Morton v. Eastern Regional Jail et al

Filing 31

ORDER GRANTING MOTION 26 TO AMEND COMPLAINT 1 AND ADOPTING IN PART, AND DECLINING TO ADOPT IN PART, 24 REPORT AND RECOMMENDATION. Defendant Eastern Regional Jail terminated. Clerk to issue summonses to Defts. Sheeley and Tomblin. USMS will ha ve 30 days from the date of this order to serve. Signed by District Judge Gina M. Groh on 12/30/2013. Copy sent certified mail, return receipt to pro se Plaintiff; copy mailed to Clarksburg USMS with USM-285 form, complaint, and summonses; copy emailed to Martinsburg USMS.(tlg) (Additional attachment(s) added on 12/30/2013: # 1 certified mail receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

TIRRELL A. MORTON,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-CV-122
(JUDGE GROH)

EASTERN REGIONAL JAIL;
JOHN SHEELEY, Administrator,
Eastern Regional Jail; and
GOV. EARL RAY TOMBLIN,
Governor of the State of West Virginia,
Defendants.

ORDER GRANTING MOTION TO AMEND COMPLAINT AND ADOPTING IN PART,
AND DECLINING TO ADOPT IN PART, REPORT AND RECOMMENDATION
I.

Introduction
On this day, the above-styled matter came before the Court for consideration of the

Report and Recommendation of United States Magistrate Judge David J. Joel. By standing
order pursuant to Local Rule of Prisoner Litigation Procedure 2, this action was referred to
Magistrate Judge Joel for submission of a proposed report and recommendation (“R & R”).
Magistrate Judge Joel filed his R & R on June 14, 2013 [Doc. 24]. In the R & R, the
magistrate judge recommends that this Court dismiss with prejudice the Plaintiff’s state
civil rights complaint made pursuant to 42 U.S.C. § 1983 [Doc. 1].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court must make a de novo review of
those portions of the magistrate judge’s findings to which objection is made. However, the
Court is not required to review, under a de novo or any other standard, the factual or legal

conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In
addition, failure to timely file objections constitutes a waiver of de novo review and the
Plaintiff’s right to appeal this Court’s order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour,
889 F.2d 1363 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984).
Here, objections to Magistrate Judge Joel’s R & R were due within fourteen days
after being served with a copy of the R & R pursuant to 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b). The Plaintiff timely filed objections on July 3, 2013.
Accordingly, the Court will undertake a de novo review of those portions of the magistrate
judge’s findings to which the Plaintiff objects. The Court will review the remainder of the
R & R for clear error.
II.

Factual and Procedural History
The Plaintiff is an inmate who was previously held by the State of West Virginia at

the Eastern Regional Jail (“ERJ”) in Martinsburg, West Virginia pursuant to state-level
criminal charges. On October 12, 2012, the Plaintiff initiated this case by filing a pro se civil
rights action against the defendants named above pursuant to 42 U.S.C. § 1983. In his
Complaint, the Plaintiff alleges that the Defendants violated his First Amendment right to
free exercise of religion and the Eighth Amendment’s protection against cruel and unusual
punishment.1 The Plaintiff’s allegations are fairly comprehensive in nature and include the
1

The Plaintiff also appears to allege a violation of his Fourteenth Amendment
rights. ([Doc. 1] p. 16.) To state a claim for relief under this amendment’s Equal
Protection Clause, the Plaintiff must show that he “has been treated differently from
others with whom he is similarly situated and that the unequal treatment was the result
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following: (1) a lack of Islamic worship services, study classes, study materials, etc. at the
ERJ; (2) improper plumbing and sanitation at the ERJ, including improper drainage,
unclean showers, mold in showers, and inadequate linen exchange; (3) inadequate fire
prevention equipment at the ERJ, including a lack of adequate fire drills or fire
extinguishers; (4) overcrowding at the ERJ due to the addition of top bunks that caused
inmates to sleep on floors and lacked safety ladders for top-bunk occupants; (5) a lack of
grievance forms available to inmates at the ERJ; (6) inadequate security rounds by ERJ
staff to ensure inmate safety; (7) constant lighting within the ERJ that is detrimental to
inmate health and well-being; (8) unsanitary food preparation and service at the ERJ, and
a lack of adequate nutrition in food which is served; (9) generally unsanitary conditions
within the ERJ, including a lack of available cleaning supplies and inadequate ventilation;
(10) a lack of secured USPS boxes at the ERJ for outgoing inmate mail; and (11)
inadequate medical treatment and staff at the ERJ. The Plaintiff alleges that these
conditions have caused him “excessive mental anguish,” infringed on his constitutional
rights, endangered his welfare, caused him to be “assaulted by staff,” and denied him his
“religious practice and beliefs.” ([Doc. 1] pp. 8, 16.)

