McNeemer v. Tibbs et al

Filing 29

MEMORANDUM OPINION AND ORDER granting Defendant Caudill's 7 Motion to Dismiss; Defendant Caudill is dismissed from this action; denying as moot Defendant Caudill's 28 MOTION for Leave to Submit Supplemental Authority; directing the p arties to submit briefs within 14 days of the entry of this order as to whether Southern District of West Virginia is the proper venue to litigate this case. Signed by Judge Joseph R. Goodwin on 6/4/2024. (cc: counsel of record; any unrepresented party) (lca)

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

CIVIL ACTION NO. 2:23-cv-00493

LT. TIMOTHY TIBBS, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant Steve Caudill’s Motion to Dismiss. [ECF
No. 7]. Plaintiff Richard McNeemer (“Plaintiff”) timely responded, [ECF No. 11], and
Defendant Caudill replied, [ECF No. 12]. For the following reasons, Defendant
Caudill’s Motion to Dismiss, [ECF No. 7], is GRANTED.
I.

Background

Plaintiff filed suit in this court on July 20, 2023, against Defendants Timothy
Tibbs and Steve Caudill. [ECF No. 1, ¶¶ 1–3]. His Complaint states three claims: (1)
outrageous conduct; (2) excessive force in violation of the Eighth Amendment of the
United States Constitution, brought under 42 U.S.C. § 1983; and (3) deliberate
indifference/supervisor liability. Id. ¶¶ 11–22. Only the third count is directed at

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Defendant Caudill. Id. ¶¶ 20–22. Plaintiff seeks compensatory and punitive damages
as well as attorneys’ fees and costs. Id. ¶¶ 14, 19.
At all times relevant to this matter, Plaintiff was incarcerated at North Central
Regional Jail (“NCRJ”). Id. ¶ 1. Plaintiff alleges that on or about March 31, 2022, he
was in his cell and had been placed on suicide watch. Id. ¶ 4. After Plaintiff told a
trustee that he needed to speak with someone about his medications and have a
phone call, Defendant Tibbs—a correctional officer at NCRJ—began to harass and
curse at Plaintiff before approaching Plaintiff’s cell door, opening the food slot, and
asking Plaintiff if he was going to hurt himself. Id. ¶¶ 3–5. Plaintiff said no and again
asked to speak with a nurse or an officer, to which Defendant Tibbs responded, “. . .
you think I’m a fucking whore?” Id. ¶ 5. Defendant Tibbs then allegedly peppersprayed Plaintiff in the face, buttocks, and genitals through the cell door’s food slot.

Id. He offered no warning or justification for this use of force. Id. After pepperspraying Plaintiff, Defendant Tibbs then cuffed Plaintiff behind his back through the
door and pushed him to the ground before entering the cell and lifting Plaintiff up off
the floor by his cuffs. Id. After being placed in a smaller cage for thirty minutes and
being assessed by a nurse, Plaintiff was taken to shower but he was not given soap
and had to put the same suit back on afterwards, which caused his skin to burn for
days. Id. ¶ 6.

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After his incident, Defendant Tibbs allegedly attempted to “cover up” the
incident by filing a false incident report against Plaintiff. Id. ¶ 7. Plaintiff was
ultimately placed in segregation due to this report. Id.
Defendant Caudill, who is located in Charleston, West Virginia, is the Director
of Security for the West Virginia Division of Corrections and Rehabilitation
(“WVDCR”). Id. ¶ 2. In his role as Director of Security, Defendant Caudill reviews all
use-of-force reports. Id. Plaintiff alleges that during a one-year period, Defendant
Caudill received over 100 reports accusing Defendant Tibbs and other correctional
officers at NCRJ of use of force. Id. Plaintiff claims that, due to the quantity of useof-force reports Defendant Caudill reviewed, he was on notice that “Defendant Tibbs
ha[d] been involved in an excessive number of use of force events[,] . . . that Tibbs . .
. presented a clear and present danger to the inmates,” and “that excessive force was
routinely taking place at the NCRJ,” but he failed to intervene to prevent
constitutional violations from occurring. Id.
On November 22, 2023, Defendant Caudill filed the instant Motion to Dismiss,
arguing that Plaintiff’s Complaint should be dismissed as to Defendant Caudill for
failure to state a claim upon which relief can be granted under Federal Rules of Civil
Procedure 8 and 12(b)(6). [ECF No. 7, at 1]. Specifically, Defendant Caudill contends
that “the Complaint does not set forth a sufficient factual basis to state a plausible
claim against Defendant Caudill for deliberate indifference.” Id. Alternatively,
Defendant Caudill seeks dismissal on the basis of qualified immunity. Id.
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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). The
Federal Rules of Civil Procedure require that a complaint make only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). This standard “does not require ‘detailed factual allegations,’ but it
demands

more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).
“When ruling on a motion to dismiss, courts must accept as true all of the
factual allegations contained in the complaint and draw all reasonable inferences in
favor of the plaintiff.” Farnsworth v. Loved Ones in Home Care, LLC, No. 2:18-cv01334, 2019 WL 956806, at *1 (S.D. W. Va. Feb. 27, 2019) (citing E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Thus, “a
complaint is to be construed liberally so as to do substantial justice.” Hall v.

DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir. 2017).
To survive a motion to dismiss, the plaintiff's factual allegations, taken as true,
must “state a claim to relief that is plausible on its face.” Robertson v. Sea Pines Real

Est. Cos., Inc., 679 F.3d 278, 288 (4th Cir. 2012) (quoting Iqbal, 556 U.S. at 678). The
plausibility standard is not a probability requirement, but “asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing
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Twombly, 550 U.S. at 556). To achieve facial plausibility, the plaintiff must plead
facts allowing the court to draw the reasonable inference that the defendant is liable,
moving the claim beyond the realm of mere possibility. Id. at 663 (citing Twombly,
550 U.S. at 556). Mere “labels and conclusions” or “formulaic recitation[s] of the
elements of a cause of action” are insufficient. Twombly, 550 U.S. at 555.
III.

Discussion

The Eighth Amendment to the United States Constitution prohibits “cruel and
unusual punishments.” U.S. Const. amend. VIII. “After incarceration, only the
‘unnecessary and wanton infliction of pain,’ . . . constitutes cruel and unusual
punishment.” Ingraham v. Wright, 430 U.S. 651, 670 (1977) (cleaned up) (quoting

Estelle v. Gamble, 429 U.S. 97, 103 (1976)). The prohibition of cruel and unusual
punishment gives inmates a “right to be free from malicious or penologically
unjustified infliction of pain and suffering.” Thompson v. Virginia, 878 F.3d 89, 102
(4th Cir. 2017) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Pepperspraying an inmate who is compliant and poses no physical threat without warning
or justification violates this standard. See Dean v. Jones, 984 F.3d 295, 302 (4th Cir.
2021).
Here, Plaintiff alleges that he was pepper-sprayed in his face and genitals
without warning or justification. [ECF No. 1, ¶ 5]. While I find these allegations
troubling, the allegations against Defendant Tibbs are not at issue here, and I express
no opinion as to the likelihood of Plaintiff’s success on Counts One or Two of his
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Complaint.

Defendant Caudill, however, is only named in Count Three of the

Complaint, and thus I turn my attention to that count and must determine whether
he violated Plaintiff’s Eight Amendment right to be free from cruel and unusual
punishment by his failure to intervene or prevent the pepper-spraying Plaintiff
endured on or about March 31, 2022.
Plaintiff brings his Eight Amendment claim under 42 U.S.C. § 1983. The
Supreme Court has held that anyone who—while acting under the color of state law—
“deprives a person of any rights, privileges, or immunities secured by the Constitution
and laws” may be held liable under § 1983. Blessing v. Freestone, 520 U.S. 329, 340
(1997) (internal quotation marks omitted). It is well-established that multiple actors
can be the cause of a single constitutional injury. Shaw v. Stroud, 13 F.3d 791, 798
(4th Cir. 1994). Although § 1983 liability may not be premised on a theory of

respondeat superior, supervisory officials who are on notice that their subordinates
are acting unlawfully may be held liable if they fail to intervene and prevent
constitutional injuries, id., or if their “supervisory indifference or tacit authorization
of subordinates’ misconduct [is] a causative factor in [those injuries],” Slakan v.

Porter, 737 F.2d 368, 372 (4th Cir. 1984).
To succeed in a supervisory liability case, a plaintiff must demonstrate:
(1) that the supervisor had actual or constructive knowledge that his
subordinate was engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury to citizens like the
plaintiff; (2) that the supervisor’s response to that knowledge was so
inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices[]; and (3) that there
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was an affirmative causal link between the supervisor’s inaction and
the particular constitutional injury suffered by the plaintiff.

