Murray v. Rubenstein et al

Filing 301

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants' 218 MOTION for Summary Judgment; as to Count One, summary judgment is GRANTED in favor of defendants Caudill, Rubenstein, and Ballard, but DENIED as to defendant Matheny; as to Count Two, the defendants' motion for summary judgment is GRANTED as to the plaintiff's request for monetary damages, but is otherwise DENIED; as to Count Three, the defendants' request for summary judgment is DENIED. Signed by Judge Joseph R. Goodwin on 10/26/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
GARLAND MURRAY,
v.

CIVIL ACTION NO. 2:13-cv-15798

RUSSELL MATHENEY, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is Defendants, James Rubenstein, David Ballard,
Russell Matheny, Steve Caudill, and David Miller’s, Motion for Summary Judgment
[ECF No. 218].1 The plaintiff filed a Response [ECF No. 237], and the defendants
filed a Reply [ECF No. 244]. The motion is now ripe for adjudication. For the reasons
stated below, the defendants’ motion is GRANTED in part and DENIED in part.
I.

Facts
The plaintiff, Garland Murray, has been incarcerated at the Mount Olive

Correctional Complex (“MOCC”) since 2012. Pl.’s Resp. Opp’n to Partial Mot. Summ.
J. of Defs. Rubenstein, Ballard, Matheny, Caudill, & Miller 2 (“Pl.’s Resp.”) [ECF No.
237]. From 2012 to 2016, the plaintiff was housed in solitary confinement in the
Quilliams Units of MOCC. Id. During this time, he was permitted one hour of
recreation five times per week. Id. The plaintiff maintains that in 2013, he was the
only African American in his recreation group, and in this group, there were a couple

After this motion was filed, the parties stipulated to dismiss Defendant David Miller from this
action. Stip. Dismiss David Miller 1 [ECF No. 298]. Thus, this order will not address any arguments
regarding David Miller.
1

of known racist inmates who he believed were armed with improvised weapons. Am.
Compl. 11–12 [ECF No. 112]. According to the plaintiff, he repeatedly refused to go
to the recreation yard when it was his designated time because he was scared of those
racist inmates. Id.
On March 12, 2013, the plaintiff filed a grievance stating:
I’ve addressed this problem on Requests & to staff about
being on (Single Rec) Before (I) get into a altercation. Im
still placed within rec with others. Im in fear on rec with
others. I don’t want to rec with anyone for sake of my safty.
So please put me on single rec before i get into trouble –
please – thank you
Compl. Ex. 1, at 1 [ECF No. 2-1]. On March 13, 2013, the unit manager, defendant
Russell Matheny, responded, “you can fill out a special management request and be
seen by the committee if you like. Let me know and we will bring you [sic] to fill out
the request.” Id. The plaintiff maintains that after this, defendant Matheny went on
vacation without placing him on single rec or notifying other staff of the plaintiff’s
concerns. Id. at 13. The defendants maintain, however, that the plaintiff was not
placed on single rec because he failed to fill out a special management request form.
Defs., James Rubenstein, David Ballard, Russell Matheny, Steve Caudill, and David
Miller’s Mem. Law Supp. Mot. Summ. J. 2 (“Defs.’ Mem.”) [ECF No. 219].
On April 1, 2013, the plaintiff was stabbed by another inmate, Kristopher
Creel, while on recreation. Id. at 1. Creel was able to bring the weapon into the
recreation yard because defendant Paul Donelson failed to strip search or screen the
inmates before they went to recreation on that day. Am. Compl. 14. Defendant Steve
2

Caudill was the captain in charge of the unit as a stand-in for Captain Matheny the
day the plaintiff was stabbed. Pl.’s Resp. 4. Defendant David Ballard was the warden
of MOCC, and defendant James Rubenstein was commissioner of the Division of
Corrections. Id. at 8.
On June 26, 2013, the plaintiff filed this action against the defendants. Compl.
[ECF No. 2]. On August 8, 2016, the plaintiff filed his second amended complaint.
Am. Compl. The amended complaint contains three causes of action against the
defendants: Count One alleges that the defendants violated the Eighth and
Fourteenth Amendments under 42 U.S.C. § 1983; Count Two alleges that the
defendants violated Article III, Sections 1, 5, and 10 of the West Virginia
Constitution; Count Three alleges that the defendants were negligent. Id. at 22–26.
II.

