Johnson v. McCowan
| Citation | 549 F.Supp.3d 469 |
| Decision Date | 19 July 2021 |
| Docket Number | Civil Action No. 7:20cv00582 |
| Parties | Corey E. JOHNSON, Plaintiff, v. (K-9) Officer MCCOWAN, et al., Defendants. |
| Court | United States District Courts. 4th Circuit. United States District Court (Western District of Virginia) |
Ian S. Hoffman, John A. Freedman, Kelly Jo Popkin, Rights Behind Bars, Shira Anderson, Arnold & Porter Kaye Scholer LLP, Washington, DC, Lauren Wulfe, Arnold & Porter Kaye Scholer LLP, Los Angeles, CA, for Plaintiff.
Timothy Edward Davis, Richard Carson Vorhis, Office of the Attorney General, Richmond, VA, for Defendants (K-9) Officer McCowan, Warden Jeffrey Kiser, Canine Sgt. Stanley, Virginia Department of Corrections, Harold Clarke, William Barbetto, David Robinson, K-9 Officer E. Baker, C/O S. Dean, C/O P. Carroll.
Plaintiff Corey Johnson, an inmate at Red Onion State Prison, filed this action against the Virginia Department of Corrections ("VDOC"), five correctional officers at the prison,1 and five VDOC supervisory officials.2 Among other things, Johnson alleges that the correctional officers at Red Onion violated his Eighth Amendment rights by deploying a canine to attack him after he ceased fighting with another inmate and was lying prone on the floor with his arms extended. Johnson asserts that the dog mauled him, lacerating his arm with its teeth. The resulting wound required 21 stitches to close and, according to Johnson, caused permanent nerve damage.
In addition to suing the correctional officers who were present during the attack, Johnson alleges that the other named VDOC officials, including the officers’ supervisors and individuals within VDOC's chain of command who oversee the canine program, violated the Eighth Amendment by failing to train, supervise, and discipline the correctional officers involved and by maintaining inadequate canine policies, training programs, and disciplinary procedures. Johnson also maintains that these supervisors are liable under state law for these shortcomings.
The supervisory Defendants and VDOC filed a motion to dismiss Johnson's Eighth Amendment and state law claims against them, as well as Johnson's specific request that the court issue an injunction to "estop VDOC policies that permit, condone, and ratify canine attacks on prisoners." (ECF No. 19 at 32.) Defendants make several arguments in support of their motion to dismiss, including that Johnson has failed to state Eighth Amendment claims for supervisory liability, and that he lacks standing to seek an injunction related to VDOC's canine policies.
For the reasons explained below, the court rejects both arguments and will deny the motion to dismiss Johnson's supervisory liability claims and claim for injunctive relief. Those claims—and others not subject to the motion to dismiss—will proceed to discovery. The court will, however, grant Defendants’ motion to dismiss all claims against VDOC, as well as certain state-law claims against the supervisory Defendants.
On May 2, 2020, Plaintiff Corey Johnson was an inmate at Red Onion State Prison ("ROSP") in Wise County, Virginia. On that date, Johnson engaged in a fistfight with another inmate, resulting in prison security deploying gas canisters and canine units. Johnson alleges that he ceased fighting with the other inmate after the gas canisters were deployed but before the canine units arrived. Knowing that the incoming canine officers would order him to lie on the ground and in anticipation of their orders, Johnson did so before they arrived. He alleges that he was prostrate on the ground with both arms extended when Canine Officer McCowan released his dog and ordered it to attack Johnson. The dog mauled Johnson as he was lying on the ground, dragging him by the arm. Johnson's complaint states that McCowan stood by while his dog mauled Johnson, even encouraging it as it dragged Johnson, tearing open his arm.
Three other correctional officers witnessed the attack but did not intervene. Johnson alleges that these officers should have known the mauling was excessive and should have taken efforts to stop it. He also alleges that the supervisory Defendants at ROSP and VDOC were aware of a pattern of canine officers using dogs to assault inmates, and failed to properly discipline, train, or supervise those canine officers or promulgate policies that would protect inmates from unjustified dog attacks. To substantiate this allegation, Johnson alleges that every incident involving a canine bite is logged in VDOC Dog Information Governance & Operation (DINGO) System, along with photographs of the injury. He further alleges that Defendants Barbetto and Stanley are notified of every dog-bite incident, and that every DINGO report is conveyed to Defendants Barbetto, Kiser, and Stanley.