On October 15, 2012, the Plaintiff was granted leave to proceed in forma pauperis,

of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654
(4th Cir. 2001). Because the Complaint raises no such allegations, the Court construes
the Plaintiff’s reference to the Fourteenth Amendment as a claim made under its Due
Process Clause. If the Plaintiff is a pre-trial detainee, the protections of the Constitution,
such as the Eighth Amendment, apply to him through this clause. See Bell v. Wolfish,
441 U.S. 520, 535 n.16 (1979). While it is unclear in the Complaint whether the Plaintiff
is a pre-trial detainee, the same Constitutional rights apply to him regardless of whether
they apply to him directly or through the Fourteenth Amendment. See id.
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with his initial partial filing fee due within twenty-eight days [Doc. 6]. On November 16,
2012, the Plaintiff paid twenty dollars toward this fee [Doc. 10]. On December 6, 2012, the
Plaintiff filed a letter indicating that, due to his transfer to a different correctional facility, he
had insufficient funds to pay the remainder of his initial filing fee as he could no longer
generate income [Doc. 12]. The Court, construing the Plaintiff’s letter as a motion to
reconsider, waived the remainder of the initial filing fee [Doc. 14]. The magistrate judge
screened the Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A(b), and, on June 14,
2013, entered an R & R that recommended dismissing all defendants [Doc. 24]. On July
3, 2013, the Plaintiff filed his objections to the R & R and a Motion to Amend his Complaint
[Doc. 26].
III.

Discussion
A. Motion to Amend
The magistrate judge found that the ERJ is not a proper defendant because it is not

a person subject to suit under § 1983. The Plaintiff does not object to this finding. Rather,
he “moves to amend his complaint by dismissing the complaint against Eastern Regional
Jail and just filing his suit against [Defendants Sheeley and Tomblin].” ([Doc. 26] p. 1.)
Under Federal Rule of Civil Procedure 15(a)(1)(B), a plaintiff may amend his
complaint “once as a matter of course within . . . 21 days after service of a responsive
pleading.” Because the Defendants have not filed an answer to the Plaintiff’s Complaint,
the Plaintiff may amend his Complaint without the Court’s approval. The fact that the
Plaintiff moved for leave to amend does not divest him of his ability to amend his Complaint
as a matter of course. See St. John v. Moore, 135 F.3d 770, 1998 WL 71516, at *1 (4th

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Cir. Feb. 23, 1998) (per curiam) (finding a district court abused its discretion by denying a
motion to amend a complaint made before the time to amend as of course expired).
Accordingly, the Court grants the Plaintiff’s motion to amend his Complaint such that it only
names John Sheeley, the Administrator of the Eastern Regional Jail, and Earl Ray Tomblin,
the Governor of West Virginia, as defendants. It also declines to adopt the magistrate
judge’s finding as to the ERJ because the Plaintiff’s amended Complaint renders it moot.
B. Objection to R & R
The magistrate judge recommended finding that John Sheeley and Governor
Tomblin are not proper defendants because the Plaintiff has not stated a claim for holding
them liable in their personal or official capacities.

The Plaintiff objects to this

recommendation as follows2:
Petitioner contends that John Sheeley and Earl Ray Tomblin worked
for the state, city, county or other local government at the time my rights were
violated. [T]herefore this complaint applies to the defendants because they
are Under Color of State Law.
. . . All you need to show is that the person you are suing was working
for the prison system. That would be John Sheeley he was the Jails
Administrator. Or you need to show that the person you are suing was
working for the State or local government. That would be Earl Ray Tomblin
he is the Governor. So they were both employed at the time of these acts
Petitioner is suing about. Which make both defendants were acting “Under
Color of State Law” when Petitioner’s rights were violated and both
defendants were on the job exercising the power that comes from their
position of authority.
([Doc. 26] p. 1.)

