Harper v. Barbagallo et al
Filing
88
MEMORANDUM OPINION AND ORDER denying Defendants Ramsey and Barbagallo's 62 MOTION to Dismiss; denying in part and granting in part Defendant David Ballard's 64 MOTION to Dismiss; directing that Plaintiff's § 1983 claim a rising under the Fourteenth Amendment and Plaintiff's claims under West Virginia Constitution Article III, Sections 1 and 10 are DISMISSED as to all Defendants; the parties are put on notice that the Court intends to certify the question to the West Virginia Supreme Court if Plaintiff continues to proceed against Defendants under this theory of liability. Signed by Judge Thomas E. Johnston on 9/27/2016. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CEDEAL HARPER,
Plaintiff,
v.
CIVIL ACTION NO. 2:14-cv-07529
C.O. JOSEPH BARBAGALLO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are two motions to dismiss, one filed by Defendants Joseph Barbagallo and Shawn
Ramsey, (ECF No. 62), and the other by Defendant David Ballard, (ECF No. 64). For the reasons
that follow, the motion by Ramsey and Barbagallo is DENIED. The motion by Ballard is
GRANTED IN PART and DENIED IN PART.
I.
BACKGROUND
The following facts are derived from the Second Amended Complaint. As it must, the
Court accepts these facts as true for the purpose of deciding the motions to dismiss.
Plaintiff Cedeal Harper is an inmate incarcerated at Mount Olive Correctional Complex
(“MOCC”). The events described below occurred while Plaintiff was housed in administrative
segregation within the Quilliams II unit of MOCC.
While in administrative segregation, Plaintiff is generally permitted one hour of out-of-cell
exercise per day. (Second Am. Comp. ¶ 12.) On January 18, 2014, however, Ramsey and
Barbagallo, correctional officers employed at MOCC (collectively “the Officers), denied Plaintiff
exercise for refusing to shave. (Id. ¶ 14.) At the time, Ramsey and Barbagallo were processing
other inmates within Plaintiff’s pod for out-of-cell exercise. (Id.) Locked in his one-man cell,
Plaintiff requested to speak with a supervisor. (Id. ¶ 15.) Ramsey denied the request and
continued his work.
(Id.)
Upon returning to the pod after escorting an inmate to the
recreational yard, Ramsey threatened Plaintiff with the use of pepper spray if he did not “sit down
and shut up.” (Id. ¶ 17.) Plaintiff responded by kicking his door, yelling “don’t just threaten
me[,] just do what you got to do,” and covering his “bean hole,” or food slot, with a jacket for
fear of being sprayed. (Id. at ¶ 18.) Ramsey and Barbagallo apparently ignored him, however,
and completed the processing of inmates for exercise without further incident.1 (Id. ¶ 20.)
After completing their escort of inmates to the recreational area, Ramsey and Barbagallo
returned to the pod and began to engage in a verbal altercation with Plaintiff through his locked
cell door. (Id. ¶ 22.) By this time, Plaintiff was no longer kicking his cell door. (Id. ¶ 24.) The
argument between officers and inmate continued, and in response to Plaintiff calling him a name,
Ramsey said “to hell with this shit,” and opened Plaintiff’s food slot.
Without warning,
Barbagallo then deployed pepper spray through the food slot and into Plaintiff’s cell. (Id. ¶ 22.)
Plaintiff fell over his cell toilet, injuring his legs, face, and head, and sustained eye damage, sinus
problems, burning pain, and discomfort as a result of being sprayed. (Id. ¶ 28.) Plaintiff alleges
that he was neither kicking his cell door nor posing any threat to the safety of himself, other
inmates, or MOCC staff when Barbagallo sprayed him. (Id. ¶¶ 23–24.)
1
Barbagallo would later issue a formal disciplinary citation to Plaintiff for kicking his cell door. (Second
Am. Compl. ¶ 27.)
2
Plaintiff brings suit against Ramsey and Barbagallo as well as David Ballard, the Warden
of MOCC (collectively, “Defendants”). The Second Amended Complaint contains three counts
against Defendants: assault and battery (Count I), intentional infliction of emotional distress
(Count II), and a claim under 42 U.S.C. § 1983 for violations of Sections 1, 5, and 10 of the West
Virginia Constitution and the Eighth and Fourteenth Amendments of the United States
Constitution (Count III).2
Embedded in Plaintiff’s § 1983 claim is a claim for supervisory liability against Ballard.
In addition to the factual allegations just recited, Plaintiff claims that as early as August 18, 2012,
Ballard promulgated or endorsed a policy within the Quilliams unit that permits MOCC officers
to forcefully respond to inmate disturbances without first making reasonable efforts to temper.
Plaintiff also alleges that Ballard routinely declares martial law on the Quilliams unit without legal
authorization. (Id. ¶ 36–37.) The Second Amended Complaint states: “MOCC’s policy of
martial law and practice of permitting any level of force to be used without efforts to temper creates
a pervasive and unreasonable risk that inmates, including Mr. Harper, will be maliciously and
sadistically harmed by the use of force for the purpose of punishment and without regard to the
need for force.” (Id. ¶ 42.)
Defendants move to dismiss the Second Amended Complaint on various grounds discussed
below. Their motions have been fully briefed and are ready for resolution.
II.
LEGAL STANDARD
2
On Counts I and II, Plaintiff apparently seeks to impose liability on Ballard under the theory of respondeat
superior.
3
A motion to dismiss for failure to state a claim upon which relief may be granted tests the
legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). While “the requirements for
pleading a proper complaint are substantially aimed at assuring that the defendant be given
adequate notice of the nature of a claim being made against him, they also provide criteria for
defining issues for trial and for early disposition of inappropriate complaints.” Francis v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citing 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure, § 1202 (3d ed. 2004)).
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (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.” Id. at 570. 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 (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” . . . ). 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.
