Opinion
Civil Action 5:24-CV-70
11-26-2024
CARL SMALLWOOD, Plaintiff, v. WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, TIMOTHY TIBBS, Corrections Officer at North Central Regional Jail, and JOHN AND JANE DOES, unknown employees or agents of the above entity, Defendants.
REPORT AND RECOMMENDATION
JAMES P. MAZZONE UNITED STATES MAGISTRATE JUDGE
I. Background
Plaintiff initiated this action on April 11, 2024, by filing a Complaint under 42 U.S.C. § 1983. At the time the allegations in this case occurred, plaintiff was a pretrial detainee at North Central Regional Jail and Correctional Facility (“NCRJ”) in Greenwood, West Virginia. Currently pending before this Court is Defendant Timothy Tibbs' Partial Motion to Dismiss Plaintiff's Amended Complaint, [Doc. 18], filed October 18, 2024, along with a memorandum in support, [Doc. 19]. Therein, defendant Tibbs seeks to dismiss three counts of the Complaint insofar as they are directed at defendant Tibbs. On November 1, 2024, plaintiff filed a response in opposition to the Motion, [Doc. 20], and on November 8, 2024, defendant Tibbs filed a reply, [Doc. 21]. This matter is now fully briefed and ripe for decision. This matter is assigned to the Honorable John Preston Bailey, United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the undersigned recommends that the Motion to Dismiss be granted and that Counts Two, Five, and Six be dismissed as to defendant Tibbs. Further, the undersigned recommends that the claims against the West Virginia Division of Corrections and Rehabilitation be dismissed for failure to serve.
II. The Complaint
According to the Amended Complaint, at the time of the allegations, plaintiff was an inmate at NCRJ. [Doc. 1 at ¶ 1]. The defendants in this case are the West Virginia Division of Corrections and Rehabilitation (“WVDCR”), Timothy Tibbs, a corrections officer at NCRJ at the time of the allegations, and several unknown John and Jane Doe defendants who were employed by WVDCR at NCRJ. [Id. at ¶¶ 2-4]. The claims in the Complaint all stem from an alleged incident on April 13, 2022. After plaintiff complained to a Mrs. Baughman, and her daughter, Ms. Baughman, who was in a romantic relationship with Tibbs, about items missing from his commissary order, defendant Tibbs, leading three other officers, entered plaintiff's cell and proceeded to brutally beat plaintiff, including Tibbs twisting plaintiff's arm such that plaintiff's full body flipped, slamming plaintiff's face into the floor and kneeing him, breaking out several teeth, slamming plaintiff's leg in a cell door, dragging plaintiff out of his cell and into the pod, and snapping plaintiff's arm. See [Id. at ¶¶ 10-65].
Plaintiff asserts nine claims against defendants. In Count One, plaintiff asserts a claim for excessive force in violation of the Fourteenth Amendment against defendant Tibbs and the John Doe defendants. [Id. at ¶¶ 80-85]. In Count Two, plaintiff asserts a negligence claim against all defendants. [Id. at ¶¶ 86-77. In Count Three, titled “violations of the U.S. Constitution and Federal Law,” plaintiff asserts violations of the Fourteenth Amendment and “alleges a federal violation in 42 U.S.C. § 1983 or any other federal statute.” [Id. at ¶¶ 78-86]. In Count Four, plaintiff asserts a claim against all defendants for intentional infliction of emotional distress. [Id. at ¶¶ 87-92]. In Count Five, plaintiff asserts a claim against defendants WVDCR and Tibbs for negligent hiring, retention, and supervision of defendant Tibbs and the John Doe defendants. [Id. at ¶¶ 93-100]. In Count Six, plaintiff asserts a claim against defendant WVDCR for cruel and unusual punishment and “deprivation of life without due process.” [Id. at ¶¶ 101107]. In Count Seven, plaintiff asserts a claim of unconstitutional policies and practices against defendant WVDCR; plaintiff asserts that defendant WVDCR implemented customs, policies, or official acts which resulted in excessive force in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and their counterparts in the West Virginia Constitution. [Id. at ¶¶ 108-111]. In Count Eight, plaintiff asserts a claim against defendant WVDCR for failure to adequately train and supervise correctional officers. [Id. at ¶¶ 112-116]. And in Count Nine, plaintiff asserts a claim for assault and battery against defendant Tibbs and the John Doe defendants. [Id. at ¶¶ 117-121]. For relief, plaintiff seeks compensatory and punitive damages as well as prejudgment and post-judgment interest and attorneys fees and costs. [Id. at ¶ 15, ¶¶ 1-7].