2

The Plaintiff also asserts that the court “legally abandon[ed]” the substance of
his claims. ([Doc. 26] p. 2.) It appears that he objects to the fact that the R & R did not
address the conditions at the ERJ. This objection is without merit because the R & R
only considered whether the Plaintiff brought claims against proper defendants.
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i. Applicable Law
Upon receiving a complaint from a prisoner that “seeks redress from a governmental
entity” or such entity’s officer or employee, a court must review it and dismiss all or any part
of it that “is frivolous, malicious, or fails to state a claim upon which relief may be granted
or seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §
1915A(b). The standard of review applicable to a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) determines whether a complaint fails to state a claim upon which
relief can be granted. De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (citing
DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000)). To survive a Rule 12(b)(6)
motion, the complaint must allege “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint
need not contain “‘detailed factual allegations,’” it must contain “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly 550 U.S. at 555). Thus, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor
does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
enhancements.’” Id. (quoting Twombly, 550 U.S. at 555, 557). Twombly’s plausibility
standard applies to pro se complaints, see Giarratano v. Johnson, 521 F.3d 298, 304 n.5
(4th Cir. 2008), but the court must construe such a complaint liberally. Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Additionally, when reviewing a Rule 12(b)(6) motion, a court must assume that the
complaint’s well-pleaded allegations are true, resolve all doubts and inferences in favor of

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the plaintiff, and view the allegations in a light most favorable to the plaintiff. Edwards v.
City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). Only factual allegations receive
the presumption of truth. See Iqbal, 556 U.S. at 678-79. A court may also consider facts
derived from sources beyond the complaint, including documents attached to the complaint,
documents attached to the motion to dismiss “so long as they are integral to the complaint
and authentic,” and facts subject to judicial notice under Federal Rule of Evidence 201.
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
A plaintiff can hold a state official liable in a § 1983 suit in two ways. See Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). First, a plaintiff can establish that the official is
liable in his personal capacity by “show[ing] that the official, acting under color of state
law, caused the deprivation of a federal right.” Id. at 166. Second, a state official may
be sued in his official capacity for prospective injunctive relief. Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 n.10 (1989). “More is required in an official-capacity
action, however, for a governmental entity is liable under § 1983 only when the entity
itself is a moving force behind the deprivation; thus, in an official-capacity suit 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 omitted).

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ii. Analysis
As a primary matter, in and of themselves, neither employment in the prison
system nor by the State of West Virginia establish that the Defendants acted under
color of state law for purposes of personal-capacity liability. To be so liable, each
Defendant must have had taken some action that caused the alleged violations of the
Plaintiff’s constitutional rights. See id. Defendant Sheeley’s position as the
administrator of the ERJ and Governor Tomblin’s employment by the State of West
Virginia did not cause any such violations. These facts alone therefore are not sufficient
to state a claim for personal liability. See id.
However, the Plaintiff has stated one plausible claim for holding the Defendants
liable under § 1983. Claim Four of the Complaint concerns alleged overcrowding at the
ERJ due to double bunking, ([Doc. 1] p. 8.), which the Court construes as raising a
violation of the Eighth Amendment. See Strickler v. Waters, 989 F.2d 1375, 1379-81
(4th Cir. 1993) (recognizing that double bunking could constitute cruel and unusual
punishment in violation of the Eighth Amendment). This claim contains the following
supporting facts: that “[a]ll parties approved top bunks to be added which increased the
population capacity to exceed the legal limit of people in a structure as well as violated
inmates 14 amendment by making inmates sleep on the floor causing safety hazards.”
([Doc. 1] p. 8.) Assuming that the Defendants did approve the addition of top bunks,
such approval is alleged to have caused the overcrowding at issue. Thus, because the
Complaint alleges facts showing that Defendant Sheeley and Governor Tomblin played
a part in the double bunking of inmates that underlies this claim, it states a plausible

