Langley v. Huntington WV Police Dept (HPD) (Arresting Officer) et al

Filing 181

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendants Ballard and Rubenstein's 150 MOTION to Dismiss as more fully set forth herein. Signed by Judge Robert C. Chambers on 9/21/2018. (cc: counsel of record; any unrepresented parties) (hkl)

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

JAMES ALBERT LANGLEY,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-3520

ARRESTING OFFICER;
DR. CHARLES LYE;
DONNA WARDEN;
WARDEN DAVID BALLARD;
JIM RUBENSTEIN; and
WEXFORD HEALTH SOURCES INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is a Motion to Dismiss by Defendants David Ballard and
Jim Rubenstein. ECF No. 150. For the following reasons, the Court DENIES, in part, and
GRANTS, in part, the motion.
I.
STANDARD OF REVIEW
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme
Court held that courts must look for “plausibility” in the complaint. 550 U.S. at 557. This standard
requires a plaintiff to set forth the “grounds” for an “entitle[ment] to relief” that is more than mere
“labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555 (internal quotation marks and citations omitted). Accepting the factual allegations
in the complaint as true (even when doubtful), the allegations “must be enough to raise a right to
relief above the speculative level.” Id. (citations omitted). If the allegations in the complaint,

assuming their truth, do “not raise a claim of entitlement to relief, this basic deficiency should . . .
be exposed at the point of minimum expenditure of time and money by the parties and the court.”
Id. at 558 (internal quotation marks and citations omitted). Two weeks after issuing its decision in
Twombly, the Court emphasized in Erickson v. Pardus, 551 U.S. 89 (2007), that “Federal Rule of
Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the
pleader is entitled to relief.’ Specific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 551 U.S. at 93
(quoting Twombly, 550 U.S. at 555; other citations and some internal quotations omitted).
Additionally, when documents are filed by a pro se litigant, those documents must “be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Id. at 94 (internal quotation marks and
citations omitted). It is in this light that the Court must evaluate Plaintiff's Amended Complaint to
determine if it can survive Defendants’ 12(b)(6) motion.
II.
DISCUSSION
As explained more fully in the Proposed Findings and Recommendation (PF&R)
entered on January 9, 2018, sub nom Langley v. Huntington Police Dep’t, Civ. Act. No. 3:17-3520,
2018 WL 652866 (Jan. 9, 2018), and as adopted by this Court on January 31, 2018, Langley, 2018
WL 650208 (Jan. 31, 2018), Plaintiff James Albert Langley filed this action pro se against several
entities and individuals alleging negligence and Eighth Amendment violations for “failing to
provide him with appropriate and necessary medical care.” 2018 WL 652866, at *1. 1 Plaintiff’s

1

Plaintiff was pro se when he filed the Complaint and Amended Complaint and, per
Standing Order, this action was referred to the Magistrate Judge. ECF No. 9. After the Magistrate
Judge issued his PF&R, he granted Plaintiff’s Motion for Appointment of Counsel (ECF No. 153),
and the case was unreferred. Plaintiff’s counsel filed a Response to the motion currently before the
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medical issues arose after he escaped from a work release program, wrecked the vehicle he was
driving, and sustained injuries. Id. Plaintiff states he asked to go to the hospital for treatment after
the accident but, instead, he was taken to the police station and then to the Western Regional Jail.
Id. Plaintiff claims his injuries from the accident were so severe that he needed help to get off the
jail floor. He asked again to go to the hospital, but his request was denied. Id.

After two days at the Western Regional Jail, Plaintiff was transferred to the Mount
Olive Correctional Complex (“MOCC”), where he was listed to be evaluated by a physician Id. at
*2. Plaintiff complains that the doctor only superficially examined him and that he did not receive
adequate medical care. Plaintiff asserts that from the date of his transfer on July 13, 2015 through
November 1, 2015, he made thirteen sick call requests. Id. Plaintiff states he finally received a
chest x-ray on October 21, 2015, and the radiologist recommended he receive a CT scan at the
hospital. Id. Nevertheless, Plaintiff claims he was kept in the MOCC infirmary for another ten
days. Id. Plaintiff states he finally was transferred to the hospital on November 1, 2015, where he
underwent surgery on his left lung and spent eighteen days in a surgical intensive care unit. Id.
Due to these events, Plaintiff asserts “he has lost partial use of his left lung, nerve damage to his
complete left side, and his diaphragm is disconnected from his lung.” Id. He also claims to have
suffered kidney damage from the high doses of medication he received at the MOCC infirmary,
and he asserts he is now disabled and permanently disfigured. Id.

