Harper v. Blagg et al

Filing 47

MEMORANDUM OPINION AND ORDER granting Defendant's 17 MOTION to Dismiss; dismissing without prejudice Defendants David Ballard, Jason Collins, Paul Parry, and Jim Rubenstein from this action; directing that this matter be referred to Magistrate Judge Dwane L. Tinsley for the continuation of the proceedings concerning the remaining Defendants in this case. Signed by Judge Thomas E. Johnston on 3/18/2014. (cc: attys; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CEDEAL HARPER,
Plaintiff,
v.

CIVIL ACTION NO. 2:13-cv-19796

MICHAEL BLAGG, et al.
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is a motion to dismiss filed by Defendants David Ballard, Jason
Collins, Paul Parry, and Jim Rubenstein (collectively referred to as “the Supervisory
Defendants”). 1 (ECF 17.) For the reasons that follow, the Court GRANTS the motion to
dismiss with respect to these four Defendants.
I.

BACKGROUND

Plaintiff’s Complaint, which was filed on July 15, 2013, alleges that his right to be free
from cruel and unusual punishment under the Eighth Amendment was violated by the Defendant
prison officials when he was pepper sprayed while sitting, handcuffed and shackled, in a common
area of his segregation unit at the Mount Olive Correctional Complex (“MOCC”).
Specifically, Plaintiff alleges that, on Thursday, June 6, 2013, while housed in Pod 8, Cell
806 in the Quilliams II segregation unit at MOCC, Plaintiff was escorted out of his cell by two
officers, with his hands cuffed behind his back and his legs shackled together. (ECF 2 at 5, ¶13.)
He was taken to the day room and handcuffed to a stool, while still fully shackled. (Id.) Plaintiff
1

Defendants Michael Blagg, Margaret Clifford, and James McCloud filed an Answer to the Complaint (ECF 15).
Discovery is proceeding concerning these defendants and a separate Time Frame Order will be entered.

further alleges that, while he was sitting on the stool, Lieutenant Margaret Clifford, “in an overly
dramatic fashion and out of nowhere,” jumped in front of Plaintiff and started yelling at him,
telling him to “look at the wall.” Plaintiff alleges that, while Clifford was yelling at him, she had
a container of Oleoresin Capsicum (“OC spray” or “pepper spray”) pointed at Plaintiff’s face.
(Id., ¶ 14.)
Plaintiff further alleges that he attempted to “deescalate” the situation by talking to
Clifford, but she told him to “shut up and face the wall,” and he complied with her commands.
(Id.. ¶ 15.) Plaintiff contends that, while he was looking at the wall, Clifford told Officer Michael
Blagg to spray Plaintiff if he moved. Plaintiff alleges that he turned his head to see to whom
Clifford was talking, and Blagg sprayed him twice with the OC spray. (Id., ¶ 16.) Plaintiff
further alleges that Blagg told him to “look at the floor,” so Plaintiff “put his head down and sat
there quietly.” (Id., ¶ 17.)
Plaintiff’s Complaint further alleges that, after a minute or so, Captain James McCloud
came over and whispered in Plaintiff’s ear, stating, “Now you can file another lawsuit.” (Id. at 6.)
Plaintiff contends that he did not respond and sat there for approximately ten minutes before they
removed him from the pod for decontamination. (Id. at 6, ¶ 18.)
The Complaint does not indicate whether the incident itself was video-recorded.
However, from Plaintiff’s allegations, it appears that a video recording was made after the
incident, in which Lieutenant. Clifford stated that Plaintiff was sprayed with the OC spray for
“refusing an order.” (Id., ¶ 19.) Plaintiff further alleges that, while on camera, he reminded
Captain McCloud about the comment he had made to Plaintiff, but he believes McCloud told him
to get in the shower. (Id., ¶ 20.)

