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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-6691
THOMAS SHEPPHEARD; TYLER RANDALL; ADAM PERRY, next friend and guardian of Minor child; J. P., on their own behalf and on behalf of all others similarly situated,
Plaintiffs – Appellants,
v.
PATRICK MORRISEY, in his official capacity as Governor of the State of West Virginia; ROB CUNNINGHAM, in his official capacity as the Acting Cabinet Secretary of the West Virginia Department of Homeland Security,
Defendants – Appellees.
Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:23-cv-00530)
Argued: March 18, 2025 Decided: July 9, 2025
Before WILKINSON and RUSHING, Circuit Judges, and Jasmine H. YOON, United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Yoon wrote the opinion, in which Judge Wilkinson and Judge Rushing joined.
ARGUED: Stephen Paul New, STEPHEN NEW & ASSOCIATES, Beckley, West Virginia, for Appellants. Jonathan Zak Ritchie, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia; Natalie C. Schaefer, SHUMAN, USCA4 Appeal: 24-6691 Doc: 54 Filed: 07/09/2025 Pg: 2 of 24
MCCUSKEY SLICER PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Timothy P. Lupardus, LUPARDUS LAW OFFICE, LC, Pineville, West Virginia, for Appellants. Michael B. Hissam, Maureen Gleason, HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for Appellee Patrick Morrisey. Caleb B. David, Kimberly M. Bandy, SHUMAN MCCUSKEY SLICER PLLC, Charleston, West Virginia, for Appellee Rob Cunningham.
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YOON, District Judge:
Plaintiffs-Appellants Thomas Sheppheard, Tyler Randall, and Adam Perry, the next
friend and guardian of minor child, J.P., filed a “Class Action Complaint for Declaratory
and Injunctive Relief” against Defendants-Appellees Governor James C. Justice, Jr. and
Secretary of the West Virginia Department of Homeland Security Mark Sorsaia.1 See J.A.
5, 16–43. Appellants named the Governor and the Secretary in their official capacities.
J.A. 18–19. Appellants, on behalf of all currently incarcerated persons housed in state
prison facilities, jail facilities, and juvenile centers in West Virginia, sought relief under
the Eighth and Fourteenth Amendments. J.A. 16. In particular, they wished “to ensure
that prisons, jails, and juvenile centers in West Virginia promptly alleviate the pervasive
and unconstitutional conditions of overcrowding, understaffing, and deferred
maintenance.” J.A. 17. According to Appellants, those issues amounted to violations of
the federal constitution as the conditions of confinement demonstrate deliberate
indifference. Id.
Appellants challenge the district court’s dismissal of their case based on lack of
standing. As explained below, we affirm the dismissal based on Appellants’ failure to
establish two elements of Article III standing—traceability and redressability.
1 While this appeal was pending and following notice from Appellees, the court substituted Patrick Morrisey for James C. Justice, Jr., and Rob Cunningham for Mark Sorsaia. See Fed. R. App. P. 43(c)(2).
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I.
Appellants each resided in a different type of West Virginia state facility at issue in
the action. J.A. 17–18. Sheppheard was incarcerated at Mt. Olive Correctional Complex—
a prison. J.A. 17. Randall was incarcerated at Southwestern Regional Jail—a jail. Id. And
finally, J.P. was incarcerated at Donald R. Kuhn Juvenile Center—a juvenile detention
center. J.A. 18.
Although Appellants alleged that “[t]he Legislature of West Virginia is empowered
to appropriate . . . funds,” they did not include the state legislature as a party in the suit. Id.
Instead, they named the Governor as a defendant based on his “executive authority and
responsibility for the administration, operation, and control” of all West Virginia
correctional facilities and employees. J.A. 19. Appellants also named the Secretary as a
co-defendant because he is in charge of “providing support, oversight, and guidance to the
West Virginia Division of Corrections and Rehabilitation” (“WVDCR”). J.A. 18.
Appellants contend that they were subjected to inhumane living conditions through
“[o]vercrowding, understaffing, and deferred maintenance,” which “all have an impact on
safety.” J.A. 21. As to overcrowding, Appellants alleged that “[o]vercrowding makes a
facility less safe, secure, and humane than it could be.” J.A. 26. As to understaffing,
Appellants alleged that the Governor previously issued an Executive Order stating that
“any shortage of correctional officers limits the ability to properly supervise the State’s
incarcerated individuals” and that the lack of proper supervision presents a danger to those
in the facility. J.A. 22. Finally, as to deferred maintenance, Appellants alleged that the
facilities were in “serious need of maintenance” and that funding of more than $270 million
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is needed to correct those issues. J.A. 26–27. Appellants added that doors, locks, and door
locking control systems, which are particularly critical items of deferred maintenance,
required $27 million in funding. J.A. 28.
