United States District Court, S.D. West Virginia, Charleston
FARRELL G. KELLY, Plaintiffs,
WEST VIRGINIA REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY; CORRECTIONAL OFFICERS BARRETT; GRAHAM; DILLARD; WOOD; MILLER; CHANNELL; AND JOHN/JANE DOE, Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
is defendant West Virginia Regional Jail Correctional
Facility Authority's (“WVRJCFA”) motion to
dismiss, filed August 21, 2018.
an excessive force case originally brought by the plaintiff,
Farrell G. Kelly (“Kelly”), in the Circuit Court
of Kanawha County, West Virginia. Kelly filed his amended
complaint on April 20, 2018 and the defendants removed on
June 22, 2018.
was a pre-trial detainee at Tygart Valley Regional Jail,
located in Bellington, West Virginia, when he claims the
defendant correctional officers used excessive force against
him. Amended Compl. ¶ 1. The plaintiff was acquitted by
a jury of the offense for which he was being detained on or
around March 31, 2016 and released thereafter. Id.
around March 24, 2016, Kelly claims the defendants told him
to “cuff up, ” and asserts that he complied with
the order. Id. ¶ 13. Once handcuffed, the
defendants allegedly “entered [Kelly's] cell”
and “used excessive force” against him “by,
among other things, slamming [him] into the ground and
hitting and kicking” him. Id. ¶ 14.
According to the plaintiff, he was “kicked in the face
with such force that he chipped/damaged his front
teeth” and “suffered bruising, abrasions, and
injury to his back.” Id. The plaintiff claims
to have posed no “threat to the defendants”
during the course of the alleged events. Id. at
asserts that the defendants' conduct violated West
Virginia C.S.R. 95-1-15.9, which imposes a duty upon
employees to protect inmates from harm and to comply with the
use of force policy adopted by WVRJCFA. Id. ¶
15. In addition, the plaintiff claims the conduct alleged
violated his Fourteenth Amendment right to be free from
excessive force. As a result, Kelly filed this five-count
action consisting of Counts I, II, IV, V, and VI (there is no
Count III). The five counts charge as follows: Count I,
assault and battery; Count II, intentional infliction of
emotional distress/outrageous conduct; Count IV, violation of
42 U.S.C. § 1983; Count V reckless/gross negligence in
supervision/training/hiring; and Count VI, vicarious
liability. Plaintiff asserts Count IV solely against the
individual correctional officers and Count V solely against
WVRJCFA. Counts I and II are asserted against WVRJCFA as well
as the officers and Count VI is a vicarious liability claim
against only WVRJCFA. WVRJCFA seeks dismissal of those claims
made against it.
Rule of Civil Procedure 8(a)(2) requires that a pleader
provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.” Fed.R.Civ.P.
8(a)(2); Erickson v. Pardus, 127 S.Ct. 2197, 2200
(2007). Rule 12(b)(6) correspondingly permits a defendant to
challenge a complaint when it “fail[s] to state a claim
upon which relief can be granted . . . .” Fed.R.Civ.P.
required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled
on other grounds, Twombly, 550 U.S. at 563); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188
(4th Cir. 2007). In order to survive a motion to dismiss,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570); see also Monroe v.
City of Charlottesville, 579 F.3d 380, 386 (4th Cir.
of the Rule 12(b)(6) standard requires that the court
“‘accept as true all of the factual allegations
contained in the complaint . . . .'” Erickson, 127
S.Ct. at 2200 (quoting Twombly, 127 S.Ct. at 1965); see
also South Carolina Dept. Of Health And
Environmental Control v. Commerce and Industry Ins. Co.,
372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v.
Ross, 313 F.3d 184, 192 (4th Cir. 2002)). The court must
also “draw all reasonable . . . inferences from th[e]
facts in the plaintiff's favor . . . .” Edwards
v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
WVRJCFA seeks dismissal of Counts I, II, and VI against it,
all based upon a theory of respondeat superior or vicarious
liability. Second, it claims that Count V, reckless or gross
negligence in supervision, training, and hiring, fails to
state a claim upon which relief can be granted and likewise
should be dismissed.
on the West Virginia Supreme Court of Appeals' decision
in West Virginia Regional Jail and Correctional Authority
v. A.B.,766 S.E.2d 751 ( W.Va. 2014), WVRJCFA claims it
is entitled to qualified immunity and thus cannot be held
vicariously liable for the actions of the defendant