Opinion
Civil Action No: SA-04-CA-0803-XR.
April 28, 2005
ORDER
On this date, the Court considered the pending motions to dismiss. Plaintiff has sued a variety of individuals alleging violations of federal constitutional rights, as well as a number of state law causes of actions. Ten defendants referred to collectively as "the River Authority Defendants" have moved for dismissal, as has Bandera County, on behalf of Bandera County Constable Phil Tobin. The Court GRANTS the motion of Bandera County (docket no. 50) to dismiss Constable Tobin in his official capacity and sua sponte dismisses Constable Tobin in his individual capacity. The Court also GRANTS in part and DENIES in part the motion of the River Authority Defendants (docket no. 51).
"The River Authority Defendants" are James Chastain, David Jeffrey, Jerry Sides, Russ Luigs, James Hemby, Dale Keith, Sr., Ronald Solomon, William Spangler, Randy Roberts, and Susan Queen.
I. Dismissal Standard
Constable Tobin in his official capacity, through Bandera County, and the River Authority Defendants have filed separate motions to dismiss. In considering a motion to dismiss, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue his complaint and offer evidence in support of his claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal should not be granted "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle his claim to relief.'" Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
II. Factual and Procedural Background
Plaintiff alleges that he was attempting to voice his opinion at a public meeting of the Bandera County River Authority and Groundwater District, formerly known as the Springhills Water Management District ("the River Authority") on September 5, 2002 when he was forcibly removed from the meeting and singled out for expressing his views on proposed new rules concerning minimum lot sizes for development. Apparently, substantive changes were made to at least one proposed rule without public comment and Plaintiff, at this time running for election as County Judge, desired to express his opposition. According to Plaintiff's First Amended Complaint, Plaintiff was scheduled on the agenda for the meeting but was taken off the agenda by the President of the River Authority, Defendant James Chastain. Plaintiff alleges that Chastain then began reading out portions of a letter Plaintiff had sent to Chastain, which suggested the rule change was a violation of state law, and that Chastain further stated that Plaintiff was "the main instigator" of a disturbance at a River Authority meeting a month prior. Plaintiff asserts that when he tried to respond, Chastain cut him off and would not allow him to speak. As a "shouting match" ensued, Chastain called for a recess and Plaintiff then voluntarily removed himself from the meeting. According to Plaintiff, Chastain commented to the crowd on Plaintiff's fitness for election after the recess.
Later that night, both a search warrant and an arrest warrant were sworn to by City of Bandera Police Officer Misty Kelley and signed by Bandera Magistrate Tim Tobin. These warrants were based on information given to Kelley by Chastain and Defendant Susan Queen (Office Manager of the River Authority). According to Plaintiff, Defendants David Jeffery (General Manager of the River Authority) and Jerry Sides (Secretary-Treasurer of the River Authority) were listed as complaining witnesses, as were Russ Luigs, James Hemby, Dale Keith Sr., Ronald Soloman, William Spangler, and Randy Roberts (all Directors of the River Authority). Plaintiff asserts that he was "lured" from his home by Bandera County Constable Phil Tobin, arrested by City of Bandera Police Officer Neil McLean and Constable Tobin, and imprisoned overnight. An Information was filed against Plaintiff on September 23, 2002 alleging violations of TEX. PENAL CODE § 42.05 (Disrupting a Public Meeting). The Information was later dismissed pursuant to a motion by the County Attorney for lack of proof.
Plaintiff filed this action on September 7, 2004. After a number of Defendants moved for dismissal, the Court ruled that Plaintiff's Original Complaint lacked sufficient specificity to determine whether Plaintiff's claims should go forward against certain Defendants. The Court also granted certain motions to dismiss and denied others. Specifically, the Court denied the motions to dismiss of the River Authority Defendants, Constable Phil Tobin, and City of Bandera Police Chief Shane Merritt in his individual capacity, without prejudice. The Court denied the motions to dismiss of Officer Kelley and Chief Merritt in his official capacity with prejudice. Magistrate Tim Tobin, Officer McLean, and the County Attorney were dismissed. Plaintiff was further required to file either a Rule 7 reply to the defense of immunity or an amended complaint sufficiently stating facts to allege a complaint that would meet the heightened pleading standard against an immunity defense.
Plaintiff's First Amended Complaint asserts a federal cause of action under 42 U.S.C. § 1983. Plaintiff references the First, Fourth, Sixth, and Fourteenth Amendments. Plaintiff also throws in every state law tort imaginable, including false arrest, false imprisonment, wrongful search and seizure, assault and battery, malicious prosecution, abuse of process, intentional infliction of emotional distress, libel, slander, defamation, invasion of privacy, and retaliation for the exercise of free speech. Bandera County has filed a motion to dismiss, on behalf of Constable Tobin in his official capacity. The River Authority Defendants have also filed a renewed motion to dismiss.