Moreover, Appellants alleged that West Virginia ended fiscal year 2023 with a $1.8
billion budget surplus. J.A. 29. While roughly $1.2 billion of that surplus was
appropriated, none was designated to rectify the allegedly unconstitutional conditions in
at-issue facilities. J.A. 30. Appellants claimed that the Governor and legislature “have yet
to mention to the public a detailed plan for tackling $277 million on deferred maintenance.”
Id.
The complaint asserted three putative classes. The first class consisted of
individuals in prison facilities in West Virginia and Sheppheard was the class
representative. J.A. 31–34. In addition to alleging overcrowding, understaffing, and
deferred maintenance, Sheppheard alleged that he was given inadequate portions of food,
only had access to water that was too hot for showering, did not have regular access to new
toothbrushes or toothpaste, and did not have access to a law library or recreation time. J.A.
34. The second class consisted of individuals in jail facilities in West Virginia and Randall
was the class representative. J.A. 34, 36. Randall claimed that he has observed inmates
sleeping on the ground, has been exposed to mold and rodent feces, and has been given
inadequate portions of food. J.A. 36. The third class consisted of all currently incarcerated
minor individuals in juvenile center facilities in West Virginia and J.P. was the class
representative. J.A. 36–38. He additionally claimed that he was served undercooked food
and did not always have access to hot water. J.A. 39.
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The complaint asserted a single cause of action for a violation of the Appellants’
Eighth Amendment rights under 42 U.S.C. § 1983. J.A. 39–40. The claim alleges that the
Governor and the Secretary have been “deliberately indifferent to the health, safety, and
other basic needs of [Appellants] . . . by having actual knowledge of such conditions and
deliberately taking no action to remedy them in a timely or appropriate manner.” J.A. 39.
Appellants sought declaratory and injunctive relief. They asked the court to:
a) Certify a class . . . of all individuals currently incarcerated at any correctional facility within the state of West Virginia;
b) Declare . . . that Defendants’ actions and/or inactions . . . violate the Eighth and Fourteenth Amendments to the United States Constitution;
c) Enjoin . . . Defendants from engaging in further unconstitutional practices . . . , and compel them to implement and enforce policies, procedures, and practices necessary to ensure the minimal civilized measure of life’s necessities and/or the Constitutional thresholds of confinement are provided to all inmates housed in the states jails, correctional facilities, and juvenile centers;
d) Enjoin . . . Defendants from engaging in further unconstitutional practices . . . , and compel them to make all necessary structural and/or infrastructure repairs, hazard abatements, financial investments, and personnel changes/additions to ensure these constitutional deprivations cease and do not continue in the future;
e) Enjoin and compel . . . Defendants to spend state budget surplus funds (or submit bills, call for a special session, etc.) in order to make all of the necessary deferred maintenance repairs required at all West Virginia correctional facilities in an amount not less than 270 million dollars;
f) Enjoin and compel . . . Defendants to spend state budget surplus funds to hire and pay the requisite number of correctional staff needed to appropriately staff the facilities, not less than 60 million dollars;
g) Enjoin . . . Defendants from engaging in further unconstitutional practices . . . by the least intrusive means to correcting that harm with respect to all inmates housed in a West Virginia prison;
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h) Impose definite time limitations within which the Defendants and the State of West Virginia must comply with the injunction . . . .
J.A. 40–42.
Both the Governor and the Secretary moved to dismiss the complaint. See J.A. 112–
16; J.A. 168–69. While both argued that Appellants lacked standing, they also asserted
additional grounds for dismissal. The Secretary argued that Appellants’ claims were
subject to dismissal based on the Eleventh Amendment, mootness, the failure to exhaust
administrative remedies, improper venue, the failure to state a claim against the Secretary
upon which relief may be granted, the political question doctrine, and the Tenth
Amendment. J.A. 141–65. For the Governor’s part, he also argued that Appellants’ claims
were subject to dismissal because of state sovereign immunity and the failure to state a
claim against the Governor upon which relief may be granted. J.A. 170–188.