4
556 U.S. at 678–79. A court decides whether this standard is met by separating the legal
conclusions from the factual allegations, assuming the truth of only the factual allegations, and
then determining whether those allegations allow the court to reasonably infer that “the defendant
is liable for the misconduct alleged.” Id. In other words, the factual allegations (taken as true)
must “permit the court to infer more than the mere possibility of misconduct.” Id. A plaintiff’s
“[f]actual allegations must be enough to raise a right to relief above the speculative level,” thereby
“nudg[ing][the] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555,
570. “[D]etermining whether a complaint states a plausible claim is context-specific, requiring
the reviewing court to draw on its experience and common sense.” Iqbal, 556 U.S. at 663–64.
III.
DISCUSSION
In moving to dismiss the Second Amended Complaint, Defendants principally challenge
the sufficiency of Plaintiff’s federal claims under 42 U.S.C. § 1983. Section 1983 provides in
pertinent part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at law.
42 U.S.C. § 1983. Since the viability of Plaintiff’s supervisory liability claim against Ballard
depends on the survival of the § 1983 claims against Ramsey and Barbagallo, the Court addresses
the merits of their motion first.
A.
Ramsey and Barbagallo’s Motion to Dismiss
Ramsey and Barbagallo move for Rule 12(b)(6) dismissal on the following grounds: they
allege first, that Plaintiff does not allege a facially plausible claim of excessive force; second, that
5
his state law based tort claims fail on the basis of privilege; and third, that that they are immune
from suit under the doctrine of qualified immunity.
i.
Excessive Force under the Eighth Amendment
“The Supreme Court has extended the application of the Eighth Amendment’s prohibition
against ‘cruel and unusual punishments’ to the treatment of prisoners by prison officials.” Hill v.
Crum, 727 F.3d 312, 317 (4th Cir. 2013) (citing Whitley v. Albers, 475 U.S. 312 (1986)). In
Whitley, the Supreme Court held that “[w]here a prison security measure is undertaken to resolve
a disturbance,” the question of whether the measure taken inflicted unnecessary pain and suffering
in violation of the Eighth Amendment to the Constitution “turns on ‘whether force was applied in
a good faith effort to maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm.’” 475 U.S. at 320–21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(1973) (internal quotation marks omitted)).
“An inmate’s Eighth Amendment claim involves a subjective component and an objective
component.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008); see, e.g., Williams v. Benjamin,
77 F.3d 756, 761 (4th Cir. 1996) (“Determination of whether the Eighth Amendment has been
violated requires analysis of subjective and objective components.” (citing Wilson v. Seiter, 501
U.S. 294, 302 (1991))). Specifically, to survive a motion to dismiss, an inmate must allege facts
sufficient to establish that “the prison official acted with a sufficiently culpable state of mind
(subjective component) and . . . the deprivation suffered or injury inflicted on the inmate was
sufficiently serious (objective component).” Williams, 77 F.3d at 761. “An injury is sufficiently
serious for purposes of the objective component of an Eighth Amendment excessive force claim
as long as it rises above the level of de minimus harm.” Iko, 535 F.3d at 238. Significant physical
6
injury is not required. Hudson v. McMillian, 503 U.S. 1, 7 (1992). See generally Tedder v.
Johnson, 527 Fed. App’x. 269, 272 (4th Cir. 2013) (“The objective component focuses not on the
severity of any injuries inflicted, but rather on ‘the nature of the force,’ which must be ‘nontrivial.’”
(quoting Wilkins v. Gaddy, 559 U.S. 34 (2010))). Under the subjective inquiry, the prison official
must have acted with “wantonness in the infliction of pain.” Whitley, 475 U.S. at 322. As stated
previously, the “‘core judicial inquiry’ regarding the subjective component of an excessive force
claim is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” Iko, 535 F.3d at 239 (quoting Hudson, 503 U.S. at
7).
“Prison administrators . . . should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve internal order and
discipline and to maintain institutional security.” Whitley, 475 U.S. at 321–22 (citation and
internal quotation marks omitted). To that end, the Whitley Court set forth four non-exhaustive
factors to be weighed in determining whether force was applied in a good faith effort to maintain
or restore discipline, rather than maliciously and sadistically to cause harm: “(1) the need for the
application of force; (2) the relationship between the need and the amount of force that was used;
(3) the extent of any reasonably perceived threat that the application of force was intended to quell;
and (4) any efforts made to temper the severity of a forceful response.” Iko, 535 F.3d at 239
(citing Whitley, 475 U.S. at 321) (internal quotation marks omitted).
Here, Plaintiff has pled facts sufficient to support a finding that the force used against him
was “sufficiently serious.” An adverse physical reaction to pepper spray—including eye damage,
sinus problems, burning pain, gagging, and choking, as Plaintiff alleges here—is enough to
7
establish the objective component of an Eighth Amendment claim. See Iko, 535 F.3d at 239 (use
of additional bursts of pepper spray after inmate attempted to comply with officer’s orders and
which possibly contributed to inmate’s asphyxiation and death sufficiently alleged objective
component of excessive force claim); Tedder, 527 Fed. App’x at 274 (finding plaintiff’s similar
symptomology following administration of pepper spray created genuine issue of material fact on
objective component).
The crux of the inquiry, however, is whether Plaintiff has plausibly alleged that the Officers
acted with a “sufficiently culpable state of mind” by using pepper spray against him. Williams,
77 F.3d at 761. Here, too, the challenge to the sufficiency of Plaintiff’s pleading fails. The first
Whitley factor—the need for the application of force—is essentially dispositive. The facts as
alleged reveal no need for the use of chemical agents against Plaintiff. Though Plaintiff admits
creating a disturbance while the other inmates were being processed for exercise, the Officers seem
to gloss over this crucial allegation: that Barbagallo deployed the pepper spray only after he had
returned with Ramsey from the recreational area and after Plaintiff had stopped kicking his cell
door.
Any prior justification for the use of force, in other words, was no longer present.
