United States District Court, S.D. West Virginia, Huntington Division
JEREMY D. BARTRAM, Plaintiff,
WESTERN REGIONAL JAIL AUTHORITY; CAPTAIN ALDRAGE; CAPTAIN SAVILLA; and ANY CO. THAT HAS WORKED IN A5 SECTION, Defendants.
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert, United States Magistrate Judge
November 2018, Plaintiff, Jeremy D. Bartram
("Plaintiff"), proceeding pro se and incarcerated
in the Western Regional Jail in Barboursville, West Virginia,
filed a Complaint pursuant to 42 U.S.C. § 1983. (ECF No.
2). Pending before the Court is Defendants' Motion to
Dismiss Plaintiffs Complaint. (ECF No. 13). This matter is
assigned to the Honorable Robert C. Chambers, United States
District Judge, and by standing order is 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).
reasons that follow, the undersigned RECOMMENDS that
Defendants' Motion to Dismiss, (ECF No. 13), be GRANTED;
that the Complaint, (ECF No. 2), be DISMISSED, with
prejudice; and that this action be removed from the docket of
Relevant Facts and Procedural History
November 3, 2018, 19 prisoners incarcerated in the A-5
segregation unit in the Western Regional Jail filed a
Complaint pursuant to 42 U.S.C. § 1983, alleging the
1. Exposure to Human Waste
“As inmates in A5, we are constantly exposed to human
wast[e], urin[e], fecal matter and the living conditions in
the section are worse than one would find in a dog
pound.” (ECF No. 2 at 5). The “pod smells of
urin[e] and fecal matter, ” and “[w]e constantly
have urin[e] and fecal matter in our section.”
(Id. at 7). “At the beginning of
October” an inmate was allowed to clean his cell and
“over 10 pounds of trash and human waste from his cell
[…] was tossed into our day room where our food [was]
brought in.” (Id.).
2. Exposure to Mold
“Our cells have mold in them.” (Id. at
3. Limited Hygiene Products
“In our section, we might get razors every 2 weeks if
lucky” and “[w]e have had to go without [soap,
toilet paper, ] clean clothing as well as items to clean our
cell[s] and day room.” (Id. at 7).
4. Limited Recreation Opportunities
“We are denied any outside recreation and barely get
out [of] our cells each day.” (Id. at 8).
5. Limited Food and Medical Treatment
“We see neglect from simple things like [people's]
food being eaten by [correctional officers] to refusing them
medical help on a daily basis.” (Id.).
6. Claims Regarding Specific Inmates
“2 inmates in the section (Kenny Hall, Kevin Esque)
[were] required to live in their own filth because they are
mentally ill and don't know how to take care of
themselves.” (Id. at 5-6). In addition,
“[b]oth Kenith Hall and Kevin Esque [were] without
clothing for over 2 weeks, ” and “Kevin Esque
[was] also fed through a bean [hole] covered in fecal matter
and urin[e].” 7, 8). Further, “a[n] inmate by the
name of Jeffrie Turlie … [repeatedly tried] to cause
harm to [himself] 2 or 3 times a week.” (Id.).
(ECF No. 2). The Complaint named as defendants the
“Western Regional Jail Authority, ” Captain
Aldridge, Captain Savilla, and “Any C.O. that has
worked in A5 section, ” and the plaintiffs sought
prospective injunctive relief and monetary damages. (ECF No.
2 at 1, 6, 9). Upon receiving the Complaint, the Court opened
an individual civil action for each plaintiff and docketed
the Complaint in each case. (ECF Nos. 1, 2). The undersigned
granted Plaintiff's application to proceed without
prepayment of fees and costs and ordered service of the
Complaint and summonses on the defendants. (ECF No. 7).
being served with the Complaint, Defendants, the Division of
Corrections and Rehabilitation (“DCR”),
Captain Carl Aldridge, and Captain Samuel Savilla, filed a
Motion to Dismiss the Complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF No. 13). Defendants
contend that any claims against DCR and the individual
defendants in their official capacities should be dismissed
because agencies of the state and agency officials acting in
their official capacities are not “persons”
amenable to suit under § 1983. (ECF No. 14 at 5).