On July 2, 2024, the district court granted both the Governor’s and the Secretary’s
motions to dismiss. J.A. 1470. The district court found that Appellants lacked standing
because they could not establish that their injuries were “fairly traceable to either
Defendant’s conduct or that their injuries would be redressed by a favorable decision
against either Defendant.” J.A. 1459. As a result, the district court dismissed the complaint
for lack of standing but did not address any of the alternative grounds for dismissal that the
Governor and the Secretary raised. J.A. 1468.
The district court first found that Appellants lacked standing to pursue their claims
against the Secretary. J.A. 1462–64. While it acknowledged that the Secretary “is charged
with providing support, oversight, and guidance” to the WVDCR, the district court found
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that “general duty does not provide a sufficient ‘causal connection’ between the
[Appellants’] alleged injuries and Secretary Sorsaia’s conduct.” J.A. 1462. The district
court further noted that Appellants’ alleged injuries are due in large part to funding
decisions from the West Virginia legislature, not the Secretary. J.A. 1462–63. According
to the district court, Appellants even acknowledged that legislative action is necessary to
resolve the issues of deferred maintenance and overcrowding in state facilities. J.A. 1463.
Even were there a causal connection between Appellants’ alleged injuries and the
Secretary’s conduct, the district court found that their injuries would not be redressable
through a favorable decision against the Secretary. J.A. 1463–64. It noted that the
Secretary’s “budget authority extends only so far as ‘[f]ormulat[ing] comprehensive
budgets for consideration by the Governor.’” J.A. 1463 (quoting W. Va. Code § 5F-2-
2(a)(7)). While the Secretary maintains authority to enter into agreements and contracts,
“such authority necessarily requires legislative approval.” Id. The district court recognized
that the legislature had vested a different official—the Commissioner of the WVDCR—
“not only with general supervisory authority over the administration” of the facilities at
issue, but also with the authority to establish rules, policies, and regulations governing the
institutions. J.A. 1464. With authority vested to the Commissioner, the district court found
it “speculative, at best, that an order enjoining [the Secretary] from engaging in
unconstitutional practices and compelling him to . . . remedy understaffing and deferred
maintenance would redress the [Appellants’] claimed injuries.” Id.
The district court next found that Appellants lacked standing to sue the Governor
for similar reasons. J.A. 1466. While Appellants pointed to the Governor’s pardon and
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budget powers as evidence of his direct control over the facilities, the district court held
“neither is sufficient” to establish a causal connection between the Governor’s general
executive power and the remedy Appellants seek. J.A. 1466–67. Turning to the
Governor’s pardon power first, the district court found that as a “discretionary” power, the
district court cannot control its exercise. Relying on Ex parte Young, the district court held
that it can only direct affirmative action when an officer refuses or neglects to take some
ministerial action arising from some duty. J.A. 1467 (citing 209 U.S. 123, 158 (1908)).
As a result, the district court concluded that, to the extent Appellants suggest the Governor
could remedy the overcrowding through the discretionary pardon power, it could not order
such relief. Id.
The district court next found Appellants’ reliance on a West Virginia Supreme Court
of Appeals case—State ex rel. Dodrill v. Scott, 352 S.E.2d 741 (W. Va. 1986)—was
misplaced. J.A. 1467–68. The district court noted that in Dodrill, two Executive Orders
issued by the Governor, which attempted to alleviate overcrowding in facilities, were
struck down because they conflicted with West Virginia statutes. J.A. 1467. That meant
that “the Governor’s ‘only permissible course of action’ was to exercise his discretionary
pardon power.” J.A. 1468. So, the district court found that Dodrill did not provide the
court authority to order the Governor to perform such discretionary acts. Id.
The district court closed by noting that Appellants’ complaint itself suggests that
the state legislature and the Commissioner of the WVDCR may be the proper parties. Id.
Because the district court found Appellants lacked standing, it did not address any of the
remaining grounds for dismissal presented by Defendants. Accordingly, the district court
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granted both the Secretary’s and the Governor’s motions to dismiss. J.A. 1468, 1470.
Appellants filed a timely notice of appeal. J.A. 1472.
II.
A.
Before turning to the arguments concerning the Governor and the Secretary, the
court briefly reviews the traceability and redressability requirements of Article III
standing.
1.
The court reviews the legal question of whether Appellants have standing to bring
their claim de novo. South Carolina v. United States, 912 F.3d 720, 726 (4th Cir. 2019).
