Richardson v. West Virginia Division of Corrections and Rehabilitation et al

Filing 63

MEMORANDUM OPINION AND ORDER ADOPTING 61 REPORT AND RECOMMENDATION AND DENYING 56 PLAINTIFF'S MOTION TO ALTER OR AMEND, OR IN THE ALTERNATIVE MOTION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL. Signed by District Judge Gina Marie Groh on 3/24/2022. (cmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
DAVID RICHARDSON,
Plaintiff,
v.

CIVIL ACTION NO.: 3:20-CV-164
(GROH)

ADRIAN AGUILERA,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION AND DENYING PLAINTIFF’S MOTION
TO ALTER OR AMEND, OR IN THE ALTERNATIVE,
MOTION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL
Now before the Court is the Report and Recommendation (“R&R”) of United States
Magistrate Judge Robert W. Trumble. Pursuant to the Local Rules, this action was
referred to Magistrate Judge Trumble for submission of an R&R.

Magistrate Judge

Trumble issued his R&R on December 6, 2021. ECF No. 61. Therein, Magistrate Judge
Trumble recommends that this Court deny and dismiss with prejudice the Plaintiff’s second
amended complaint [ECF No. 22] and grant the Defendant’s Motion for Judgment on the
Pleadings [ECF No. 53]. The Plaintiff timely filed objections to the R&R on November 17,
2021. ECF No. 62. Accordingly, the R&R is ripe for review.
Also pending before the Court is the Plaintiff’s Motion to Alter or Amend, or in the
Alternative, Motion for Leave to File an Interlocutory Appeal, filed on September 13, 2021.
ECF No. 56. Therein, the Plaintiff requests that this Court alter or amend its Order [ECF
No. 52] dismissing the Administrator Defendants in their personal capacity from this case.

Alternatively, the Plaintiff requests leave to file an interlocutory appeal with respect to this
Court’s dismissal of the Administrator Defendants in their personal capacities.

The

Administrator Defendants timely filed a Response [ECF No. 60] to the Plaintiff’s motion.
Accordingly, the Plaintiff’s motion is ripe for review.
I. BACKGROUND
A. Procedural Background
The Plaintiff, through counsel, initially filed a civil rights action pursuant to 42
U.S.C. § 1983 on October 31, 2019. ECF No. 1. This case began as a separate civil
rights action with five plaintiffs. Civil Case No. 3:19-CV-185. That complaint was
repeatedly amended, and an additional plaintiff was added, but on September 8, 2020,
the plaintiffs’ cases were severed by the Court. Upon the filing of the amended complaint
by Plaintiff Richardson, this case was opened pursuant to the Court’s severance order.
ECF No. 28 in ECF No. 3:19-CV-185; ECF No. 8 in 3:20-CV-164. Finding the amended
complaint deficient, the Court extended the Plaintiff’s deadline to cure his deficient
pleading to January 4, 2021. ECF No. 12.
On January 5, 2021, the Court gave notice to the Plaintiff that he had not timely
complied with the Local Rules of Prisoner Litigation Procedure but afforded the Plaintiff
thirty days to cure the identified deficiencies. ECF No. 15. On February 1, 2021, the
Plaintiff filed a Motion to Amend/Correct the Complaint [ECF No. 19], which this Court
granted [ECF No. 21]. The Plaintiff then filed his second amended complaint, which now
forms the basis of this complaint.
The Plaintiff’s present complaint was brought “to redress the deprivation under,
color of law, of rights secured by the Constitution of the United States,” under 42 U.S.C.

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§ 1983. ECF No. 22 at ¶ 1. Accordingly, the Plaintiff asserts that this Court has
jurisdiction over the Plaintiff’s claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). The
Plaintiff also seeks injunctive relief pursuant to Federal Rule of Civil Procedure 65 and
“29 USC §§ 2283 & 2284.” ECF No. 22 at ¶ 2. However, the Court notes that these two
code sections fall within the workforce investment systems chapter of the labor title of the
United States Code, and both have been repealed. 29 U.S.C. §§ 2283, 2284. The Plaintiff
does not expand upon the injunctive relief sought. Lastly, as it pertains to this Court’s
jurisdiction, the Plaintiff asserts that he “has constructively exhausted all administrative
remedies.” ECF No. 22 at ¶ 5.
The Defendants named in the complaint can be separated into two groups:
administrators and a correctional officer. Defendants Sandy, Jividen and Sheeley
(collectively, “Administrator Defendants”), were all employed in an administrative capacity
with either the State of West Virginia or the Eastern Regional Jail. The second amended
complaint asserts claims against “many Correctional Officers” [ECF No. 22 at ¶ 10], but
Correctional Officer Adrian Aguilera 1 is the only named Correctional Officer Defendant.
All Defendants were named in both their official and personal capacities.
The complaint alleges six causes of action against the Defendants in their personal
and official capacities: (1) a violation of the Eighth Amendment by the Correctional Officer
Defendants; (2) a violation of the Eighth Amendment by the Administrator Defendants;
(3) a violation of the Fifth Amendment’s Due Process Clause against all Defendants; (4)
a claim for negligent oversight and training against the Administrator Defendants; (5) a
common law tort claim for battery and assault against Correctional Officer Defendants;
The Plaintiff initially identified this Defendant as “Aguilara,” but subsequent filings, including those filed by
defense counsel, spell his name as “Aguilera.” This Court will use the latter spelling.
1