2

Plaintiff further alleges that, after he had been placed back in his cell, he saw Warden
David Ballard, Associate Warden of Security Paul Parry, and others come into the pod. Plaintiff
states that he “stared at” Warden Ballard, who “looked back at him,” until an officer instructed
Plaintiff to sit on his bunk. (Id., ¶ 21.) Plaintiff does not allege that Ballard or Parry were present
at the time that he was pepper sprayed.
Plaintiff’s Complaint alleges that Plaintiff believes that the actions of Clifford, McCloud
and Blagg were “a concerted effort to retaliate against Plaintiff for filing Civil Actions
2:12-cv-00656 (an excessive force case against Captain McCloud and others) or Civil Action No.
2:12-cv-07451 (a suit that includes retaliation claims against Captain McCloud and others).” (Id.
at 6-7, ¶ 22.)
The Complaint further alleges that Defendants McCloud, Clifford, Collins, Parry, Ballard
and Rubenstein:
has or had actual knowledge of the pervasive, longstanding and well documented
violations of constitutional rights, excessive force and retaliation and they failed to
adequately and properly investigate, take corrective action against, supervise or
discipline their employees or subordinates who engaged in such alleged conduct
and, thus, tacitly authorized the Plaintiff’s and other inmates[’] alleged
constitutional violations and/or injuries and failed to protect the Plaintiff and
other inmates from such constitutional violations and injuries. Also the
individuals created policies or customs allowing, encouraging and/or tacitly
authorized the constitutional violations or injuries.
(Id. at 7, ¶ 23.) The Complaint further alleges that:
At this facility, Mount Olive Correctional Complex, superiors or supervisors allow
subordinates to: (1) spray people or use excessive force for refusing orders, such
as but not limited to: (A) not shaving, (B) kicking a door, (C) flooding a cell, (D)
popping a sprinkler, or (E) anything or order that is not essential to the safety of an
officer or an inmate; (2) not use efforts to temper before using force on inmates in
segregation; and (3) violate policies such as the Less-Lethal Use of Force and
Calculated Use of Force.

3

Id., ¶ 24.)
Plaintiff’s Complaint further alleges that he had informed the Commissioner (James
Rubenstein) and Warden (David Ballad) of the excessive use of force and retaliation against him
and other MOCC inmates through grievances or other forms of communication. (Id., at 7-8, ¶
25.)
Plaintiff claims that, due to the excessive force and retaliation, he has suffered pain and
emotional distress, humiliation and embarrassment, nightmares and mood swings. (Id., ¶ 26.)
He claims he suffered physical harm such as burning of the face, eyes and private parts, breathing
problems, sinus problems, and swelling of the face. (Id.)
Plaintiff contends that he exhausted his administrative remedies concerning this incident
by filing a grievance on June 6, 2013. He claims that he received responses denying his
grievances stating that “Relief sought cannot be granted at this level” and “There has been no
retaliation against you.” (Id., ¶ 27.) Plaintiff further alleges that he appealed these responses to
the Commissioner, but does not know the date. (Id.)
Plaintiff’s Complaint contains allegations concerning the conduct of all of the Defendants.
However, for the purpose of addressing the motion to dismiss filed by Defendants Rubenstein,
Ballard, Collins and Parry, the Court will focus on the specific allegations concerning those
Defendants. First, the Complaint identifies these Defendants as follows:
6.

Defendant, Jason Collins, is the associate warden of programs of Mount
Olive Correctional Complex. Plaintiff does not know exactly what this
person does.

7.

Defendant, Paul Parry, is the associate warden of security of the Mount
Olive Correctional Complex. Plaintiff does not know exactly what this
person does.

4

8.

Defendant, David Ballard, is the Warden of Mount Olive Correctional
Complex. Plaintiff does not know exactly what this person does.
He may be legally responsible for the operation of Mount Olive
Correctional Complex and for the welfare of all the inmates of the
persons [sic].

9.

Defendant, Jim Rubenstein, is the commissioner of the State of West
Virginia. He is legally responsible for the overall operation of the
Departments and/or each institution under its jurisdiction, including but not
limited to Mount Olive Correctional Complex.