Plaintiff’s disruptive conduct from that point on was limited to a verbal altercation with Ramsey.
As alleged, the Officers’ use of pepper spray was nothing more than an impulsive reaction to this
verbal provocation.
Ramsey and Barbagallo do not argue—nor reasonably could they—that a prison official
may use physical force against an inmate for nothing more than a mere insult. Rather, they
contend that Plaintiff was creating an ongoing disturbance by kicking his cell door
contemporaneous with the use of pepper spray. Their argument in support of dismissal thus
8
depends on the Court’s acceptance of the facts as they portray them, specifically, that Plaintiff was
creating an ongoing disturbance by kicking his cell door contemporaneous with the use of pepper
spray.3 Factual disputes are not subject to resolution at this stage of the proceedings. Plaintiff’s
facts, as alleged, reveal that he posed no threat to the Officers or to MOCC property when
Barbagallo sprayed him. In such circumstances, the application of force was unwarranted and
constitutes a violation of the Eighth Amendment. Giron v. Corrections Corp. of Am., 191 F.3d
1281, 1290 (10th Cir. 1999) (“Where no legitimate penological purpose can be inferred from a
prison employee’s alleged conduct . . . the conduct itself constitutes sufficient evidence that force
was used ‘maliciously and sadistically for the very purpose of causing harm.’” (quoting Whitley,
475 U.S. at 320–321)); see Williams, 77 F.3d at 763 (noting that mace may be constitutionally
3
While they acknowledge the rules of pleading do not prevent a litigant from amending a complaint with
allegations contradicting those alleged previously, see PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856,
860 (9th Cir. 2007), Ramsey and Barbagallo ask the Court to take into account certain allegations from
Plaintiff’s prior pleadings in evaluating the sufficiency of his factual allegations. The Officers point to
several facts from Plaintiff’s Amended Complaint, for example, to support their argument that the
application of pepper spray was contemporaneous with Plaintiff kicking his cell door. There, Plaintiff
alleged that he entered into a verbal altercation with Ramsey while Ramsey and Barbagallo were still
processing an adjacent inmate for recreation, and that he kicked his door a “few more times.” (Am. Compl.
at ¶ 21–22.) Still, the Amended Complaint, like its successor, makes clear that Plaintiff “did not kick his
cell door . . . when Officer Barbagallo and Sergeant Ramsey returned to the pod a third time after taking
the [adjacent] inmate to rec.” (Id. ¶ 31.) It was during this third visit to the pod that Plaintiff alleges these
defendants used pepper spray against him.
Ramsey and Barbagallo are also eager to point out that the number of insults Plaintiff is alleged to have
uttered against Ramsey has changed. In the Amended Complaint, Plaintiff alleged that he insulted Ramsey
“a couple of times” upon his return to the unit after processing inmates. (Id. ¶ 24.) Ramsey and
Barbagallo consider this an important deviation from the Second Amended Complaint, which states that
Plaintiff called Ramsey “a name,” (Second Am. Compl. ¶ 22), presumably once. Even if the Court
considers these earlier allegations in considering the present motion to dismiss, the Court does not view
them as presenting significant deviations in the factual portrayal of the events at issue. Perhaps the most
important fact—that the Officers used pepper spray against Plaintiff only after they returned from
processing the other inmates and after he had ceased to kick his door—remains unchanged through the
amendment process. Further, whether Plaintiff insulted Ramsey once, twice, or three times, the Officers
have presented no law to support the conclusion that mere words justify the use of chemical agents on an
inmate.
9
used to maintain order within a prison, such as when necessary to “prevent riots and escapes or to
control a recalcitrant inmate” (citation and internal quotation marks omitted)); Glascoe v. Sowers,
No. ELJ-11-2228, 2013 WL 5330503, at *6 (D. Md. Sept. 20, 2013) (“Eighth Amendment
violations have . . . been found when a chemical agent was used without a prior verbal command,
or after a prisoner had been subdued or had become compliant with an officer’s instructions.”
(citations omitted)). See also Brown v. City of Golden Valley, 574 F.3d 491, 500 (8th Cir. 2009)
(“In pepper spray cases, we have held that a basis for an Eighth Amendment claim exists when, as
alleged here, an officer uses pepper spray without warning on an inmate who may have questioned
his actions but who otherwise poses no threat.” (citation and internal quotation marks omitted)).
Whether Plaintiff’s earlier disruptive behavior, including the kicking of his cell door, was
sufficiently proximate in time to the deployment of pepper spray to justify the Officers’ use of
force, is a factual question for resolution at a later time. Ramsey and Barbagallo’s motion to
dismiss the excessive force claim is DENIED.
ii.
State-Law Tort Claims
Ramsey and Barbagallo move to dismiss the state law tort claims set forth as Counts I and
II of the Second Amended Complaint on grounds of privilege. “In order to be liable for battery,
an actor must act with the intention of causing a harmful or offensive contact with a person.” Syl.
Pt. 8, W. Va. Fire & Casualty Co. v. Stanley, 602 S.E.2d 483 (W. Va. 2004). “An activity that
would otherwise subject a person to liability in tort for assault and battery, however, does not
constitute tortious conduct if the actor is privileged to engage in such conduct.” Hutchinson v. W.
Va. State Police, 731 F. Supp.2d 521, 547 (S.D. W. Va. 2010) (citing Hinojosa v. City of Terrell,
834 F.2d 1223, 1231 (5th Cir. 1988)). West Virginia law, like federal law, presumably permits
10
the use of a reasonable degree of force by correctional officers against inmates for the purpose of
maintaining security or restoring discipline. See, e.g., Whitley, 475 U.S. at 320–21; Harrah v.
Leverette, 271 S.E.2d 322, 330 (W. Va. 1980) (authorizing the use of physical force as necessary
to quell prison riots (citation omitted)).
