S.M.B. v. West Virginia Regional Jail and Correctional Facility Authority et al

Filing 34

MEMORANDUM OPINION AND ORDER granting 13 MOTION by West Virginia Regional Jail and Correctional Facility Authority to Dismiss 1 Complaint; Plaintiff's claim for equitable relief against West Virginia Regional Jail and Correctional Facility Authority is DISMISSED for mootness, and West Virginia Regional Jail and Correctional Facility Authority is DISMISSED as a defendant in this case; Plaintiff's remaining claims against individual defendants named in Plaintiffs 1 Complaint remain ongoing pursuant to the Courts 21 Memorandum Opinion and Order. Signed by Judge Robert C. Chambers on 10/26/2017. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

S.M.B.,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-1300

WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY,
MICHAEL YORK,
P. OWENS, and
JOHN DOE #1,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is West Virginia Regional Jail and Correctional Facility
Authority’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 13). For reasons specified herein,
the Court GRANTS the motion and DISMISSES West Virginia Regional Jail and Correctional
Facility Authority as a defendant in this case.
I.

Background

Plaintiff filed the present Complaint on February 17, 2017 (ECF No. 1). Plaintiff alleges,
among other things, that he was sexually assaulted while incarcerated in the Western Regional Jail
and that the West Virginia Regional Jail and Correctional Facility Authority (“WVRJCFA”) failed
to maintain “appropriate policies and procedures” to prevent the alleged sexual assault (ECF No.
1 at 10).

WVRJCFA filed a Motion to Dismiss and a Memorandum in Support on June 5, 2017
(ECF Nos. 13 and 14).1 In its Memorandum in Support, WVRJCFA asserts that “Plaintiff is no
longer housed in any West Virginia correctional facility and currently resides in Point Pleasant,
W.V. according to his parole officer” (ECF No. 31 at 3). The memorandum continues, “[A]s
Plaintiff is no longer subject to the challenged policy, practice, or conditions, Plaintiff’s claim for
injunctive relief is moot” (ECF No. 31 at 4).
In response, Plaintiff contends that WVRJCFA has failed to offer evidence to support its
claim that Plaintiff is no longer incarcerated at the Western Regional Jail (ECF No. 15 at 6).
Plaintiff further argues that, even if he is no longer incarcerated at the Western Regional Jail and
his claim is moot as a result, his claim is excepted from the mootness doctrine because it is capable
of repetition, yet evades review (ECF No. 15 at 6).
In consideration of these arguments, the Court conducted inquiry into public records
regarding Plaintiff’s incarceration status. As a result of that inquiry, the Court learned that Plaintiff
was paroled on March 28, 2017, several months before he filed his response to WVRJCFA’s
motion to dismiss.2
II.

Discussion

a. Standard of Review
When ruling on a motion to dismiss, “a judge must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). To survive a
motion to dismiss, however, a plaintiff must allege facts sufficient to “state a claim to relief that is

Upon the Court’s Order, WVRJCFA filed a redacted Motion in Support on October 17,
2017 (ECF No. 31).
2
So as to respect the privacy of Plaintiff, the Court omits citation to the specific public
record which contains identifying information.
1

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Dismissal . . . is
appropriate when the face of the complaint clearly reveals the existence of a meritorious
affirmative defense.” Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996). Mootness
is one such affirmative defense.
“In reviewing a Rule 12(b)(6) dismissal, [the Court] may properly take judicial notice of
matters of public record.” Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Additionally, the Court’s decision to take judicial notice of matters of public record does not
automatically require that the Court then treat a motion to dismiss as a motion for summary
judgment. Corbett v. Duerring, 780 F.Supp. 486, 492 (S.D.W.Va. 2011). The Court may properly
consider a Rule 12(b)(6) motion to dismiss in the context of relevant matters of public record. Id.
A defendant’s incarceration and parole status are matters of public record. As discussed
above, the Court’s review of relevant public records in this case revealed that Plaintiff was paroled
earlier this year. Accordingly, the Court TAKES JUDICIAL NOTICE that Plaintiff no longer
resides at the Western Regional Jail.
b. Mootness
In his Complaint, Plaintiff objects to WVRJCFA’s allegedly insufficient policies and
procedures regarding prisoner admission and housing assignments (ECF No. 1). Plaintiff asks the
Court to grant him equitable relief in the form of requiring WVRJCFA to reform those policies
and procedures and to enforce them against its employees (ECF No. 1). Defendant WVRJCFA
argues that Plaintiff’s request for equitable relief is moot as he is no longer housed in any of the
Authority’s facilities (ECF No. 31).
“The doctrine of mootness constitutes a part of the constitutional limits of federal court
jurisdiction.” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006). Accordingly, “a present, live