(ECF 2 at 3.) As to these Supervisory Defendants, the Complaint further alleges:
By having knowledge of the pervasive, longstanding and well documented
violations of constitutional rights or injuries, excessive force and retaliation against
the petitioner [Plaintiff] and other inmates and failing to take corrective action
against the misconduct, encouraging the misconduct, allowing the misconduct to
continue, failing to protect against the misconduct, failing to adequately and
properly supervise or discipline subordinates or creating policies or customs that
allow the misconduct and thus tacitly authorized the Plaintiff’s and other inmates[’]
constitutional violations and injuries, Defendants . . . Collins, Parry, Ballard and
Rubenstein is [sic; are] also violating Plaintiff Harper’s rights under the Eighth
Amendment to the United States Constitution and causing Plaintiff Harper pain,
suffering and/or emotional distress.
(Id. at 11, ¶ 35.) Plaintiff seeks monetary damages, as well as declaratory and injunctive relief.
(Id. at 12-14, ¶¶ 36-46.)
Plaintiff has attached two exhibits to his Complaint. Exhibit A is a Violation Report
indicating that Plaintiff was charged with Refusing an Order on June 6, 2013. (ECF 2, Ex. A.)
The Violation Report, which was submitted by Sgt. Michael Blagg, contends that Plaintiff was
sprayed with OC spray because he was given multiple verbal directions to remain silent and stop
moving around on the stool on which he was sitting because he was causing a K-9 in the room to
become agitated. (Id.) The Violation Report indicates that Plaintiff began fidgeting and looking
around the day room area. At that time, Blagg deployed two one-second bursts of OC spray into
Plaintiff’s facial area. (Id.)
5

The second exhibit attached to the Complaint is West Virginia Division of Corrections’
Policy Directive 312.02 concerning Less-Lethal Use of Force. (Id., Ex. B.)
On April 9, 2013, Defendants Ballard, Collins, Parry and Rubenstein filed the pending
motion to dismiss (ECF 17) and a Memorandum of Law in support thereof (ECF 18).
Defendants’ motion asserts that Plaintiff’s Complaint documents fail to state a claim upon which
relief can be granted, and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
II.

LEGAL STANDARDS

In Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007), the Supreme Court observed
that a case should be dismissed for failure to state a claim upon which relief can be granted if,
viewing the well-pleaded factual allegations in the complaint as true and in the light most
favorable to the plaintiff, the complaint does not contain “enough facts to state a claim to relief that
is plausible on its face.” While the complaint need not assert “detailed factual allegations,” it
must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a
cause of action.” Id. at 555.
The Supreme Court elaborated on its holding in Twombly in Ashcroft v. Iqbal, 556 U.S.
662 (2009), a civil rights case. The Court wrote:
Two working principles underlie our decision in Twombly. First, the tenet
that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. [Twombly, 550
U.S.] at 555, 127 S. Ct. 1955 (Although for the purposes of a motion to dismiss we
must take all of the factual allegations in the complaint as true, we “are not bound to
accept as true a legal conclusion couched as a factual allegation” (internal quotation
marks omitted). Rule 8 . . . does not unlock the doors of discovery for a Plaintiff
armed with nothing more than conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss. Id., at 556.
6

***
In keeping with these principles a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While legal conclusions
can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.
556 U.S. at 678–679.
III.

DISCUSSION

Defendants’ motion will be reviewed under Rule 12(b)(6) of the Federal Rules of Civil
Procedure and the Twombly/Iqbal standard. The Supervisory Defendants assert that Plaintiff’s
allegations against them attempt to set forth a cause of action for “supervisory liability” for the
alleged constitutional deprivations by other officers. Their Memorandum of Law further asserts:
In doing so, however, the Plaintiff has merely recited the elements of a cause of
action, without including any factual support for his conclusions. Therefore the
allegations in the Complaint against these Defendants are not entitled to the
presumption of truth and are insufficient to state a claim upon which relief can be
granted pursuant to Rule 8 of the Federal Rules of Civil Procedure, as that Rule has
been interpreted in [Iqbal] which is dispositive of this issue.
(ECF 18 at 3.) The Court will address the Supervisory Defendants’ specific arguments made in
their motion and supporting memorandum and Plaintiff’s response thereto in turn.
A.

Official Capacity Claims

The Supervisory Defendants’ Memorandum of Law asserts that Plaintiff has
impermissibly attempted to sue these Defendants in their official capacities, and that such
allegations must be disregarded for purposes of determining whether the Plaintiff has stated a
claim upon which relief can be granted. Their memorandum of law states in pertinent part:

7

In order to state a claim for damages under 42 USC Section 1983, an
aggrieved party must officially allege that he was injured by “the deprivation of any
rights, privileges, or immunity secured by the constitution and laws” by a “person”
acting under color of state law. See USC Section 1983; Monell v. Department of
Social Services, 436 US 658, 691 (1978). The Supreme Court in [Iqbal] began its
analysis by acknowledging that “government officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat
superior.” [Iqbal] Supra at 1948. Rather, “a Plaintiff must plead that each
government official Defendant, through the Official’s own individual actions has
violated the Constitution. [”] Id.
(ECF 18 at 3.)
The Supervisory Defendants further assert that Plaintiff has impermissibly attempted to
sue them for monetary damages in their official capacity because, neither a state, nor its officials
acting in their official capacities, are “persons” under the civil rights statutes. (Id. at 3-4.) In
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989), the Supreme Court stated:
Obviously, state officials literally are persons. But a suit against a state
official in his or her official capacity is not a suit against the official but rather is a
suit against the official’s office. As such, it is no different from a suit against the
State itself. We see no reason to adopt a different rule in the present context,
particularly when such a rule would allow petitioner to circumvent congressional
intent by a mere pleading device.
We hold that neither a State nor its officials acting in their official capacities
are “persons” under § 1983. The judgment of the Michigan Supreme Court is
affirmed.
[Citations omitted].
Based upon this holding, Defendants assert that “only the actions of the Supervisory
Defendants in their individual capacities can be considered for purposes of determining whether
Plaintiff has sufficiently stated a cause of action.” (Id. at 4).
Pursuant to the Eleventh Amendment to the United States Constitution, the power of the
federal judiciary does not extend to suits by a citizen of one state against another, or to suits by a

8

citizen against his or her own state. Hans v. Louisiana, 134 U.S. 1, 9 (1980). The Eleventh
Amendment of the United States Constitution bars a suit in a federal court by private parties
seeking to impose a liability upon a State or State officials, which may be paid from public funds in
the state treasury. Quern v. Jordan, 440 U.S. 332, 337 (1979). Absent consent, federal suits
against a state by a citizen of that state or another state are prohibited by the Eleventh Amendment.
Kentucky v. Graham, 473 U.S. 159, 199 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 99-100 (1984). The Eleventh Amendment, however, permits a federal court to enjoin
state officials to conform their future conduct to federal law, which is distinguishable from a
retroactive monetary award paid from state funds. Id. at 337. Thus, although Plaintiff may seek
injunctive relief from Defendants in their official capacity, it is clear that Defendants are immune
from liability for monetary damages in that capacity under the Eleventh Amendment.
Consequently, the Court GRANTS the motion to dismiss to the extent that he is seeking monetary
damages against the Defendants in their official capacities.
B.

Individual Capacity Claims

The Supervisory Defendants’ assert that the Plaintiff’s Complaint also fails to state a claim
upon which relief can be granted against them because Plaintiff has not sufficiently alleged facts to
support a claim of supervisory liability concerning the alleged violation of Plaintiff’s Eighth
Amendment rights. 2 Plaintiff does not allege that any of the Supervisory Defendants were present
at the time Plaintiff was pepper sprayed 3 or that they were in any way directly involved in this

2

Although Plaintiff has alleged that the conduct of Defendants Blagg, Clifford and McCloud also violated his
First Amendment rights with regard to their alleged retaliation for his filing of lawsuits, a close reading of the
Complaint indicates that his supervisory liability allegations are limited to the Eighth Amendment clams.
3

The allegations in the Complaint appear to state that Defendants Ballard and Parry walked through the pod after
the incident occurred.

9

incident.

Rather, Plaintiff’s Complaint alleges that the alleged failure of the Supervisory

Defendants to properly investigate, train, supervise and discipline their subordinate correctional
officers amounts to deliberate indifference that permitted the violation of Plaintiff’s constitutional
rights. (Id. at 4-5).
In Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), the court held that supervisors may be liable
for the actions of their subordinates where the supervisor, by his own conduct, was deliberately
indifferent to, or tacitly authorized or approved prior constitutional violations. Such liability is
not based on respondeat superior, but rather upon “a recognition that supervisory indifference or
tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care.” 13 F.3d at 798 (quoting Slakan v. Porter,
737 F.2d 368 (4th Cir. 1984)). In Shaw, the Fourth Circuit discussed the following elements
necessary to establish a supervisor’s liability under 42 U.S.C. § 1983:
1)

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)

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)

There was an “affirmative causal link” between the supervisor’s
inaction and the particular constitutional injuries suffered by the
Plaintiff.

