Rutan v. State Bd. of Risk & Ins. Mgmt., Civil Action No. 5:15-09264

• Decision Date: 27 January 2016
• Docket Number: Civil Action No. 5:15-09264
• Parties: TERRY RUTAN, Plaintiff, v. STATE BOARD OF RISK AND INSURANCE MANAGEMENT, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

TERRY RUTAN, Plaintiff, v. STATE BOARD OF RISK AND INSURANCE MANAGEMENT, et al., Defendants.

Civil Action No. 5:15-09264

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION

January 27, 2016

PROPOSED FINDINGS AND RECOMMENDATION

Pending before the Court is Defendants West Virginia Division of Corrections, Jim Rubenstein, William Vest, Gary Webb, Melinda Frazier, Mary Beth Toler, Irisca Leggett, Danny Aliff, Anthony Butler, and Christopher Petry's Motion to Dismiss (Document No. 3), filed on July 6, 2015. The Court notified Plaintiff pursuant to Roseboro v. Garrison, 528 F.2d 304 (4^th Cir. 1975), that Plaintiff had the right to file a response to Defendants' Motion and submit Affidavit(s) or statements and/or other legal or factual material supporting his claims as they are challenged by Defendants in moving to dismiss. (Document No. 5.) Plaintiff failed to file a Response to Defendants' Motion. Having conducted a thorough examination of the record, the undersigned has determined and hereby respectfully recommends that Defendants' Motion to Dismiss should be granted.

FACTUAL AND PROCEDURAL BACKGROUND

On June 11, 2015, Plaintiff, proceeding pro se and in confinement at St. Mary's Correctional Center, filed his Complaint in the Circuit Court of Raleigh County, West Virginia.¹(Document No. 1-1.) Plaintiff names the following as Defendants: (1) State Board of Risk and Insurance Management; (2) Jim Rubenstein, Commissioner; (3) West Virginia Department of Corrections ["WVDOC"]; (4) William Vest, Warden; (5) Gary Webb, Corrections Officer; (6) Ms. Frazier, Corrections Officer; (7) Ms. Toler, Corrections Officer; (8) Ms. Leggett, Correctional Officer; (9) Mr. Aliff, Correctional Officer; (10) Mr. Butler, Correctional Officer; and (11) Mr. Petry, Correctional Officer. (Id.) Plaintiff alleges that Defendants "violated plaintiff's rights under the Constitution and laws of the United States." (Id., p. 5.) First, Plaintiff complains that he lost his job "working for Building Services out of Beaver, WV, while at Beckley Correction Center." (Id., p. 3.) Plaintiff explains that Defendant Webb instructed Plaintiff to find another job during the period of time that Plaintiff's boss, Gary Slusher, was off work due to medical reasons. (Id.) Plaintiff argues that no one "contacted Mr. Slusher to see what was going on with [his] job" and "they said [Plaintiff] was fired and/or quit [his] job." (Id.) Plaintiff alleges that when Mr. Slusher returned to work, Mr. Slusher stated that Plaintiff still had a job. (Id.) Plaintiff, however, complains that Defendants would not let him return to work for Mr. Slusher. (Id.) Plaintiff states that he attempted to find another work release job, but no one was hiring. (Id.) Plaintiff states that his "boss" told him to file for unemployment, "but they refused to file for it" because "they said [Plaintiff] was not allowed to receive it while at the center." (Id.) Plaintiff, therefore, contends that he was inappropriately removed from the work release program because he did not have a job in the community. (Id.)

Second, Plaintiff states that he "also worked for the Beckley Correctional Center in the kitchen for Aramark Company for 97 days." (Id.) Plaintiff complains that he was not paid for hiswork in the kitchen. (Id.) Third, Plaintiff complains that while he "was laid off from 9/12/2013 to 2/21/2014, the work release center collected rent from [him] of $5.00 per day equaling approximately $850.00." (Id., p. 4.) Fourth, Plaintiff states that when he was transferred to Pruntytown Correctional Center on February 21, 2014, his personal belonging were taken and put in storage by the Beckley Work Release. (Id.) Plaintiff claims that even though he requested that his property be mailed to his sister, his sister never received his personal property. (Id.) Plaintiff, therefore, argues that Defendants "deprived Plaintiff of his property interest of over eight hundred and fifty dollars currency, theft of personal property valued at over two thousand dollars, obtained monies under false pretense, denied a fair wage for work performed, and subjected Plaintiff to an undue hardship in violation of this constitutional rights." (Id.) As relief, Plaintiff requests monetary damages. (Id., p. 5.)