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and (6) a common law tort claim for intentional infliction of emotional distress against all
Defendants. For relief, the Plaintiff requests that the Court award him compensatory
damages of $250,000.00 against each Defendant for his physical injuries and
$5,000,000.00 against all for punitive damages.
On June 15, 2021, Magistrate Judge Trumble filed a report and recommendation
pursuant to the Local Rules of Prisoner Litigation and 28 U.S.C. §§ 1915(e) and 1915A.
ECF No. 46. By order entered August 16, 2021, the Court adopted the report and
recommendation in part. ECF No. 52. The R&R recommended that this Court dismiss
all of the Plaintiff’s claims, but this Court declined to dismiss Counts One, Five and Six
against Defendant Aguilera in his personal capacity. 2 The Plaintiff’s claims against the
Administrator Defendants in their personal and official capacities were dismissed with
prejudice as recommended by the R&R, and the Plaintiff’s claims against Defendant
Aguilera in his official capacity were dismissed without prejudice as recommended by the
R&R.
Defendant Aguilera filed a Motion for Judgment on the Pleadings on August 27,
2021. ECF No. 53. Therein, Defendant Aguilera argues that the Plaintiff has failed to
state a claim for the remaining counts and that he is entitled to the protection of qualified
immunity. Upon review of the Defendant’s filing, the Court referred the matter back to
Magistrate Judge Trumble for further consideration. ECF No. 54. Magistrate Judge
Trumble filed an R&R recommending that the Defendant’s Motion for Judgment on the
Pleadings be granted and the Plaintiff’s second amended complaint be denied and

The Court refrained from dismissing these Counts because Defendant Aguilera did not set forth specific
arguments as to why these counts should be dismissed. The Court then directed the Defendant’s counsel
to review the Complaint and ensure that the remaining causes of action are properly before this Court.

2

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dismissed with prejudice as to Defendant Aguilera. The Plaintiff timely filed objections to
the R&R, and the R&R is now ripe for review before this Court.
On September 13, 2021, the Plaintiff filed a Motion to Alter or Amend, or in the
Alternative, Motion for Leave to File an Interlocutory Appeal. ECF No. 56. Therein, the
Plaintiff requests that this Court alter or amend its Order [ECF No. 52] dismissing the
Administrator Defendants in their personal capacity from this case. Alternatively, the
Plaintiff requests leave to file an interlocutory appeal with respect to this Court’s dismissal
of the Administrator Defendants in their personal capacities.

The Administrator

Defendants timely filed a Response [ECF No. 60] to the Plaintiff’s motion. Accordingly,
the Plaintiff’s motion is ripe for review.
B. Factual Background
The following facts are construed from the Plaintiff’s second amended complaint
[ECF No. 22], and the facts are construed in the light most favorable to the Plaintiff. The
allegations set forth in the Plaintiff’s complaint stem from an incident that occurred on or
about October 8, 2018, while the Plaintiff was detained at the Eastern Regional Jail
(“ERJ”) in Martinsburg, West Virginia. Because Defendant Aguilera is the sole remaining
defendant and the Plaintiff, in his objections, contests the R&R’s finding regarding
Defendant Aguilera’s actions, the Court will recount the relevant factual history as
presented in the Plaintiff’s second amended complaint.
On or about October 8, 2018, the Plaintiff and other inmates confined in the same
pod were denied dinner because the correctional officers on duty were distracted by an
altercation in another pod. When Defendant Aguilera entered the Plaintiff’s pod, he
informed the inmates that they would not be served anymore food because they had