In addition to his sick call requests, Plaintiff states he filed seven grievances from
July 13 through November 1, alleging inadequate medical care, but all his grievances were denied.

Court. ECF No. 158.
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Am. Compl. at 5, ECF No. 50. Plaintiff complains that Defendant Jim Rubenstein, former
Commissioner of the West Virginia Department of Corrections, Defendant David Ballard, Warden
of the MOCC, and Defendant Donna Warden, the Health Service Administrator, violated the
Eighth Amendment by denying his requests without ever investigating his complaints and by
acting deliberately indifferent to his medical needs. Id. at 8-9. 2

In their Motion to Dismiss, Defendants Ballard and Rubenstein argue Plaintiff’s
assertion that they were deliberately indifferent to his plight is based merely upon generic
allegations, which are insufficient to support his claim. In addition, they assert they are not
“persons” under 42 U.S.C. § 1983 and, thus, not subject to suit under the statute. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (stating “neither a State nor its official
acting in their official capacities are ‘persons’ under § 1983”); Syl. Pt. 3, Pruitt v. W. Va. Dep’t of
Pub. Safety, 664 S.E.2d 175, 181 (W. Va. 2008) (holding that, under Will, neither the State of West
Virginia nor officials acting in their official capacities for the State of West Virginia, are persons
under § 1983). On the other hand, Plaintiff argues the motion should be denied because he has set
forth sufficient facts to support his action against Defendants Ballard and Rubenstein in their
personal capacities and, therefore, they are subject to § 1983 liability. See Hafer v. Melo, 502 U.S.
21, 31 (1991) (providing that state officials are “persons” under § 1983 when sued in their
individual capacities, and as such may be held personally liable for damages). As indicated by
Plaintiff, these arguments are nearly identical to the arguments rejected by this Court with respect
to Defendant Warden.

2

Plaintiff also stated this claim against the WVDOC and insisted it should have had a “fail
safe” against such actions. Id. at 9.
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As set forth in the earlier PF&R, Defendant Warden argued there were no direct
claims against her to establish a deliberate indifference claim. 2018 WL 652866, at *17. Plaintiff
responded that he filed grievances with her complaining about his lack of medical care and that
she acted with deliberate indifference in not answering or responding to those grievances. Id. In
considering the issue, the Court explained that “a plaintiff must show a pervasive and unreasonable
risk of harm from some specified source and that the supervisor’s corrective inaction amounts to
deliberate indifference or tacit authorization of the offensive [practices].” Id. (quoting Slakan v.
Porter, 737 F.2d 368, 372 (4th Cir. 1984); internal quotation marks omitted). Construing Plaintiff’s
Complaint liberally and assuming the truth of his allegations, the Court found that the claims
against Defendant Warden survived a motion to dismiss because it was alleged she was made
aware of Plaintiff’s serious medical needs through the grievances he filed, yet she showed
deliberate indifference to his medical needs or tacit authorization of his medical needs not being
addressed, which created an unreasonable risk to him. Id. at *18. The Court found these allegations
were not based upon vicarious liability but, instead, on the personal and purposeful constitutional
violations of Defendant Warden’s own supervisory responsibilities. Id. Thus, Plaintiff could
proceed with his claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior. Because vicarious liability is inapplicable to
. . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
officials own individual actions, has violated the Constitution.” (citations omitted)).

Although Defendants Ballard and Rubenstein held different positions than
Defendant Warden, the same logic follows because Warden, Ballard, and Rubenstein were

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grouped together in the Amended Complaint and the allegations are substantially the same for all
of them. 3 Defendants Ballard and Rubenstein were just further up the chain of review of Plaintiff’s
grievances. Therefore, for the reasons stated with respect to Defendant Warden, the Court finds
Plaintiff’s claims are sufficient to proceed against Defendants Ballard and Rubenstein in their
personal capacities under § 1983.

Defendants Ballard and Rubenstein further argue that they are entitled to qualified
immunity. Qualified immunity shields “government officials performing discretionary functions
. . . from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). When qualified immunity is raised, a
court may consider this threshold question: “Taken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Saucier
v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).4
If the allegations do not give rise to a constitutional violation, the inquiry stops. Id. On the other
hand, if a violation can be shown, then the court should decide whether the right was clearly
established in the specific context of the case. Id.