As explained supra, however, Plaintiff has pled a
plausible claim of excessive force against Ramsey and Barbagallo. If the Officers’ use of force
was excessive, then their conduct was undoubtedly offensive and may preclude a finding of
privilege as to Plaintiff’s battery claim. See, e.g., Restatement (Second) of Torts § 10 (Am. Law
Inst. 1965); cf. Pegg v. Klempa, No. 5:13CV173, 2015 WL 4607696, at *22 (N.D. W. Va. July 31,
2015) (granting summary judgment in favor of the defendants on the plaintiff’s battery claim
where any “contact was not offensive as the officers did not use excessive force in this action”).
The Officers’ defense of privilege, at least at this stage, must fail.
This same logic compels the denial of the motion to dismiss Plaintiff’s intentional infliction
of emotional distress claim. To prevail on an intentional infliction of emotional distress claim
under West Virginia law, a plaintiff must show:
(1) that the defendant’s conduct was atrocious, intolerable, and so extreme and
outrageous as to exceed the bounds of decency; (2) that the defendant acted with
the intent to inflict emotional distress, or acted recklessly when it was certain or
substantially certain emotional distress would result from his conduct; (3) that the
actions of the defendant caused the plaintiff to suffer emotional distress; and, (4)
that the emotional distress suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.
Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 425 (W. Va. 1998). Surely force that is applied
“maliciously and sadistically,” Whitley, 475 U.S. at 320, might also be fairly characterized as
“atrocious [and] intolerable,” Travis, 504 S.E.2d at 425. Plaintiff has also alleged that Ramsey
and Barbagallo’s unjustified use of force against him was intentional and that their actions caused
11
him severe emotional distress in the form of “fear, nightmares, anxiety, embarrassment,
humiliation, depression, and loss of personal dignity.” (Second Am. Compl. at ¶¶ 29, 66.)
Finally, it can reasonably be said that the fear of being attacked with chemical agents at the whim
of a correctional officer could produce emotional distress that no person—including a disagreeable
inmate—should be expected to endure.
The Court therefore DENIES Ramsey and Barbagallo’s motion to dismiss Counts I and II.
iii.
Qualified Immunity
The defense of “[q]ualified immunity shields a government official from liability for civil
monetary damages if the officer’s ‘conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Wiley v. Doory, 14 F.3d
993, 995 (4th Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified
immunity is more than immunity from liability; it is “an entitlement not to stand trial or face the
other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Courts use a two-step
analysis to resolve the qualified immunity claims of government officials. See Saucier v. Katz,
533 U.S. 194, 195 (2001). First, a court must decide whether the plaintiff has alleged facts that
show a violation of a constitutional right. Id. at 201. Second, a court must decide whether the
right at issue was “clearly established” at the time of defendant's alleged misconduct. Id.
Ultimately, the task is to “balance[e] two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). “A government official asserting a qualified immunity
12
defense bears the burden of proof and persuasion.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir.
2003).
Plaintiff has alleged facts demonstrating that Ramsey and Barbagallo violated his Eighth
Amendment rights by using pepper spray against him in circumstances where no force was
necessary. Accepting these facts at true, which the Court must on a motion to dismiss, Plaintiff
has taken the first step in overcoming the qualified immunity defense. Saucier, 533 U.S. at 201.
At the second step, Plaintiff must sufficiently allege that the Eighth Amendment right was
“clearly established” in the specific context of this case at the time of the purported incident. Id.
As previously discussed, the Fourth Circuit has held time and again that “it is a violation of the
Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities
greater than necessary or for the sole purpose of infliction of pain.” Iko, 535 F.3d at 240 (quoting
Williams, 77 F.3d at 763); see Boone v. Stallings, 583 Fed. App’x. 174, 176 (4th Cir. 2014) (“Our
precedent establishes that the use of pepper spray on a docile prisoner could qualify as excessive
force.”); Tedder, 527 Fed. App’x. at 273 (use of pepper spray against an unresisting inmate created
a genuine issue of material fact on excessive force claim).4
4
This precedent aside, Plaintiff also alleges that the Officers’ conduct violated MOCC’s own policy
directives. Policy Directive 312.02 of the West Virginia Division of Corrections, which Plaintiff attaches
as an exhibit to the Second Amended Complaint, provides that “[a]n inmate’s dialogue that offers the threat
of possible resistance to an officer’s commands is not normally considered resistance until the inmate
physically resists control.” (Second Am. Compl. Ex. F-2, ECF No. 52 at 24.) This policy directive also
sets forth guidelines for the appropriate use of physical, non-lethal force, by prison personnel. As this
Court has recognized:
Policy Directive 312.02 provides the following five “levels of control” in response to
resistance by an inmate: (1) “[o]fficer [p]resence;” (2) “[v]erbal [d]irection;” (3)
“[i]ntermediate [c]ontrol [t]actics [s]oft;” (4) “[i]ntermediate [c]ontrol [t]actics [h]ard;”
and (5) “[u]se of [d]eadly [f]orce.” (Id. at 5–8.) A correctional officer's use of their
“personally carried chemical agent” is an intermediate control tactics soft level of control.
(Id. at 6.) “Intermediate [c]ontrol [t]actics [s]oft is a level of control used for any level of
13
Plaintiff alleges that he was isolated in his cell and posed no physical threat to the safety
of the Officers, other inmates, or MOCC property at the time of the relevant incident, and that
Barbagallo deployed pepper spray through his food slot, without warning, in retaliation for an
insulting comment. That such conduct violates an inmate’s constitutional rights under the Eighth
Amendment was clearly established at the time of the incident described in the Second Amended
Complaint. As alleged, Ramsey and Barbagallo’s use of pepper spray—or complicity in its use—
could constitute excessive force under clearly established law at the time of the incident. As such,
the Court cannot at this juncture find that Ramsey and Barbagallo are entitled to qualified
immunity on the § 1983 claim.
