Rutter v. Tibbs et al

Filing 16

MEMORANDUM OPINION AND ORDER granting Defendant Steve Caudill's 9 Motion to Dismiss; Defendant Caudill is dismissed from this action; Counts I, II, and IV remain pending against Defendants Tibbs and Costello; directing the parties to submit b riefs within 14 days of the entry of this order as to whether this district or the Northern District of West Virginia is the most appropriate venue in which to litigate this case if the party opposes a sua sponte transfer of venue. 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
DAMIEN RUTTER,
Plaintiff,
v.

CIVIL ACTION NO. 2:24-cv-00026

LT. TIMOTHY TIBBS, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant Steve Caudill’s Motion to Dismiss, [ECF
No. 9]. Plaintiff Damien Rutter (“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. 9], is GRANTED.
I.

Background

Plaintiff filed suit in this court on January 10, 2024, against Defendants
Timothy Tibbs, Michael Costello, and Steve Caudill. [ECF No. 1, ¶ 2]. His Complaint
states four claims: (1) outrageous conduct; (2) excessive force in violation of the Eighth
Amendment to the United States Constitution, brought under 42 U.S.C. § 1983; (3)
deliberate indifference/supervisory liability; and (4) conspiracy to commit fraud. Id.
¶¶ 12–36. Only the third and fourth counts are directed at Defendant Caudill. See id.

Plaintiff seeks compensatory and punitive damages as well as attorneys’ fees and
costs. Id. ¶ 15.
At all times relevant to this matter, Plaintiff was incarcerated at North Central
Regional Jail (“NCRJ”). Id. ¶ 1. Plaintiff alleges that on or about November 30, 2022,
he was housed in the C-Unit at NCRJ and was called into the hallway where
Defendants Tibbs and Costello asked him what was in his sock. Id. ¶ 7. Plaintiff told
them that he had “his telephone numbers and his jail pin” inside his sock. Id. At this
point, Plaintiff alleges that Defendant Tibbs instructed him to hand Defendant Tibbs
what was in the sock and that when he reached down to comply, Defendant Tibbs
pepper-sprayed him without warning. Id. After being pepper-sprayed, Plaintiff got on
the ground to surrender, and Defendants Tibbs and Costello “proceeded to kick,
punch, knee, and strike Plaintiff as he laid on the ground and was not resisting.” Id.
Defendant Costello allegedly pepper-sprayed Plaintiff while both Defendants were
beating him, and he was laying on the ground. Id.
After this beating and second use of pepper-spray, Defendants Tibbs and
Costello allegedly handcuffed Plaintiff and placed him in a holding cage during which
time they discussed their failure to fully cover Plaintiff with pepper-spray. Id. ¶ 9.
Defendant Tibbs then asked Plaintiff “what his problem was,” to which Plaintiff
replied that he didn’t know what it was that Defendant Tibbs thought he had done
but that he was sorry. Id. In response, Defendant Tibbs allegedly deployed pepperspray two more times in Plaintiff’s face and mouth while he was handcuffed,

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shackled, and secured inside a holding cage. Id. He then exclaimed to Defendant
Costello that he “got him.” Id.
Defendant Caudill, who is located in Charleston, West Virginia, was not
present for this incident. Rather, he 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 use-of-force reports. Id. Plaintiff alleges that
during a one-year period, Defendant Caudill received over 100 reports accusing
Defendants Tibbs and Costello, and other officers at NCRJ of use of force. Id. Plaintiff
claims that, due to the number of use-of-force reports Defendant Caudill reviewed, he
was on notice that “Defendants Tibbs and Costello ha[d] been involved in an excessive
number of use of force events[,] . . . that Tibbs, Costello, and other Correctional
Officers presented a clear and present danger to the inmates,” and “that excessive
force events were routinely taking place at NCRJ,” but he failed to intervene to
prevent constitutional violations from occurring. Id.
On April 26, 2024, Defendant Caudill filed the instant Motion to Dismiss,
arguing that Plaintiff’s Complaint should be dismissed against him for failure to state
a claim upon which relief can be granted under Federal Rules of Civil Procedure 8,
9(b) and 12(b)(6). [ECF No. 9, at 1]. Specifically, Defendant Caudill contends that “the
Complaint does not set forth a sufficient factual basis to state a plausible claim
against [him] for deliberate indifference or conspiracy to commit fraud.” 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

Twombly, 550 U.S. at 556). To achieve facial plausibility, the plaintiff must plead
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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
A. Count III – Supervisory Liability/Deliberate Indifference

