McMillion-Tolliver v. Kowalski
MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant West Virginia Regional Jail and Correctional Facility Authority's 5 Partial Motion to Dismiss; granting said motion with respect to claims for money damages under Article III of the West Virginia Constitution; and otherwise denying said motion; the plaintiff's claims for monetary damages under Article III of the West Virginia Constitution are DISMISSED. Signed by Judge Joseph R. Goodwin on 4/1/2014. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 2:13-cv-29533
C. O. ALVIN KOWALSKI, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is the defendant West Virginia Regional Jail and Correctional
Facility Authority’s Partial Motion to Dismiss [Docket 5]. For the reasons stated below, the
motion is GRANTED with respect to claims for money damages under Article III of the West
Virginia Constitution and DENIED otherwise.
This case arises out of alleged sexual harassment and abuse of the plaintiff while she was
incarcerated at the Southern Regional Jail in Raleigh County, West Virginia. The Complaint
alleges the following facts. Officer Kowalski and Officer Wilson directly supervised the plaintiff
and “sexually harassed her and made sexually exploitative comments to her.” (Compl. [Docket
1-1], ¶ 2). The officers also “made remarks . . . seeking sexual favors and engaged in acts of sexual
abuse . . . .” (Id.). Chief Correctional Officer Lt. Bunting supervised Officers Kowalski and
Wilson, and he was “deliberately indifferent” to their inappropriate conduct. (Id. ¶ 4). Officer
Bunting “frequently ignored and concealed incident reports, investigative reports, and female
inmate allegations of staff sexual assault.” (Id.). Sexual harassment and abuse of female inmates
was “pervasive under Bunting’s watch.” (Id.).
The plaintiff brings an amalgamation of tort, statutory, and constitutional claims for
damages against Officer Kowalski, Officer Wilson, Officer Bunting, the West Virginia Regional
Jail and Correctional Facility Authority (“WVRJCFA”), and unknown “John Doe” defendants. In
the instant motion, WVRJCFA seeks dismissal of all claims premised on respondeat superior.
Additionally, WVRJCFA seeks dismissal of claims for damages brought pursuant to Article III of
the West Virginia Constitution.
II. Legal Standard
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or
pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure
8 requires that a pleading contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As the Supreme Court stated in Ashcroft v. Iqbal, that
standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do[.]” Twombly, 550 U.S. at 555 (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986) for the proposition that “on a motion to dismiss, courts ‘are not
bound to accept as true a legal conclusion couched as a factual allegation’”). A court cannot accept
as true legal conclusions in a complaint that merely recite the elements of a cause of action
supported by conclusory statements. Iqbal, 556 U.S. at 677-78. “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.’” Id. at 678 (quoting Twombly, 550 U.S. at 570). To achieve facial
plausibility, the plaintiff must plead facts that allow the court to draw the reasonable inference that
the defendant is liable, and those facts must be more than merely consistent with the defendant’s
liability to raise the claim from merely possible to probable. Id.
WVRJCFA’s motion is based on two separate arguments. First, WVRJCFA argues that it
cannot be vicariously liable under the theory of respondeat superior because, taking the Complaint
as true, all of the correctional officer defendants were acting outside of the scope of their
employment. Second, WVRJCFA contends that it cannot be sued for damages for violations of
Article III of the West Virginia Constitution because the legislature has not enacted a statute
providing for monetary damages for its violations. I address each argument in turn.
A. Respondeat Superior Allegations
Several of the plaintiff’s claims against WVRJCFA appear to be grounded in the theory of
respondeat superior. WVRJCFA argues that defendants Kowalski, Wilson, Bunting, and Doe were
acting outside of the scope of their employment when they engaged in sexual misconduct and a
conspiracy to cover it up. (See Mem. of Law in Supp. of WVRJCFA’s Partial Mot. to Dismiss
[Docket 6], at 6).
For reasons appearing to the court, WVRJCFA’s motion to dismiss allegations premised
on respondeat superior is DENIED.
B. Claims for Damages under Article III of the West Virginia Constitution
WVRJCFA argues that the plaintiff’s claims for money damages for violations of rights
under the West Virginia Constitution should be dismissed. WVRJCFA contends that there is no
corresponding statute which provides a private right of action for violations of Article III of the
West Virginia Constitution. The Supreme Court of Appeals of West Virginia has held that the
remedies available to a plaintiff “brutalized by state agents while in jail or prison” consist of the
(a) A reduction in the extent of his confinement or his time of confinement;
(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). The Harrah court did not include a cause
of action under the state constitution for money damages among the remedies it listed. Without an
independent statute authorizing money damages for violations of the West Virginia Constitution,
the plaintiff’s claim must fail. A recent decision by Judge Copenhaver is in accord with this
position. See Smoot v. Green, No. 2:13-10148, 2013 WL 5918753, at *4-5 (S.D. W. Va. Nov. 1,
2013) (Copenhaver, J.) (“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.”). Accordingly, the plaintiff’s
claims for monetary damages under Article III of the West Virginia Constitution are
For the reasons stated above, the defendant’s motion for partial dismissal [Docket 5] is
GRANTED with respect to claims for money damages under Article III of the West Virginia
Constitution and DENIED otherwise. The plaintiff’s claims for monetary damages under Article
III of the West Virginia Constitution are DISMISSED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
April 1, 2014
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