Smoot v. Green et al

Filing 23

MEMORANDUM OPINION AND ORDER granting in part and denying in part as more fully set forth herein Lt. Craig Adkins's 12 MOTION to Dismiss; denying Daniel Green's 15 MOTION to Dismiss; directing that, to the extent the claims under Article III seek monetary relief, they be, and hereby are, dismissed. Signed by Judge John T. Copenhaver, Jr. on 11/1/2013. (cc: attys; any unrepresented party) (tmr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KIMBERLY SMOOT
Plaintiff,
v.

Civil Action No. 2:13-10148

C.O. DANIEL GREEN,
individually and in his
official capacity as a
correctional officer of The West Virginia Regional Jail
and Correctional Facility Authority, and
STEVEN CROOK, individually and in his official
capacity as Administrator of South
Central Regional Jail, and
LT. CRAIG ADKINS, individually and in his
official capacity as chief correctional
officer of South Central Regional Jail, and
THE WEST VIRGINIA REGIONAL JAIL
AND CORRECTIONAL FACILITY AUTHORITY,
an agency of the State of West Virginia, and
JOHN DOE unknown person or persons
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are the motion to dismiss filed September 6,
2013, by The West Virginia Regional Jail and Correctional
Facility Authority (“WVRJA”), Steven Crook, who is the
Administrator of the South Central Regional Jail (“SCRJ”), and
SCRJ Chief Correctional Officer Lt. Craig Adkins, collectively
referred to as the “agency and supervisory defendants,” and
defendant Daniel Green’s motion to dismiss, filed September 18,
2013.

I.

In her original, March 21, 2013, complaint filed in
the Circuit Court of Kanawha County, Ms. Smoot alleged generally
that defendant former Correctional Officer Daniel Green
victimized her with sexual harassment, abuse, and exploitation
during a period of her incarceration.

Ms. Smoot additionally

alleged that Administrator Crook and Lt. Adkins have, along with
others, conspired to conceal a pattern of sexual misconduct at
the SCRJ.

She also asserts claims against WVRJA, which she

concedes is a state agency responsible for operating the SCRJ.
The March 21, 2013, complaint specifically alleged
claims for (1) violation of her rights under, inter alia, the
Eighth, Ninth, and Fourteenth Amendments, along with claims
under the West Virginia Constitution, (2) various negligence
theories, and (3) assorted intentional tort theories.

In

granting without prejudice the motion to dismiss directed at the
original pleading, the court observed, inter alia, as follows in
an August 8, 2013, memorandum opinion and order:
A conservative analysis of the pleading reveals that
it attempts to assert over 26 federal and state
constitutional and state statutory and common law
claims. Virtually all of those claims are simply
labels without an accompanying recitation of their
necessary elements.
. . . .

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Virtually all of the dozens of claims mentioned in the
complaint lack the corresponding elements of proof,
much less the accompanying factual allegations that
would give rise to plausible claims for relief.
(Memo. Op. and Ord. at 2, 8).
In light of these pleading infirmities, the August 8,
2013, memorandum opinion and order additionally provided as
follows:
These allegations state cognizable claims against the
alleged perpetrator, Correctional Officer Green. They
fall well short under Twombly and Iqbal as to the many
claims alleged against the . . . [supervisory and
agency] defendants. It is, accordingly, ORDERED that
the motion to dismiss be, and hereby is, granted,
without prejudice, and with leave to Ms. Smoot for
filing an amended pleading that provides the necessary
factual and legal detail required by Twombly and Iqbal
respecting the claims against the moving defendants.
She is also encouraged to account as well for those
additional grounds for dismissal presently offered by
the moving defendants that are supported by
controlling precedent and to forego those claims that
are not seriously presented.
(Memo. Op. and Ord. at 9).
On August 23, 2013, Ms. Smoot filed her amended
complaint.

The court has compared the original and amended

pleadings.

That comparison reflects the addition of more

detailed allegations respecting defendant Green.