There appears to be an error in the numbering of the Amended Complaint such that after ¶ 88 the numbering goes back to 76 and continues on from there.
III. Motion to Dismiss
In the Motion to Dismiss and memorandum in support, defendant Tibbs argues that Counts Two, Five, and Six should be dismissed as they pertain to him for failure to state a claim upon which relief can be granted. First, Tibbs argues that Count Two should be dismissed because plaintiff has clearly alleged intentional, rather than negligent conduct. [Doc. 19 at 5-6]. Second, that Count Five should be dismissed against defendant Tibbs because plaintiff has not asserted that the John and Jane Does under Tibbs' supervision engaged in negligent conduct; Tibbs argues that plaintiff has failed to plead that Tibbs hired any agent or employee, had the authority to hire, or had authority to terminate or retain agents or employees. [Id. at 6-7]. Further, insofar as plaintiff alleges negligent supervision, Tibbs argues this must fail because the complained conduct involve intentional, rather than negligent, acts. [Id. at 7]. Finally, insofar as Count Six is asserted against defendant Tibbs, Tibbs argues it must be dismissed plaintiff has already asserted a claim under the Fourteenth Amendment for the same. [Id. at 8]. Insofar as Count Six alleges an Eighth Amendment claim, Tibbs argues it must fail because plaintiff has not alleged he was incarcerated pursuant to a conviction. [Id. at 9]. And insofar as this Count asserts a claim under the West Virginia Constitution, Tibbs argues it should be dismissed because there is no private cause of action for monetary relief for such a claim. [Id. at 9-10].
On November 1, 2024, plaintiff filed a response in opposition to the Motion to Dismiss. [Doc. 20]. First, plaintiff argues he has pleaded that Tibbs was negligent. [Id. at 4-5]. Specifically, he argues that he has pleaded defendant Tibbs “did not stop the other correction officers from continuing to beat and injure the plaintiff,” that it was negligent to attempt to handcuff plaintiff rather than taking him to the hospital, and that Tibbs was negligent by leaving plaintiff in the “bird cage” for two hours instead of taking him to receive medical treatment. [Id. at 5]. Second, plaintiff argues that he has stated a claim for negligent supervision; he argues that “Tibbs, as a supervisor, negligently failed to supervise and train his lower Jane and John Doe officers while they were beating the Plaintiff.” [Id. at 6]. Third, Tibbs argues that Count Six should not be dismissed; he argues that “whether under the eighth amendment instead of the fourteenth amendment” that he has pleaded cruel and unusual punishment. [Id. at 7].
On November 8, 2024, defendant Tibbs filed a reply. [Doc. 21]. Defendant further argues that plaintiff's negligence claim and negligent supervision claim are based on underlying intentional acts, and that Count Six is superfluous because plaintiff has already asserted a Fourteenth Amendment claim in Count One.
IV. Standard of Review
A. Section 1983 Claims
The Supreme Court has held that:
Title 42 U.S.C. § 1983 provides a cause of action against “[e]very person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....” The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-257 (1978)). In Gomez v. Toledo, 446 U.S. 635 (1980), the Supreme Court succinctly stated what a plaintiff must allege to sustain a civil rights action:
By the plain terms of § 1983, two-and only two-allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.Gomez, 446 U.S. at 640.
B. Motion to Dismiss
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
The Federal Rules of Civil Procedure “require only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In Twombly, the United States Supreme Court noted that a complaint need not assert “detailed factual allegations,” but must contain more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Conley, 550 U.S. at 555 (citations omitted). Thus, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citations omitted), to one that is “plausible on its face,” [Id. at 570], rather than merely “conceivable.” Id. Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 279, 281 (4th Cir. 2002)). In so doing, the complaint must meet a “plausibility” standard, instituted by the Supreme Court in Ashcroft v. Iqbal, where it held that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Thus, a well-pleaded complaint must offer more than “a sheer possibility that a defendant has acted unlawfully” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id.
V. Analysis
A. Count Two of the Complaint should be dismissed as to defendant Tibbs because negligence cannot be based on defendant's intentional acts and plaintiff has not alleged the elements of a negligence claim based on the delay in medical care.
