Bragg v. WV Dep't of Corr. & Rehab.

• Decision Date: 21 March 2023
• Docket Number: Civil Action 2:20-00577
• Parties: ROBERT FREDERICK BRAGG, Plaintiff, v. WV DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

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ROBERT FREDERICK BRAGG, Plaintiff, v. WV DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

Civil Action No. 2:20-00577

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

March 21, 2023

PROPOSED FINDINGS AND RECOMMENDATION

Omar J. Aboulhosn United States Magistrate Judge

Pending before the Court is Plaintiff's Motion to Proceed Without Prepayment of Fees and Costs (Document No. 1), filed on September 2, 2020. Having examined Plaintiff's Complaint the undersigned has concluded that Plaintiff fails to state a claim for which relief can be granted in this matter and therefore respectfully recommends that Plaintiff's Motion to Proceed Without Prepayment of Fees and Costs be denied and this matter be dismissed.

FACTUAL BACKGROUND

On September 2, 2020, Plaintiff, acting pro se, filed Motion to Proceed Without Prepayment of Fees and Costs (Document No. 1) and Complaint seeking relief for alleged violations of his constitutional and civil rights pursuant to 42 U.S.C. § 1983 (Document No. 2).^[1]In his Complaint Plaintiff names the following as Defendants: (1) West Virginia Department of Corrections and Rehabilitation (“WVDOC”); (2) Betsy Jividen, Commissioner; and (3) PrimeCare. (Document No. 2.) Plaintiff alleges that Defendants subjected him to unconstitutional conditions of confinement in violation of the Eighth Amendment. (Id.) Plaintiff alleges that he tested positive for COVID in August, 2020. (Id.) Plaintiff complains that he and other inmates were “isolated with no fresh air for over three (3) weeks.” (Id.) Plaintiff further claims that he was “denied meds such as aspirin for major headaches.” (Id.) Finally, Plaintiff complains that his parole hearing was rescheduled due to Plaintiff testing positive for COVID. (Id.) As relief, Plaintiff requests the following (1) “To see the parole board or have [his] parole reinstated;” (2) “Clean air/a chance to go outside;” and (3) “Proper medical care.” (Id.)

STANDARD

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to screen each case in which a plaintiff seeks to proceed in forma pauperis, and must dismiss the case if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Pursuant to 28 U.S.C. § 1915A, a similar screening is conducted where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. This screening is done prior to consideration of an Application to Proceed Without Prepayment of Fees and Costs, and notwithstanding the payment of any filing fee. On screening, the Court must recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous” complaint is one which is based upon an indisputably meritless legal theory. Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A “frivolous” claim lacks “an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id., 490 U.S. at 327-28, 109 S.Ct. at 1833. A complaint, therefore, fails to state a claim upon which relief can be granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. With these standards in mind, the Court will assess Plaintiff's allegations in view of applicable law.

This Court is required to liberally construe pro se documents, holding them to a less stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal construction, however, “does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)). Further, liberal construction does not require the “courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va. Legal Aide Society, Inc., 807 F.3d 619 (4^th Cir. 2015).

DISCUSSION

“[F]ederal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). Title 42 U.S.C. § 1983 provides a remedy for violations of all “rights, privileges, or immunities secured by the Constitution and laws [of the United States].” Thus, Section 1983 provides a “broad remedy for violations of federally protected civil rights.” Monell v. Dep't of Social Services, 436 U.S. 658, 685, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Generally speaking, to state and prevail upon a claim under 42 U.S.C. § 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived him of an alleged right, privilege or immunity protected by the Constitution or laws of the United States.

1. Improper Parties:

As stated above, to state and prevail upon a claim under Section 1983, a Plaintiff must prove that (1) a person acting under color of State law (2) committed an act which deprived him of an alleged right, privilege or immunity protected by the Constitution or laws of the United States. The undersigned finds that the WVDOC is an improper defendant. It is well recognized that a Section 1983 claim must be directed at a “person.” See Preval v. Reno, 203 F.3d 821 (4^thCir. 2000)(unpublished)(finding that the Piedmont Regional Jail is not a “person” under Section 1983). In Will v. Michigan Dept. of State Police, the Supreme Court held that “neither a State nor its officials acting in their official capacities are ‘persons' under § 1983”. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). The holding in Will applies not only to suits against the State, but also to suits against “public entities and political subdivisions” that are an “arm or alter ego” of the State. Maryland Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 260 (4^th Cir. 2005)(citation omitted). It is well recognized that WVDOC is an arm of the State and is not a “person” within the meaning of Section 1983. See Rauch v. West Virginia Division of Corrections, 2014 WL 3732123 (S.D.W.Va. July 25, 2014)(J.

Copenhaver)(WVDOC is not a “person” for purpose of Section 1983); Berry v. Rubenstein, 2008 WL 1899907, * 2 (S.D.W.Va. April 25, 2008)(J. Faber)(“WVDOC is an arm of the state and is therefore immune from suit under the Eleventh Amendment”); also see Lewis v. Western Regional Jail, 2012 WL 3670393, * 5 (S.D.W.Va. July 24, 2012)(finding that the Western Regional Jail was not a “person” subject to suit under Section 1983); Webb v. Parsons, 2011 WL 2076419 (S.D.W.Va. May 6, 2011)(finding that the West Virginia Regional Jail Authority, an agency of the State of West Virginia, is immune from suit under the Eleventh Amendment); Roach v. Burch, 825 F.Supp. 116, 117 (N.D.W.Va. 1993)(stating that the West Virginia Regional Jail Authority is not a “person” under Section 1983). Furthermore, pursuant to the Eleventh Amendment, the power of the federal judiciary does not extend to suits by a citizen against his or her own state. Hans v. Louisiana, 134 U.S. 1, 9, 10 S.Ct. 504, 33 L.Ed. 842 (1980); also see Will, supra, 491 U.S. at 66, 109 S.Ct. at 2309 (Suits against a state or state agencies for monetary damages are barred by the Eleventh Amendment to the United States Constitution); Kinder v. PrimeCare Med., Inc., 2015 WL 1276748, * 2 (S.D.W.Va. March 19, 2015)(dismissing the Western Regional Jail based on Eleventh Amendment grounds). Accordingly, the undersigned finds that the WVDOC must be dismissed because it is not a “person” as required by Section 1983.

2. Exhaustion:

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)(1996), requires that inmates exhaust available administrative remedies prior to filing civil actions though the administrative process may not afford them the relief they might obtain through civil proceedings.^[2] Woodford v Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2382-83, 165 L.Ed.2d 368 (2006); Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)(The Prison Litigation Reform Act's exhaustion requirement applies to all inmate suits about prison life whether they involve general circumstances or particular episodes and whether they allege excessive force or some other wrong.); Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1820,149 L.Ed.2d 958 (2001)(“Under 42 U.S.C. § 1997e(a), an inmate seeking only money damages must complete any...