The Court is mindful that qualified immunity is intended to relieve defendants not just from
liability, but also from the burden of defending themselves in a meritless lawsuit. The merits of
this lawsuit, of which the Court expresses no view, will be tested another day. Based on the
allegations set forth in the Second Amended Complaint, the Officers’ claim to qualified immunity
must be and is DENIED.
B.
Defendant Ballard’s Motion to Dismiss
Defendant Ballard, the Warden of MOCC, is named in the Second Amended Complaint in
both his official and individual capacity. Ballard moves to dismiss that pleading on the following
grounds: (1) allegations premised on a theory of respondeat superior or brought against a
resistance by an inmate when lower levels of control have failed or been deemed unsafe to
attempt.” (Id.)
Harper v. Blagg, No. 2:13-CV-19796, 2015 WL 6509131, at *9 (S.D.W. Va. Oct. 28, 2015).
“[C]ompliance with . . . policy directives may in certain circumstances be instructive on whether defendants
acted in good faith and whether they are entitled to qualified immunity.” Id. at *8 (quoting Harper v.
McCloud, No. 2:12–cv–00656, 2014 WL 1159129, at *21 (S.D. W. Va. Mar. 21, 2014)).
14
governmental official in his official capacity are not cognizable under § 1983; (2) Plaintiff fails to
state a claim of supervisory liability against Ballard, (3) Plaintiff’s facts are insufficient to show a
plausible Fourteenth Amendment violation, (4) Ballard’s conduct is protected by qualified
immunity, and (5) Article III, Sections 3, 5, and 10 of the West Virginia Constitution do not create
a cause of action in these circumstances.
i.
Official Capacity Claims against Ballard
Ballard asserts that Plaintiff has impermissibly attempted to sue him in his official capacity,
and that such allegations must be disregarded for purposes of determining whether the Plaintiff
has stated a claim upon which relief can be granted. Ballard makes the same argument with
respect to allegations he believes are premised upon respondeat superior, a theory which cannot
impart liability to a supervisory official under § 1983.
On this latter point, Plaintiff is in
agreement. See Iqbal, 556 U.S. at 676 (“[G]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.”). He
responds that his allegations against Ballard are based upon supervisory liability, not respondeat
superior. The Court considers supervisory liability below; here, it turns to Ballard’s motion to
dismiss the claims asserted against him in his official capacity.
In order to state a claim for damages under 42 U.S.C. § 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 Monell
v. Dep’t of Social Serv., 436 U.S. 658, 691 (1978). In Will v. Michigan Department of State
Police, 491 U.S. 58 (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
15
the official’s office. As such, it is no different from a suit against the State itself.
We hold that neither a State nor its officials acting in their official capacities are
“persons” under § 1983.
Id. at 71.
Plaintiff’s claims seeking monetary damages against Ballard in his official capacity must
be dismissed. Section 1983 suits against a state official in his official capacity for money damages
are, in effect, suits against the official’s office and are barred by the Eleventh Amendment. Quern
v. Jordan, 440 U.S. 332, 337 (1979). Under the doctrine of Ex parte Young, 209 U.S. 123 (1908),
however, the Eleventh Amendment does not bar prospective non-monetary relief against a state
official in his official capacity to prevent ongoing violations of federal law. Id. at 159–60.
Consequently, while a state official sued in his official capacity for monetary relief is not a
“person” subject to suit under § 1983, Will, 491 U.S. at 71, that same official sued in his official
capacity for prospective injunctive or declaratory relief is subject to suit, Lynn v. West, 134 F.3d
582, 587–88 (4th Cir. 1998). The Court therefore GRANTS the motion to dismiss to the extent
Plaintiff seeks monetary damages against Ballard in his official capacity. Plaintiff states a claim
for declaratory or injunctive relief from Ballard in his official capacity under Ex parte Young.
ii.
Supervisory Liability under the Eighth and Fourteenth Amendments
Ballard further asserts that the Second Amended Complaint fails to state a claim upon
which relief can be granted because Plaintiff has not sufficiently alleged facts to support a claim
of supervisory liability under § 1983. Plaintiff does not allege that Ballard was present at or
otherwise directly involved in the pepper spray incident. Rather, the Second Amended Complaint
alleges that Ballard facilitated the violation of Plaintiff’s constitutional rights by instituting policies
16
that do not require correctional officers to temper the severity of force used against uncooperative
inmates.
Ballard also moves to dismiss Plaintiff’s § 1983 claim to the extent premised on a
Fourteenth Amendment due process violation. Ballard alleges that inmates have, at best, a limited
liberty interest while incarcerated, and that furthermore, Plaintiff’s has not alleged facts to support
a conclusion that Ballard’s conduct “shocks the conscience.” The Court will consider both
arguments in turn.
1.
Eighth Amendment Violation
“Supervisors are often one step or more removed from the actual conduct of their
subordinates; therefore, the law requires more than an attenuated connection between the injury
and the supervisor’s alleged wrongful conduct.” Peatross v. City of Memphis, 818 F.3d 233, 241
(6th Cir. 2016). In Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), the Fourth Circuit 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.” Id. 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 § 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;
17
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.
Id. at 799; see also Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) (finding a plaintiff may
succeed in a supervisory liability claim under § 1983 by demonstrating (1) that the defendant
promulgated, created, implemented, or possessed responsibility for the continued operation of a
policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation).
In Farmer v. Brennan, 511 U.S. 825 (1994), 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 have perceived, but did not in fact
perceive. Id. at 838.
Ballard asserts that Plaintiff’s allegations are deficient as they relate to each of the Shaw
elements. He argues first, that Plaintiff cannot demonstrate that he, Ballard, had actual, subjective
knowledge that Ramsey and Barbagallo were engaged in conduct that posed an excessive risk of
harm to Plaintiff; second, that Plaintiff’s allegations are insufficient to demonstrate Ballard’s
“continued inaction in the face of documented widespread abuses,” Shaw, 13 F.3d at 799 (citation
omitted); and third, that Plaintiff has not causally linked Ballard’s alleged inaction with any
constitutional deprivation he suffered at the Officers’ hands.
