Kelly v. West Virginia Regional Jail Correctional Facility Authority et al

Filing 47

MEMORANDUM OPINION AND ORDER directing that the 18 MOTION by West Virginia Regional Jail Correctional Facility Authority to Dismiss is granted as to Counts I, II, and VI and denied as to Count V; Counts I and II are dismissed as to the West Virginia Regional Jail Correctional Facility Authority; and Count VI is dismissed. Signed by Judge John T. Copenhaver, Jr. on 3/29/2019. (cc: plaintiff; counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FARRELL G. KELLY,
Plaintiffs,
v.

Civil Action No. 2:18-cv-01074

WEST VIRGINIA REGIONAL JAIL
AND CORRECTIONAL FACILITY
AUTHORITY; CORRECTIONAL
OFFICERS BARRETT; GRAHAM;
DILLARD; WOOD; MILLER;
CHANNELL; AND JOHN/JANE DOE,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending is defendant West Virginia Regional Jail
Correctional Facility Authority’s (“WVRJCFA”) motion to dismiss,
filed August 21, 2018.
I. Background

This is an excessive force case originally brought by
the plaintiff, Farrell G. Kelly (“Kelly”), in the Circuit Court
of Kanawha County, West Virginia.

Kelly filed his amended

complaint on April 20, 2018 and the defendants removed on June
22, 2018.
Kelly was a pre-trial detainee at Tygart Valley
Regional Jail, located in Bellington, West Virginia, when he

claims the defendant correctional officers used excessive force
against him.

Amended Compl. ¶ 1.

The plaintiff was acquitted

by a jury of the offense for which he was being detained on or
around March 31, 2016 and released thereafter.

Id.

On or around March 24, 2016, Kelly claims the
defendants told him to “cuff up,” and asserts that he complied
with the order.

Id. ¶ 13.

Once handcuffed, the defendants

allegedly “entered [Kelly’s] cell” and “used excessive force”
against him “by, among other things, slamming [him] into the
ground and hitting and kicking” him.

Id. ¶ 14.

According to

the plaintiff, he was “kicked in the face with such force that
he chipped/damaged his front teeth” and “suffered bruising,
abrasions, and injury to his back.”

Id.

The plaintiff claims

to have posed no “threat to the defendants” during the course of
the alleged events.

Id. at ¶ 15.

Kelly asserts that the defendants’ conduct violated
West Virginia C.S.R. 95-1-15.9, which imposes a duty upon
employees to protect inmates from harm and to comply with the
use of force policy adopted by WVRJCFA.

Id. ¶ 15.

In addition,

the plaintiff claims the conduct alleged violated his Fourteenth
Amendment right to be free from excessive force.

As a result,

Kelly filed this five-count action consisting of Counts I, II,
IV, V, and VI (there is no Count III).
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The five counts charge

as follows: Count I, assault and battery; Count II, intentional
infliction of emotional distress/outrageous conduct; Count IV,
violation of 42 U.S.C. § 1983; Count V reckless/gross negligence
in supervision/training/hiring; and Count VI, vicarious
liability.

Plaintiff asserts Count IV solely against the

individual correctional officers and Count V solely against
WVRJCFA.

Counts I and II are asserted against WVRJCFA as well

as the officers and Count VI is a vicarious liability claim
against only WVRJCFA.

WVRJCFA seeks dismissal of those claims

made against it.
II. Legal Standard

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

Fed. R. Civ. P.

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

Rule

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

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

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

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

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

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.
at 570); see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009).
Application of the Rule 12(b)(6) standard requires
that the court “‘accept as true all of the factual allegations
contained in the complaint . . . .’”

Erickson, 127 S. Ct. at

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

Edwards v. City

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

First, WVRJCFA seeks dismissal of Counts I, II, and VI
against it, all based upon a theory of respondeat superior or
vicarious liability.