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already eaten. It is not clear from the complaint whether Defendant Aguilera actually
knew that the Plaintiff and the inmates in his pod had not gone to dinner. Nonetheless,
Defendant Aguilera’s statement raised commotion among the inmates, prompting one to
question Defendant Aguilera. In response, Defendant Aguilera “became verbally
abusive.” ECF No. 22 at ¶ 13.
The Plaintiff asked Defendant Aguilera “to cease his abusive behavior.” ECF No.
22 at ¶ 14. After turning to the Plaintiff, Defendant Aguilera “attempted to slam the door
to A5 on Plaintiff Richardson, who was standing in the door’s threshold.” ECF No. 22 at ¶
14. The Plaintiff “grabbed the door to stop from slamming on him, and CO Aguilera then
attempted to punch Plaintiff Richardson in the face, causing Plaintiff Richardson to
attempt to defend himself, resulting in a physical altercation between Plaintiff Richardson
and Defendant Aguilera.” ECF No. 22 at ¶ 14.
“Other officers, at this point unknown to Plaintiff Richardson, then responded to the
scene, at which time Plaintiff Richardson was taken to the ground and restrained with
handcuffs.” ECF No. 22 at ¶ 15. After the Plaintiff was restrained, “he was beaten,
stomped, and kicked about the head, neck, and torso by multiple officers.” ECF No. 22 at
¶ 15. The Plaintiff “was then dragged while handcuffed and bleeding profusely to the
attorney conference area and thrown into one of the conference rooms.” ECF No. 22 at ¶
17. In the conference room, the Plaintiff was “battered and screamed at by various
officer[s].” ECF No. 22 at ¶ 17.
The Plaintiff’s attorney arrived at the ERJ after this incident occurred.

The

correctional officers proceeded to change the Plaintiff’s clothes and bandage a wound on
his forehead. During the Plaintiff’s meeting with his attorney, his attorney took pictures of

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injuries on his cellphone. These pictures were not attached to the complaint or any
subsequent filings.
Later on, the Plaintiff was taken to the hospital. At the hospital, the Plaintiff alleges
that “he was coerced by the attending guard into not asking for an xray of his ribs – which
were causing him significant pain – or a CT-Scan of his brain following the obvious injury
he sustained to his forehead.” ECF No. 22 at ¶ 21. The Plaintiff was x-rayed days later
after calls from his attorney prompted correctional officers to take the Plaintiff to get
medical attention. The Plaintiff continued to suffer “severe headaches in the days and
weeks thereafter, and ERJ medical staff generally refused to attend to his injuries or make
notes of said injuries.” ECF No. 22 at ¶ 22.
When the Plaintiff’s attorney returned to the ERJ, he was not allowed to bring his
cell phone into the jail, “despite having been free to carry said cell phones into client
meetings previously.” ECF No. 22 at ¶ 23. The Plaintiff’s attorney reviewed the ERJ’s
written policies, which did not include a rule prohibiting cell phones and instead “expressly
allowed attorneys to carry in their ‘computers.’” ECF No. 22 at ¶ 25.
II. LEGAL STANDARD & APPLICABLE LAW
A. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to 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). Further, failure to file timely objections constitutes a waiver of de novo review
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and the Petitioner’s right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Pursuant to this Court’s Local Rules, “written objections shall identify
each portion of the magistrate judge’s recommended disposition that is being challenged
and shall specify the basis for each objection.” LR PL P 12(b). The Local Rules also
prohibit objections that “exceed ten (10) typewritten pages or twenty (20) handwritten
pages, including exhibits, unless accompanied by a motion for leave to exceed the page
limitation.” LR PL P 12(d).
“When a party does make objections, but these objections are so general or
conclusory that they fail to direct the district court to any specific error by the magistrate
judge, de novo review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730
(S.D. W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)). If “only a
general objection is made to a portion of a magistrate judge’s report-recommendation,
the Court subjects that portion of the report-recommendation to only a clear error review.”
Williams v. New York State Div. of Parole, No. 9:10-CV-1533 (GTS/DEP), 2012 WL
2873569, at *2 (N.D.N.Y. July 12, 2012). “Similarly, when an objection merely reiterates
the same arguments made by the objecting party in its original papers submitted to the
magistrate judge, the Court subjects that portion of the report-recommendation
challenged by those arguments to only a clear error review.” Taylor v. Astrue, 32 F. Supp.
3d 253, 260-61 (N.D.N.Y. 2012).
Courts have also held that when a party’s objection lacks adequate specificity, the
party waives that objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766
(2d Cir. 2002) (finding that even though a party filed objections to the magistrate judge’s