With respect

to the agency and supervisory defendants, the new allegations
include the following, lengthy recitation found in paragraph 4:
Over the course of the last three (3) years, there has

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existed a continuing practice and pattern of sexual
harassment, sexual abuse, sexual assault and rape
visited upon female inmates at the hands no less than
seven (7) SCRJ correctional officers, including
Defendant Green. These sexual abuses/sexual misconduct
range in various forms. The varying degrees of alleged
abuses/sexual misconduct are as follows:
a. There are occasions when SCRJ officers allegedly
spoke in a sexually graphic manner to female inmates.
b. There are occasions when SCRJ officers allegedly
ordered two female inmates to engage in sexual
intercourse to satisfy that officer’s prurient
interests.
c. There are occasions when SCRJ officers have
allegedly groped and fondled female inmates in a
sexually abusive manner including, but not limited to,
inserting fingers into female inmates’ sexual organs
and having female inmates grope and fondle the
officers’ genitals.
d. There are occasions when SCRJ officers have
allegedly received oral and vaginal sex from female
inmates.
Any and all of the above-referenced sexual
misconduct is in contradiction to the policies and
provisions of Defendant WVRJA and the laws of the
State of West Virginia. Considering the severity of
these allegations as well as the frequency of such
conduct, this practice could not continue to occur
without the tacit approval of Defendant WVRJA and the
supervisory staff of Defendant WVRJA employed at both
its headquarters and at SCRJ including, but not
limited to, Defendants SCRJ Administrator Steven Crook
(Crook) and SCRJ Chief Correctional Officer Lt. Craig
Adkins (Adkins). Further, due to the amount of
allegations, the lack of punishment of many of the
perpetrators, as well as high-ranking WVRJA
agents/employees failing to report such sexual
misconduct to outside law enforcement agency/agencies,
a conspiracy to conceal such sexual misconduct has
occurred, is ongoing and involves various SCRJ
personnel, including Crook and Adkins, as well as
unknown individuals who were employed by the Defendant

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WVRJA. These unknown individuals are collectively
identified herein as “Defendant Doe.” This alleged
conspiracy carries over into many of the cases
litigated throughout the State of West Virginia.
Specifically, there are several known occasions when
Defendant WVRJA and its agents/employees failed to
provide plaintiffs pertinent, relevant documents and
tangible items in the discovery phase. In several
civil actions, many of these non-disclosed documents
and tangible items would validate many plaintiffs’
allegations. The concealment of such documents
furthers the conspiracy of all Defendants as these
Defendants are cognizant that counsel for various
plaintiffs would likely disclose the same to law
enforcement, both state and federal, which could
result in criminal charges and tarnish the reputation
of Defendant WVRJA.
(Am. Compl. ¶ 4).

Further, Ms. Smoot repeats her allegation in

the original complaint that Mr. Crook and Lieutenant Adkins
“acted as . . . lookout[s]” and “served as . . . accessor[ies]
before and after the fact . . . with regard to the sexual
misconduct of Defendant Green.”

(Id. ¶ 6).

On September 6, 2013, the WVRJA, Mr. Crook, and
Lieutenant Adkins moved to dismiss the amended complaint.

They

assert that the amended complaint is insufficient on the
following grounds: (1) the allegations fail to state a claim
under Federal Rule of Civil Procedure 8, (2) the section 1983
claims against the WVRJA are non-actionable, (3) the damage
claims against Crook and Adkins pursuant to Article III of the
West Virginia Constitution are non-actionable, and (4) no claim
is stated against the WVRJA for a conspiracy.

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II.

A.

Governing Standard

Federal Rule of Civil Procedure 8(a)(2) requires that
a pleader provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”

Fed. R. Civ. P.

8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule

12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”

Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds, Twombly, 550 U.S. at 563); see also
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).
In order to survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.
at 570); see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009).

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Application of the Rule 12(b)(6) standard requires
that the court “‘accept as true all of the factual allegations
contained in the complaint . . . .’”

Erickson, 127 S. Ct. at

2200 (quoting Twombly, 127 S. Ct. at 1965); see also South
Carolina Dept. Of Health And Environmental Control v. Commerce
and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004)
(quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).
The court must also “draw[] all reasonable . . . inferences from
th[e] facts in the plaintiff's favor . . . .”

Edwards v. City

of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

B.

The Agency and Supervisory Defendants’ Motion to Dismiss

1. Pleading Defects

The agency and supervisory defendants first assert
that Ms. Smoot has not pled that they knew of the alleged
conduct by defendant Green, much less that they were
deliberately indifferent to it.

The combined references to Mr.

Crook and Lieutenant Adkins serving as lookouts, the frequency
of the misconduct, the lack of punishment for the perpetrators,
the failure to report the matters to outside law enforcement,
and a further alleged conspiracy to hide the misconduct, along

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with the asserted concealment of documents, suffice at this
juncture to plead knowledge.
Next, the agency and supervisory defendants assert
that Ms. Smoot has inadequately pled an Eighth Amendment
deliberate indifference claim.1

In particular, they repeat the

assertion that she “fails to describe circumstances that could
support an inference that Defendants Crook or Adkins had actual
knowledge of the alleged misconduct by Green towards” her.
(Memo. in Supp. at 11).