Legal Standard
To obtain summary judgment, the moving party must show that there is no

genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they
might affect the outcome of the case.” Lester v. Gilbert, 85 F. Supp. 3d 851, 857 (S.D.
W. Va. 2015) (quoting News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a
reasonable fact-finder could return a verdict for the non-movant.” Runyon v. Hannah,
No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary
3

judgment is appropriate . . . where the record as a whole could not lead a rational
trier of fact to find for the non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Summary judgment is
appropriate when the nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322–23. The
nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or unsupported speculation, without more, are
insufficient to preclude the granting of summary judgment. See Dash v. Mayweather,
731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191
(4th Cir. 1997).

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III.

Discussion
a. Count One: 42 U.S.C. § 1983
The plaintiff brings a Section 1983 claim against each of the defendants alleging

that they violated his Eighth and Fourteenth Amendment rights. 2 The court will
address each of the plaintiff’s Section 1983 claims below.
i. Russell Matheny
“In order to prevail on a [Section] 1983 claim, a plaintiff must show that the
defendant deprived him of a right secured by the Constitution and laws of the United
States and that the defendant acted under color of state law.” Lester, 85 F. Supp. at
858 (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999). “The Eighth
Amendment, which applies to the States through the Due Process Clause of the
Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments’
on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 297–98 (1991).
“The Constitution does not mandate comfortable prisons, but neither does it
permit inhumane ones, and it is now settled that the treatment a prisoner receives
in prison and the conditions under which he is confined are subject to scrutiny under
the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations
omitted) (quotation marks omitted). The Eighth Amendment imposes a duty on
prison officials to “take reasonable measures to guarantee the safety of the inmates.”

The court is under the impression that the plaintiff only included the Fourteenth Amendment in
Count One to the extent that it incorporates claims for violations of rights enshrined in the Bill of
Rights against the states. Thus, the court will not conduct a separate analysis regarding whether
summary judgment is warranted as to the plaintiff’s Fourteenth Amendment claim.
2

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Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). This includes a duty to
protect prisoners from violence at the hands of other prisoners. Id. at 833; Pressly v.

Hutto, 816 F.2d 977, 979 (4th Cir. 1987) (“The eighth amendment protects a convicted
inmate from physical harm at the hands of fellow inmates resulting from the
deliberate or callous indifference of prison officials to specific known risks of such
harm.”).
“It is not, however, every injury suffered by one prisoner at the hands of
another that translates into constitutional liability for prison officials responsible for
the victim’s safety.” Farmer, 511 U.S. at 834. Instead, prison officials only violate the
Eighth Amendment when two requirements are met. Id. “First, the deprivation
alleged must be, objectively, ‘sufficiently serious.’” Id. (quoting Wilson, 501 U.S. at
298). This means that, “[f]or a claim . . . based on a failure to prevent harm, the inmate
must show that he is incarcerated under conditions posing a substantial risk of
serious harm.” Id. “Though guidance is limited on the question of what precisely
constitutes sufficiently serious deprivation, the threat of a beating by another inmate
clearly satisfies” this requirement. Denney v. Berkley Cnty., No. 3:10-1383-RMGJRM, 2012 WL 3877732, at *5 (D. S.C. Sept. 5, 2012).
The second requirement mandates that the prison official have acted with
“deliberate indifference” to the inmate’s safety. Farmer, 511 U.S. at 837. Deliberate
indifference is a subjective requirement which necessitates that the prison official
both “know[] of and disregard[] an excessive risk to inmate health or safety.” Id.
6