This "shotgun" type of pleading, in which a plaintiff pleads every claim imaginable hoping something will hit, and which tends to evidence a lack of inquiry by plaintiffs' attorneys into the law and supporting facts, is not a practice that normally ingratiates a party (or an attorney) to a court and is to be discouraged. See Thomas v. Capital Sec. Servs., 836 F.2d 866, 869 (5th Cir. 1988) (en banc) (citing FED. R. CIV. P. 11); Rodgers v. Lincoln Towing Serv., Inc., 596 F. Supp. 13, 27 (N.D. Ill. 1984).
III. Analysis
A. Limitations
The River Authority Defendants assert the one-year statute of limitations for Plaintiff's slander, libel, and defamation claims. This is put forward on the final page of their Renewed Motion to Dismiss, after an extensive discussion of the applicability of both the legislative and qualified immunity defenses. No other Defendant has ever put forward limitations as a ground for dismissal, although each remaining Defendant has previously filed a motion to dismiss. In general, the Court should not raise the issue of an affirmative defense, such as the statute of limitations, sua sponte as an affirmative defense may be waived. See Warnock v. Pecos County, Texas, 116 F.3d 776, 778 (5th Cir. 1997); FED. R. CIV. P. 8(c) (statute of limitations is an affirmative defense). However, a district court may dismiss a case sua sponte for failure to state a claim if the procedure employed is fair to the parties. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (citing 5A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE PROCEDURE § 1357, at 301 (2d ed. 1990)). The issue of the statute of limitations has been properly pled as an affirmative defense in Defendants' Original Answer and subsequently raised by the River Authority Defendants as a ground for dismissal in the motion to dismiss. It has therefore not been waived. Although the issue of limitations has been raised by the River Authority's motion, Plaintiff failed to address this issue in response. The Court finds that it may raise the issue of the statute of limitations as to the other remaining Defendants on its own motion.
Plaintiff filed a Response to the motion to dismiss of the River Authority Defendants, but not to the motion to dismiss of Constable Tobin.
All of Plaintiff's claims stem from action that took place on or before September 5, 2002. Other than the act of being brought before the Magistrate the next morning (September 6, 2002) and the act of the County Attorney dropping the charges (October 15, 2002), no act referenced by Plaintiff occurred after September 5, 2002. The statute of limitations for libel, slander, and malicious prosecution is one year. TEX. CIV. PRAC. REM. CODE § 16.002. Accordingly, Plaintiff's claims for libel, slander, defamation, and malicious prosecution against all Defendants are DISMISSED on limitations grounds.
B. Constable Tobin
Bandera County requests that it be substituted in place of Constable Tobin in his official capacity, arguing that it is the true party in interest. As Plaintiff has failed to state a claim against Constable Tobin in either his official or individual capacity, this request is unnecessary.
Plaintiff alleges that Constable Tobin, in mid to late August 2002, told him to "be careful" and that Bandera County Police Officers were seeking ways to arrest him. In addition, Plaintiff alleges that Constable Tobin urged the River Authority Defendants to wait a day before filing charges against Plaintiff so that tempers could cool and that Constable Tobin executed the arrest warrant and told Plaintiff's wife that Plaintiff would be allowed to leave once he was presented to the Magistrate. At no point has Plaintiff alleged that Constable Tobin ever acted in violation of Plaintiff's rights. Nor does any state cause of action apply to any of Constable Tobin's actions as alleged by Plaintiff.
As to Plaintiff's first allegation of Constable Tobin's action, even if this could be construed as alleging a threat against Plaintiff, there is no claim for mere threats, without more. See Robertson v. Plano City of Texas, 70 F.3d 21, 24-25 (5th Cir. 1995); Hobson v. Frederickson, 961 F.2d 1374, 1378 (8th Cir. 1992) ("Generally, mere verbal threats made by a state-actor do not constitute a § 1983 claim."). Plaintiff's allegations that Constable Tobin counseled the River Authority Defendants against filing charges until tempers had cooled clearly does not amount to actionable conduct. Nor does Constable Tobin's actions in executing the arrest warrant or telling Plaintiff's wife she would be able to take Plaintiff home the night of the arrest, even though Plaintiff was made to stay the night in jail. U.S. v. Leon, 468 U.S. 897 (1984) (holding that when a police officer acts in good faith upon an arrest warrant that officer is not liable for a violation of a plaintiff's constitutional rights, even if the arrest warrant were invalid); Baker v. McCollan, 443 U.S. 137, 143-45 (1979) (holding detention of an individual on the basis of a facially valid warrant is not actionable conduct). In addition, Constable Tobin is not a policymaker for the County of Bandera, and therefore cannot be held liable in his official capacity. Keenan v. Tejada, 290 F.3d 252, 263 (5th Cir. 2002). All of Plaintiff's claims against Constable Tobin are therefore DISMISSED.