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 his body, face, and mouth were pepper-sprayed
multiple times and that he was beaten, all without warning or justification. [ECF No.
1, ¶¶ 7–9]. Defendant Caudill, however, is not alleged to have been an active
participant in those events but rather is only being sued for failing to prevent these
alleged acts from occurring in the first place.
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Plaintiff brings this claim against Defendant Caudill 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
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
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‘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, and he fails to allege facts sufficient to state a plausible claim for supervisory
liability. See, e.g., [ECF No. 1, ¶¶ 2 (“Defendant Caudill was further on notice that
excessive force events were routinely taking place at the NCRJ.”), 26 (“Defendant
Caudill was aware of the pattern and practice of excessive and violent force used by
Defendants Tibbs and Costello.”)]. 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 does assert a factual allegation that Defendant
Tibbs was involved in over 100 use of force events over the course of a one-year period
and that Defendant Caudill reviewed all use of force reports. [ECF No. 1, ¶ 2]. While
Plaintiff does allege that these incidents took place prior to the November 30, 2022,
pepper-spraying and beating, he fails to allege that those incidents were instances of
unwarned and unjustified pepper-spraying and beating. He pleads no facts that
establish that there was a widespread practice of these particular constitutional
violations—unwarned and unjustified pepper-sprayings and beatings—at NCRJ
prior to November 30, 2022.
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Rather, Plaintiff simply alleges that Defendant Caudill knew of Defendants
Tibbs’ and Costello’s alleged tendencies to engage in unlawful conduct generally
because Caudill “personally reviewed use of force events that exceeded 100 events in
[one]-year[’]s time.” Id. ¶ 21. In making this claim, he asks the court to jump handin-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 of Civil
Procedure. 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.
B. Count IV
Finally, Defendant Caudill moves for dismissal of Count IV—conspiracy to
commit fraud—as it relates to him. [ECF No. 9]. He alleges that, “[t]o the extent [this
count] is intended to apply to Defendant Caudill, such a claim should be dismissed as
Plaintiff has failed to make a sufficient showing to withstand the requirements of
Rule 9(b) of the Federal Rules of Civil Procedure.” [ECF No. 10, at 11].
In response, Plaintiff clarifies that he is not asserting a claim against
Defendant Caudill in Count IV. [ECF No. 11, at 1]. This, however, is not obvious in
reading the Complaint. Instead of alleging that only Defendants Tibbs and Costello
engaged in conspiratorial conduct, Plaintiff asserts that “[t]he individual Defendants
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herein conspired with one another to file false incident reports.” [ECF No. 1, ¶ 35
(emphasis added)]. Had Plaintiff not raised this point in his response brief, the court
would have presumed Count IV to apply to all defendants, including Defendant
Caudill. Although Plaintiff seeks to rectify this issue in his response brief, parties
may not amend their complaints or cure deficiencies therein through briefing. See S.

Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713
F.3d 175, 184 (4th Cir. 2013).
Regardless, Plaintiff fails to state a claim upon which relief can be granted in
Count IV against Defendant Caudill. The Federal Rules of Civil Procedure provide
that, “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). As it relates to
Defendant Caudill, Plaintiff has not done so here. As such, Count IV must be
dismissed as to Defendant Caudill for failure to state a claim upon which relief may
be granted.
IV.

Venue

Finally, the court has concerns about whether the Southern District of West
Virginia is the most appropriate venue for this case. As a general matter, cases
arising under 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

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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 authority to
transfer an action sua sponte upon consideration of certain factors, such as
convenience of parties and witnesses, as well as whether transfer would be in 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).”).
Here, 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 he believes 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
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action. In light of the foregoing, I ORDER the parties to brief me on the issue of
whether this district or the Northern District of West Virginia is the most appropriate
venue in which to litigate this case. The parties have fourteen (14) days from the
entry of this order to respond if such party would oppose a sua sponte transfer of
venue.
V.

Conclusion

For the foregoing reasons, Defendant Caudill’s Motion to Dismiss, [ECF No. 9],
is GRANTED. The Defendant Caudill is hereby DISMISSED from this action. Counts
I, II, and IV, remain pending against Defendants Tibbs and Costello. I ORDER the
parties to submit briefs within fourteen (14) days of the entry of this order as to
whether this district or the Northern District of West Virginia is the most appropriate
venue in which to litigate this case if the party opposes a sua sponte transfer of venue.
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