13 F.3d at 799. (ECF 18 at 5–6). In Farmer v. Brennan, 511 U.S. 825 (1994), however, the
Supreme Court clarified that a prison official’s actual subjective awareness of an excessive risk of
harm or safety was required to hold the official liable under the Eighth Amendment. Id. at 837–
38. Thus, a prison official cannot be held liable for the failure to alleviate a risk that he should
10

have perceived, but did not in fact perceive. Id. at 838. (Id.)
In discussing the Shaw requirements, the Supervisory Defendants assert that a plaintiff
cannot satisfy the actual knowledge element by pointing to a single incident or isolated incidence.
(ECF 18 at 6.) They further note that a plaintiff may show deliberate indifference or tacit
authorization by demonstrating a supervisor’s continued inaction in the face of documented
widespread abuses. (Id. at 5.) However, the Plaintiff must be able to show “that there was an
affirmative causal link between the supervisor’s inaction and the particular Constitutional injuries
suffered by the Plaintiff.” Id. (Id. at 6-7).
The Supervisory Defendants further contend:
All the Plaintiff’s allegations against these Defendants contained in the Complaint
are entirely conclusory and form like recitals of the legal elements of the claim of
supervisory liability, without one single supporting fact that can lead this Court to
conclude the Plaintiff’s claims for Supervisory liability are plausible, as opposed to
merely “possible.” [Iqbal] requires that the Plaintiff demonstrate to some degree,
the supporting factual basis upon which the claim for Supervisory liability is based.
The allegations in the Complaint do not meet this standard and, therefore, it is
proper for this Court to dismiss these Defendants from the above-captioned matter.
(Id. at 7–8.)
Finally, the Supervisory Defendants assert that they are entitled to qualified immunity on
Plaintiff’s claims. As noted in their supporting memorandum of law:
Qualified immunity is designed to protect public officials from the threat of
litigation resulting from decisions made in the course of their employment. See
Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995). In order to sustain a
viable claim against a State agency or its employees or officials acting within the
scope of their authority sufficient to overcome this immunity, it must be established
that the agency employee or official knowingly violated a clearly established law,
or acted maliciously, fraudulently, or oppressively. Parkulo v. W. Va. Bd of
Probation, 199 W. Va. 161, 483 S.E.2d 507 (1996). In other words, the State, its
agencies, officials, and employees are immune for acts or omissions arising out of
the exercise of discretion in carrying out their duties, so long as they do not violate
any known law or act with malice or bad faith. Id. Syl. Pt. 8.
11

(ECF 18 at 8–9.) Although Defendants have cited West Virginia case law, the federal authority
on qualified immunity generally applies the same principles, establishing that “[g]overnment
officials performing discretionary functions are entitled to qualified immunity from liability for
civil damages to the extent that ‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Wilson v. Layne, 141
F.3d 111, 114 (4th Cir. 1998). Their memorandum of law reiterates:
The only allegations or inactions which allegedly for [sic; form] the basis of
liability against these Defendant[s] are their failure to properly investigate, train,
supervise, and discipline other officers. All of Plaintiff’s claims against these
Defendants asserted in his Complaint, therefore, allege deficiencies in the
management of subordinates, which is a discretionary function, and which falls
under the protection and [sic; of] qualified immunity.
While the Plaintiff has alleged willful, wanton, intentional, malicious,
callous and reckless conduct on the part of these Defendants in an apparent attempt
to defeat qualified immunity, such conclusitory [sic; conclusory] allegations are not
entitle[d] to consideration under the reasoning and analysis of [Iqbal], absent
supporting facts which would make such allegations plausible. As previously
noted herein, the Plaintiff has only alleged conclusitory [sic; conclusory]
statements reciting the elements of a cause of action. Therefore, it is proper for
this Court to dismiss the Defendants from the above-captioned matter.
(ECF 18 at 8–9.)
On October 1, 2013, Plaintiff filed a Response to the Supervisory Defendants’ Motion to
Dismiss. (ECF 30.) After repeating the allegations he made against the Supervisory Defendants
in his Complaint, Plaintiff agrees that his claims against Defendants in their official capacities
cannot proceed, at least to the extent that he is seeking monetary damages. (Id. at 4, 7-8.)
Plaintiff, however, notes that the law permits him to seek injunctive relief from these Defendants
in their official capacity; thus, Plaintiff claims that these Defendants are not entitled to complete
dismissal. (Id. at 4, 7-8.) The Court will address Plaintiff’s claims for injunctive relief infra.
12