8

R&R, they were not specific enough to preserve the claim for review). Bare statements
“devoid of any reference to specific findings or recommendations . . . and unsupported by
legal authority, [are] not sufficient.” Id. at 766. Pursuant to the Federal Rules of Civil
Procedure and this Court’s Local Rules, “referring the court to previously filed papers or
arguments does not constitute an adequate objection.” Id.; see also Fed. R. Civ. P. 72(b);
LR PL P 12. Finally, the Fourth Circuit has long held, “[a]bsent objection, we do not
believe that any explanation need be given for adopting [an R&R].” Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983) (finding that without an objection, no explanation
whatsoever is required of the district court when adopting an R&R).
B. 42 U.S.C. § 1983
The Plaintiff filed the instant civil rights action pursuant to 42 U.S.C. § 1983.
Section 1983 does not itself provide any substantive rights. Instead, it is a procedural
vehicle through which a plaintiff can enforce their constitutional rights against state actors.
In relevant part, section 1983 allows a plaintiff to file suit against “[e]very person who,
under color of any statute . . . of any State . . . subjects, or causes to be subjected, any
citizen . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws . . ..” 42 U.S.C. § 1983.
To state a claim under section 1983, a plaintiff must allege (1) that a right secured
by the Constitution or laws of the United States was violated and (2) that the alleged
violation was committed by a person acting under the color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). In cases with multiple individual defendants, the plaintiff must
plead that each defendant, through his or her own actions, caused the alleged
constitutional injury. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Vicarious liability does
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not exist under section 1983. Id.
However, the Fourth Circuit does recognize the theory of supervisory liability under
section 1983. A supervisor can be liable when (1) he knew that his subordinate “was
engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury
to citizens like the plaintiff,” (2) his response was so inadequate as to show “deliberate
indifference to or tacit authorization of the alleged offensive practices” and (3) an
“affirmative causal link” existed between “the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.
1994). Supervisory liability is not a claim in and of itself, but instead, it is a theory by
which a plaintiff can hold a supervisor or manager liable for a constitutional violation
committed by a subordinate. A constitutional violation must still be pled.
Further, depending on which constitutional right is alleged to have been violated,
different standards may apply. The two constitutional protections implicated in this case
are the Eighth Amendment right to be free from cruel and unusual punishment and the
Fifth Amendment right to due process.
1. Eighth Amendment
When a plaintiff alleges that their Eighth Amendment right to be free from cruel
and unusual punishment has been violated, two standards may apply. If the plaintiff is
alleging that they were denied medical care, then the “deliberate indifference” standard
applies. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). If the plaintiff is alleging
excessive use of force, then the “malicious and sadistic use of force for the purpose of
causing harm” standard applies. Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The
Plaintiff’s complaint appears to implicate both standards.
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Deliberate indifference lies somewhere between negligence and purposefulness.
A state actor acts with deliberate indifference when he “knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists and he
must draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). To succeed on
a deliberate indifference claim, a plaintiff must first demonstrate, objectively, the existence
of a serious medical need, and second, a plaintiff must show that the defendant,
subjectively, knew of the underlying facts, the substantial risk of serious harm those facts
presented, and drew the inference between the facts and the harm. Id. at 846.
Unlike the deliberate indifference standard, which accounts for a state actor’s time
and ability to weigh the facts presented to him and deliberate as to which course of action
to take, the “malicious and sadistic use of force for the purpose of causing harm” standard
applies to decisions made in haste, under pressure, and without the luxury of a second
chance. Whitley, 475 U.S. at 320-21. When a plaintiff alleges excessive force, the “core
judicial inquiry” is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34,
37 (2010) (first citing Hudson v. McMillian, 503 U.S. 1, 4 (1992) then citing Whitley, 475
U.S. at 319–21). The Fourth Circuit recently held that “the use of force on an inmate who
is restrained and compliant and posing no physical threat raises the specter of such an
impermissible motive.” Dean v. Jones, 984 F.3d 295, 302 (4th Cir. 2021) (internal
quotations and citations omitted).
2. Fifth Amendment
As of the date of this Order, the Supreme Court has only allowed Fifth Amendment