Plaintiff has plainly taken pains in drafting the detailed allegations that constitute his
supervisory liability claim. In support thereof, the Second Amended Complaint attaches four
18
documents intended to reflect Ballard’s actual knowledge of the pervasive and unjustified use of
force against inmates at MOCC.5 The first is an August 18, 2012 excessive force grievance filed
by MOCC inmate Casey Rygh after a correctional officer deployed pepper spray and a stinger
grenade into his cell and placed him in restraint chair for eight hours for refusing to return his food
tray. Rygh’s Unit Manager denied the grievance, stating, inter alia, “efforts to temper are not
needed or required.” (Second Am. Compl. at ¶ 32.) Notably, Ballard upheld the denial of the
grievance, writing that the inmate “should have complied with the order to return [his] food tray”
and that “the captain [was] correct in his response.” (Id.)
Plaintiff also supplies an August 26,
2013 inmate request form in which MOCC inmate Roger Smith inquires, “I was told by an officer
that [Quilliams] 2 Unit of MOCC was under Martial Law. Is this true?” (Second Am. Compl.
Ex. D.) The form records the lieutenant’s response on September 9, 2013, that “per Warden,
Martial Law is a condition that MOCC utilizes.” (Id.) Finally, Plaintiff submits an email from
MOCC Lieutenant Robert E. Rhodes addressed to various prison administrators and staff,
including Ballard, and advising that officers “do not have to give efforts to temper to those locked
up in our Seg units.” (Second Am. Compl. Ex. E.)
These three documents—inmate Rygh’s grievance form, Smith’s inmate request form, and
Lieutenant Rhodes’ email—appear to have achieved wide distribution among MOCC inmates. In
fact, in Lowe v. Matheny, a § 1983 suit originating from a MOCC inmate’s allegation of excessive
force, Judge Joseph R. Goodwin of this District found that these very same documents gave rise
5
While content outside a pleading generally may not be considered on a motion to dismiss, a court may
consider the factual allegations in the complaint and any exhibits attached thereto that are both authentic
and integral to the complaint. See Blakenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006).
19
to a plausible claim of deliberate indifference against Ballard when appended to and incorporated
in the inmate’s pleading. 2:13-cv-22416, 2015 WL 5795867 (S.D. W. Va. Sept. 30, 2015). The
Court finds Lowe persuasive. These documents create a reasonable inference that Ballard had
actual knowledge of his subordinates’ continued use of force against MOCC inmates on the
Quilliams Two Unit without efforts to mitigate or temper. His knowledge can be inferred, in part,
from the routine imposition of martial law on the Quilliams Unit, which Plaintiff alleges leads to
rampant violations of inmate constitutional rights.
(Second Am. Compl. Ex. D.)
Rygh’s
grievance form also demonstrates that Ballard personally ratified the use of force against Quilliams
inmates without prior efforts to temper. While Ballard attempts to minimize the significance of
this document by claiming that the circumstances of Rygh’s confinement differed from Plaintiff’s,
the two matters appear to share important factual similarities. At this early stage of the litigation,
the Court finds that Ballard’s ratification of the use of force in Rygh’s case is relevant proof of his
state of mind in the instant case.
Plaintiff has also alleged, as to Shaw’s second element, that Ballard was deliberately
indifferent to his subordinates’ “documented widespread abuses.” Shaw, 13 F.3d at 799. By
demonstrating that Ballard personally ratified the offensive practices of his correctional officers
and was credited with the directive to impose martial law, it can reasonably be said that Ballard—
the chief administrator of MOCC—possessed responsibility for the continued operation of these
policies. Dodds, 614 F.3d at 1199 (finding that § 1983 allows for the imposition of liability on a
supervisor who “creates, promulgates, implements, or in some other way possesses responsibility
for the continued operation of a policy” that results in the deprivation of rights secured by the
Constitution). From these allegations, it follows that Ballard’s continued inaction in the face of
20
constitutional abuses caused Ramsey and Barbagallo to feel empowered to deploy pepper spray
into an inmate’s cell with no more provocation than the inmate’s insult—which, of course, is what
Plaintiff alleges here. See id. at 1211 (“[T]he requisite causal connection is satisfied if the
defendant set in motion a series of events that the defendant knew or reasonably should have
known would cause others to deprive the plaintiff of her constitutional rights.” (citation omitted)).
Plaintiff’s allegations of excessive force, together with the three incriminating documents
attached to his pleading, establish specific facts giving rise to an inference that Ballard’s conduct
violated Plaintiff’s Eighth Amendment rights. The motion to dismiss on that basis is DENIED.
2.
Fourteenth Amendment Violation
The Due Process Clause of the Fourteenth Amendment encompasses three types of claims
enforceable under § 1983: (1) claims for violations of rights enshrined in the Bill of Rights and
incorporated against the states, (2) claims under the substantive component of the Due Process
Clause, which “bars certain arbitrary, wrongful government actions ‘regardless of the fairness of
the procedures used to implement them,’” and (3) claims under the procedural component of the
Due Process clause, which contains a guarantee of fair procedure. Zinermon v. Burch, 494 U.S.
113, 125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Arbitrary state action
gives rise to a substantive due process claim only when the action “shocks the conscience.”
County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998).
The Second Amended Complaint,
while non-specific, appears to allege a substantive due process claim against Ballard.
In the context of allegations of excessive force brought by prison inmates against
correctional officers, “the Due Process Clause affords [inmates] no greater protection than does
the Cruel and Unusual Punishments Clause.”
21
Whitley, 475 U.S. at 327. Furthermore, the
Supreme Court has expanded the concept of substantive due process in this context with
reluctance. County of Sacramento, 523 U.S. at 841. To that end, 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.” United States v. Lanier, 520 U.S.