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controversy . . . must exist” for the Court to properly hear a claimant’s case. Hall v. Beals, 396
U.S. 45, 48 (1969). In prisoner cases, specifically, this rule requires that a prisoner challenging a
specified prison policy have a “present interest affected by that policy” in order to be heard.
Weinstein v. Bradford, 423 U.S. 147, 148 (1975).
Generally, when a prisoner sues a prison for equitable relief in the Fourth Circuit, that
prisoner’s claims become moot upon his transfer or discharge from that prison. See Incumaa v.
Ozmint, 507 F.3d 281, 286–87 (4th Cir. 2007).
Mootness questions often arise in cases involving inmate challenges to prison
policies or conditions, and courts, including our own, have held that the transfer of
an inmate from a unit or location where he is subject to the challenged policy,
practice, or condition, to a different unit or location where he is no longer subject
to the challenged policy, practice, or condition moots his claims for injunctive and
declaratory relief, even if a claim for money damages survives.
Id. See also Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (finding that a prisoner’s claims
for injunctive and declaratory relief were mooted by his transfer to another prison); Magee v.
Waters, 810 F.2d 451, 452 (4th Cir. 1987) (“Because the prisoner has been transferred, his request
for injunctive relief [as against the prison where he is no longer being held] is moot.”); Taylor v.
Rogers, 781 F.2d 1047, 1051 (4th Cir. 1986) (finding prisoners’ claims of unlawful restrictions in
protective custody moot after those prisoners were discharged from protective custody). But see
Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (finding a prisoner’s claim for habeas corpus
relief not moot where the prisoner continued to suffer “collateral consequences” with respect to
the complained-of action). The Fourth Circuit has noted, “Once an inmate is removed from the
environment in which he is subjected to [a] challenged policy or practice, absent a claim for
damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his
claim.” Incumaa, 507 F.3d at 287.

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In this case, Plaintiff was paroled on March 28, 2017. While he was purportedly housed in
a West Virginia correctional facility at the time he filed his Complaint, this is no longer the case.
As Plaintiff is no longer housed in a WVRJCFA facility, he is no longer subject to the prison policy
he challenges and, accordingly, has no “present interest affected by that policy.” As a result, the
Court FINDS that Plaintiff’s claim for equitable relief against WVRJCFA is moot.
c. Exception to Doctrine of Mootness
Plaintiff argues that, even if the Court finds that Plaintiff is no longer housed in the Western
Regional Jail where he is subject to the challenged policy, the Court should nevertheless deny
WVRJCFA’s motion because Plaintiff’s injury falls within the “capable of repetition, yet evading
review” exception to the doctrine of mootness (ECF No. 15 at 4).
i. Requirements for Exception
Indeed, the Fourth Circuit has held that “[a] case is not moot . . . if a party can demonstrate
that the apparent absence of a live dispute is merely a temporary abeyance of a harm that is capable
of repetition, yet evading review.” Brooks, 462 F.3d at 348 (internal quotation marks omitted). The
“capable of repetition, yet evading review” exception to the mootness doctrine, however, is narrow
and applies “only in exceptional situations . . .” City of L. A. v. Lyons, 461 U.S. 95, 109 (1983).
Additionally, Plaintiff bears the burden of proving that the exception applies. Incumaa, 507 F.3d
at 289.
Case law provides clear guidance as to what claims may qualify for application of this
exception. “[I]n the absence of a class action, the capable of repetition, yet evading review doctrine
[is] limited to the situation where two elements combine[ ]: (1) the challenged action [is] in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party [will] be subjected to the same action

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again.” Weinstein, 423 U.S. at 349 (internal quotation marks and citations omitted). For reasons
set forth below, the Court finds that Plaintiff has not met his burden of demonstrating that the
requisite circumstances are present in his case. Accordingly, the Court finds that Plaintiff’s claim
against WVRJCFA does not fall within this exception to the doctrine of mootness.
ii. Duration Element
First, though he bears the burden of proof of showing that this exception applies, Plaintiff
does not allege in his Complaint or in his Response to WVRJCFA’s Motion to Dismiss that his
incarceration in the West Virginia correctional system was too short in its duration to be litigated
prior to its cessation or expiration (see ECF Nos. 1, 15). As a result, he has failed to meet his
burden of proof for the first element.
iii. Reasonable Expectation of Repetition Element
Further, Plaintiff does not adequately establish that there is a reasonable expectation that
he will be subjected to the complained-of prison policies again. To meet his burden of proof for
this element, Plaintiff must show that there is a “demonstrated probability” that he will be
incarcerated in the WVRJCFA system again in the future. See Weinstein, 423 U.S. at 349. The
Court finds that Plaintiff has not demonstrated any such probability.
Courts are generally unwilling to find that prisoners’ claims for equitable relief against
prisons meet the “demonstrated probability” of repetition requirement when those prisoners have
been transferred or released from those prisons before their claims are heard in court. See Smith v.
Hundley, 190 F.3d 852, 855 (8th Cir. 1999) (finding that, in the case of a prisoner who was still
incarcerated in the state prison system but no longer housed at the facility against which he sought
declaratory relief, the “mere possibility” that the prisoner could have been transferred back to the
defendant prison was insufficient to bring the prisoner’s claims “within the narrow exception to