(emphasis added). This means that “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 also draw the inference.” Id. “This subjective assessment ‘sets a
particularly high bar to recovery’ which cannot be met by ‘a showing of mere
negligence.’” Parker v. Maryland, 413 Fed. App’x 634, 638 (4th Cir. 2011) (citations
omitted).
Here, with regard to the first element, the plaintiff was fearful that he would
be attacked, and he was in fact attacked and stabbed multiple times. Thus, there is a
genuine issue of material fact as to whether he faced an objective, sufficiently serious
deprivation.
With regard to the second requirement, the defendant maintains that while
the plaintiff “may have voiced his fears to Correctional Officers in general terms,” he
“[n]ever stated that he had a particularized fear of a specific inmate or group of
inmates.” Defs., James Rubenstein, David Ballard, Russell Matheny, and Steve
Caudill’s Reply to Pl.’s Resp. to Defs.’ Mot. Summ. J. 3 (“Defs.’ Reply”) [ECF No. 244].
This argument is unpersuasive. In Farmer, the Supreme court made clear “that ‘a
prison official [cannot] escape liability for deliberate indifference by showing that,
while he was aware of an obvious, substantial risk to inmate safety, he did not know
that the complainant was especially likely to be assaulted by the specific prisoner
who eventually committed the assault.’” Madessi v. Fields, 789 F.3d 126, 135 (4th
Cir. 2015) (quoting Farmer, 511 U.S. at 843).
7

On March 12, 2013, two weeks before the incident, the plaintiff filed a
grievance stating:
I’ve addressed this problem on Requests & to staff about
being on (Single Rec) Before (I) get into a altercation. Im
still placed within rec with others. Im in fear on rec with
others. I don’t want to rec with anyone for sake of my safty.
So please put me on single rec before i get into trouble –
please – thank you
Compl. Ex. 1, at 1. Defendant Matheny signed and responded to this grievance the
next day. Id. Additionally, the plaintiff submitted an affidavit from another inmate,
Keith W.R. Lowe, which states:
I had a conversation with Capt. Matheney behind the glass
about another inmate named Murray. Capt. Matheney was
joking around and said “well it looks like you put another
one on single Rec” and I said who? Matheney said old tough
ass Garland Murray, apparently he thinks the Aryan
Brotherhood is going to stab him. He then said, what did I
think the reason was. I said I have no ideal why he is on
single rec but It had nothing to do with me. Captain
Matheney said that he was not stupid and that he received
information, but that he could careless if AB stabbed him
or not, just don’t do it on his watch, but regardless he
wasn’t going to place him on single rec.
Exs. M to V Opp’n Defs.’ Mot. Summ. J. Ex. T, at 1 [ECF No. 238-7].
Based on these facts, the court FINDS that the plaintiff has raised a genuine
issue of material fact as to whether Defendant Matheny was deliberately indifferent
to the plaintiff’s safety.

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ii. Defendants James Rubenstein & David Ballard
The plaintiff further alleges that defendants James Rubenstein and David
Ballard have “supervisory liability” for the plaintiff’s constitutional claims. “The
principle is firmly entrenched that supervisory officials may be held liable in certain
circumstances for the constitutional injuries inflicted by their subordinates.” Shaw v.