The Docket Sheet indicates that the Clerk of Raleigh County issued Summonses for all Defendants on June 11, 2015. (Document No. 1-7.) Defendants WVDOC, Webb, Frazier, Toler, Aliff, and Leggett were served on June 15, 2015. (Document Nos. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6, and 1-7.) The Summonses for Defendants Butler and Petry were returned un-executed on June 22, 2015. (Document No. 1-7.) On July 2, 2015, Defendants WVDOC, Rubenstein, Vest, Webb, Frazier, Toler, Leggett, Aliff, Butler, and Petry filed their Notice of Removal with this Court. (Document No. 1.)

On July 6, 2015, Defendants WVDOC, Rubenstein, Vest, Webb, Frazier, Toler, Leggett, Aliff, Butler, and Petry filed their Motion to Dismiss and Memorandum in Support. (Document Nos. 3 and 4.) Defendants argue that Plaintiff's Complaint should be dismissed based upon the following: (1) "Individual Defendants Butler and Petry have not been served with process"(Document No. 4, pp. 2 - 5.); (2) "Defendants Rubenstein and Vest have not been served with process" (Id., pp. 5 - 6.); (3) "Plaintiff failed to exhaust his administrative remedies and therefore his claims should be dismissed with prejudice" (Id., pp. 6 - 10.); (4) "Claims for violations of the United States Constitution against the WVDOC and the individual Defendants in their official capacities must be dismissed because these Defendants are not 'persons' under 42 U.S.C. § 1983 against whom a claim may be asserted" (Id., pp. 10 - 11.); (5) "The Defendants are entitled to qualified immunity from suit and should be dismissed" (Id., pp. 11 - 19.); and (6) "Plaintiff cannot assert a claim for punitive damages" (Id., p. 19.).

In support of their Motion, Defendants attach the following Exhibits: (1) A copy of the Summonses issued for Defendants Butler, Petry, and Webb (Document No. 3-1, pp. 1 - 7.); (2) A copy of Plaintiff's "Inmate Request to Staff" dated December 30, 2013 (Id., p. 8.); (3) A copy of a Memorandum to Plaintiff from Case Manager Gary Webb dated December 30, 2013 (Id., pp. 9 - 10.); (4) A copy of a letter addressed to Defendant Rubenstein from Plaintiff dated July 24, 2014 (Id., pp. 11 - 12.); (5) A copy of Plaintiff's "Work Release Employment Agreement" dated September 20, 2012 (Id., p. 13.); (6) A copy of Plaintiff's "W. Va. Division of Corrections Inmate Grievance Form" regarding the collection of rent dated July 11, 2014 (Grievance No. 14-MCD-B-065) (Id., pp. 14 - 15.); (7) A copy of Plaintiff's "W. Va. Division of Corrections Inmate Grievance Form" regarding the collection of rent money and his pay for working in the kitchen dated June 16, 2014 (Id., p. 16.); (8) A copy of Plaintiff's "W. Va. Division of Corrections Inmate Grievance Form" regarding the collection of rent dated July 11, 2014 (Grievance No. 14-MCD-B-066) (Id., p. 17.); and (9) A copy of a blank "W. Va. Division of Corrections Inmate Grievance Form" (Id., pp. 18 - 19.)

Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4^th Cir. 1975), was issued to Plaintiff on July 7, 2015, advising him of the right to file a response to the Defendants' Motion to Dismiss. (Document No. 5.) Plaintiff failed to file a Response to Defendants' Motion to Dismiss.

THE STANDARD

"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, 556 U.S. 662, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 554, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "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." Id. Although factual allegations must be accepted as true for purposes of a motion to dismiss, this principle does not apply to legal conclusions. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Twombly, 550 U.S. at 555, 127 S.Ct. at 1959. 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).

DISCUSSION

1. Service of Process:

When sufficiency of service is raised as a defense under Rule of Civil Procedure12(b)(5), the plaintiff has the burden of establishing that service of process has been effectuated in conformity with Rule 4. See Wolfe v. Green, 660 F.Supp.2d 738, 750 (S.D.W.Va. 2009). When it is evident that a party has failed to accomplish service of process pursuant to Rule 4, dismissal is in order. Federal Rule of Civil Procedure 4(e) states how a party must serve a Summons and Complaint upon an individual within a judicial district of the United States as follows:

(e) Servicing an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual - - other than a minor, an incompetent person, or a person whose waiver has been filed - - may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place

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