United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS [DKT NOS. 25, 28, 41, AND 48]
M. KEELEY, UNITED STATES DISTRICT JUDGE
before the Court are motions to dismiss filed by each of the
named defendants seeking to dismiss the amended complaint
filed by the plaintiff, Josh Carder (“Carder”).
For the reasons that follow, the Court
GRANTS the defendants' motions (dkt.
nos. 25, 28, 41, and 48) and DISMISSES this
February 10, 2012, the Circuit Court of Lewis County, West
Virginia, convicted the plaintiff, Josh Carder
(“Carder”), of a third or subsequent offense of
driving under the influence of alcohol, and sentenced him to
an indeterminate term of one to three years. Carder began a
period of home confinement on February 16, 2012, that lasted
until February 8, 2013. During that time, he served ten days
of incarceration for violating the conditions of his home
confinement. On February 9, 2013, Carder was released on
parole and remained on parole until a curfew violation
occurred on January 15, 2014. At Carder's sentencing on
the parole violation, the defendant, Bradley Tinney
(“Tinney”), a probation officer for the Circuit
Court, calculated Carder's time served to that point.
Carder alleges that Tinney miscalculated his time served as
only 278 days, which caused his effective date of sentence to
be incorrectly set as May 5, 2013.
remained incarcerated on his parole violation from January
15, 2014, until August 15, 2014. Upon his release, Carder
alleges that authorities erroneously placed him on parole
again and that, on November 14, 2014, he was again revoked
for another parole violation. This revocation resulted in his
incarceration for an additional thirty days. Following his
release on December 15, 2014, Carder again was placed on
parole, but yet again was revoked on January 12, 2015, for
another parole violation.
to Carder, during his last period of incarceration, beginning
January 12, 2015, he realized that his effective sentencing
date was incorrect and that his sentence should have been
discharged on July 28, 2014. He further alleges that he
reported this error to the defendant, Brian Thompson
(“Thompson”), who allegedly stated that
“[Carder] would not be under parole if he was not
supposed to be.” Dkt. No. 7 at 5. Additionally, in an
attempt to resolve the error, Carder's girlfriend,
Michele Hickman (“Hickman”), made phone calls to
the defendant, Benita Murphy (“Murphy”), the
chairperson of the West Virginia State Parole Board, and
defendant Judy Fitzgerald (“Fitzgerald”), former
Director of Parole Services. Allegedly, Murphy and Fitzgerald
told Hickman that, “even if there was an error, there
was nothing [they] could do until a court ordered his
release.” Id. Carder asserts that neither
Murphy nor Fitzgerald attempted to investigate Hickman's
continued efforts by Hickman, the error finally was addressed
by the Lewis County Prosecuting Attorney's Office and,
pursuant to the circuit court's amended sentencing order,
Carder ultimately was released on April 10, 2015. He alleges
that he is credited for 393 days beyond his original sentence
of three years and that his liberty was deprived by either
wrongful incarceration or parole for 257 days.
filing his original complaint in this Court against Tinney,
Murphy, Thompson, and unknown employees of the West Virginia
Division of Corrections and the West Virginia Regional Jail
Authority on October 26, 2016 (dkt. no. 1), Carder amended
his complaint on December 15, 2016, to add Judy Fitzgerald as
a defendant(dkt. no. 7).
amended complaint asserts two causes of action under 42
U.S.C. § 1983 and § 1988 for violations of his
Eighth and Fourteenth Amendment rights under the United
States Constitution. In addition, he alleges three state law
claims, including reckless infliction of emotional distress,
battery, and assault. Id. Each of the four
individual defendants has filed motions to dismiss based on
immunity, the applicable statute of limitations, and for
failure to state a claim (dkt. no. 25, 28, 41, and 48).
STANDARD OF REVIEW
reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual
allegations contained in the complaint.'”
Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th
Cir. 2007)(quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). However, while a complaint does not need detailed
factual allegations, a plaintiff's obligation to provide
the grounds of his entitlement to relief requires more than
mere labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed,
courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986). In
considering whether the facts alleged are sufficient,
“a complaint must contain ‘enough facts to state
a claim to relief that is plausible on its face.'”
Anderson, 508 F.3d at 188 (quoting Twombly,
550 U.S. at 547). “A motion to dismiss under Rule
12(b)(6) tests the sufficiency of a complaint; importantly,
it does not resolve contests surrounding the 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).
the defendants argue that they are entitled either to
absolute or qualified immunity, that Carder's claims are
barred by the applicable statute of limitations, or that he
has failed to state a claim. Because the statute of
limitations is an affirmative defense, the Court declines to
address this argument at this early stage. See Fluharty
v. City of Clarksburg, 2015 WL 2341727, at *3 (N.D.W.Va.
2015) (“A motion to dismiss under Rule 12(b)(6) tests
the sufficiency of a complaint; importantly, it does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” (quoting
Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992)). Nevertheless, as discussed below, all
of the defendants are entitled to either absolute or
qualified immunity as to the constitutional violations
asserted in Counts One and Two. Furthermore, Carder has
failed to state a claim as to his state law claims in Counts
Three, Four, and Five.
The Defendant's are Entitled to Immunity from the
Constitutional Violation Claims in Count One and Count
Tinney is Entitled to Absolute Immunity
has moved to dismiss the claims against him, arguing that,
because “the doctrine of judicial immunity  extends
to probation officers when assisting the court in carrying
out judicial functions, ” he is immune from suit. The
long-standing doctrine of judicial immunity entitles judges
to absolute immunity for their judicial decisions, even when
those decisions are clearly erroneous and without regard to
the severity of the consequences. See Forrester v.
White, 484 U.S. 219, 225 (1988); Pierson v.
Ray, 386 U.S. 547 (1967); Bradley v. Fisher, 80
U.S. 335 (1871). The Supreme Court of the United States has
extended this absolute immunity to non-judges who perform
functions integral to the judicial process. See Imbler v.
Pachtman, 424 U.S. 409 (1986) (extending judicial
immunity to prosecutors and grand jurors); Briscoe v.
LaHue, 460 U.S. 325 (1983) (extending judicial immunity
to witnesses, including police officers); Butz v.
Economou, 438 U.S. 478 (1978) (extending judicial
immunity to Executive Branch officials performing
“quasi-judicial” functions). Building on this
precedent, district courts have extended this quasi-judicial
immunity to “probation officers sued for performing
tasks ‘intimately associated with the judicial phase of
the criminal process.'” Gant v. U.S. Probation
Office, 994 F.Supp. 729, 733 (S.D.W.Va. 1998) (quoting
Imbler, 424 U.S. at 430).
determining whether a government official is entitled to
quasi-judicial immunity, the Supreme Court of the United
States has adopted a “‘functional'
approach” that examines the nature of the functions
rather than the defendant's “rank or title or
‘location within the Government.'”
Cleavinger v. Saxner, 474 U.S. 193, 201 (U.S. 1985)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 807
(1982); Butz, 438 U.S. at 511). Six non-exhaustive
factors determine whether absolute immunity exists. These
(a) [T]he need to assure that the individual can perform his
functions without harassment or intimidation; (b) the
presence of safeguards that reduce the need for private
damages actions as a means of controlling unconstitutional
conduct; (c) insulation from political influence; (d) the
importance of precedent; (e) the ...