Stroud, 13 F.3d 791, 798 (4th Cir. 1994). “There is, however, no respondeat superior
liability pursuant to 42 U.S.C. § 1983.” Berry v. Rubenstien, No. 1:07-00535, 2008
WL 1899907, at *2 (S.D. W. Va. Apr. 25, 2008) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978)). Instead, “‘[l]iability will only lie where it is affirmatively shown
that the official charged acted personally in the deprivation of the plaintiff's rights,’
or where a subordinate acts pursuant to a policy or custom for which the supervisor
is responsible.” Id. (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977)).
“Recognizing that supervisory liability can extend ‘to the highest levels of state
government,’” the Fourth Circuit has held that supervisory liability “ultimately is
determined ‘by pinpointing the persons in the decisionmaking chain whose deliberate
indifference permitted the constitutional abuses to continue unchecked.’” Shaw, 13
F.3d at 798 (quoting Slakan v. Porter, 737 F.2d 368, 376 (4th Cir. 1984), cert. denied,
470 U.S. 1035 (1985)). There are three elements necessary to establish supervisory
liability:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed “a pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff; (2) that
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the supervisor’s response to that knowledge was so
inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices,”; and (3)
that there was an “affirmative causal link” between the
supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.

Id. at 799.
In order to establish the first element, the plaintiff must show “(1) the
supervisor’s knowledge of (2) conduct engaged in by a subordinate (3) where the
conduct poses a pervasive and unreasonable risk of constitutional injury to the
plaintiff.” Id. “Establishing a ‘pervasive’ and ‘unreasonable’ risk of harm requires
evidence that the conduct is widespread, or at least has been used on several different
occasions and that the conduct engaged in by the subordinate poses an unreasonable
risk of harm of constitutional injury.” Id.
Turning to the second element, the plaintiff “may establish deliberate
indifference by demonstrating a supervisor’s ‘continued inaction in the face of
documented widespread abuses.’” Id. (citations omitted). The Fourth Circuit has held:
The plaintiff assumes a heavy burden of proof in
establishing deliberate indifference because: [o]rdinarily,
[the plaintiff] cannot satisfy his burden of proof by pointing
to a single incident or isolated incidents, for a supervisor
cannot be expected to promulgate rules and procedures
covering every conceivable occurrence within the area of
his responsibilities. Nor can he reasonably be expected to
guard against the deliberate criminal acts of his properly
trained employees when he has no basis upon which to
anticipate the misconduct. A supervisor’s continued
inaction in the face of documented widespread abuses,
however, provides an independent basis for finding he
10

either was deliberately indifferent or acquiesced in the
constitutionally offensive conduct of his subordinates.

Id. (citations omitted).
The third element for supervisory liability is established “when the plaintiff
demonstrates an ‘affirmative causal link’ between the supervisor’s inaction and the
harm suffered by the plaintiff.” Id. (citations omitted). Causation in this context
encompasses both cause in fact and proximate cause. Id. The Fourth Circuit has held
that the “proof of causation may be direct . . . where the policy commands the injury
of which the plaintiff complains . . . [or] may be supplied by [the] tort principle that
holds a person liable for the natural consequences of his actions.” Id. (citations
omitted).
Here, the plaintiff argues that defendants Rubenstein and Ballard have
supervisory liability for his Section 1983 claims. Pl.’s Resp. 15. The plaintiff
maintains that these defendants were aware that there were significant unresolved
staffing shortages at MOCC, and that “staffing shortages led to mistakes, errors, and
reduction in safety.” Id. The plaintiff also maintains that they were aware that
inmates had attacked others on the Quilliams II recreation yard prior to the date the
plaintiff was stabbed, but that they failed to take any measures to increase inmate
protection. Id.
The plaintiff further alleges that these defendants “created and supported a
culture of coercion and lack of respect for inmates’ justifiable fears by either
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instituting ‘martial law’ or refusing to contradict its existence; and by instituting
policies that directed officers not to avoid confrontation with inmates or to utilize
efforts to temper force against inmates, including in their training of officers.” Id. at
16. According to the plaintiff, “[t]his atmosphere led directly to officers ignoring [the
plaintiff’s] fears.” Id. Finally, the plaintiff alleges that “[d]efendant Rubenstein
created the parameters for the contract with the medical provider, which creates
significant incentives to limit care.” Id.
The facts, when viewed in the light most favorable to the plaintiff, do not show
that defendants Rubenstein and Ballard’s conduct violated his constitutional rights.
The plaintiff has failed to establish the first element of supervisory liability—i.e.
that either of these defendants “had actual or constructive knowledge that his
subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’
of constitutional injury to citizens like the plaintiff.” Shaw, 13 F.3d at 799. The
plaintiff was stabbed after defendant Paul Donelson failed to search all of the inmates
before they went on recreation. The plaintiff failed to present any evidence that these
defendants had any knowledge of conduct like this occurring in the past. The plaintiff
states that defendants Rubenstein and Ballard “were aware [sic] that inmates had
attacked others on the Quilliams II recreation yard prior to the date [the plaintiff]
was attacked,” but he does not cite any evidence to support this.3 Pl.’s Resp. 15. This
bare assertion, however, is insufficient to allow this claim to survive summary