In addition, Plaintiff alleges that these "threats" were made in mid to late August 2002. As Plaintiff's Original Complaint was filed September 7, 2004, any claim arising from these actions would be time-barred. TEX. CIV. PRAC. REM. CODE § 16.003; Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002) (two-year personal injury statute of limitations applies to § 1983 claims).
C. River Authority Defendants
1. Individual Capacity
As to the River Authority Defendants, only the allegations against one individual, James Chastain, President of the River Authority, merit much discussion. Except as to Chastain, Plaintiff's allegations against the River Authority Defendants amount solely to a claim for malicious prosecution. Plaintiff alleges that Susan Queen accompanied Chastain to the Bandera County Police Department following the September 5, 2002 River Authority meeting at issue and swore out a statement against Plaintiff to Officer Kelly. Plaintiff further alleges that David Jeffrey and Jerry Sides accompanied Chastain and Queen to the police department to serve as complaining witnesses and that the remaining River Authority Defendants (Luigs, Hemby, Keith, Solomon, Spangler, and Roberts) are listed in the police report as complaining witnesses. These allegations amount to nothing more than a claim for malicious prosecution. A claim for malicious prosecution must be brought within one year. TEX. CIV. PRAC. REM. CODE § 16.002. There is no indication that Plaintiff's allegations against any River Authority Defendant other than Chastain could possibly fall into any other cause of action under which Plaintiff has sued. Abuse of process requires (1) an illegal, improper, or perverted use of the process by a defendant, a use neither warranted nor authorized by the process; (2) an ulterior motive or purpose in exercising such illegal, perverted, or improper use of the process; and (3) damage to Plaintiff as a result of the illegal act. Graham v. Mary Kay Inc., 25 S.W.3d 749, 756 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). The tort is not based on the filing and maintenance of a suit. See Klein Assocs. Political Relations v. Port Arthur Indep. Sch. Dist., 92 S.W.2d 889, 898 (Tex.App.-Beaumont 2002, pet. denied) (citing Blackstock v. Tatum, 396 S.W.2d 463, 467 (Tex.Civ.App.-Houston 1965, no writ)). Nor can these actions be said to constitute conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" so as to state a claim for intentional infliction of emotional distress. Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). No other cause of action pled by Plaintiff could possibly encompass Plaintiff's allegations against these Defendants. Accordingly, all claims against David Jeffrey, Jerry Sides, Russ Luigs, James Hemby, Dale Keith, Sr., Ronald Solomon, William Spangler, Randy Roberts, and Susan Queen in their individual capacity are DISMISSED.
A malicious prosecution cause of action does not accrue until termination of legal proceedings in favor of Plaintiff. The state charge of disrupting a pubic meeting was dismissed on October 21, 2002. Plaintiff thus had until October 21, 2003 to bring suit for malicious prosecution. Plaintiff's Original Complaint was not filed until September 7, 2004.
Plaintiff's allegations against Chastain are more detailed, but are, for the most part, equally unavailing. Plaintiff alleges that Chastain changed the order of the agenda at the September 5, 2002 meeting, read aloud portions of Plaintiff's August 9, 2002 letter addressed to Chastain, stated that Plaintiff had been removed from the August 8, 2002 meeting for disorderly conduct, refused to allow Plaintiff to respond to this statement, engaged in a verbal argument with Plaintiff, and denounced Plaintiff's fitness for election as County Judge. Chastain's actions in changing the order of the agenda at the September 5, 2002 meeting of the River Authority is protected by legislative immunity. See Hughes v. Tarrant County., 948 F.2d 918, 920-21 (5th Cir. 1991) (legislative act protected by legislative immunity where individual performing maintains a degree of discretion in making policy). Chastain's actions stating that Plaintiff had been removed from the August 8, 2002 meeting for disorderly conduct, which was untrue, and in denouncing Plaintiff's fitness for election sound in defamation. However, Plaintiff's claims for defamation, libel, and slander are barred by limitations. TEX. CIV. PRAC. REM. CODE § 16.002.