8

basis for holding them liable.3 See Graham, 473 U.S. at 166; Strickler, 989 F.2d at
1379-81. The Court therefore SUSTAINS the Plaintiff’s objection to the R & R’s
determination that he had not pled a basis for liability of the Defendants as to Claim
Four of the Complaint. But, as discussed next, the Plaintiff has stated no other claim
against the Defendants upon which relief can be granted.
The Complaint does not state a claim for holding the Defendants liable in any
capacity for his First Amendment claim. It only asserts that the Defendants “allowed for
[the Plaintiff’s] religious beliefs and practices to be infringed upon” and that they “knew
of” conditions that violated his rights. ([Doc. 1] p. 7.) Knowledge of these conditions
alone does not support personal-capacity or official-capacity liability as it is neither
conduct that caused the alleged First Amendment violation nor an allegation concerning
“an official policy or custom.” See Graham, 473 U.S. at 166; Fisher, 690 F.2d at 1143.
Accordingly, in the absence of any other factual allegations that could support liability,
the Court OVERRULES the Plaintiff’s objection related to his First Amendment claim.
The same is the case for the claims stemming from the Complaint’s allegations
concerning plumbing and sanitation, fire prevention equipment, grievance forms,
security rounds, lighting, the quality and preparation, unsanitary conditions, USPS
boxes, and medical treatment and staff. Like with the First Amendment claim, the
Complaint does not allege that the Defendants took actions concerning these conditions
or that there was a policy or custom underlying them. See ([Doc. 1] pp. 7-15.) Indeed,

3

Because the Court finds that the Complaint supports a personal-capacity
action, it does not reach the issue of whether it states a claim for official-capacity
liability.
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many of these conditions are merely listed in a handwritten continuation of the
Complaint that makes no mention of either Defendant other than the fact that it is
addressed to Defendant Sheeley. See id. at 9-15. The Complaint at most alleges that
the Defendants knew that there was improper plumbing, improper sanitation, and no fire
prevention equipment. See id. at 8. But, as noted earlier, knowledge of such conditions
alone is not sufficient to state a plausible claim for holding the Defendants liable in their
personal or official capacities under § 1983. See Graham, 473 U.S. at 166; Fisher, 690
F.2d at 1143. The Court therefore OVERRULES the Plaintiff’s objection to the extent
that it contends he has stated a claim for holding the Defendants liable for claims arising
from these conditions.
IV.

Conclusion
For the reasons set forth above, the Court GRANTS the Plaintiff’s Motion to

Amend his Complaint. It is ORDERED that this case proceed only against John
Sheeley and Governor Earl Ray Tomblin. Because the Plaintiff has amended his
Complaint to remove the Eastern Regional Jail as a Defendant, the Court DECLINES
TO ADOPT the magistrate judge’s recommendation that the Court dismiss the Eastern
Regional Jail from this action.
As for the Plaintiff’s objection to the R & R, the Court SUSTAINS it only as to
Claim Four of the Complaint. It therefore is the opinion of this Court that the magistrate
judge’s Report and Recommendation should be, and hereby is, ADOPTED IN PART.
The Court DECLINES to adopt the magistrate judge’s recommendation that Claim Four
of the Complaint against John Sheeley and Governor Earl Ray Tomblin be dismissed.

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The Court ADOPTS the Report and Recommendation only so far as it recommends
dismissal of the remaining claims raised against these Defendants. Accordingly, the
Court DISMISSES all claims against John Sheeley and Governor Earl Ray Tomblin
except for Claim Four of the Complaint.
The Clerk is DIRECTED to forthwith issue twenty-one (21) day summonses for
John Sheeley and Governor Earl Ray Tomblin. The summonses should be directed to
the Defendants at the addresses provided by the Plaintiff. The Clerk is further
DIRECTED to forward a copy of this Order, a copy of the Complaint, a completed
summons and a completed Marshal 285 Form for each of the individual Defendants to
the United States Marshal Service. The Marshal Service shall serve the Defendants
within thirty (30) days from the date of this Order.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record and
the pro se Plaintiff.
DATED: December 30, 2013.

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