Hundreds of pages of exhibits were entered in this matter. It is the party’s responsibility to cite to
the court which exhibits they are relying on when making factual assertions.
3

12

judgment. The plaintiff has also failed to allege enough facts to support the second
element, deliberate indifference. Shaw, 13 F.3d at 799.
The court FINDS that summary judgment is proper as to the plaintiff’s
supervisory liability claims against defendants Ballard and Rubenstein.
iii. Defendant Steve Caudill
The plaintiff also alleges that defendant Steve Caudill has supervisory liability
under Section 1983. Am. Compl. 18–22; Pl.’s Resp 14. The plaintiff alleges that
defendant Caudill failed to: (1) ensure the day-to-day security of the Quilliams Units
and the safety of the plaintiff and (2) train or supervise subordinate correctional
officers, and/or ensure that a continuous system of contraband prevention and
detection was implemented on the Quilliams units. Am. Compl. 20. Additionally, the
plaintiff alleges that immediately after he was stabbed, defendant Caudill entered
the unit and “stood by as his subordinates failed to take [the plaintiff] to the medical
unit, questioned him prior to allowing him access to any medical care, and ultimately
threatened him with mace rather than allowing him to obtain timely medical
treatment.” Pl.’s Resp. 14. The plaintiff further maintains that defendant Caudill
“took no corrective action after [the plaintiff] was stabbed, including not even
inquiring into the results of the investigation.” Pl.’s Resp. 14. The plaintiff also alleges
that after he was stabbed, defendant Caudill repeatedly removed the plaintiff from
single recreation and denied him alternative access to a telephone. Id. at 14–15.

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None of these allegations, however, support a claim for supervisory liability.

See Shaw, 13 F.3d at 799. The plaintiff has failed to allege sufficient facts to prove
that defendant Caudill “had actual or constructive knowledge that his subordinate
was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of
constitutional injury to citizens like the plaintiff.” Id. Additionally, the plaintiff has
failed to allege sufficient facts to prove that defendant Caudill was deliberately
indifferent. Id.
The court FINDS that summary judgment is proper as to the plaintiff’s
supervisory liability claims against defendant Caudill.
b. Count One: Qualified Immunity
Next, the defendants argue that the plaintiff’s Section 1983 claims are barred
by the doctrine of qualified immunity. Since the court has already found that
summary judgment is warranted as to defendants Rubenstein, Ballard, and Caudill,
the court will only address qualified immunity in regard to defendant Matheny.
Under the doctrine of qualified immunity, “[g]overnmental officials performing
discretionary functions are shielded from liability for money damages so long ‘as their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Maciariello v. Sumner, 973 F.3d 295, 298
(4th Cir. 1992) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Officials are
not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”