3

Plaintiff’s Amended Complaint provides, in relevant part: “By all of my grievances being
denied from: Donna Warden then to Warden David Ballard then to Commissioner Jim Rubenstein,
no actual look into the problem I was grieving was ever actually done. It shows: A deprivation of
basic human need, (medical care and reasonable safety) and deliberate indifference on all parts.”
Am. Compl. at 8-9.
4

In Pearson, the Supreme Court overruled the mandatory two-step process for analyzing
qualified immunity as adopted in Saucier. After Pearson, courts are free “to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” 555 U.S. at 236.
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“For a constitutional right to be clearly established, its contours ‘must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). In Farmer v. Brennan, 511 U.S. 825 (1994), the United States Supreme Court stated
that the Eighth Amendment to the Constitution “imposes duties on [prison] officials who must
provide humane conditions of confinement; prison officials must ensure that inmates receive
adequate . . . medical care[.]” 511 U.S. at 832; see also Scinto v. Stansberry, 841 F.3d 219, 236
(4th Cir. 2016), cert. denied sub nom. Phillip v. Scinto, 138 S. Ct. 447 (2017) (other citations
omitted) (“A prisoner's right to adequate medical care and freedom from deliberate indifference to
medical needs has been clearly established by the Supreme Court and this Circuit since at least
1976[.]”). Additionally, the Supreme Court held that a prison official’s actual subjective awareness
of excessive risk to an inmate’s safety is required for liability under the Eighth Amendment. Id. at
837. An official cannot be held liable for a failure to alleviate a risk that should have been
perceived, but was not in fact perceived. Id. at 838.

In viewing the allegations in this case in the light most favorable to Plaintiff on a
motion to dismiss, the Court finds Plaintiff sufficiently has alleged that his clearly-established
Eighth Amendment right to receive adequate medical care was violated. Plaintiff asserts he
suffered a serious medical need, he was denied adequate medical care, and Defendants Ballard and
Rubenstein were ignoring his grievances and were deliberately indifferent to his medical needs.
See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d
839, 846 (7th Cir.1999)) (internal quotations omitted) (“[A] ‘serious . . . medical need’ is ‘one that
has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay

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person would easily recognize the necessity for a doctor's attention.’”). Given these allegations,
the Court finds dismissal of Plaintiff’s claims on qualified immunity grounds is inappropriate.

Defendants Ballard and Rubenstein also argue that Plaintiff’s claim for monetary
damages under Article III, § 5 of the West Virginia Constitution should be dismissed. In his
Response, Plaintiff concedes that West Virginia’s Constitution does not recognize claims for
monetary damages. Thus, the Court GRANTS Defendants’ motion in this respect. Defendants
further argues that Plaintiff cannot pursue punitive damages against them pursuant to West
Virginia Code § 55-17-4(3). 5 However, as indicated by Plaintiff, this Court previously has
explained that punitive damages are not prohibited when defendants are sued in their individual
capacities. Lavender v. W. Va. Reg'l Jail & Corr. Facility Auth., Civ. Action No. 3:06-1032, 2008
WL 313957, at *9 (S.D. W. Va. Feb. 4, 2008) (“As this Court has determined that the Correctional
Officers in this case are being sued in their individual capacities and not their official capacities,
the Court finds punitive damages are not prohibited under these sections and, therefore, the Court
denies the Correctional Officers' motion to dismiss this claim.” (emphasis deleted; citation
omitted)); see also Rosenthal v. Jezioro, No. 2:08-CV-81, 2008 WL 4900563, at *6 (N.D. W. Va.
Nov. 13, 2008) (“The defendants' final argument is that the plaintiff's claim for punitive damages
is barred by West Virginia Code § 55-17-4(3) . . . . [T]he statute has no application to actions
brought against the defendants in their individual capacity.”). Therefore, the Court DENIES
Defendants’ motion to dismiss Plaintiffs’ claim for punitive damages.

5

This section provides: “Notwithstanding any other provisions of law to the contrary . . .
[n]o government agency may be ordered to pay punitive damages in any action.” W. Va. Code
§ 55-17-4(3). A “government agency” is defined, in part, as “a constitutional officer or other public
official named as a defendant or respondent in his or her official capacity[.]” W. Va. Code § 5517-2(2), in part.
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III.
CONCLUSION
Accordingly, for the foregoing reasons, the Court DENIES Defendants Ballard and
Rubenstein’s Motion to Dismiss in all respects, except the Court GRANTS Defendants’ motion
with respect to Plaintiff’s demand for monetary damages under Article III, § 5 of the West Virginia
Constitution.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:

September 21, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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