United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert United States Magistrate Judge
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. §
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.
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 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).
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).
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.
Standard of Review
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
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).
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).
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).
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 ...