Second, it claims that Count V, reckless
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or gross negligence in supervision, training, and hiring, fails
to state a claim upon which relief can be granted and likewise
should be dismissed.
Relying on the West Virginia Supreme Court of Appeals’
decision in West Virginia Regional Jail and Correctional
Authority v. A.B., 766 S.E.2d 751 (W. Va. 2014), WVRJCFA claims
it is entitled to qualified immunity and thus cannot be held
vicariously liable for the actions of the defendant correctional
officers because the alleged conduct fell outside the scope of
employment.
An officer who is “acting within the scope of his
authority and is not covered by the provisions of W. Va. Code,
29–12A–1 et seq. is entitled to qualified immunity from personal
liability for official acts if the involved conduct did not
violate clearly established laws of which a reasonable official
would have known.”

A.B., 766 S.E.2d at 762 (quoting Syl., in

part, State v. Chase Securities, 188 W. Va. 356 S.E.2d 591
(1992)).

Qualified immunity “may extend to protect the State

against suit in contexts other than legislative, judicial, or
executive policy-making settings” where an “officer
intentionally inflicts an injury or acts completely outside his
authority.”

Parkulo v. W. Virginia Bd. of Prob. & Parole, 483

S.E.2d 507, 522-23 (1996).
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In A.B., the court held that where an “employee's
conduct which properly gives rise to a cause of action is found
to be within the scope of his authority or employment,” the
State is not entitled to qualified immunity and may “therefore
be liable under the principles of respondeat superior.”
765 (italics in original).

Id. at

Therefore, no immunity exists where

“State actors violate clearly established rights while acting
within the scope of their authority and/or employment.”

Id.

On

the other hand, when an employee's actions are determined to be
“outside of the scope of his duties, authority, and/or
employment, the State and/or its agencies are immune from
vicarious liability.”

Id. at 767.

The court further clarified that generally, the
question of whether an officer was acting within the scope of
employment would be one of fact for a jury, but that where the
facts are not disputed and a factfinder could not reasonably
determine that an act was committed within the scope of
employment, a court is not precluded from making this finding as
a matter of law.

Id. at 768.

According to the West Virginia

Supreme Court of Appeals, a court should look to the purpose of
the act to make this determination.

Id.

If the act was

directed by the employer, or “an ordinary and natural incident
or result of” the directed act, then it should be considered to

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have been within the scope of employment.

Id. (emphasis in

original; internal quotations omitted).
An employee’s conduct is within the scope of
employment if it is: “(1) of the kind he is employed to perform;
2) occurs within the authorized time and space limits; 3) it is
actuated, at least in part, by a purpose to serve the master,
and; 4) if force is used, the use of force is not unexpectable
by the master.”
omitted).

Id. at 769 (emphasis in original; footnote

However, conduct does not fall “within the scope of

employment if it is different in kind from that authorized, far
beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.”

Id. (emphasis added

in original; internal quotation marks omitted).
Applying the principles from A.B., this court
addressed whether the defendant correctional officers in Sanders
v. Jones, 2016 WL 3512247, at *4 (S.D. W. Va. 2016), were acting
within the scope of their employment when they removed plaintiff
“from his pod, escorted him to the recreation yard and began
striking [him] in the face, stomach and other parts of his body
as well as slamming Plaintiff’s head against the ground causing
Plaintiff to lose consciousness.”

Additionally, “one of the

individual Defendants informed Plaintiff that if he reported the

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abuses, the next beating was going to be ten (10) times worse.”
Id.
The court held the allegations “plainly demonstrate
activities that a reasonably prudent person would know violate
clearly established laws and constitutional rights, and are
malicious and oppressive.”

Id.

Further, that “no reasonable

factfinder could conclude that the unjustified, purposefully,
and malicious attack . . . could even remotely serve the purpose
of the WVRJCFA.”

Id.

Thus, the court concluded that the

officers were not acting within the scope of their employment
when the alleged acts occurred and, as a result, WVRJCFA was
shielded from liability pursuant to its state immunity.
Similarly here, the plaintiff alleges that the
defendant correctional officers forcibly pushed him to the
ground while handcuffed, and hit him and kicked him in the face
and back.