In Count Two, plaintiff alleges that defendant Tibbs “failed to adequately protect the plaintiff,” “knew (or reasonably should have known) that the plaintiff would be harmed by inciting violence,” that he “did not act to prevent the injuries,” and that he “failed to adequately take steps to care for plaintiff.” [Doc. 13 at ¶¶ 88, 76, & 77]. To the extent plaintiff's negligence claim is based on Tibbs' role in the alleged assault against plaintiff, such claim is clearly not cognizable. As defendant correctly points out, “plaintiffs [cannot] prevail on a claim of simple negligence based on [a defendant's] intentional act.” Smith v. Lusk, 533 Fed.Appx. 280, 284 (4th Cir. 2013) (citing Stone v. Rudolph, 127 W.Va. 335 (1944)). Here, the alleged “negligence” is the same conduct which forms the basis of plaintiff's excessive force and assault and battery claims, and there is little doubt that plaintiff has clearly alleged intentional acts on the part of Tibbs.
In plaintiff's response to the Motion to Dismiss, plaintiff points out that in addition to the alleged assault, the Complaint alleges that “The plaintiff was left in the bird cage for 2 hours instead of being taken immediately to medical by the guards and Tibbs.” [Doc. 13 at ¶ 6, see Doc. 20 at 5]. While this allegation is not alleging an intentional act, defendant argues that “Plaintiff does not plead or explain how that action proximately caused his damages or caused any damage whatsoever.” [Doc. 21 at 3]. The undersigned agrees. “In West Virginia, a plaintiff seeking to recover under a theory of negligence ‘must prove each of four elements of a tort: duty, breach, causation, and damages.'” Wittenberg v. First Indep. Mortg. Co., No. 3:10-CV-58, 2011 WL 1357483, at *11 (N.D. W.Va. Apr. 11, 2011) (Bailey, J.) (quoting Carter v. Monsanto, 212 W.Va. 732, 737 (2002)). Plaintiff has not pleaded or argued, in either the Complaint or his response in opposition to the Motion, that this two-hour delay caused any of his damages.
B. Count Five of the Complaint should be dismissed as to defendant Tibbs because the alleged conduct of the supervised employees was intentional.
For similar reasons, plaintiff has failed to state a claim for negligent supervision against defendant Tibbs. Under West Virginia law, a claim for negligent supervision requires that the underlying conduct of the supervised employee be negligent: “Although our body of caselaw concerning negligent supervision is sparse, our current definition of this cause of action requires, as a predicate prerequisite of a negligent supervision claim against an employer, underlying conduct of the supervised employee that also is negligent.” C.C. v. Harrison Cnty. Bd. of Educ., 245 W.Va. 594, 606 (2021) (citing Taylor v. Cabell Huntington Hospital, Inc., 208 W.Va. 128, 134 (2000)). Plaintiff alleges Tibbs failed to properly supervise John and Jane Doe defendants and that those defendants committed intentional acts. Plaintiff cites Pajak v. Under Armour, Inc., No. 1:19-CV-160, 2023 WL 2726430, at *13 (N.D. W.Va. Mar. 30, 2023) (Kleeh, C.J.), for the proposition that “Plaintiffs alleging negligent supervision or training must first make an underlying showing of a negligence claim as to an employee, and then demonstrate that the employee was negligently trained or supervised.” [Doc. 20 at 6], citation omitted. As plaintiff accurately summarizes: “Following the rules set for (sic) in Pajak, the Plaintiff alleges Tibbs, as a supervisor, negligently failed to supervise and train his lower Jane and John Doe officers while they were beating the Plaintiff.” [Id.]. (emphasis added). As the alleged underlying conduct of the supervised employees is intentional, rather than negligent conduct, plaintiff has failed to state a claim for negligent supervision against defendant Tibbs.
C. Count Six of the Complaint should be dismissed as to defendant Tibbs because it is duplicative of Count One.
From a plain reading of Count Six of the Complaint, this Count does not appear to be directed against defendant Tibbs. Count Six alleges that defendant WVDCR acted negligently and recklessly and took actions which violated United States and West Virginia constitutional protections against cruel and unusual punishment and deprivation of life without due process. [Doc. 13 at 13]. In plaintiff's response to the Motion to Dismiss, plaintiff claims that Count Six is also directed against defendant Tibbs by virtue of the allegation that the WVDCR “through its employees and officials” violated such prohibitions, and that Tibbs was an employee. See [Docs. 1 at ¶ 102, 20 at 7]. However, even assuming this Count is alleged against defendant Tibbs, dismissal of this count is appropriate.