As to the allegation that Chastain read from a letter written by Plaintiff to Chastain, it appears this is meant to encompass the tort of invasion of privacy. The term "invasion of privacy" encompasses three distinct torts: (1) intrusion upon a person's right to be left alone in his or her own affairs; (2) publicity given to private information about a person; and (3) appropriation of some element of the person's personality for commercial use. See Cain v. Hearst Corp., 878 S.W.2d 577, 578-79 (Tex. 1994). A claim for intrusion requires a highly offensive intentional intrusion, physically or otherwise, upon another's solitude, seclusion, or private affairs or concerns. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993). A claim for public disclosure of private facts requires publicity given to matters concerning Plaintiff's private life. Polansky v. Southwest Airlines Co., 75 S.W.3d 99, 104 (Tex.App. — San Antonio 2002, no pet.). Plaintiff's Amended Complaint alleges only that the letter contained allegations by Plaintiff that Chastain's actions at the August 8, 2002 River Authority meeting violated the Texas Open Meeting Act. This is not an allegation concerning matters of Plaintiff's private life. Plaintiff has therefore not stated a claim for invasion of privacy.
Insofar as Plaintiff could argue that any of Chastain's actions could state a claim for intentional infliction of emotional distress, there is simply no allegation "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Brewerton, 997 S.W.2d at 216.
Only the allegations against Chastain that Plaintiff was forbidden from speaking and removed from the September 5, 2002 meeting sufficiently state a claim sufficient to defeat a motion to dismiss. Free speech is protected by the First Amendment to the United States Constitution. The government may subject speech to valid time, place, and manner restrictions, but such regulation is severely limited when the speech occurs in a place where public speech is usually allowed, such as a public meeting. Cf. Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987). Such regulation must be content-neutral. Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 647-48 (1981). If Plaintiff can prove that Chastain singled Plaintiff out and restricted his viewpoint from the public meeting, there would be a valid claim under § 1983. See Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997) ("Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment."); Musso v. Hourigan, 836 F.2d 736, 742 (2nd Cir. 1988). Such a claim would defeat any assertion of qualified immunity. See Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 280 (5th Cir. 2003). All claims against Chastain in his individual capacity are therefore DISMISSED except the § 1983 claim under the First Amendment. Because there is no cause of action under Texas law encompassing "retaliation for the exercise of free speech," this claim is also dismissed. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 149 (Tex. 1995) (holding the Texas Bill of Rights gives rise only to equitable claims).
2. Official Capacity
As to Plaintiff's claims against the River Authority Defendants in their official capacity, Plaintiff has not pointed the Court directly to any specific policy or custom that allegedly caused any particular injury. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). In contrast to Plaintiff's assertion, a governmental body "cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691. "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 693. The only "policy" referenced by Plaintiff in the Amended Complaint appears to be that the River Authority and the Bandera Police Department would typically not arrest someone the first time they disrupted a public meeting. In his response to the River Authority's motion to dismiss, Plaintiff asserts only that the Amended Complaint has "set forth a conspiracy specifically adopted and pursued on the part of the governmental entity by its officers and employees [and] [t]his policy and practice specifically adopted and pursued by the River Authority against Plaintiff caused his incarceration and humiliation." Response to Defendant's Second Motion to Dismiss at 9.
Plaintiff points out that James Hannah vocalized disagreement with Chastain and other members of the River Authority at the August 8, 2002 meeting and was forcibly removed, but was not arrested for disruption of a public meeting.
Plaintiff's argument rests solely on individual actions on the part of Chastain acting for the River Authority. A single action by a municipal official possessing final policymaking authority may constitute the official policy of a municipality. Brady v. Fort Bend County, 145 F.3d 691, 698 (5th Cir. 1998). Whether an official has been delegated the final policymaking authority is a question of state law to be determined by the Court. Gros v. City of Grand Prairie, 181 F.3d 613, 617 (5th Cir. 1999) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). State law, including valid local ordinances and regulations, "will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988). "[T]he delegation of policymaking authority requires more than a showing of mere discretion or decisionmaking authority on the part of the delegee." Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984). Allegations of a policy or custom and its relationship to a constitutional violation cannot be conclusory but must contain specific facts. See, e.g., Spiller v. City of Texas City, Police Dep't, 130 F.3d 162, 167 (5th Cir. 1997) (citing Fraire v. Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992)). The burden is on Plaintiff to establish the identity of the final policymaker on the part of the local governmental unit. See Bass v. Parkwood Hosp., 180 F.3d 234, 244 (5th Cir. 1999). Plaintiff has not pointed the Court to any law or ordinance designating an official policymaker for the River Authority.
