Jessup v. Sandy, 21-cv-00125-JPB

• Decision Date: 02 December 2021
• Docket Number: 21-cv-00125-JPB
• Parties: HUNTER JESSUP, Plaintiff, v. JEFF S. SANDY, personally and in his official capacity as Secretary of West Virginia Department of Military Affairs and Public Safety; BETSY JIVIDEN, personally and in her official capacity as Department of Corrections Commission; JOHN SHEELEY, personally and in his official capacity as Eastern Regional Jail Warden/Superintendent; DONTREWELL E. KELLY, correctional officer, personally and in his official capacity; STEVEN ZITMEYER, correctional officer, personally and in his official capacity; ABRAHAM ARTHUR BEAN, correctional officer, personally and in his official capacity; JOHN MICHAEL ANDERSON, correctional officer, personally and in his official capacity; [FIRST NAME UNKNOWN] COSTELLO, correctional officer, personally and in his official capacity; Defendants.
• Court: U.S. District Court — Northern District of West Virginia

HUNTER JESSUP, Plaintiff,
v.
JEFF S. SANDY, personally and in his official capacity as Secretary of West Virginia Department of Military Affairs and Public Safety; BETSY JIVIDEN, personally and in her official capacity as Department of Corrections Commission; JOHN SHEELEY, personally and in his official capacity as Eastern Regional Jail Warden/Superintendent; DONTREWELL E. KELLY, correctional officer, personally and in his official capacity; STEVEN ZITMEYER, correctional officer, personally and in his official capacity; ABRAHAM ARTHUR BEAN, correctional officer, personally and in his official capacity; JOHN MICHAEL ANDERSON, correctional officer, personally and in his official capacity; [FIRST NAME UNKNOWN] COSTELLO, correctional officer, personally and in his official capacity; Defendants.

No. 21-cv-00125-JPB

United States District Court, N.D. West Virginia, Clarksburg

December 2, 2021

MEMORANDUM OPINION AND ORDER

JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE

Pending before this Court are Defendant Abraham Bean's Motion to Dismiss [Doc. 2], Defendant John Anderson's Motion to Dismiss [Doc. 3], Defendants Dontrewell Kelley and Steven Zentmyer's Motion to Dismiss [Doc. 4], and Administrator Defendants' Motion to Dismiss the Complaint of Plaintiff Jessup [Doc. 5]. All motions have been fully briefed and are ripe for decision.

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Procedural Background

On October 31, 2019, four inmates at the Eastern Regional Jail (“ERJ”) filed suit against the West Virginia Division of Corrections and Rehabilitation and nineteen unnamed correctional officers [3:19-CV-185, Doc. 1]. On December 10, 2019, an amended complaint was filed, adding Hunter Jessup and another inmate as plaintiffs and adding Jeff S. Sandy, Betsy Jividen and John Sheeley (“The Administrator Defendants”) as defendants [3:19-CV-185, Doc. 6]. By Order entered April 14, 2020, the Court dismissed the West Virginia Division of Corrections and Rehabilitation with prejudice, because the Division is not a person subject to suit under 42 U.S.C. § 1983. Additionally, the Court dismissed the amended complaint as having been filed without leave [3:19-CV-185, Doc. 15].

On April 16, 2020, the Court further ordered the Clerk to sever the six plaintiffs' claims into separate complaints. The Order provided that the Clerk was directed to open a new case for Mr. Jessup. [3:19-CV-185, Doc. 28]. The new case was opened and assigned docket number 3:20-CV-168. Subsequently, on October 9, 2020, plaintiff amended his complaint and additionally moved for leave to proceed in forma pauperis [3:20-CV-168, Doc. 8]. On December 3, 2020, Magistrate Judge Trumble filed his Report and Recommendation (“R&R”) recommending that Counts 2, 3, 4, and 6 of the Amended Complaint [3:20-CV-168, Doc. 8] be dismissed without prejudice against all defendants, that defendants Dontrewell E. Kelly, Steven Zitmeyer, and [First Name Unknown] Costello be dismissed without prejudice from Counts 1 and 5 of the Amended Complaint [3:20-CV-168, Doc. 12], On January 12, 2021, the Court dismissed the case on the basis that plaintiff had failed to comply with the November 1, 2020 deadline [3:20-CV-168, Doc. 14]. Plaintiff filed

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a Motion for Relief filed under Rule 60 on April 28, 2021 [3:20-CV-168, Doc. 15], which was denied on the basis as not being filed within a reasonable time. [3:20-CV-168, Doc. 16].

The next day, the plaintiff filed a complaint in the Circuit Court of Berkeley County, West Virginia, that was virtually identical to the Amended Complaint filed in federal court, except for paragraph 20, which was added to include defendant John Anderson [1:21 -CV-125, Doc. 1-2].^[1] The plaintiff's Complaint was served through the West Virginia Secretary of State at various dates in September 2021, and this matter was removed to this Court on September 15, 2021. [Doc. 1 ].^[2]

On September 22, 2021, the pending motions to dismiss were filed.

Legal Standard

To state a claim upon which relief can be granted, the Federal Rules of Civil Procedure “require[ ] only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although a complaint need not assert “detailed factual allegations, ” it must contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). To survive dismissal for failure to state a claim, the complaint must raise a right to relief that is more than speculative. Id. In other words, the complaint must

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contain allegations that are “plausible” on their face, rather than merely “conceivable.” Id. at 555, 570; Giarratano v. Johnson, 521 F.3d 298 (4th Cir. 2008). Therefore, in order for a complaint to survive dismissal for failure to state a claim, the plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass v. EJ. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002)). A “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Thus, a well-pleaded complaint must offer more than “a sheer possibility that a defendant has acted unlawfully” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id.; see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Alleged Facts

Plaintiff asserts the following facts in his amended complaint:

Plaintiff claims that on or about June 26, 2018, plaintiff was instructed by a correctional officer (“CO”) to report to the medical unit to receive medication. While walking to the medical unit, plaintiff was stopped by CO Anderson and ordered to return to where he came from. Plaintiff asserts that when plaintiff explained why he was walking to the medical unit, CO Anderson body slammed plaintiff and radioed for back-up. Fellow COs Bean, Kelly, Zitmeyer, and Costello arrived to assist CO Anderson. Plaintiff claims that after he was handcuffed by the COs, Bean punched plaintiff in the face and another CO sprayed plaintiff with mace. According to...