Johnson has now brought a series of claims based on the alleged unprovoked dog attack. His seven-count complaint contains: an Eighth Amendment excessive force claim and claims for assault, battery, and intentional infliction of emotional distress against Defendant McCowan; Eighth Amendment deliberate indifference and bystander liability claims against Officers Baker, Dean, Carroll, and an unknown bystander officer; Eighth Amendment failure to train, supervise, or discipline claims against Defendants Kiser, Stanley, Clarke, Robinson, and Barbetto; generic Eighth amendment claims against Defendants VDOC, Clarke, Robinson, and Barbetto; and common-law negligence claims against Defendants Kiser, Stanley, and Barbetto. His complaint seeks a declaratory judgment, money damages, and an injunction to "estop VDOC policies that permit, condone, and ratify canine attacks on prisoners." (ECF No. 19 at 32.)
Defendants now move to dismiss some of Johnson's claims, arguing that: (1) VDOC is not a "person" under section 1983 and is therefore immune from suit under the Eleventh Amendment; (2) Johnson lacks standing to seek injunctive relief; (3) Johnson has not stated a claim for failure to train, supervise, or discipline under section 1983 ; (4) Defendants should be granted qualified immunity with respect to Count V of Johnson's complaint; and (5) Virginia law does not recognize a cause of action for negligent supervision. The court agrees that VDOC is not amenable to suit and that Virginia law does not recognize Johnson's negligence claims. The court will therefore grant the motion to dismiss with respect to Johnson's claims based on Virginia negligence law and all claims against VDOC. On the remainder of Johnson's claims—namely his Eighth Amendment direct liability, bystander liability, and supervisory liability claims—Johnson's complaint makes factual allegations that, taken as true, are sufficient to state a claim for relief.
Motions to dismiss under Rule 12(b)(6) test the legal sufficiency of a complaint. Edwards v. City of Goldsboro , 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the plaintiff's allegations "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. While a complaint does not need "detailed factual allegations," complaints merely offering "labels and conclusions," "naked assertion[s] devoid of ‘further factual enhancement," or "a formulaic recitation of the elements of a cause of action will not do." Id. (alteration in original) (internal quotation marks omitted) (quoting Twombly , 550 U.S. at 555, 557, 127 S.Ct. 1955.)
The court will grant the motion to dismiss on all claims against VDOC because it is immune from suit under the Eleventh Amendment. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend XI. While the text of the amendment only renders states immune from suits by citizens of other states, the Supreme Court has recognized that the protections of sovereign immunity reach beyond the words of the amendment and render states immune from suits by their own citizens as well. See Alden v. Maine , 527 U.S. 706, 727–28, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In essence, the amendment "render[s] States immune from being hauled into federal court by private parties." Wright v. North Carolina , 787 F.3d 256, 261 (4th Cir. 2015).
Section 1983 of Title 42 of the U.S. Code does not abrogate a state's sovereign immunity from suit. Instead, it allows suits against "persons"—generally state officials—for violations of civil liberties. The state itself, including entities that are "arms of the state," are not "persons" under Section 1983 and remain immune from suits like the one Johnson brings here. See Will v. Mich. Dep't of State Police , 491 U.S. 58, 70–71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This sovereign immunity renders VDOC immune from suit as an arm of Virginia. Johnson does not contest this conclusion in his briefing.
The court will also dismiss Johnson's state-law negligent supervision claims because the Supreme Court of Virginia has held that Virginia does not recognize a cause of action for negligent supervision. In A.H. v. Church of God in Christ, Inc. , 297 Va. 604, 831 S.E.2d 460 (2019), that court upheld a circuit court's ruling rejecting a negligent supervision claim, holding that "A.H.’s allegations of negligence, therefore, cannot be predicated upon a stand-alone theory that the church defendants owed her a duty to supervise [their employee]." 831 S.E.2d at 475. In rejecting...
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