In making this assessment, the court accepts all allegations in the complaint as true and
construes those allegations “in the light most favorable to the plaintiff[s].” Wikimedia
Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017).
2.
Article III of the U.S. Constitution confines the power of federal courts to adjudicate
“actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon
v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 37 (1976)); see U.S. Const. art III. “A dispute is
not a case or controversy if the plaintiff lacks standing.” John & Jane Parents 1 v.
Montgomery Cnty. Bd. of Educ., 78 F.4th 622, 628 (4th Cir. 2023). The doctrine of
standing “limits the category of litigants empowered to maintain a lawsuit in federal court
to seek redress for a legal wrong” and ensures that federal courts do not exceed their
constitutional authority. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
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Standing doctrine “is built on a single basic idea—the idea of separation of powers.”
Allen v. Wright, 468 U.S. 737, 752 (1984); see also Lujan v. Defs. of Wildlife, 504 U.S.
555, 559–60 (1992) (The “central mechanism of separation of powers depends largely upon
common understanding of what activities are appropriate to legislatures, to executives, and
to courts.”). Accordingly, Article III standing prohibits federal courts from “exercis[ing]
general legal oversight of the Legislative and Executive Branches, or of private entities,”
and prevents federal courts from becoming “roving commission[s] to publicly opine on
every legal question.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423–24 (2021).
To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury
in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528
U.S. 167, 180–81 (2000). This case focuses on the second and third requirements:
traceability and redressability.
The traceability requirement of standing “ensures that it is likely the plaintiff’s
injury was caused by the challenged conduct of the defendant, and not by the independent
actions of third parties not before the court.” Friends for Ferrell Parkway, LLC v. Stasko,
282 F.3d 315, 320 (4th Cir. 2002). Traceability does not require that a defendant’s actions
“be the sole or even immediate cause of [a plaintiff’s] injury.” See Sierra Club v. U.S.
Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018). However, traceability is not met
when an injury results from “the independent action of some third party not before the
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court.” Simon, 426 U.S. at 41–42. When multiple actors are involved, a plaintiff can
establish causation only if the defendant’s conduct had a “determinative or coercive effect
upon the action of someone else.” Bennett v. Spear, 520 U.S. 154, 169 (1997).
The redressability requirement of standing ensures that the court has the power to
grant the plaintiff’s requested relief, and that such relief would remedy the plaintiff’s
injury. Buscemi v. Bell, 964 F.3d 252, 259 (4th Cir. 2020). “An injury is redressable if it
is ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.’” Doe v. Va. Dep’t of State Police, 713 F.3d 745, 755 (4th Cir. 2013) (quoting
Friends of the Earth, Inc., 528 U.S. at 181). An injury is not redressable if the court is
“powerless to provide the very relief” the plaintiff requests. K.C. ex rel. Africa H. v.
Shipman, 716 F.3d 107, 116–17 (4th Cir. 2013).
The burden of establishing standing falls to Appellants. Lujan, 504 U.S. at 561.
Accordingly, at the motion to dismiss stage, Appellants “must clearly . . . allege facts
demonstrating each element” of the standing analysis. Spokeo, 578 U.S. at 338 (internal
quotation marks omitted). The standing inquiry must be evaluated separately as to each
Defendant. Disability Rts. S.C. v. McMaster, 24 F.4th 893, 900 (4th Cir. 2022).
B.
Appellants’ injuries are not traceable to the action of the Governor. Consider the
injuries alleged. Appellants assert that they were injured by living under unsafe and
unsanitary conditions in their facilities due to understaffing, overcrowding, and deferred
maintenance. J.A. 33–34, 36, 38–39. Appellants also complain of specific confinement
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conditions including inadequate or undercooked food, limited access to hot water, law
libraries, toothbrushes and toothpaste, and exposure to mold and rodent feces. J.A. 34, 36,
39.