Concerning Defendants’ assertion that they are entitled to qualified immunity, Plaintiff’s
Response states:
Plaintiff avers at this stage of the proceedings, based upon the facts alleged in the
Complaint taken in light most favorable to the Plaintiff, the defendants[’] conduct,
under the circumstances, did violate clearly established constitutional rights of
which a reasonable person would have known. Thus, the Plaintiff avers that the
allegations in the Plaintiff’s Complaint states enough facts to state a claim to relief
that is plausible on its face against defendants Ballard, Rubenstein, Parry and
Collins, and that the facts presently before the court are insufficient to establish that
these defendants are entitled to qualified immunity.
(Id. at 13.)
Plaintiff’s claims against Defendants Blagg, Clifford, and McCloud arise under the Eighth
and First Amendments. First, Plaintiff claims that the use of pepper spray against him under the
circumstances was an excessive use of force that violated his Eighth Amendment right to be free of
cruel and unusual punishment. Second, Plaintiff alleges that Defendants Blagg, Clifford, and
McCloud violated his First Amendment rights because they were allegedly retaliating against
Plaintiff for his having filed two lawsuits––one concerning prior conduct by Defendant McCloud
and other staff and the other concerning various conditions of confinement at MOCC. In the
instant case, Plaintiff has alleged that, immediately after Plaintiff was pepper sprayed, McCloud
told him, “Now you can file another lawsuit.” (ECF 2 at 6, ¶ 18.)
The Complaint, however, does not allege any specific facts concerning actual conduct by
each Supervisory Defendant. As noted in Evans v. Chalmers:
To begin with, the Supreme Court explained in Iqbal that “a supervisor’s mere
knowledge” that his subordinates are engaged in unconstitutional conduct is
insufficient to give rise to liability; instead a supervisor can only be held liable for
“his or her own misconduct.” [556 U.S. at 677.]
703 F.3d 636, 660–61 (4th Cir. 2013). Thus, to hold the Supervisory Defendants liable, Plaintiff
13

must allege facts that allow the Court to draw a reasonable inference that the Supervisory
Defendants’ own conduct permitted the constitutional violation to occur. Iqbal, 556 U.S. at 677.
The Plaintiff’s allegations in paragraph 23 concerning these Defendants state that they:
Has [sic] or had actual knowledge of the pervasive, longstanding and well
documented violations of constitutional rights, excessive force and retaliation and
they failed to adequately and properly investigate [sic], take corrective action
against, supervise or discipline their employees or subordinates who engaged in
such alleged conduct and, thus, tacitly authorized the Plaintiff’s and other
inmates[’] alleged constitutional violations and/or injuries and failed to protect
the Plaintiff and other inmates from such constitutional violations and injuries and
failed to protect the Plaintiff and other inmates from such constitutional violations
and injuries. Also the individuals created policies or customs allowing,
encouraging and/or tacitly authorized the constitutional violations or injuries.
ECF 2 at 7.) This allegation is nothing more than a vague, conclusory statement of the elements
of a supervisory liability claim.

While Plaintiff has attempted to specify allegedly

unconstitutional conduct that the “superior or supervisors” at MOCC have allowed to occur (ECF
2 at 7, ¶ 24), even his list of such conduct is insufficient to allow the court to draw a reasonable
inference of specific misconduct by these particular Supervisory Defendants.
Likewise, paragraph 35 of his Complaint states:
By having knowledge of the pervasive, longstanding and well documented
violations of constitutional rights or injuries, excessive force and retaliation against
the Petitioner and other inmates and failing to take corrective action against the
misconduct, encouraging the misconduct, allowing the misconduct to continue,
failing to protect against the misconduct, failing to adequately and properly
supervise or discipline subordinates or creating the policies or customs that allow
the misconduct, and thus tacitly authorized the Plaintiff’s and other inmates[’]
constitutional violations and injuries, Defendants . . . Collins, Parry, Ballard and
Rubenstein is [sic; are] also violating Plaintiff Harper’s rights under the Eighth
Amendment to the United States Constitution and causing Plaintiff Harper pain,
suffering and/or emotional distress.
(ECF 2 at 11–12.) These allegations do not allege specific facts concerning the conduct of each of
these Defendants upon which the Court can draw a reasonable inference that they in fact violated
14

the Plaintiff’s constitutional rights. Accordingly, pursuant to the holdings in Twombly and Iqbal,
Plaintiff has not shown a claim for relief against Defendants Ballard, Collins, Parry and
Rubenstein that is plausible on its face.
C.