First, the undersigned notes that plaintiff alleges violations of “prohibitions of the U.S. and West Virginia Constitution.” [Doc. 13 at 12] (emphasis added). 42 U.S.C. § 1983 creates a cause of action against any person who, under color of state law, violates a party's federally protected rights. It does not authorize actions for monetary relief for violations of state constitutional provisions, and plaintiff has failed to provide any other basis on which such a claim can be brought.
Second, to the extent Count Six alleges a deprivation of plaintiff's U.S. Constitutional rights, this Count should be dismissed as duplicative of Count One. Plaintiff claims that defendants violated the constitutional provisions against “cruel and unusual punishment and the deprivation of life without due process” by allowing the alleged excessive force to occur. “Excessive force claims of a pretrial detainee [or arrestee] are governed by the Due Process Clause of the Fourteenth Amendment.” Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008). The Fourteenth Amendment protects pretrial detainees from uses of excessive force which amount to punishment. Graham v. Connor, 490 U.S. 386, n. 10 (1989) (citing Bell v. Wolfish, 441 U.S. 520, 535-539 (1979) (“For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.... A person lawfully committed to pretrial detention has not been adjudged guilty of any crime.”) (citations omitted)). The due process rights of a pre-trial detainee “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).
Because plaintiff alleges he was a pretrial detainee and was subjected to cruel and unusual punishment and “deprivation of life without due process” by virtue of excessive force, this Count is clearly one alleging a violation of his Fourteenth Amendment rights. Count One of the amended Complaint already alleges an excessive force Fourteenth Amendment claim against defendant Tibbs, and thus, insofar as Count Six is alleged against defendant Tibbs, it is duplicative and should be dismissed. In plaintiff's response to the Motion to dismiss, plaintiff argues that this Count should not be dismissed, arguing:
The undersigned notes that defendant Tibbs has not sought to dismiss Count One in the instant Motion, and therefore it is undisputed that plaintiff has alleged facts which would state such a claim.
The plaintiff's claims are valid whether should their argument be correct as to pre-detained arrestees (fourth amendment), pre-conviction defendants (fourteenth amendment) and post-sentence defendants (eighth amendment). See Amended Complaint.[Doc. 20 at 7]. Plaintiff's Complaint alleges that he was incarcerated following charges of fleeing on a motorcycle. [Doc. 1 at ¶ 10]. Plaintiff makes no claim that he was a predetention arrestee or a post-sentence defendant, and there appears to be no dispute between the parties that plaintiff was a pre-trial detainee at the time the allegations occurred. As such, the undersigned finds that this count does not plausibly allege a claim for deprivation of Fourth or Eighth Amendment rights.
D. All claims against defendant WVDCR should be dismissed for failure to serve.
Finally, the undersigned recommends that defendant West Virginia Division of Corrections and Rehabilitation be dismissed for failure to serve the Complaint. Pursuant to Federal Rule of Civil Procedure 4(m), plaintiff was required to serve the Complaint upon the defendants within 90 days after the Complaint was filed:
(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).Fed. R. Civ. P. 4(m). Here, the Complaint was filed on April 11, 2024, and plaintiff was required to serve each defendant no later than July 10, 2024. To date, over four months later, there is no indication in the record that defendant WVDCR has been served with a summons and Complaint. Accordingly, the undersigned recommends dismissal of this defendant unless, during the period for objections to this Report and Recommendation, plaintiff shows good cause for such failure.
VI. Recommendation
For the reasons set forth above, the undersigned RECOMMENDS that that:
1. Defendant Timothy Tibbs' Partial Motion to Dismiss Plaintiff's Amended Complaint, [Doc. 18] be GRANTED and the Court dismiss Counts Two, Five, and Six as to defendant Tibbs; and
2. all claims against defendant West Virginia Division of Corrections and Rehabilitation be DISMISSED WITHOUT PREJUDICE for failure to serve unless, during the period for objections tot his Report and Recommendation, plaintiff shows good cause for such failure.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of the Court is further DIRECTED to provide copies of this Report and Recommendation to all counsel of record herein.