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the mootness doctrine”); Abdul-Akbar v. Watson, 4 F.3d 195, 196, 207 (3d Cir. 1993) (deciding
that a prisoner’s claims against a prison’s Maximum Security Unit were mooted by his release
from that unit and that the possibility that the prisoner could again be incarcerated there was not
enough to support a finding of demonstrated probability); Moore v. Thieret, 862 F.2d 148, 150
(7th Cir. 1988) (dismissing a plaintiff prisoner’s claim for equitable relief against a prison because
he had been transferred to another facility and the plaintiff failed to demonstrate a “not small”
likelihood that he would be sent back to the defendant prison).
Plaintiff in this case has not presented any information or evidence that indicates a
“demonstrated probability” or a “not small likelihood” that he will again be incarcerated in the
Western Regional Jail in the future. He argues that he faces a “risk of incarceration” “should a
parole officer so decide to incarcerate him,” but provides no evidence that such incarceration is
likely or probable. As the case law demonstrates, a mere possibility of incarceration is not enough.
Plaintiff argues, however, that Fourth Circuit precedent nevertheless requires the Court to except
his claims from mootness.
iv. Withers Analysis
In arguing for application of this exception, Plaintiff primarily relies upon Withers v. Levine
(ECF No. 15). In Withers, the Fourth Circuit found that the “capable of repetition, yet evading
review” exception was available to a prisoner who challenged the policies of a specific Maryland
prison facility. See Withers v. Levine, 615 F.2d 158, 161 (4th Cir. 1980), abrogated on other
grounds by Moore v. Winebrenner, 927 F.2d 1312, 1316 (4th Cir. 1991).
First, the Withers court noted that the prisoner in that case was challenging the conditions
of a facility where prisoners were housed, on average, only sixty to ninety days. Id. The court
found, “That does not provide sufficient time to litigate the adequacy of measures to provide such

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prisoners as [the plaintiff] with reasonable protection.” Id. The court’s findings, however, were
based on circumstances that are not present in Plaintiff’s case. There is no evidence that Plaintiff’s
incarceration at the Western Regional Jail was as temporary as was the plaintiff’s in Withers.
Additionally, as previously discussed, Plaintiff has at no point asserted that his time at the Western
Regional Jail was so limited in nature that he did not have “sufficient time to litigate” his case.
Second, the Withers court found that the plaintiff in that case had “a reasonable expectation
that he again may [have been] subjected to the same action.” In Withers, the plaintiff complained
of prison policies at the Maryland House of Corrections (“MHC”), a medium security institution
where male prisoners were sent when they qualified for “minimum custody housing.” 615 F.3d at
160–61. At the time of the Withers court’s consideration of his case, Plaintiff Withers was housed
in the Maryland Penitentiary, a maximum security institution. Id. at 160. The court noted that Mr.
Withers “had been previously considered appropriate for minimum custody housing” and assigned
to MHC, and that there was a reasonable chance that Mr. Withers, upon reevaluation, could again
qualify for a de-escalation of prison supervision if he complied with prison rules and procedures
while housed in the maximum security facility. Id. at 161. Upon qualification for a downgrade in
security, the court found, Mr. Withers would likely have been assigned back to MHC. Id. at 161.
Because Mr. Withers could and would have been sent back to MHC essentially for good behavior,
and thereby again subjected to the prison policies of which he complained, the Fourth Circuit found
that the “capable of repetition, yet evading review” exception saved that plaintiff’s claims from
mootness.
v. Incumaa Analysis
In this case, however, Plaintiff’s circumstances align more closely with those presented in
Incumaa v. Ozmint. In Incumaa, the plaintiff prisoner was housed in a maximum security prison