But Appellants do little to explain how the Governor’s action or inaction caused the
injuries alleged above. That might be because, as Appellants conceded at oral argument,
another official—the Commissioner of WVDCR—actually “carries out the day-to-day
operations” of these facilities. (Oral Arg. Tr. at 3:01–04). Appellants have not clearly
alleged facts that demonstrate that it is the Governor, and not the Commissioner of
WVDCR (or some other official), who caused Appellants’ injuries.2
Appellants raise two arguments resisting this conclusion. First, Appellants assert
that their constitutional deprivations are sufficiently and causally connected to the
Governor under this court’s decision in South Carolina Wildlife Federation v. Limehouse,
549 F.3d 324 (4th Cir. 2008). Op. Br. at 19. They contend that in Limehouse, the court
undertook a “multifactor[] analysis” and determined that the suit was proper against the
Director of the South Carolina Department of Transportation based on a sufficient causal
connection. Id. They urge the court do the same here. Appellants maintain that “Governor
Justice has been deeply involved in the correctional system,” and “has demonstrated that
2 Appellants claim that they decided against including the Commissioner as a Defendant because testimony by a former Commissioner indicated she too has struggled to make meaningful reforms. See Op. Br. at 12 (justifying the Commissioner’s omission as a Defendant because “the law does not require the doing of a useless thing”). In other words, Appellants decided not to add the Commissioner to this lawsuit because they assumed it would have been futile. But there is no futility exception to “the irreducible constitutional minimum of standing.” Lujan, 504 U.S. at 560.
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he has a direct connection” with, and can effectuate future change in, those institutions. Id.
In other words, Appellants ask the court to find some level of causation exists between the
Governor and the challenged conditions, such that traceability is satisfied.
Appellants’ reliance on Limehouse is misplaced. True, in that case, the court did
find that the Director could be sued under Ex parte Young because he had a “special
relation” to compliance with a federal law. 549 F.3d at 333–34. But that “special relation”
existed precisely because the Director did not only have supervisory authority over the
Department. Instead, the Director was responsible for implementing policies, applying for
permits, and overseeing projects directly. See id. The Governor occupies a very different
role. He does not allocate staff, set scheduling shifts, perform or direct maintenance,
supervise the cooking of food or provision of supplies, or determine how showers are run
in the facilities. Accordingly, there does not exist a sufficient causal connection in this
case to establish traceability. Cf. id.
Second, Appellants argue that traceability is satisfied because the Governor was
presented with budget proposals that included increased funding for facilities from officials
like the Commissioner, yet did not act on them. Reply Br. at 1. This argument similarly
fails because, once again, the Governor has no role in maintaining the facilities at issue.
Instead, as Appellants themselves noted in their complaint, the Governor possesses general
oversight duties. See J.A. 18 (“Governor Justice is responsible for submitting a proposed
budget for each fiscal year to the legislature for consideration pursuant to W. Va. Const.
art. VI, § 51, as well as overseeing and carrying out various executive functions including,
inter alia, corrections.” (italics omitted)). That type of “[g]eneral authority to enforce the
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laws of the state is not sufficient to make government officials the proper parties to
litigation challenging the law.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331
(4th Cir. 2001) (quoting Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d
1412, 1416 (6th Cir. 1996)). Moreover, the Governor’s role in the budget process is
limited—he is required to simply propose a budget for legislature approval. The
Governor’s consideration of various proposals to submit to the legislature was not the cause
of Appellants’ injuries.3
Appellants ask the court for an order restricting the Governor from taking certain
actions and forcing him to take others. Because the court is largely “powerless to provide
the very relief” requested, the court finds that Appellants’ injuries are not redressable.
Shipman, 716 F.3d at 117.
In determining whether the court “has the power to grant [the] requested relief,”
Buscemi v. Bell, 964 F.3d 252, 259 (4th Cir. 2020), the court first reviews the relief
requested. Appellants ask the court to enjoin the Governor from engaging in certain
practices within the facilities, as well as to compel him to take certain actions to aid the
facilities and allocate state funds to do so. J.A. 40–42. Appellants, however, have not cited
any provisions of West Virginia law that give the Governor sufficient direct supervisory
3 Appellants briefly counter that because they wish to vindicate their rights under the Eighth Amendment, the typical standing analysis should not apply. See Op. Br. at 13– 14. But they provide no support for how or why this analysis should depart from the traditional analysis of Article III standing.
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authority over the conditions of confinement in the facilities. Nor have Appellants
provided any support for the notion that the Governor may make the type of appropriations
they seek without the legislature’s approval.
As Appellants note in their complaint, West Virginia law requires the Governor to
submit a proposed budget for the next fiscal year. J.A. 18 (citing W. Va. Const. art. VI,
§ 51). But Appellants have not clearly alleged facts to show it is possible for the court to
compel the Governor to actually make the appropriations they wish to see. Nor have they
clearly alleged facts which show that the Governor may implement and enforce policies,
procedures, and practices, or make repairs, personnel changes, and financial investments
for the facilities at issue.