259, 272 n. 7 (1997) (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). In Graham, the
Supreme Court held that where an explicit textual source of constitutional protection applies to
physically intrusive government conduct, “that Amendment, not the more generalized notion of
‘substantive due process,’” must be the guidepost for analyzing the claim. 490 U.S. at 395.
Under the guidance of Graham, the Court will not engage in a separate substantive due
process analysis where Plaintiff has alleged a plausible Eighth Amendment claim arising from the
same abusive government conduct. See Krein v. W. Va. State Police, No. 2:11-cv-00962, 2012
WL 2470015, at *6 (S.D. W. Va. Jun. 27, 2012) (dismissing Fourteenth Amendment claim because
“the textually specific Fourth Amendment protection preempts the more generalized substantive
due process protection”); see also Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1243 (10th Cir.
2003) (turning to an analysis of substantive due process in consideration of an excessive force
claim only after finding that the Fourth and Eighth Amendments did not apply); Love v. Salinas,
No. 2:11-cv-00361-MCE-CKD, 2013 WL 4012748, at *7 n. 5 (E.D. Ca. Aug. 6, 2013) (“Because
Plaintiff’s ‘failure to protect’ claim is based on the Eighth Amendment, no separate discussion of
Plaintiff’s substantive due process claim . . . is necessary.”); Brothers v. Lawrence County Prison
Board, No. 06-1285, 2008 WL 146828, at *12 (W.D. Pa. Jan. 14, 2008) (finding an inmate did not
state a cause of action for substantive due process where alternative constitutional amendments
22
covered the conduct giving rise to his alleged violations). This finding is as equally applicable to
Defendants Ramsey and Barbagallo as it is to Ballard, since their conduct is similarly subsumed
by the Eighth Amendment claim. Plaintiff’s Fourteenth Amendment claim arising from the same
facts and circumstances is legally insufficient and will be dismissed.
iii.
Qualified Immunity
Ballard next seeks the protections of qualified immunity on Plaintiff’s supervisory liability
claim.
As has been discussed, government officials enjoy qualified immunity in their
performance of discretionary functions so long as “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow, 457 U.S. at 818. When a supervisor seeks qualified immunity in a § 1983 action, the
plaintiff must demonstrate:
(1) it was ‘clearly established’ at the time of [the subordinate’s] conduct that [the
supervisor] could be held liable under § 1983 for constitutional violations
committed by [the subordinate]; (2) it was ‘clearly established’ at the time [the
supervisor] was supervising [the subordinate] that the degree of force that [the
supervisor] knew that [the subordinate] was using against arrestees was
unconstitutional; (3) a reasonable person in [the supervisor’s] position would have
known that his actions were unlawful.
Shaw, 13 F.3d at 801. The test can be described as two-pronged, with Shaw’s first and second
elements designated as the “clearly established” prong and the third as the “reasonableness” prong.
See Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998) (finding the “‘clearly established’ prong
of the qualified immunity inquiry is satisfied when (1) the subordinate’s actions violated a clearly
established constitutional right, and (2) it was clearly established that a supervisor would be liable
for constitutional violations perpetrated by his subordinates in that context”). Here, both “clearly
established” elements are satisfied. Accepting Plaintiff’s version of the facts and reasonable
23
inferences drawn from them, the Court has already found that Plaintiff alleged violations of a
clearly established right by Defendants Ramsey and Barbagallo. It is also well-settled that a
deliberately indifferent supervisor may be held liable for the constitutional violations of his
subordinates. Shaw, 13 F.3d at 799.
The inquiry can be distilled, then, to an assessment of whether Ballard’s conduct was
objectively reasonable. Camilo-Robles, 151 F.3d at 7 (“Because the constitutional rights and
supervisory liability doctrine that underlie [the plaintiff’s] claim are clearly established, the
qualified immunity analysis here turns on whether, in the particular circumstances . . . , that
[supervisor] should reasonably have understood that his conduct jeopardized these rights.”
(citation omitted)); see also Shaw, 13 F.3d at 801. Here, the qualified immunity analysis can often
be collapsed with the underlying merits analysis. See Dodds, 614 F.3d 1185, 1193–94 (“Because
a plaintiff can neither recover under § 1983 from a government official nor overcome the official’s
assertion of qualified immunity without demonstrating that official violated his constitutional or
statutory rights, the legal analysis required to surmount these separate obstacles is often related, if
not identical.”). Plaintiff has alleged that Ballard not only knew of the use of force by his
correctional officers against inmates without making efforts to temper, but that he continued to
promulgate, or at least endorse, policies allowing this conduct to continue unchecked. See Dodds,
614 F.3d at 1199–1200. Assuming the truth of Plaintiff’s allegations, no reasonable official in
Ballard’s position would have considered his actions to be lawful. Whether Plaintiff can prove
these allegations is a question for another day.
iv.
Claims under Article III of the West Virginia Constitution
24
Lastly, Ballard asserts that Plaintiff’s claims under Article III, Sections 1, 5, and 10 of the
West Virginia Constitution are non-actionable, for a variety of reasons. As to Sections 1 and 5,
Ballard argues that “there is no recognized cause of action based upon violations of [those] State
[c]onstitutional rights.” (ECF No. 65 at 17.) While he concedes that Section 10 may give rise to
a cause of action, he argues that here the claim is barred by qualified immunity.
Plaintiff’s state constitutional claims are, like his federal constitutional claims, predicated
upon excessive force. State constitutional rights are not enforceable under § 1983. See West v.
Atkins, 487 U.S. 42, 48 (1988) (to state a claim under § 1983, a plaintiff must allege, inter alia, the
violation of a right secured by the Constitution and laws of the United States). Because Plaintiff
appears to bring each of his State constitutional claims under § 1983, they are legally insufficient
on that basis alone. Nevertheless, the Court will generously construe the Second Amended
Complaint as alleging stand-alone violations of the West Virginia Constitution and will evaluate
the sufficiency of those claims as if they were so alleged.
