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Smith v. Davis

United States District Court, S.D. West Virginia, Huntington Division

April 10, 2018

JAMES ARTHUR SMITH, JR., Plaintiff,
v.
CORPORAL DAVIS, FNU, Western Regional Jail; and CORPORAL DIAMOND, FNU, Western Regional Jail, Defendants.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          Cheryl A. Eifert United States Magistrate Judge

         Pending before the Court are Plaintiff's pro se amended complaint filed pursuant to 42 U.S.C. § 1983 and Defendants' motions to dismiss. (ECF Nos. 9, 20, 30). This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and by standing order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

         Having thoroughly reviewed Plaintiff's allegations, the undersigned FINDS that Plaintiff's claims against Defendants in their official capacities are barred by the Eleventh Amendment to the United States Constitution (the “Eleventh Amendment”) and Defendants are entitled to qualified immunity with respect to Plaintiff's claims against them in their personal capacities. Therefore, the undersigned RECOMMENDS that the presiding District Judge GRANT Defendants' motions to dismiss, (ECF Nos. 20, 30), and DISMISS Plaintiff's amended complaint with prejudice, (ECF No. 9).

         I. Relevant Facts

         Plaintiff's amended complaint alleges that Defendants, correctional officers Diamond and Davis (“Diamond” and “Davis”), whose first names are unknown to Plaintiff, refused to give Plaintiff hot meals during Ramadan[1] on June 24, June 26, and June 27, 2017 while Plaintiff was incarcerated in the Western Regional Jail (“WRJ”) in this judicial district. (ECF No. 9 at 4). Plaintiff alleges that Defendants claimed to “not know anything about Muslims or Ramadan” and Davis stated that he could give Plaintiff two bagged lunches and Plaintiff “better be happy with that.” (Id. at 4-5). Plaintiff seeks an unspecified amount of “monetary relief for the pain and suffering of not getting a hot meal, ” which Plaintiff states affected how he “practice[d] fasting for the religious holiday.” (Id. at 5).

         Diamond and Davis separately filed motions to dismiss and supporting memoranda, which are substantively identical. Defendants argue that insofar as Plaintiff seeks retrospective monetary relief from them as state officials, his claims are barred by the Eleventh Amendment and Defendants are not “persons” for the purpose of § 1983 because a suit for monetary damages against a state official is no different than a damages suit against the State. (ECF Nos. 21 and 31 at 3-4). Further, Diamond and Davis contend that they are entitled to qualified immunity because Plaintiff does not allege any facts establishing that the meals that they served Plaintiff “would result in an alleged deprivation of a perceived religious right.” (Id. at 6, 7).

         The undersigned advised Plaintiff of his right to respond to the motions to dismiss. (ECF Nos. 22, 32). However, the orders sent to him at the WRJ were returned undeliverable, as Plaintiff had been released to serve a term of state parole. (ECF Nos. 23, 33). Therefore, Plaintiff was ordered to update his address with the Clerk of Court by October 31, 2017. (ECF No. 25). Thereafter, the West Virginia Division of Corrections Parole Services provided a letter to the Court stating that Plaintiff absconded from parole on October 27, 2017 and a warrant was issued for his arrest, but his whereabouts were unknown. (ECF No. 26). Plaintiff has not provided his current address to the Clerk of Court or responded to the motions to dismiss despite having been advised that his failure to do so could result in dismissal of his amended complaint.

         II. Standard of Review

         Defendants seek dismissal under Fed.R.Civ.P. 12(b)(1) and (12)(b)(6). A motion under Rule 12(b)(1) challenges a court's subject matter jurisdiction over the pending dispute. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A Rule 12(b)(1) motion can be presented in two ways. First, the movant may claim that the jurisdictional allegations of the complaint are not true. Id. Then, a court “is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams, 697 F.2d at 1219). Second, the movant may contend that “a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Adams, 697 F.2d at 1219. When presented with this contention, the court assumes that the allegations in the complaint are true and affords the plaintiff the same procedural protection he would receive under Rule 12(b)(6). Id. The burden of proving that a court has subject matter jurisdiction rests with the plaintiff, as he is the party asserting it. Johnson v. N. Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012). However, the court should grant dismissal “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.

         A motion under Rule 12(b)(6) tests the sufficiency of the complaint to state a claim. A complaint fails to state a claim when, accepting the plaintiff's well-pleaded allegations as true and drawing all reasonable inferences, the complaint lacks “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility requires allegations that “raise a right to relief above the speculative level.” Id. at 555. Consequently, the complaint must include “facts sufficient to state all the elements of [the plaintiff's] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).

         “The Fourth Circuit has not resolved whether a motion to dismiss based on the Eleventh Amendment is properly considered pursuant to Rule 12(b)(1) or 12(b)(6).” Haley v. Va. Dep't of Health, Case No. 4:12-cv-0016, 2012 WL 5494306, at *2 n.2 (W.D. Va. Nov. 13, 2012) (citing Andrews v. Daw, 201 F.3d 521, 525, n.2 (4th Cir. 2000)); Darling v. Falls, 236 F.Supp.3d 914, 925 n.11 (M.D. N.C. 2017). “The recent trend, however, appears to treat Eleventh Amendment immunity motions under Rule 12(b)(1).” Id.; see also Zemedagegehu v. Arthur, No. 1:15cv57 (JCC/MSN), 2015 WL 1930539, at *3 (E.D. Va. Apr. 28, 2015); Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012) (collecting cases). In this case, whether Defendants' Eleventh Amendment immunity should be evaluated under Rule 12(b)(1) or 12(b)(6) has no practical difference given that the undersigned relied solely on the amended complaint in resolving the motion to dismiss and construed it in the light most favorable to Plaintiff. Beckham v. Nat'l. R.R. Passenger Corp., 569 F.Supp.2d 542, 547 (D. Md. 2008).

         Plaintiff filed his amended complaint pro se, and courts are required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, the amended complaint still must contain sufficient factual allegations to support a valid legal cause of action. Bass, 324 F.3d at 765. The Court may not rewrite the pleading to include claims that were never presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         III. Discussion

         Title 42 U.S.C. § 1983 provides a remedy to parties who are deprived of federally protected civil and constitutional rights by persons acting under color of any state “law, statute, ordinance, regulation, custom, or usage.” Id. Congress enacted § 1983 “to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with ...


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