Instead, as alleged in the complaint, it is WVDCR and its relevant officials who are
“vested with executive authority and responsibility for the administration, operation, and
control of all WVDCR facilities and employees of WVDCR facilities.” J.A. 19.
WVDCR’s “duties include establishing, monitoring, and enforcing policy directives and
procedures that ensure constitutional confinement and treatment of all individuals in the
custody of the WVDCR.” Id. (citing W. Va. Code § 15A-3-4; W. Va. Code § 15A-3-12).
The complaint’s citation to West Virginia Code § 15A-3-4 is particularly instructive. That
statute lists nearly two dozen powers and duties of the Commissioner, some of which
appear closely related to the relief Appellants seek. The record reflects that fact as well.
The Commissioner is the final step in the grievance process within West Virginia
correctional facilities, meaning that inmate complaints akin to those Appellants allege are
routinely appealed for the Commissioner’s review. See J.A. 120, 125–26.
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Appellants make three arguments as to why redressability may exist with respect to
the Governor. First, Appellants argue that the Governor’s pardon power supports
redressability as it could be used to alleviate overcrowding. The Constitution of West
Virginia provides that the Governor “shall have power . . . to grant reprieves and pardons
after conviction” provided that he “communicate to the Legislature at each session the
particulars of every . . . reprieve or pardon granted, with his reasons therefor.” W. Va.
Const. Art. VII, § 11. But that power is discretionary and federal courts have no ability to
control an Executive’s decision in this arena. See Conn. Bd. of Pardons v. Dumschat, 452
U.S. 458, 464 (1981) (“[P]ardon and commutation decisions have not traditionally been
the business of courts . . . .”); cf. Yelvington v. Presidential Pardon & Parole Att’ys, 211
F.2d 642, 643–44 (D.C. Cir. 1954) (noting that the pardon power is “expressly vest[ed] in
the President,” and that “[i]t should . . . be free of judicial control”).
As they did before the lower court, Appellants continue to lean on a Supreme Court
of Appeals of West Virginia case, State ex rel. Dodrill v. Scott, to support the proposition
that their injuries are redressable through the pardon power. For support, they point to one
sentence from Dodrill stating, “to bring our overcrowded prisons into constitutional
compliance, the Governor may pardon, parole, transfer, or otherwise make constitutional
accommodations for those convicts already incarcerated.” 352 S.E. 2d 741, 745 (W. Va.
1986). Appellants construe this to mean that the Governor “has the power to release
inmates to bring the correctional system into constitutional compliance.” Op. Br. at 20.
Dodrill, however, is largely a state separation-of-powers case. It does little to show
that Appellants’ injuries are redressable through the pardon power, let alone that a federal 17 USCA4 Appeal: 24-6691 Doc: 54 Filed: 07/09/2025 Pg: 18 of 24
court may order such relief. Dodrill focuses on the conflict between a series of Executive
Orders and West Virginia state statutes. The Governor of West Virginia at the time—Arch
A. Moore, Jr.—implemented Executive Order No. 11-86, directing the Commissioner “to
accept no further inmates into his custody until such time as the Governor and the
Commissioner determined that the conditions at each institution were appropriate and
warranted the acceptance of additional inmates.” Dodrill, 352 S.E.2d at 743. Executive
Order No. 14-86 then superseded 11-86 and directed the Department of Corrections to
accept prisoners to certain facilities on a priority basis. Id. at 743–44. Importantly,
however, Executive Order 14-86 “d[id] not allow the West Virginia Department of
Corrections to accept for custody all inmates duly sentenced to confinement in a state penal
facility” and, in fact, established maximum-capacity limits for prison populations at certain
correctional centers. Id. at 744. But those Executive Orders conflicted with West
Virginia’s statutes that prescribe penalties to be imposed for criminal offenses. Id. Those
statutes, in general, provided that prisoners shall be imprisoned in facilities provided by
the State, and this mandatory language for accepting prisoners conflicted with the effect of
the Executive Orders. Id. at 744–45. With that context, the court concluded the first section
of the opinion with this paragraph:
Our statutory scheme thus not only contemplates, but mandates, a system in which convicts sentenced to the penitentiary are received by the Department of Corrections and incarcerated in a State penal facility. As a result of the current condition of our state prisons, obedience to this statutory scheme leads inexorably to unconstitutional overcrowding. The safety valve on the system, however, is the Governor’s power of reprieve, pardon and parole set forth in W.Va. Const. art. 7, § 11 and W.Va. Code 5–1–16 [1923]. Convicts must be accepted by the State for incarceration; but to bring our overcrowded prisons into constitutional compliance, the Governor may pardon, parole,
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transfer, or otherwise make constitutional accommodations for those convicts already incarcerated. This leads to socially undesirable consequences. Nevertheless, until the legislature either amends the statutory scheme of sentencing and commitment or appropriates the funds necessary to provide constitutional accommodations for all incarcerated convicts, it is the only permissible course of action open to the Governor.
