vacate the AG’s certificate of substitution as
it pertains to Thomas.
D.

Wilson’s Motions for an Extension of Time to Respond to the
Government’s Motion to Dismiss and to Stay Ruling on the
Motion to Dismiss Pending the Court’s Ruling on the Motion to
Vacate
Wilson also has moved to extend the deadline to file her

response to the government’s motion to dismiss (dkt. no. 9), and
for the Court to stay its ruling on that motion pending its
decision on the instant motion to vacate. Given the Court’s denial
of her motion to vacate, Wilson ought to be given an opportunity to
respond to the government’s motion to dismiss. Accordingly, she may
have fourteen (14) days from the date of the entry of this Order to
respond to the motion to dismiss, and the government shall have
seven (7) days from the date of her response in which to file their
reply.
21

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]
IV. CONCLUSION

The AG presented prima facie evidence that the certified
employee

defendants

were

acting

within

the

scope

of

their

employment. Furthermore, although Wilson properly objected to the
certification, she has failed to meet her burden of proof to refute
that certification. Finally, no genuine issue of fact material to
the scope of employment decision is present, and there is no basis
to order limited discovery or to conduct an evidentiary hearing.
Although the Court declines to vacate the order of substitution, it
grants Wilson an opportunity to respond to the government’s motion
to dismiss.
In sum, based on the foregoing, the Court:
1.

DENIES Wilson’s motion to vacate order of substitution
(dkt. no. 13);

2.

GRANTS her motion to extend the time in which to respond
to the government’s motion to dismiss (dkt. no. 9) and
ORDERS that she file any such response no later than
fourteen (14) days from the date of the entry of this
order;

3.

ORDERS that the government file any reply no more than

22

WILSON v. DOJ, ET AL.
MEMORANDUM
VACATE ORDER
EXTENSION OF
MOTION TO

1:15CV18

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
OF SUBSTITUTION, GRANTING PLAINTIFF’S MOTION FOR
TIME TO RESPOND, AND DENYING AS MOOT PLAINTIFF’S
STAY RULING ON MOTION TO DISMISS [DKT. NO. 13]

seven (7) days from the date Wilson’s response is filed;
and
4.

DENIES as MOOT her motion to stay ruling on motion to
dismiss pending ruling on motion to vacate order of
substitution (dkt. no. 9).

It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: February 29, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

23