Furthermore, Defendants argue that any claims against them in
their personal capacities should be dismissed for failure to
state a claim upon which relief may be granted because
Plaintiff does not allege a person that caused the
conditions, a time period or duration of the conditions, any
physical injury from the conditions, or any facts
demonstrating an extreme deprivation of Plaintiff's
Eighth Amendment rights. (Id. at 8-13). Captains
Aldridge and Savilla further contend that they are entitled
to qualified immunity because Plaintiff does not allege any
facts or conduct by them that violated any clearly
established statutory or constitutional right of which a
reasonable person would have known. (Id. at 13-15).
undersigned entered an order notifying Plaintiff of the
pending Motion to Dismiss and alerting him that he had the
opportunity to file a response to the motion. (ECF No. 16).
Plaintiff did not file a response. Thereafter, on September
18, 2019, the undersigned entered another order, specifically
identifying the deficiencies in Plaintiff's Complaint
that were raised in the Motion to Dismiss and allowing
Plaintiff the opportunity to amend the Complaint to correct
such deficiencies within 21 days. (ECF No. 25). Plaintiff was
ordered to amend the Complaint as follows:
1. Set forth a specific factual basis upon which the Court
can conclude that Captain Savilla and Captain Aldridge acted
with deliberate indifference to Plaintiff's health and
safety. As for the correctional officers, Plaintiff must
identify specific officers he holds at fault and then state
factually how each such officer violated Plaintiff's
2. Plaintiff must identify the nature of the injury he claims
to have suffered as a result of the defendants' alleged
3. To the extent Plaintiff wishes to pursue prospective,
non-monetary relief, he must describe the policies or
procedures that he deems unconstitutional and name as a
defendant the official who is responsible for enforcement of
the policy or procedure.
(Id. at 5-6). The Court explicitly advised Plaintiff
that his failure to amend the Complaint as ordered would
result in a recommendation that the case be dismissed for
failure to state a claim under § 1983. (Id. at
6). Plaintiff did not amend the Complaint, request an
extension to amend the Complaint, or contact the Court in any
manner regarding this action. The deadline for Plaintiff to
amend his Complaint expired without any response from
Plaintiff. Therefore, the Motion to Dismiss is ripe for
Standard of Review
in this action seek dismissal under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF Nos. 13, 14). A motion
under Rule 12(b)(6) tests the sufficiency of the
Complaint. Bell Atlantic Corp v. Twombly, 550 U.S. 544,
570 (2007) (stating to survive a 12(b)(6) motion, a Complaint
must contain sufficient factual matter, accepted as true, to
‘‘state a claim to relief that is plausible on
its face”). Accordingly, the Court will assume that the
facts alleged in the Complaint are true and will draw all
reasonable inferences in Plaintiff's favor as the
nonmoving party. Burbach Broad. Co. of Delaware v. Elkins
Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). The
purpose of Rule 12(b)(6) “is to test the sufficiency of
a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006). “Furthermore, when
as here, a Rule 12(b)(6) motion is testing the sufficiency of
a civil rights complaint, ‘we must be especially
solicitous of the wrongs alleged' and ‘must not
dismiss the complaint unless it appears to a certainty that
the plaintiff would not be entitled to relief under any legal
theory which might plausibly be suggested by the facts
alleged.'” Edwards v. City of Goldsboro,
178 F.3d 231, 244 (4th Cir. 1999) (quoting Harrison v.
United States Postal Serv., 840 F.2d 1149, 1152 (4th
the Court “take[s] the facts in the light most
favorable to the plaintiff, ... [the Court] need not accept
the legal conclusions drawn from the facts, ” and
“need not accept as true unwarranted inferences,
unreasonable conclusions or arguments.” Giarratano
v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000)). 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.” Twombly, 550 U.S. at 570. A pleading that
“offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not
do” and a Complaint will not “suffice if it
tenders naked assertions devoid of further factual
enhancements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotations and citations omitted).
are required to liberally construe pro se complaints, such as
the Complaint filed herein. Erickson v. Pardus, 551
U.S. 89, 94 (2007). However, even under this less stringent
standard, the Complaint still must contain sufficient factual
allegations to support a valid legal cause of action.
Bass v. E.I. Dupont de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003). 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).
Complaint is filed pursuant to 42 U.S.C. § 1983, which
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.” 42 U.S.C. § 1983.
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 ...