As noted, the allegations read in the

light most favorable to Ms. Smoot, and crediting her with all
reasonable inferences, sufficiently plead actual knowledge of a
substantial risk of serious harm.
The same is true of the agency and supervisory
defendants’ assertion that the amended complaint lacks
“allegations that could support a finding that the WVRJCFA,
Crook or Adkins breached any duty to the Plaintiff giving rise
to liability because there is no description of what is
allegedly inadequate in the hiring, training, retention or

1

In one summary paragraph the agency and supervisory
defendants provide a laundry listing of Ms. Smoot’s claims and
then state that the amended complaint provides “no factual
description of any conduct that could meet the elements of any
of these claims.” (Memo. in Supp. at 10). In view of the
absence of further development by the defendants of their
conclusory observation, the court does not deem the argument to
be fairly raised.
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supervision of any officer, Green in particular.”
Supp. at 11).

(Memo. in

The court concludes that the claims alleged are

sufficient from a particularity standpoint at the motion to
dismiss stage.

Whether discovery supports them is another

matter and one which will await the summary judgment stage of
the case.

2. Section 1983 Claim Against the WVRJA

The agency, in the opening brief, and the supervisory
defendants in the reply brief, challenge the Section 1983 claim
inasmuch as the WVRJA and its officers and agents are arms and
instrumentalities of the state and thus not “persons” within the
meaning of Section 1983.

While the Supreme Court treats

municipalities as suable “persons” under Section 1983, state
departments and agencies, and state officers and agents in their
official capacities sued for damages, are considered to be
“arm[s] of the state” and are not deemed “persons.”

Compare

Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690
(1978), with Will v. Michigan Dep't of State Police, 491 U.S.
58, 71 (1989), and Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 280 (1977)); see also Roach v. West
Virginia Reg. Jail and Correc. Facil. Auth., 74 F.3d 46, 48 (4th
Cir. 1996) (“The parties do not dispute that the [WV]RJA, a

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state agency, is in fact an “arm of the state” and that the
Eleventh Amendment bars this action against the RJA in federal
court.”).
Based upon this settled authority, the WVRJA, and the
supervisory defendants in their official capacities to the
extent damages are sought against them, are entitled to
dismissal of the Section 1983 claim, which encompasses the
entirety of the federal constitutional claims alleged by Ms.
Smoot.

3.

West Virginia Constitutional Claims

Ms. Smoot alleges various claims against Mr. Crook and
Lieutenant Adkins under the West Virginia Constitution.

The

WVRJA and the supervisory defendants assert that Article III of
the West Virginia Constitution does not give rise to claims for
money damages against them.

They are correct.

In Harrah v.

Leverette, 165 W. Va. 665, 271 S.E.2d 322 (1980), the Supreme
Court of Appeals of West Virginia observed as follows:
4. A person brutalized by state agents while in jail
or prison may be entitled to:
(a) A reduction in the extent of his confinement or
his time of confinement;
(b) Injunctive relief, and subsequent enforcement by
contempt proceedings . . .;

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(c) A federal cause of action authorized by 42 U.S.C.
s 1983; and
(d) A civil action in tort.
Syl. Pt. 4, Harrah v. Leverette, 165 W. Va. 665, 666, 271 S.E.2d
322, 324 (1980).
Inasmuch as the decision in Harrah does not
contemplate a damages award for Article III violations in this
setting, it is ORDERED that, to the extent the claims under
Article III seek monetary relief, they be, and hereby are,
dismissed.2

2

The court is aware of Ms. Smoot’s assertion that the
“Amended Complaint does not contain allegations against
Defendant WVRJA under the United States Constitution and the
West Virginia Constitution.” (Pl.’s Resp. at 5). Inasmuch as
the amended complaint might be read otherwise, the court has
addressed the agency and supervisory defendants’ arguments on
the points nevertheless.
The moving defendants additionally assert that the
conspiracy allegations do not give rise to a claim for relief
and that such claim, in any event, is not properly alleged
against the WVRJA. The allegations set forth supra suggest a
colorable civil conspiracy theory, which may, in turn, provide a
claim against parties who did not actually perpetrate the
alleged abuse. Syl. pt. 9, O'Dell v. Stegall, 226 W. Va. 590,
598, 703 S.E.2d 561, 569 (2010) (Syl. Pts. 9, Dunn v. Rockwell,
225 W. Va. 43, 689 S.E.2d 255 (2009) (“‘A civil conspiracy is
not a per se, stand-alone cause of action; it is instead a legal
doctrine under which liability for a tort may be imposed on
people who did not actually commit a tort themselves but who
shared a common plan for its commission with the actual
perpetrator(s).”). Inasmuch as other actionable claims are
alleged against the WVRJA, the court does not at this time
address the limits of the civil conspiracy theory as to the
state agency.
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C.