The Plaintiff’s Claim for Injunctive Relief.

In paragraph 36 of his Complaint, Plaintiff alleges that he “has no plain, adequate or
complete remedy at law to redress the wrongs described herein.” (ECF 2 at 12, ¶ 36.) He further
claims that he will be irreparably injured unless the Court grants him declaratory and prospective
injunctive relief. (Id.) Also, in paragraphs 38 and 39, Plaintiff requests “any and all prospective
relief the court deems appropriate and necessary” and a “preliminary and permanent injunction
order defendants Ballard Rubenstein, Parry and Collins to: (A) any and all necessary and
appropriate relief he court deems necessary and appropriate.” (Id. at 13, ¶¶ 38 and 39.)
These requests for injunctive relief are also vague and conclusory. In order to receive
injunctive relief, Plaintiff must show real and immediate threat of injury, Los Angeles v. Lyons,
461 U.S. 95, 102-06 (1983), and in prison conditions cases, prospective relief may extend no
further than that necessary to correct the violation of the federal right that has been infringed. 18
U.S.C. § 3626(a)(1)(A).
Moreover, a preliminary injunction is an extraordinary remedy never awarded as of right.
In each case, the Court must balance the competing claims of injury and consider the effect of
granting or withholding the requested relief, paying particular regard to the public consequences.
Weinberger v. Romero–Barcelo, 456 U.S. 305 (1982).

“A plaintiff seeking a preliminary

injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his

15

favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). The plaintiff
must demonstrate a likelihood of irreparable harm without a preliminary injunction; a mere
possibility of harm will not suffice. Id. at 21. And “[i]n exercising their sound discretion, courts
of equity should pay particular regard for the public consequences in employing the extraordinary
remedy of injunction.” Romero–Barcelo, 456 U.S. at 312.
Regarding likelihood of success, prior law in the Fourth Circuit was that there is a
“‘flexible interplay’ among all the factors considered . . . for all four [factors] are intertwined and
each affects in degree all the others.” Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co.,
550 F.2d 189, 196 (4th Cir.1977) (citations omitted). Accordingly, plaintiffs were not strictly
required to demonstrate likelihood of success on the merits; rather, “it [was] enough that grave or
serious questions on the merits are presented.” Id. But in the wake of the Supreme Court decision
in Winter v. NRDC, the Blackwelder balancing approach “may no longer be applied in granting or
denying preliminary injunctions in the Fourth Circuit.” Real Truth About Obama, Inc. v. FEC,
575 F.3d 342, 347 (4th Cir.2009) ( RTAO I ), vacated on other grounds, 559 U.S. 1089 (2010) and
adhered to in part sub nom. Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir.2010)
(RTAO II ). 4
Instead, the Fourth Circuit has held that a party seeking the preliminary injunction must
demonstrate by “a clear showing that it is likely to succeed at trial on the merits.” RTAO I, 575 F.3d
at 351. The Fourth Circuit has not expressly required that a movant prove success on the merits is

4

Although the original decision in Real Truth was vacated by the Supreme Court for further consideration in light
of the decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Fourth Circuit reissued
its opinion on Parts I and II of its earlier opinion in the case. See 575 F.3d at 345–347.

16

“more likely than not” in order to meet the requirement of a clear showing, but the new
requirement “is far stricter than the Blackwelder requirement that the plaintiff demonstrate only a
grave or serious question for litigation.” Id. at 345–46.
Because Plaintiff’s Complaint fails to state a plausible claim against Defendants Ballard,
Collins, Parry and Rubenstein, and because the Plaintiff has made no specific request for
injunctive relief, or shown that he is likely to suffer immediate and irreparable harm, Defendants
Ballard, Collins, Parry and Rubenstein may not remain in this civil action. Without a claim for
injunctive relief, these officials may be fully dismissed as Defendants in this case.
IV.

CONCLUSION

For the reasons stated herein, the Court GRANTS Defendants’ motion to dismiss [ECF
17], DISMISSES WITH PREJUDICE Defendants David Ballard, Jason Collins, Paul Parry, and
Jim Rubenstein from this action, and DIRECTS that this matter be referred to United States
Magistrate Judge Dwane L. Tinsley for the continuation of the proceedings concerning the
remaining Defendants in this case.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

17

March 18, 2014