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claims under section 1983 pursuant to the enforcement of the takings clause, Knick v.
Township of Scott, 139 S. Ct. 2162 (2019), and a criminal defendant’s right to be free
from self-incrimination, Chavez v. Martinez, 538 U.S. 760 (2003). As it pertains to the
right to due process, the Fifth Amendment’s Due Process Clause applies to the federal
government. U.S. Const. amend V (“No person … shall …be deprived of life, liberty, or
property, without due process of law . . .”). The Fourteenth Amendment’s Due Process
Clause applies to state and local governments. U.S. Const. amend XIV (“[N]or shall any
State deprive any person of life, liberty, or property, without due process of law . . .”).
Because section 1983 is a vehicle by which plaintiffs can assert claims against state
actors, the Fifth Amendment is not the proper constitutional amendment to assert due
process protections claims through.
III. DISCUSSION
The Plaintiff timely filed objections to the R&R. ECF No. 62. The Plaintiff raises
four objections: (1) the Plaintiff did not fail to state a claim under Count One, (2) the
Plaintiff did not fail to state a claim under Count Five, (3) the Plaintiff did not fail to state
a claim under Count Six and (4) the Plaintiff has the right to amend his complaint.
A. Plaintiff’s Objection to the R&R’s Finding that the Plaintiff Failed to State
a Claim for an Eighth Amendment Violation Against Defendant Aguilera
The Plaintiff’s first objection takes issue with the R&R’s finding that the “Plaintiff
has failed to allege personal involvement by Aguilera which caused the injury he
complains of” in Count One. ECF No. 62 at 2; ECF No. 61 at 12. The Plaintiff avers that
the facts pleaded in the complaint, when taken together, allow this Court to make a
reasonable inference that Defendant Aguilera was involved in the group beating of the
Plaintiff after the Plaintiff was restrained. Specifically, the Plaintiff requests an explanation
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of “whether the inferences proposed by Plaintiff fairly arise from paragraphs 14-17, and if
not, why not.” ECF No. 62 at 2. Because the Plaintiff’s “objection merely reiterates the
same arguments” found in the complaint, the Court subjects the relevant portion of the
R&R to only a clear error review. Taylor, 32 F. Supp. 3d at 260.
The Court finds that the magistrate judge did not err when finding that the Plaintiff
failed to make any specific assertion against Defendant Aguilera under Count One. The
Plaintiff identifies Defendant Aguilera by name seven times in paragraphs thirteen and
fourteen of the complaint, as he describes how “CO Aguilera attempted to slam the door
to A5 on Plaintiff Richardson” and “CO Aguilera then attempted to punch Plaintiff
Richardson in the face, causing Plaintiff Richardson to attempt to defend himself, resulting
in a physical altercation between Plaintiff Richardson and Defendant Aguilera.” ECF No.
22 at ¶ 14. (emphases added). The next paragraph, which describes how the Plaintiff
was restrained on the ground and then beaten, does not once mention Defendant
Aguilera by name. The omission of Defendant Aguilera’s name here, when it has, up until
this point, been used in every sentence where the Plaintiff describes an action taken by
Defendant Aguilera, most clearly provides for the inference that Defendant Aguilera was
not involved.
Instead, the Plaintiff identifies “[o]ther officers, at this point unknown” as the
individuals responsible for restraining the Plaintiff and then “beat[ing], stomp[ing], and
kick[ing] about the [Plaintiff’s] head, neck, and torso.” ECF No. 22 at ¶ 15. At this point,
Defendant Aguilera is known to the Plaintiff and has been specifically identified in the
preceding paragraphs. By breaking from a clear pattern of identification and not
identifying Defendant Aguilera in the remaining paragraphs, the only inference created by

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the Plaintiff is that Defendant Aguilera was not involved in the actions described in the
paragraphs that he is not named in. The inference allowed here is that the other, unknown
officers are responsible for the actions in the complaint that are not attributed to a specific
individual. Otherwise, the Plaintiff would have identified the actor.
After making his reasonable inference argument, the Plaintiff highlights that his
complaint did allege that there was a “physical altercation” between the Plaintiff and
Defendant Aguilera. However, a physical altercation is not a per se violation of the Eighth
Amendment. To properly allege a claim of excessive use of force, a plaintiff must show
“malicious and sadistic use of force for the purpose of causing harm.” Whitley, 475 U.S.
at 320-21. A bare allegation stating that a “physical altercation” occurred does not amount
to a malicious or sadistic use of force.
The core inquiry here is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 559
U.S. at 37 (first citing Hudson, 503 U.S. at 1, then citing Whitley, 475 U.S. at 319-21).
Under the facts provided, the Plaintiff can be characterized as the instigator of his
altercation with Defendant Aguilera. The Plaintiff could have stepped out of the way of the
closing door, but instead chose to impede Defendant Aguilera in his duties to maintain
order and stop Defendant Aguilera from closing the cell door. Defendant Aguilera’s use
of force in response was properly applied to restore discipline in reaction to
noncompliance from the Plaintiff.
While the Fourth Circuit recently held that “the use of force on an inmate who is
restrained and compliant and posing no physical threat raises the specter of such an
impermissible motive,” the Plaintiff has not pled any facts asserting that Defendant

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Aguilera was involved in beating the Plaintiff while he was restrained or any of the actions
taken thereafter by unspecified correctional officers. Dean, 984 F.3d at 302 (internal
quotations and citations omitted). Without some factual allegation of malicious or sadistic
physical force by the Defendant against the Plaintiff, it is impossible for this Court to find
that the Plaintiff satisfied the requirement of providing fair notice of the nature of the
excessive force claim. Further, without a factual allegation of physical force by the
Defendant against the Plaintiff, it is impossible to find any grounds on which the claim
rests.
Therefore, this Court finds that the Plaintiff did not make a claim with sufficient
facial plausibility that would allow this Court to draw the reasonable inference that
Defendant Aguilera is liable for excessive force under the Eighth Amendment. Ashcroft,
556 U.S. at 679; Whitley, 475 U.S. at 320-21. When alleging a constitutional violation
pursuant to section 1983, the plaintiff must plead that each defendant, through his or her
own actions, caused the alleged constitutional injury. Iqbal, 556 U.S. at 676. Here, the
Plaintiff has failed to do so. Accordingly, the Plaintiff’s objection to the R&R’s finding that
the Plaintiff failed to state a claim for an Eighth Amendment violation against Defendant
Aguilera is OVERRULED.
B. Plaintiff’s Objection to the R&R’s Dismissal of Count Five
The Plaintiff’s second objection takes issue with the R&R’s finding that the Plaintiff
failed to state a claim for assault and battery. The Plaintiff refers back to his argument
that he is entitled to the inference that Defendant Aguilera was involved in beating the
Plaintiff. However, for the reasons stated in section III.A previously, the Plaintiff is not
entitled to that inference. The remaining support for the Plaintiff’s objection refers the