Defendant Green’s Motion to Dismiss for Failure of Timely
Service

As noted, on March 21, 2013, the original complaint
was filed in the Circuit Court of Kanawha County.
2013, the action was removed.

On May 3,

Defendant Green asserts that he

is entitled to dismissal based upon the failure to timely serve
him.

Federal Rule of Civil Procedure 4(m) provides as follows:
If a defendant is not served within 120 days after the
complaint is filed, the court -- on motion or on its
own after notice to the plaintiff -- must dismiss the
action without prejudice against that defendant or
order that service be made within a specified time.
But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.

Fed. R. Civ. P. 4(m).
Prior to removal, Ms. Smoot attempted service upon
defendant Green at the SCRJ by certified letter.

The attempted

delivery was returned when defendant Green was not found.
Following the filing on August 23, 2013, of the amended
complaint, Ms. Smoot has not yet served defendant Green.

The

explanation for that service failure is found in Ms. Smoot’s
response brief:
On March 28, 2013, Defendants Crook and Adkins [and
Green] were served with their respective Summons and
Complaint at SCRJ. Plaintiff’s counsel’s office
contacted the Kanawha County Sheriff’s office shortly
thereafter and was informed that all individual

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Defendants had been served. However, when Plaintiff’s
counsel recently requested the documents related to
service from the Kanawha County Circuit Court Clerk,
he determined that Defendant Green had not been
served. Plaintiff’s counsel has since learned that
Defendant Green was terminated from his employ with
Defendant West Virginia Regional Jail and Correctional
Facility Authority.
To that end, Defendant Green is correct in his
assertion that Plaintiff has not perfected service of
the Summons and Complaint on him. However, as
Defendant Green has been provided counsel and has made
an appearance, Plaintiff respectfully requests that
his counsel accept service on his behalf in the
interests of judicial economy. In the alternative,
Plaintiff requests a thirty (30) day extension to
properly serve the Summons and Complaint on Defendant
Green.
(Pl.’s Resp. at 1-2).

Defendant Green notes, inter alia, that

the returned summons was filed with the Circuit Court of Kanawha
County indicating that defendant Green was “not found” and that
he was “no longer employed at SCRJ,” apparently having been
terminated following his arrest on certain charges.
Def.’s Reply).

(Ex. A,

This returned summons is also referenced on one

line of the docket sheet attached to the notice of removal,
which likewise was served upon Ms. Smoot’s counsel.
In Mendez v. Elliot, 45 F.3d 75, 79 (4th Cir. 1995),
our court of appeals observed that “Rule 4(m) requires that if
the complaint is not served within 120 days after it is filed, .
. . [it] must be dismissed absent a showing of good cause.”

Id.

The court concludes that Ms. Smoot has demonstrated good cause

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for an extension in light of the mistaken information provided
to her counsel by the Kanawha County Sheriff’s office.
entitled to rely on that information as accurate.

She was

The exercise

of consummate diligence would have included examining the record
in the circuit clerk’s office.

The failure to do the latter,

however, does not vitiate the force of the former.
It is, accordingly, ORDERED that defendant Green’s
motion to dismiss be, and hereby is, denied.

Pursuant to Rule

4(m), it is further ORDERED that Ms. Smoot be, and hereby is,
granted until November 29, 2013, to perfect service upon
defendant Green.

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III.

Based upon the foregoing discussion, it is ORDERED as
follows:
1.

That the agency and supervisory defendants’ motion to
dismiss be, and hereby is, granted to the extent that
the Article III damage claims are dismissed, along
with the Section 1983 claims pled against the WVRJA
and the supervisory defendants in their official
capacities, to the extent damages are sought against
those two supervisory defendants, and otherwise
denied;

2.

That defendant Green’s motion to dismiss be, and
hereby is, denied; and

3.

That Ms. Smoot be, and hereby is, granted until
November 29, 2013, to perfect service upon defendant
Green.

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The Clerk is requested to transmit this written
opinion and order to all counsel of record and to any
unrepresented parties.
DATED: November 1, 2013
John T. Copenhaver, Jr.
United States District Judge

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