As a result, he claims to have damaged his teeth and

suffered severe bruising and abrasions to his back.

All the

while, Kelly was apparently complaint and posed no threat to the
correctional officers.

Assuming the truth of these allegations,

they clearly demonstrate acts that a reasonably prudent person
would know violate clearly established constitutional rights,
and are malicious and oppressive.

Accordingly, the court finds

that no reasonable factfinder could conclude that the purposeful
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and malicious attacks alleged in the plaintiff’s complaint could
serve the purpose of WVRJCFA.

Therefore, defendant WVRJCFA is

entitled to immunity on Counts I, II, and VI.
Turning to the second issue, whether plaintiff’s
reckless/gross negligence in training, supervision, and hiring
claims should be dismissed, the court finds they should not.

In

A.B., the court explained that, in the absence of a named “bad
actor,” claims of negligent hiring, supervision, and the like,
are also based upon a theory of vicarious liability.
S.E.2d at 772.

A.B., 766

These claims are “derive[d] from the alleged

negligence of some public officer(s) or employee(s) responsible
for the training, supervision, and retention” of the officers.
Id.

Such broad categories of duties “easily fall within the

category of ‘discretionary’ governmental functions.”
(citations omitted).

Id. at 773

But immunity is not “automatic” simply

because they are discretionary functions; if a plaintiff “can
nonetheless demonstrate that WVRJCFA violated a ‘clearly
established’ right or law with respect to its training,
supervision, or retention of [an officer], the WVRJCFA is not
entitled to immunity.”
3512247, at *4.

Id. at 774; see also Sanders, 2016 WL

The court specifically identified C.S.R. § 95–

1–1 et seq. as a state regulation which “govern[s] certain
aspects of the training, supervision, and retention of jail

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employees as set forth in the ‘West Virginia Minimum Standards
for Construction, Operation, and Maintenance of Jails’” and
noted that, because A.B. failed to identify a single regulation,
such as the one cited above, her negligent training,
supervision, or retention claim failed.

Id. at 774.

In his complaint, Kelly claims that WVRJCFA violated
C.S.R. 95-1-15.9, which sets forth the following:
Inmates shall be protected from personal abuse,
corporal punishment, personal injury, disease,
property damage and harassment. In instances where
physical force or disciplinary detention is required,
only the least restrictive means necessary to secure
order or control shall be used. Administrative
segregation shall be used to protect inmates from
themselves or other inmates.
Amended Compl. ¶ 15.

Kelly contends this rule was violated when

WVRJCFA “failed to properly train, supervise, and screen
defendants prior to hiring them and placing them in contact with
inmates” and “allowed the individual defendants to have contact
with plaintiff and all other inmates without the requisite
psychological testing and training on the proper use of force.”
Amended Compl. ¶ 32.

He further claims that “[p]olicy [i.e.,

C.S.R. 95-1-15.9] required that these individuals be removed
from contact with inmates until a thorough investigation was
completed,” but that defendant WVRJCFA “failed to follow” this
policy.

Id. ¶ 33.

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Inasmuch as the plaintiff contends that WVRJCFA
violated a clearly established law with respect to training and
supervision, C.S.R. 95-1-15.9, and that WVRJCFA failed to comply
with the requirements therein, resulting in injury to him, the
plaintiff’s allegations under Count V are sufficient to state a
claim for relief.

Thus, the defendant’s motion to dismiss as to

Count V must be denied.
III. Conclusion

For the reasons stated herein, it is ORDERED that:
1. The defendant West Virginia Regional Jail Correctional
Facility Authority’s motion be, and hereby is, granted as to
Counts I, II, and VI and denied as to Count V.
2. Counts I and II be, and hereby are, dismissed as to the West
Virginia Regional Jail Correctional Facility Authority.
3. Count VI be, and hereby is, dismissed.
The clerk is directed to transmit copies of this order
to all counsel of record, the plaintiff, and to any
unrepresented parties.
ENTER: March 29, 2019

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