Id. at 745. Dodrill does not discuss a judicial order’s ability to force the Governor’s hand
in making pardon decisions as a possible remedy. Instead, it discusses a non-mandatory
and “permissible course of action open to the Governor.” Id. This language confirms that
the Governor possesses discretionary authority to issue pardons as outlined by the West
Virginia Constitution. But it does not go as far as Appellants suggest. Simply put, courts
cannot force the Governor to issue pardons.
Appellants counter by arguing that the court need not order the Governor to exercise
his discretionary power, but instead order relief generally that “overcrowding be eliminated
leaving the state officials to determine, in their discretion, the methods used.” Op. Br. at
18. In other words, Appellants assert the court should threaten the release of prisoners as
an “available ‘stick’ to encourage the use of [the Governor’s] discretionary powers.” Id.
But nowhere in Appellants’ complaint do they request that the court order, or threaten to
order, the release of prisoners. So, the court will not consider this additional request for
relief.
Second, Appellants argue that the Governor’s ability to control discretionary
funds—like those provided by the federal Coronavirus Aid, Relief, and Economic Security
(“CARES”) Act—means that he could remedy the issues alleged in the complaint. Id. at
23. While the complaint did “not specifically reference the CARES Act,” id., Appellants
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argue that “if $28 million of CARES Act funding was in the Governor’s Discretionary
Fund, then some or all of that money could have been spent on correcting the locks or any
other unconstitutional violation” because the Governor “was free to spend the money as he
wanted,” id. at 24.
Appellants essentially ask the court to force the Governor to spend some of the
money that may or may not be in the “Governor’s Discretionary Fund.” The court cannot
accommodate this request for several reasons. First, the CARES Act is mentioned nowhere
in Appellants’ complaint, which the district court recognized. Second, it remains
speculative how much CARES Act money is in the fund at this time. Finally, Appellants
do not clearly allege facts demonstrating how an order forcing the Governor to spend
CARES Act money in that fund would actually remedy their injuries.
Lastly, Appellants make a series of comparisons to previous cases to support
standing. In one case, Jonathan R. ex rel. Dixon v. Justice, 41 F.4th 316, 320 (4th Cir.
2022), the Governor was named (and remained) in a suit involving West Virginia’s foster
care system. This, according to Appellants, shows that the Governor is a proper party in
the instant case.4 Inversely, Appellants claim that the legislature is most often not a party
to similar actions. Appellants point to an Eastern District of Louisiana case, Jones v.
Gusman, 296 F.R.D. 416, 423, 430 (E.D. La. 2013), where the court approved a consent
4 Recently, however, following remand of the case from this court, the district court dismissed the complaint against the Governor and other West Virginia officials for lack of standing. Jonathan R. v. Morrisey, No. 3:19-CV-00710, 2025 WL 655811, at *1 (S.D.W. Va. Feb. 28, 2025).
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decree involving conditions of confinement in which the state legislature was not a party.
Appellants gesture towards these cases to show that it is permissible to include the
Governor, and exclude the legislature, in their suit.
Critically, however, neither case Appellants cite addressed Article III standing.
Accordingly, they cannot rely on them as authority for the proposition they submit. See
Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011) (“When a potential
jurisdictional defect is neither noted nor discussed in a federal decision, the decision does
not stand for the proposition that no defect existed.”). It does not matter that in some cases
the governor of a state was included in the suit, and in other cases, the legislature was
excluded, if standing was never discussed or analyzed. Accordingly, the court rejects
Appellants’ final argument.
C.
Appellants’ injuries are not traceable to the action of the Secretary. Here, too,
Appellants cannot rely on the Secretary’s general duty to “provid[e] support, oversight,
and guidance” to the WVDCR. J.A. 18. Like the Governor, the Secretary lacks both the
appropriation power and the statutory authority to enact policies and procedures for the
facilities under West Virginia law.