The Court's own research, however, indicates that the governing body of a Groundwater Management District under Texas law is the board of directors. TEX. WATER CODE § 36.051(a). The president of the board of directors is the chief executive officer of the district, presides at all meetings of the board, and executes all documents on behalf of the district. Id. § 36.054(c). "The board shall be responsible for the management of all the affairs of the district." Id. § 36.057(a). A groundwater district is a political subdivision exercising State powers and such districts stand upon the same footing as a county. Id. § 36.001(15); S. Plains Lames R.R., Ltd. v. High Plains Underground Water Conservation Dist. No. 1, 52 S.W.3d 770, 774 (Tex.App.-Amarillo 2001, no pet.). "[A] federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it." Praprotnik, 485 U.S. at 126. Texas law appears to place final policymaking authority upon the River Authority board of directors. According to Plaintiff's Amended Complaint, all of the River Authority Defendants are members of the board of directors except David Jeffrey and Susan Queen. As a single action by the final policymaker of a local governmental unit can give rise to municipal liability where it is official policy, and as Plaintiff asserts that his viewpoint was discriminated against by taking him off the agenda and refusing to let him speak, Plaintiff has validly stated a claim against the board of directors under § 1983 for a violation of First Amendment rights.
All of Plaintiff's claims against David Jeffrey and Susan Queen in their official capacity are DISMISSED. All of Plaintiff's claims against James Chastain, Jerry Sides, Randy Roberts, Russ Luigs, James Hemby, Dale Keith, Sr., Ronald Solomon, and William Spangler in their official capacity are DISMISSED except the § 1983 claim for violation of Plaintiff's First Amendment rights. The request of the River Authority to be substituted in place of the River Authority Defendants in their official capacity is denied as the River Authority itself has already been dismissed from this action upon the agreement of the parties that it has no jural existence.
Contrary to the River Authority Defendants argument, suit against each of the River Authority Defendants in their official capacity is not redundant. Suit against the members of the board of directors of the River Authority in their individual capacity is the equivalent of suit against the River Authority itself as a political subdivision. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978) ("[L]ocal government officials sued in their official capacities are "persons" under § 1983.").
IV. Conclusion
Plaintiff has filed a myriad of claims against a number of Defendants. At issue are motions to dismiss of Bandera County, on behalf of Bandera County Constable Phil Tobin, and the Defendants collectively referred to as the River Authority Defendants. Plaintiff asserts that he was kept from voicing his opinion at a meeting of the Bandera County River Authority and Groundwater District and was later illegally arrested for disruption of a public meeting. The Court sua sponte DISMISSES Plaintiff's claims for libel, slander, defamation, and malicious prosecution against all Defendants on limitations grounds. The Court also DISMISSES Plaintiff's purported claims of "retaliation for exercise of free speech" under Texas law against all Defendants, as there is no such cause of action .Bandera County's motion to dismiss Plaintiff's claims against Constable Tobin in his official capacity is GRANTED (docket no. 50), as Constable Tobin is not a policymaker for the County. In addition, the Court DISMISSES all claims against Constable Tobin in his individual capacity on its own motion, as Plaintiff has failed to state any claim against him that could be granted.
The Court GRANTS in part and DENIES in part the Second Motion to Dismiss of the River Authority Defendants (docket no. 51). None of Plaintiff's allegations against the River Authority Defendants in their individual capacity can be read to sufficiently state a claim for which relief can be granted except for the § 1983 claim against James Chastain for violation of Plaintiff's First Amendment rights. In addition, all claims against the River Authority Defendants in their official capacity are DISMISSED except for the § 1983 claim against the River Authority board of directors for violation of Plaintiff's First Amendment rights.
In sum, all claims against Constable Phil Tobin, David Jeffrey, and Susan Queen are DISMISSED. Insofar as any allegation made by Plaintiff in the Amended Complaint could be read as alleging claims for libel, slander, defamation, or malicious prosecution against any Defendant, those claims are DISMISSED on limitations grounds. Plaintiff's purported claim of "retaliation for exercise of free speech" under Texas law against all Defendants is DISMISSED, as there is no such cause of action. All claims against Jerry Sides, Russ Luigs, James Hemby, Dale Keith, Sr., Ronald Solomon, William Spangler, and Randy Roberts in their individual capacity are DISMISSED. All claims against James Chastain in his individual capacity are DISMISSED except for the § 1983 claim for violation of Plaintiff's First Amendment rights. Finally, all claims against James Chastain, Jerry Sides, Russ Luigs, James Hemby, Dale Keith, Sr., Ronald Solomon, William Spangler, and Randy Roberts in their official capacity are DISMISSED except the § 1983 claim for violation of Plaintiff's First Amendment rights.