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unit at the time he filed suit. 507 F.3d 281, 282 (4th Cir. 2007). The court explained, “[A]n inmate
must [have] ‘earn[ed]’ assignment to the [maximum security unit] through violent behavior or
noncompliance with [ ] prison policies. . .” Id. at 282–83. In the court’s view, the plaintiff prisoner
had been placed in the maximum security unit due to his own misconduct. Id. During the pendency
of his case, though, the plaintiff was released from the maximum security unit and rehoused in a
lower security unit in the same prison system. Id. at 283. After the reassignment, the defendant
prison system asked the court to dismiss the case, arguing that the plaintiff’s claims for declaratory
relief were mooted by the transfer. Id. at 285.
In response, Incumaa asserted that his case should not be dismissed as moot because his
harm was “capable of repetition, yet evading review.” Id. He asserted that, though he had been
transferred out of the maximum security unit for the time being, prison officials had the power to
reassign him there at any time, even if only “on a whim.” Id. The Fourth Circuit rejected this
argument and dismissed the plaintiff’s case as moot, finding that he was no longer housed in the
unit where he was subject to the complained-of prison policies and that his claims did not fall
within the “capable of repetition, yet evading review” exception to the mootness doctrine.
Incumaa, 507 F.3d at 285.
In its reasoning, the court explained that there was “no indication that [the plaintiff would]
ever be subject to the challenged policy again, absent some sufficiently recalcitrant behavior on
his part.” Id. The court noted that the plaintiff was “promoted” out of the maximum security unit
because he “ceased his bad behavior,” and that he would not be reassigned to the maximum
security unit unless he “flout[ed] [prison] standards and codes of conduct in such a manner as to
warrant reassignment to the [maximum security unit] . . .” Id. at 289. As the court stated, the
plaintiff in that case “[held] the keys” to his freedom from the complained-of policies. Id.

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vi. Reconciliation of Withers and Incumaa
Taken as a whole, the Court finds that the Withers and Incumaa cases are compatible Fourth
Circuit precedent. Withers stands for the rule that if a prisoner has been transferred to a facility
where he is no longer subject to complained-of prison policies, but will be returned to the original
unit or facility if he is compliant with prison rules and procedures, his harm is “capable of
repetition, yet evading review.” See Withers, 615 F.2d at 161. Incumaa, on the other hand, presents
the proposition that a prisoner’s claims will not fall within the narrow exception to mootness if the
prisoner’s only risk of being returned to the unit where he was subject to the complained-of policies
is dependent on his own misconduct. See Incumaa, 507 F.3d at 289.
Plaintiff’s Complaint asks for injunctive relief against a prison system in which he is no
longer housed. He claims that he may be again subjected to the complained-of prison policies
“should a parole officer so decide to incarcerate him” (ECF No. 15), but there is no evidence in
the record to support the proposition that Plaintiff’s parole officer can or would revoke Plaintiff’s
parole without misconduct on Plaintiff’s part. Accordingly, there is no evidence in the record to
support the proposition that Plaintiff has a reasonable expectation that the alleged wrong will be
repeated unless he violates the terms of his parole and earns a return to incarceration. As was the
case in Incumaa, Plaintiff holds the keys to his own freedom. As such, his claim for injunctive
relief against WVRJCFA cannot be excepted from the mootness doctrine.
d. Surviving Claims
In his complaint, Plaintiff’s only claim against WVRJCFA is one for injunctive relief (ECF
No. 1). While Plaintiff’s claims will proceed as against the other named defendants in his case, the
Court FINDS that his claim for injunctive relief against WVRJCFA is moot and does not qualify
for exception from the mootness doctrine. As Plaintiff asserts no additional claims against

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WVRJCFA in his Complaint, WVRJCFA has the right to be dismissed as a defendant in this case
at this time.
III.

Conclusion

The Court FINDS that Plaintiff no longer resides at the Western Regional Jail and that his
claim against WVRJCFA does not qualify for an exception from the mootness doctrine.
Accordingly, Defendant West Virginia Regional Jail and Correctional Facility Authority’s Motion
to Dismiss Plaintiff’s Complaint (ECF No. 13) is GRANTED. Plaintiff’s claim for equitable relief
against West Virginia Regional Jail and Correctional Facility Authority is DISMISSED for
mootness, and West Virginia Regional Jail and Correctional Facility Authority is DISMISSED as
a defendant in this case. Plaintiff’s remaining claims against individual defendants named in
Plaintiff’s Complaint (ECF No. 1) remain ongoing pursuant to the Court’s Memorandum Opinion
and Order entered September 1, 2017 (ECF No. 21).
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

October 26, 2017

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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