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Court to arguments made in the complaint, which, under this Court’s Local Rules and the
Rules of Civil Procedure, is not a proper objection. Mario, 313 F.3d at 766 (holding that
“referring the court to previously filed papers or arguments does not constitute an
adequate objection”); see also Fed. R. Civ. P. 72(b); LR PL P 12. Therefore, the Court
will review for clear error only.
The Plaintiff’s objection, like Count Five, is devoid of any supporting legal authority,
which would have been instructive to this Court’s analysis. Assault and battery is not a
civil rights violation, but a tort claim. The Plaintiff filed his complaint pursuant to 42 U.S.C.
§ 1983 and 28 U.S.C §§ 1331, 1343(a)(3), none of which provide this Court with
jurisdiction to hear a tort claim.
While this Court would have supplemental jurisdiction to hear state court claims
arising out of the same set of facts, the Plaintiff did not plead supplemental jurisdiction
under 28 U.S. Code § 1367. “It is to be presumed that a cause lies outside [of federal
courts’] limited jurisdiction, and the burden of establishing the contrary rests upon the
party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (citations omitted). Section 1367(a) provides federal courts with the authority
to exercise supplemental jurisdiction over state law claims “in any civil action of which the
district courts have original jurisdiction.” 28 U.S.C. § 1367(a). To exercise that authority,
a federal court “must first have original jurisdiction over at least one claim in the action.”
Exxon Mobil v. Allapattah Servs., 545 U.S. 546, 554 (2005); United Mine Workers v.
Gibbs, 383 U.S. 715, 725 (1966).

However, a federal court’s authority to exercise

supplemental jurisdiction is discretionary. 28 U.S.C. § 1367(c); Gibbs, 383 U.S. at 726
(finding that supplemental jurisdiction “need not be exercised in every case in which it is

16

found to exist” and supplemental jurisdiction is a “doctrine of discretion, not of [a party’s]
right”).
Further, Section 1367(c) expressly allows a court to decline supplemental
jurisdiction when “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S. Code § 1367(c). Here, the Court has original jurisdiction over the
Plaintiff’s section 1983 claims, which pursuant to this Order, will all be dismissed, leaving
no original jurisdiction for the Plaintiff to hang his tort claims on. While the R&R applied
a section 1983 threshold analysis when dismissing Count Five, this Court finds that
wading into the merits of the Plaintiff’s is not necessary because this Court lacks
jurisdiction over the claim. 3

Accordingly, the Plaintiff’s objection to the R&R’s

recommendation that Count Five be dismissed is OVERRULED.
C. Plaintiff’s Objection to the R&R’s Dismissal of Count Six
The Plaintiff’s third objection takes issue with the R&R’s finding that the Plaintiff
failed to state a claim for intentional infliction of emotional distress and with the R&R’s
recommendation that Count Six be dismissed. The Plaintiff refers back to his argument
that he is entitled to the inference that Defendant Aguilera was involved in beating the
Plaintiff. However, for the reasons stated in section III.A previously, the Plaintiff is not
entitled to that inference. The remaining support for the Plaintiff’s objection refers the
Court to arguments made in the complaint, which, under this Court’s Local Rules and the

The Court notes that Defendant Aguilera asserts qualified immunity to shield him from suit under section
1983 in his motion for judgment on the pleadings. As it pertains to the common law claims, immunity from
Count Five is properly found in West Virginia state law. West Virginia provides that a state employee
is immune from liability unless . . . (1) His or her acts or omissions were manifestly outside the
scope of employment or official responsibilities; (2) His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; or (3) Liability is expressly imposed upon
the employee by a provision of this code.
W. Va. Code Ann. § 29-12A-5 (West). Pursuant to the reasoning set forth in section III.A of this Order,
Defendant Aguilera satisfies the requirements for immunity under West Virginia law.
3