Id. (citations omitted). “Qualified immunity ‘shield[s] [officials] from civil damages
14

liability as long as their actions could reasonably have been thought consistent with
the rights they are alleged to have violated.’” Tobey v. Trice, 706 F.3d 379, 385 (4th
Cir. 2013) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “The concern of
the immunity inquiry is to acknowledge that reasonable mistakes can be made as to
the legal constraints on particular [government] conduct.” Henry v. Purnell, 501 F.3d
374, 377 (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)). Thus, qualified
immunity protects “all but the plainly incompetent or those who knowingly violate
the law.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The Supreme Court has held that qualified immunity is “an entitlement not to
stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). The privilege is “an immunity from suit rather than a mere defense to
liability; and like an absolute immunity, it is effectively lost if a case is erroneously
permitted to go to trial.” Saucier, 533 U.S. at 200–01.
The Fourth Circuit has held that:
When a government official properly asserts qualified
immunity, the threshold question that a court must answer
is whether the facts, when viewed in the light most
favorable to the plaintiff, show that the official’s conduct
violated a constitutional right. “If no constitutional right
would have been violated were the allegations established,
there is no necessity for further inquiries concerning
qualified immunity.” However, “if a violation could be made
out on a favorable view of the parties’ submissions, the
next, sequential step is to ask whether the right was clearly
established”—that is, “whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” The “answer to both Saucier
questions must be in the affirmative in order for a plaintiff
15

to defeat a . . . motion for summary judgment on qualified
immunity grounds.”

Henry v. Purnell, 501 F.3d 374, 377 (citations omitted). The plaintiff bears the burden
of proof on the first question regarding whether there was a constitutional violation.

Id. If the plaintiff shows that a genuine issue of material fact exists as to whether the
defendants violated his statutory or constitutional rights, then summary judgment is
improper. Denney v. Tucker, 545 Fed. App’x 211, 215 (4th Cir. 2013). The defendant
bears the burden of proof on the second question regarding whether the right was
clearly established. Henry, 501 F.3d at 378.
Since the plaintiff has met his burden of proving that there is a question of
material fact as to whether there was a constitutional violation, summary judgment
is improper unless defendant Matheny has proven that the right was not clearly
established. Defendant Matheny has failed to satisfy this burden. As explained above,
the Supreme Court has explicitly held that prison officials have a duty to protect
prisoners from violence at the hands of other prisoners, and that failing to do so may
violate the Eighth Amendment. Farmer, 511 U.S. at 832; see also Pressly v. Hutto,
816 F.2d 977, 979 (4th Cir. 1987).
Thus, the court FINDS that qualified immunity is improper at this time as to
the plaintiff’s 42 U.S.C. § 1983 claim against defendant Matheny.

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c. Count Two: West Virginia Constitution
Count Two of the Complaint alleges that the defendants deprived the plaintiff
of his rights protected under Article III, Sections 1, 5, and 10 of the West Virginia
Constitution. Am. Compl. 24–26. The defendants argue that these claims “should be
dismissed because the West Virginia Constitution does not create an independent
cause of action for money damages.” Defs.’ Mem. 12.
While the defendants did not raise this argument, the court finds it necessary
to explain that Article III, Sections 1 and 10 are not actually relevant in this case.
Article III, Section 1 of the West Virginia Constitution is entitled “Bill of Rights.” W.
Va. Const. art. III, § 1. It “is a statement of the basic principle on which our entire
democratic structure is founded.” Harper v. Barbagallo, No. 2:14-cv-07529, 2016 WL
5419442, at *13 (S.D. W. Va. Sept. 27, 2016) (citations omitted) (quotation marks
omitted). This section “does not independently give rise to a cause of action.” Id. at
*14 n.7. Thus, the court FINDS that summary judgment is proper as to the plaintiff’s
claim under Article III, Section 1 of the West Virginia Constitution.
Article III, Section 10 is “West Virginia’s equivalent to the federal Due Process
Clause.” Id. at *13. “The Supreme Court has held that ‘if a constitutional claim is
covered by a specific constitutional provision, such as the Fourth or Eighth
Amendment, the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.’” Spry v. West

Virginia, No. 2:-16-cv-0178, 2017 WL 440733, at *6 (S.D. W. Va. Feb. 1, 2017) (quoting
17