The Supreme Court of Appeals of West Virginia has held that the remedies available to
“[a] person brutalized by state agents while in jail or prison” are:
(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.
Syl. Pt. 4, Harrah, 271 S.E.2d at 324. Interpreting Harrah, this Court has held, on several
occasions, that claims for money damages are not independently available to remedy violations of
25
Article III of the West Virginia Constitution. See Howard v. Ballard, No. 2:13–cv–11006, 2015
WL 1481836, at *4 (S.D. W. Va. Mar. 31, 2015); McMillion-Tolliver v. Kowalski, No. 2:13-CV29533, 2014 WL 1329790, at *2 (S.D.W. Va. Apr. 1, 2014) (“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.”); Smoot v. Green, No. 2:13–10148, 2013 WL
5918753, at *4–5 (S.D. W. Va. Nov. 1, 2013) (“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.”).
To the Court’s knowledge, the Supreme Court of Appeals of West Virginia has never ruled
on the issue, and its decision in Hutchinson v. City of Huntington, 479 S.E.2d 649 (W. Va. 1996),
only serves to muddy the waters. In Hutchinson, the West Virginia high court held that “[u]nless
barred by [a recognized immunity], a private cause of action exists where a municipality or local
government unit causes injury by denying that person rights that are protected by the Due Process
Clause embodied within Article 3, § 10 of the West Virginia Constitution.” Id. at 654. Ballard
suggests that under Hutchinson, the only private right of action available under the West Virginia
Constitution stems from Article III, § 10. Plaintiff responds that although Hutchinson explicitly
recognized a cause of action under Section 10, it did not do so to the exclusion of all other state
constitutional provisions. Indeed, at least one West Virginia district court has suggested that
Hutchinson generally “recognizes a private right of action for violations of the West Virginia
Constitution.” Ray v. Cutlip, No. 2:13–CV–75, 2014 WL 858736, at *3 n.1 (N.D. W. Va. Mar.
5, 2014) (“West Virginia recognizes a private right of action for violations of the West Virginia
26
Constitution.”); see also Wood v. Harshbarger, 2013 WL 5603243, at *6 (S.D. W. Va. Oct. 3,
2013) (finding plaintiff had alleged sufficient facts to state a claim under Article III, Section 5 of
the West Virginia Constitution and reserving the question of whether monetary damages were an
available remedy for another day).
The Court is unconvinced that the Supreme Court of Appeals of West Virginia would
refuse to recognize a private right of action under Section 5 of Article III when it has recognized
such a right with regard to Section 10. Given the unsettled state of the law, and noting that Ballard
does not otherwise challenge the legal sufficiency of Plaintiff’s Article III, Section 5 claim, 6 the
Court DENIES the motion to dismiss. See Wood, 2013 WL 5603243, at *6 n. 18 (S.D. W. Va.
Oct. 11, 2013) (denying motion to dismiss factually sufficient Article III, Section 5 claim despite
lingering questions concerning the availability of money damages). The parties are hereby put
on notice, however, that the Court intends to certify the question to the West Virginia
Supreme Court if Plaintiff continues to proceed against Defendants under this theory of
liability.
Plaintiff’s claims under Sections 1 and 10 are deficient for independent reasons. Section
1, entitled “Bill of Rights,” “is a statement of the ‘basic principle on which our entire democratic
structure is founded,’ and has not been applied in circumstances such as these.”7 Krein, 2012 WL
6
Apart from noting the limitation on recovery of monetary damages, Ballard does not argue that Plaintiff
pleads insufficient factual content to state a plausible claim for cruel and unusual punishment under Article
III, Section 5. See Harrah, 271 S.E.2d at 330–31 (“Article III, [Section] 5 of the West Virginia
Constitution, prohibits state prison administrators and correctional officers from using physical force on
inmates, absent imminent and present danger of harm to others, themselves or state property . . . inflicting
physical force absent an existing riot, is cruel and unusual punishment.”).
7
Section 1 functions as a preface to Article III. It reads, in its entirety:
27
2470015, at *6 (quoting Allen v. State Human Rights Comm’n., 324 S.E.2d 99, 109 (W. Va. 1984)).
Plaintiff has presented no authority for the assertion that Article III, Section 1 gives rise to a private
right of action. Section 10, West Virginia’s equivalent to the federal Due Process Clause, is
similarly inapplicable because, as explained in consideration of Plaintiff’s Fourteenth Amendment
claim, supra Section II.B.ii.2, “claims of excessive force are more appropriately analyzed under
the more textually specific [Eighth Amendment] than the more generalized due process clause.”
Krein, 2012 WL 2470015, at *6 (declining to address Article III, Section 10 claim premised on
conduct giving rise to claim for excessive force). As such, Plaintiff’s Section 1 and 10 claims
cannot survive Ballard’s Motion to Dismiss.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants Ramsey and Barbagallo’s
Motion to Dismiss (ECF No. 62) and DENIES IN PART and GRANTS IN PART Defendant
David Ballard’s Motion to Dismiss, (ECF No. 64). The Court hereby ORDERS that Plaintiff’s
§ 1983 claim arising under the Fourteenth Amendment and Plaintiff’s claims under West Virginia
Constitution Article III, Sections 1 and 10 are DISMISSED as to all Defendants.
All men are, by nature, equally free and independent, and have certain inherent rights, of
which, when they enter into a state of society, they cannot, by any compact, deprive or
divest their posterity, namely: The enjoyment of life and liberty, with the means of
acquiring and possessing property, and of pursuing and obtaining happiness and safety.
W. Va. Const. art. III, § 1. The rights to which Section 1 refers are preserved in and affirmatively
safeguarded by Article III’s subsequent provisions. See id. § 5 (“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment inflicted.”); id. § 10 (“No person shall be
deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”) Thus, it
would appear that Section 1 does not independently give rise to a cause of action, and the Court has located
no case suggesting that it does.
28
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:
29
September 27, 2016
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