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Rules of Civil Procedure, is not a proper objection. Mario, 313 F.3d at 766 (holding that
“referring the court to previously filed papers or arguments does not constitute an
adequate objection”); see also Fed. R. Civ. P. 72(b); LR PL P 12. Therefore, the Court
will review for clear error only.
The Plaintiff’s objection, like Count Six, is devoid of any supporting legal authority,
which would have been instructive to this Court’s analysis. Intentional infliction of
emotional distress is not a civil rights violation, but a tort claim. While the R&R evaluated
the merits of the tort claim, the Court refers back to its jurisdiction analysis in section III.B
and finds that Count Six should be similarly dismissed. Nonetheless, the Court agrees
with the R&R’s finding that the Plaintiff did indeed fail to plead any facts that could even
support the inference that Defendant Aguilera engaged in “conduct that was atrocious,
intolerable, and so extreme and outrageous as to exceed the bounds of decency.” 4 Travis
v. Alcon Lab’ys Inc., 504 S.E.2d 419, 425 (W.Va. 1998). Here, and for the reasons stated
in section III.A, the Plaintiff has failed to meet this standard. Accordingly, the Plaintiff’s
objection to the R&R’s finding that he failed to state a claim for intentional infliction of
emotional distress and the R&R’s recommendation that Count Six be dismissed is
OVERRULED.
D. Plaintiff’s Assertion of his Right to Amend the Complaint
Lastly, the Plaintiff asserts that he has the “right” to amend his complaint. 5 In

To succeed on a claim for intentional infliction of emotional distress, a plaintiff must show that (1) “the
defendant’s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds
of decency,” (2) “the defendant acted with the intent to inflict emotional distress,” (3) “the actions of the
defendant caused the plaintiff to suffer emotional distress” and (4) “the emotional distress suffered by the
plaintiff was so severe that no reasonable person could be expected to endure it.” Travis v. Alcon Lab’ys,
Inc., 504 S.E.2d 419, 425 (W.Va. 1998).
5 The only right to amend as a matter of course is found in Federal Rule of Civil Procedure 15 and it is
limited in scope.
4

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support, the Plaintiff cites to Lins v. United States, 771 F. App’x 528 (4th Cir. 2019) and
Goode v. Central Virginia Legal Aid Society, 807 F.3d 619, 623 (4th Cir. 2015). Neither
case cited by the Plaintiff stands for the proposition that he claims it does. First, Lins v.
United States is an unpublished decision that is not binding in this circuit. Nevertheless,
the case discusses when a dismissal without prejudice may or may not be appealable.
In its discussion, the Fourth Circuit explains that “[a]n order dismissing a complaint without
prejudice is not an appealable final order if ‘the plaintiff could save his action by merely
amending his complaint.’” Id. at 530 (citing Domino Sugar Corp. v. Sugar Workers Local
Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993)). The Fourth Circuit does not establish
a right to amend in its decision in Lins. Instead, the Fourth Circuit ultimately holds that
an order dismissing a complaint without prejudice due to a lack of subject matter
jurisdiction was not a final, appealable order. Id. at 529.
The Plaintiff also cites to Goode v. Central Virginia Legal Aid Society in support of
his claim to a right to amend his complaint. At the time of the Plaintiff’s filing, Goode had
been abrogated by Bing v. Brivo Systems, LLC, 959 F.3d 605, 611-12 (4th Cir. 2020).
The Bing court held that “Goode’s assertion of a bright-line rule that without-prejudice
dismissals premised on the failure to plead sufficient facts in the complaint are not
appealable is inconsistent with Domino Sugar, which emphasized the case-by-case
nature of the inquiry, and also with Chao, which found that very type of dismissal to be
appealable.” Bing, 959 F.3d at 613 (internal citation omitted). Again, nowhere in either
Goode or Bing does the Fourth Circuit establish a right to amend as the Plaintiff boldly
and inaccurately claims. Accordingly, the Plaintiff’s objection that this Court is in error by
not recognizing his right to amend the complaint is OVERRULED.

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E. Dismissal of the Plaintiff’s Motion to Alter or Amend, or in the Alternative,
Motion for Leave to File an Interlocutory Appeal
On September 13, 2021, the Plaintiff filed a Motion to Alter or Amend, or in the
Alternative, Motion for Leave to File an Interlocutory Appeal. ECF No. 56. Therein, the
Plaintiff requests that this Court alter or amend its Order [ECF No. 52] dismissing the
Administrator Defendants in their personal capacity from this case. Alternatively, the
Plaintiff requests leave to file an interlocutory appeal with respect to this Court’s dismissal
of the Administrator Defendants in their personal capacities.