Shaw, 13 F.3d at 799 (internal quotation marks omitted). To establish the first
element, the plaintiff must show that “(1) the supervisor’s knowledge of (2) conduct
engaged in by a subordinate (3) where the conduct poses a pervasive and
unreasonable risk of constitutional injury to the plaintiff.” Id. “Establishing a
‘pervasive’ and ‘unreasonable’ risk of harm requires evidence that the conduct is
widespread, or at least has been used on several different occasions.” Id. (quoting

Slakan, 737 F.2d at 373); see also Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir.
2014).
Here, Plaintiff’s claim against Defendant Caudill is entirely conclusory in
nature, as he fails to allege facts sufficient to state a plausible claim for supervisory
liability. See, e.g., [ECF No. 1, ¶¶ 2 (“Defendant Caudill was on notice that excessive
force was routinely taking place at the NCRJ.”), 22 (“Caudill had knowledge that
[Defendant Tibbs] presented a substantial risk of harm to the inmates as a result of
the vast number of excessive force/use of force events attributed to [Defendant
Tibbs].”)]. Plaintiff’s allegations are legal conclusions which the court need not accept
as true. See Twombly, 550 U.S. at 555 (explaining how courts “are not bound to accept
as true a legal conclusion couched as a factual allegation”) (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)).
In his Complaint, Plaintiff alleges that Defendant Tibbs was involved in over
100 use of force events over the course of a one-year period and that Defendant
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Caudill reviewed all use of force reports. [ECF No. 1, ¶ 2]. He does not, however,
allege that those incidents took place prior to the March 31, 2022, pepper-spraying.
He also does not allege incidents of similar conduct, i.e., that those use of force events
were instances of unwarned and unjustified use of pepper-spray. He pleads no facts
that indicate there was a widespread practice of the particular constitutional
violation of unjustified pepper-spraying at NCRJ prior to the events that took place
here.
Rather, Plaintiff simply alleges that Defendant Caudill knew of Defendant
Tibbs’ alleged tendency to engage in unlawful conduct generally because Caudill
“personally reviewed uses of force events that exceed[ed] 100 events in [one]-year’s
time.” Id. ¶ 21. In making this claim, he asks the court to jump hand-in-hand with
him to the conclusion that Defendant Caudill tacitly authorized Defendant Tibbs’
alleged misconduct. It is not an undue burden to require that the pleader meet the
minimal standards of stating the wrong in a fashion which is recognized as sufficient
under Twombly and Iqbal and the Federal Rules. Plaintiff has not established a
“widespread practice of the particular unconstitutional conduct” which he claims he
experienced. See Shields v. Tibbs, No. 2:23-cv-00491, 2024 WL 1804388, at *3 (S.D.
W. Va. Apr. 25, 2024). As such, his claim for supervisory liability must be dismissed.
IV.

Venue

Finally, the court has concerns about whether the Southern District of West
Virginia is the best venue for this case. As a general matter, cases arising under
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federal law “may be brought in (1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the district is located; (2) a judicial
district in which a substantial part of the events or omissions giving rise to the claim
occurred,” or (3) any judicial district in which any defendant is subject to the court’s
personal jurisdiction if there is no other district. 28 U.S.C. § 1391(b)(1).
The federal venue statute allows a district court to “transfer any civil action to
any other district or division where it might have been brought” for “the convenience
of parties and witnesses.” 28 U.S.C. § 1404(a). This statute gives courts sua sponte
authority to transfer an action upon consideration of certain factors, such as
convenience of parties and witnesses as well as the interest of justice. See 15 Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure §§
3844, 3847–48 (4th ed. 2023). It is proper, however, to first provide the parties with
notice and an opportunity to be heard and present their views about the transfer. See,
e.g., Nalls v. Coleman Low Fed. Inst., 440 F. App’x 704, 706 (11th Cir. 2011); Moore

v. Rohm & Haas Co., 446 F.2d 643, 647 (6th Cir. 2006); Starnes v. McGuire, 512 F.2d
918, 934 (D.C. Cir. 1974) (“[B]efore ordering transfer the judge should, at minimum,
issue an order to show cause why the case should not be transferred, and thereby
afford the parties an opportunity to state their reasons for believing that this forum
is most convenient or that the proposed alternative forum is inconvenient or not
within the ambit of § 1404(a)).

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All of the alleged activities that form the basis of the Complaint occurred at
North Central Regional Jail, which is located in the Northern District of West
Virginia. Furthermore, Plaintiff makes no statement as to why the Southern District
of West Virginia is the proper venue, nor has he alleged where each Defendant
resides, except for Mr. Caudill, who has now been dismissed from this action. In light
of the foregoing, I ORDER the parties to brief me on whether this district is the best
venue to litigate this case. The parties have 14 days from the entry of this order to
respond if such party opposes a sua sponte transfer of venue.
V.

Conclusion

For the foregoing reasons, Defendant Caudill’s Motion to Dismiss for Failure
to State a Claim, [ECF No. 7], is GRANTED. Defendant Caudill is hereby
DISMISSED from this action. As such, Defendant Caudill’s Motion for Leave to
Submit Supplemental Authority, [ECF No. 28], is DENIED as moot. Finally, I
ORDER the parties to submit briefs within 14 days of the entry of this order as to
whether Southern District of West Virginia is the proper venue to litigate this case.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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June 4, 2024