United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). “The [c]ourt has no reason to
believe that the West Virginia courts would apply a different rule in their
construction of Article III, [Section] 10 of the West Virginia Constitution.” Id.
Here, the plaintiff has alleged that he was attacked by another inmate while
on recreation because the defendants failed to protect him. This claim is covered by
both the Eighth Amendment of the United States Constitution, Farmer, 511 U.S. at
833, as well as Article III, Section 5 of the West Virginia Constitution. Hackl v. Dale,
171 W. Va. 415, 417 (1982). Thus, the court FINDS that summary judgment is proper
as to the plaintiff’s claims under Article III, Section 10 of the West Virginia
Constitution.
Lastly, the plaintiff alleges that the defendants violated his rights secured by
Article III, Section 5 of the West Virginia Constitution. For this alleged violation, the
plaintiff seeks compensatory damages, outside medical and psychiatric services,
punitive damages, and injunctive relief. Am. Compl. 24–26. The defendants argue
that this claim “should be dismissed because the West Virginia Constitution does not
create an independent cause of action for money damages.” Defs.’ Mem. 12–13.
The Supreme Court of Appeals of West Virginia has held that the remedies
available under the West Virginia Constitution to a plaintiff “brutalized by state
agents while in jail or prison” include:
(a) A reduction in the extent of his confinement or his time
of confinement;

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(b) Injunctive relief, and subsequent enforcement by
contempt proceedings, including but not limited to,
prohibiting the use of physical force as punishment,
requiring psychological testing of guards, and ordering
guards discharged if at a hearing they are proved to
have abused inmates;
(c) A federal cause of action authorized by 42 U.S.C. § 1983;
and
(d) A civil action in tort.

Harrah v. Leverette, 271 S.E.2d 322, 324 (W. Va. 1980). Insofar as the plaintiff seeks
monetary damages under the West Virginia Constitution outside the scope of those
contemplated by the Harrah court, the court FINDS that summary judgment is
warranted. McMillion-Tolliver v. Kowalski, No. 2:13-cv-29533, 2014 WL 1329790, at
*2 (S.D. W. Va. Apr. 1, 2014); Smoot v. Green, No. 2:13-10148, 2013 WL 5918753, at
*5 (S.D. W. Va. Nov. 1, 2013). The defendants did not address the plaintiff’s request
for injunctive relief, and thus the court declines to address it at this time. Therefore,
the court FINDS that summary judgment is not warranted as to the plaintiff’s
request for injunctive relief in Count Two.
d. Count Three: Negligence
Finally, the plaintiff has brought a negligence claim against each of the
defendants. Am. Compl. 26–27. The defendants argue that they are entitled to
qualified immunity as to this claim. Defs.’ Reply 8. The record is unclear regarding
the specific conduct the plaintiff alleges was negligent. Moreover, the defendants
briefing on whether they are entitled to qualified immunity as to the plaintiff’s
19

negligence claim was wholly inadequate. The defendants do not cite to any case law
or a single statute that supports their defense. Def.’s Reply 8. Instead, they state that
they are entitled to qualified immunity as to the plaintiff’s negligence claim, while
only explaining why they are entitled to qualified immunity as to the plaintiff’s
constitutional claims. Id.
The court FINDS that material facts exist as to whether the defendants are
entitled to qualified immunity as to the plaintiff’s negligence claims, and therefore
summary judgment as to Count Three is not warranted.
IV.

Conclusion
For the reasons stated herein, the defendants’ motion for summary judgment

is GRANTED in part and DENIED in part. As to Count One, summary judgment is
GRANTED in favor of defendants Caudill, Rubenstein, and Ballard, but DENIED as
to defendant Matheny. As to Count Two, the defendants’ motion for summary
judgment is GRANTED as to the plaintiff’s request for monetary damages, but is
otherwise DENIED. As to Count Three, the defendants’ request for summary
judgment is DENIED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

20

October 26, 2017