The Administrator

Defendants timely filed a Response [ECF No. 60] to the Plaintiff’s motion, so the Plaintiff’s
motion is ripe for review.
1. Plaintiff’s Motion to Alter or Amend
The Plaintiff filed his Motion under Rule 59(e), which requires the movant to
establish one of the following three grounds: “(1) to accommodate an intervening change
in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a
clear error of law or prevent manifest injustice.” E.E.O.C. v. Lockheed Martin Corp., Aero
& Naval Sys., 116 F.3d 110, 112 (4th Cir. 1997) (quoting Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir.1993)). In the memorandum in support of the Plaintiff’s motion, the
Plaintiff sets forth four arguments: (1) the court erred as a matter of law because it failed
to consider allegations set forth in the complaint which state or allow for inferences as to
supervisory liability under 42 U.S.C. § 1983, (2) the court erred by dismissing the Plaintiff’s
negligent training and oversight claims against the Administrator Defendants, (3) the court
failed to make a finding that the Plaintiff’s complaint cannot be cured by amendment, so
dismissal without leave to amend is improper as a matter of law and (4) if the court does
not reverse its dismissal of the Administrator Defendants then the Plaintiff requests leave
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to file an interlocutory appeal.
In support of his first argument, the Plaintiff has copied and pasted two and a half
pages worth of paragraphs from the second amended complaint. Additionally in support
of his first, second and third arguments, the Plaintiff merely reiterates arguments
previously made and cites to case law that has long been established and this Court is
well aware of. Further, with regard to the Plaintiff’s assertion that the court failed to find
that the Plaintiff’s complaint cannot be cured by amendment, and thus, dismissal without
leave to amend is improper as a matter of law, the Court reiterates that there is no unlimited
right to amend. The Plaintiff again cites to Lins and Goode as support, and this Court
emphasizes that those cases do not establish a right to amend as the Plaintiff repeatedly,
erroneously claims.
The arguments advanced by the Plaintiff evidence mere disagreement with the
Court’s ruling. None of his arguments refer to an intervening change in controlling law,
new evidence not available at trial, a clear error of law or manifest injustice, which is
required. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d at 112. The Fourth
Circuit has explained that “mere disagreement does not support a Rule 59(e) motion.”
Hutchinson, 994 F.2d at 1082 (citation omitted). Motions to reconsider should not be
filed every time a party does not receive the ruling he or she desires. Indeed, “[g]ranting
a motion for reconsideration is ‘an extraordinary remedy which should be used
sparingly.’” Alig v. Quicken Loans Inc., No. 5:12-CV-114, 2017 WL 5127235, at *2
(N.D. W. Va. Aug. 21, 2017) (quoting Pac. Ins. Co. v. American Nat. Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998)).
Courts in this District have previously admonished attorneys about the improper
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use of Rule 59 motions:
In the words of the Honorable William H. Steele of the Southern District
of Alabama: Far too often, litigants operate under the flawed assumption
that any adverse ruling on a dispositive motion confers upon them license
to move for reconsideration, vacatur, alteration or amendment as a matter
of course, and to utilize that motion as a platform to criticize the judge’s
reasoning, to relitigate issues that have already been decided, to
champion new arguments that could have been made before, and
otherwise to attempt a “do-over” to erase a disappointing outcome. This
is improper.
Alig, at *2 (cleaned up). “It is likely improper to use such a motion to ask the court to
‘rethink what the courthas already thought through – rightly or wrongly.’” Id. at *1 (quoting
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)).
Rule “59(e) motions may not be used . . . to raise arguments which could have been
raised prior to the issuance of the judgment, nor may they be used to argue a case under
a novel legal theory that the party had the ability to address in the first instance.” Medicus
Ins. Co. v. Cross, No. 5:13-CV-145, 2015 WL 2090019, at *1 (N.D. W. Va. May 5, 2015).
The Plaintiff fails to satisfy any of the grounds required to move a Rule 59 Motion
beyond the threshold inquiry, and none are present in this case. Accordingly, the
Plaintiff’s Motion to Alter or Amend is DENIED.
2. Motion for Leave to File an Interlocutory Appeal
Within his Rule 59(e) motion, the Plaintiff also moves the Court to make the
requisite findings to allow an interlocutory appeal of the Court’s Order to be filed in the
Fourth Circuit. The Plaintiff cites 28 U.S.C. §1292:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of Appeals which would
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have jurisdiction of an appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order: Provided, however,
That application for an appeal hereunder shall not stay proceedings in the
district court unless the district judge or the Court of Appeals or a judge
thereof shall so order.
The Court’s Order does not involve “a controlling question of law as to which there
is substantial ground for difference of opinion,” and “an immediate appeal from the order”
will not “materially advance the ultimate termination of the litigation[.]” Id. Accordingly,
the Plaintiff’s request that the Court permit an interlocutory appeal be taken is also
DENIED.
IV. CONCLUSION
Upon careful review of the R&R and the Plaintiff’s objections, it is the opinion of
this Court that Magistrate Judge Trumble’s Second Report and Recommendation [ECF
No. 61] should be, and is, hereby ORDERED ADOPTED for the reasons more fully
stated therein.
Accordingly, the Plaintiff’s second amended complaint [ECF No. 22] is DENIED
and DISMISSED WITH PREJUDICE as to Defendant Aguilera and Defendant Aguilera’s
Motion for Judgment on the Pleadings [ECF No. 53] is GRANTED.
It is FURTHER ORDERED that the Plaintiff’s Motion to Alter or Amend, or in the
Alternative, Motion for Leave to File an Interlocutory Appeal [ECF No. 56] is DENIED.
This matter is ORDERED STRICKEN from the Court’s active docket. The Clerk
of Court is DIRECTED to mail a copy of this Order to all counsel of record herein.
DATED: March 24, 2022

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