It is clear, then, that Appellants’ injuries are “caused by . . . independent actions of
third parties not before the court.” Friends for Ferrell Parkway, 282 F.3d at 320. Without
appropriation or enforcement power, it is difficult to see how the Secretary could be
causally connected to the Appellants’ injuries. Additionally, because Appellants have not
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clearly alleged facts which show that the Secretary’s actions had a “determinative or
coercive effect upon the action of someone else,” they have failed to sufficiently plead the
causation element. Bennett, 520 U.S. at 169.
Appellants seek injunctive relief against the Secretary in the form of appropriations
and the enactment of policies. But it is clear that the Secretary can provide neither.
For one thing, the Secretary has no role in the appropriations process, beyond
“[f]ormulat[ing] comprehensive budgets for consideration by the Governor.” W. Va. Code
§ 5F-2-2(a)(7). While the Secretary concedes that he maintains the authority to “‘[e]nter
into contracts or agreements requiring the expenditure of public funds and authorize the
expenditure or obligation of public funds as authorized by law,’ such authority necessarily
requires legislative approval.” Resp. Br. at 29 (quoting W. Va. Code § 5F-2-2(a)(8); citing
W. Va. Code § 15A-1-9(e)(1)). Because any action the Secretary takes towards
appropriations necessarily requires legislative approval, Appellants cannot establish
redressability.
For another, it is the Commissioner, not the Secretary, who has authority to enact
policies at facilities. Indeed, the Commissioner not only “[e]xercise[s] general supervision
over the administration of the institutions under the jurisdiction of the division,” but is also
given statutory authority to “[e]stablish rules, policies, and regulations in writing governing
all subdivisions and institutions within the division,” and “[s]upervise the treatment,
custody, and discipline of all inmates and residents and the maintenance of the institutions
and their industries.” W. Va. Code § 15A-3-4(a)(1)), (3), (8)).
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Appellants advance two arguments to the contrary. First, Appellants claim that the
Secretary “has the authority to ‘[p]rovide for workshops, training programs, and other
educational programs . . . necessary to ensure adequate standards of public service in the
department.’” Reply Br. at 5 (quoting W. Va. Code § 15A-1-9(e)(5)). According to
Appellants, the Secretary could put on programming for correctional officers so they
“could be educated on better methods of addressing prison violence.” Id. While
Appellants have identified a statutory duty for the Secretary to provide for workshops,
training programs, and educational programs, none of those was included in the various
relief Appellants requested. See J.A. 40–42.
Second, Appellants point to language in an earlier Executive Order which states that
the Secretary had previously “worked to solve the problem of understaffing in the
correctional system.” Reply Br. at 5. Although a previous Executive Order mentions the
Secretary as having worked to solve the problem of understaffing, that is not enough to
clearly allege facts supporting redressability. That’s because a state official’s general duty
to enforce the laws, even if that official publicly endorses a measure, is not enough to
support standing. See Waste Mgmt. Holdings, Inc., 252 F.3d at 331.
D.
Much of Appellants’ requested relief encourages federal courts to step outside of
their role to intervene in policy making and budget allocations. But that is not something
federal courts may do. In terms of forcing specific policies to be enacted, federal courts
possess “neither the expertise nor the prerogative to make policy judgments” which are
generally entrusted to elected officials “who can be thrown out of office if the people
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disagree with them.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 538 (2012).
And in terms of budget allocations, “[w]hen a federal court orders that money be
appropriated for one program, the effect is often to take funds away from other important
programs.” Horne v. Flores, 557 U.S. 433, 448 (2009).
This court is reminded that “policy disagreements should be addressed to elected
policymakers at the ballot box, not to unelected judges in the courthouse.” John & Jane
Parents 1, 78 F.4th at 626. In this way, Appellants are not without recourse. They may
organize, lobby, and attempt to influence policymakers in West Virginia and raise public
consciousness of these important issues. They may seek to persuade the Governor to
propose a budget with their requested reforms and press the state legislature to enact it.
They may even urge the Commissioner to take specific actions to address their complaints.
But they may not seek redress in federal courts without Article III standing.5
III.
Because Appellants have failed to make sufficient factual allegations to support the
traceability and redressability elements of Article III standing, we affirm the judgment of
the district court.
AFFIRMED
5 Because the court affirms the district court’s dismissal on the basis of standing, it does not address any of the alternative grounds for affirmance asserted by Appellees.