Smith v. Popish

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

WHEELING

RAYMOND SMITH,

Plaintiff,

Vv. CIVIL ACTION NO. 5:17-CV-129

(BAILEY)

ERIC POPISH and

CITY OF WEIRTON,

Defendants.

MEMORANDUM ORDER AND OPINION GRANTING IN PART AND DENYING IN

PART CITY OF WEIRTON’S MOTION TO DISMISS

On this day, the above-styled action came before this Court for consideration of the

City of Weirton’s Motion to Dismiss [Doc. 4], filed August 14, 2017. The plaintiff did not

respond. For the reasons stated herein, this Court GRANTS IN PART AND DENIES IN

PART the City of Weirton’s Motion to Dismiss [Doe. 4].

BACKGROUND

Plaintiff, Raymond Smith, filed a Complaint in the Circuit Court of Hancock County,

West Virginia, on July 18, 2017 [Doc. 1-3]. The matter arises from plaintiffs contention

that defendani, Eric Popish, a police officer with the City of Weirton Police Department,

utilized excessive force in his interaction with plaintiff on January 10, 2016.

Specifically, plaintiff claims that on January 10, 2016, Officer Popish knocked on the

door of plaintiff's home [Id. at Jf 6-8]. Plaintiff claims Officer Popish “began berating [him]

with profanity to retrieve ‘his’ dog, which was running loose’ [Id. at J 7]. Despite telling

Officer Popish several times that the dog did not belong to him, Officer Popish allegedly

“continued to accuse Plaintiff and continued to escalate the situation” [Id. at J 9]. Plaintiff

then claims that Officer Popish accused plaintiff of “touching” him, followed by Officer

Popish tackling plaintiff, beating him, handcuffing him, and taking him into custody [Id. at

10). Plaintiffs daughter was also taken with plaintiff to the City of Weirton Police

Department [Id. at J 11].

At the police station, plaintiff claims he was seated on a bench and his handcuffs

were removed [{id. at J 12]. Plaintiff then asserts that his daughter began shouting that

Officer Popish was hurting her and asked plaintiff to help, so plaintiff began reaching

toward her [Id. at J 14]. At that point, plaintiff claims Officer Popish “pulled him off the

bench, slammed him to the floor and tazed him four (4) times, although Plaintiff was not

resisting” [Id.].

Plaintiff asserts he was then charged with “Battery on a Police Officer, Obstructing

an Officer, Disorderly Conduct, Dog Running at Large and Destruction of Property greater

than $500” [Id. at 15]. Plaintiff claims the “Destruction of Property charge was because

Defendant, Eric Popish, falsely alleged that Plaintiff had damaged his uniform shirt.

Pictures were taken by a fellow officer with his shirt still on. The pictures show no damage

whatsoever’ [Id. at J 16].

Plaintiff also asserts that “[t]he Defendant, Eric Popish, has prior claims against him

for excessive force and was the subject of a federal investigation for such acts” [Id. at

17]. Finally, plaintiff alleges that “[aJs a result of... Eric Popish['s] actions, Plaintiff . .

. sustained injuries to his face, neck, back and torso, suffered several seizures for six (6)

months after the incident and incurred in excess of Five Thousand ($5,000) Dollars in

medical expense[s]" [Id. at {| 18].

Accordingly, the Complaint alleges four counts against both defendants, Eric Popish

and the City of Weirton, which include (1) Negligence, (Il) Negligence, (II!) Excessive Force,

and (IV) “Civil Rights Violations” [ld. at 9] 19-33]. With regard to defendant City of

Weirton, to which the instant Motion pertains, Count | alleges that the City was "negligent

in not setting and enforcing regulations to require all persons arrested by its police to be

secured while in custody at all time[s]” [Ild. at | 21]. Count Il alleges that the City “was

aware of... Eric Popish|'s] past use of excessive force, but allowed him to continue as a

police officer without providing proper supervision or re-training” [Id. at J 24]. Count Ill

alleges the same as Count Il, and further states that plaintiff “is entitled to punitive

(exemplary) damages from the Defendants" [Id. at J] 27-28]. Finally, Count IV alleges civil

rights violations for malicious prosecution [Id. at [J 30-31].

The action was removed to the United States District Court for the Northern District

of West Virginia based on federal question jurisdiction on August 14, 2017 [Doc. 1].

Defendant, City of Weirton, also filed the instant Motion to Dismiss on August 14, 2017

[Doc. 4]. The Motion contends that the City of Weirton is “immune from any claim involving

Officer Popish's alleged failure to secure plaintiff’ (Count |) under West Virginia Code

Section 29-12A-5(a)(4) [Doc. 5 at 4-5]. The Motion further contends that the City of

Weirton “cannot be liable in connection with any allegations of excessive force committed

by Defendant Eric Popish” (Counts II-III}, again citing West Virginia Code Section 29-12A-

5(a)(4) [Id. at 5-7]. Additionally, the Motion contends the City of Weirton “is entitled to

immunity in connection with the negligence claims that are described in Plaintiff's

Complaint” (Counts I-Il), once again relying on West Virginia Code Section 29-12A-5(a)(4)

(Id. at 7-9]. The Motion further contends that “Section 1983 claims are not viable against

cities” and therefore Count IV should “be dismissed as a matter of law’ [Id. at 2-3].

Additionally, the City argues “Plaintiff's Malicious Prosecution claims should be dismissed

as a matter of law’ (Count IV), relying on West Virginia Code Section 29-12A-5(A)(2).

Finally, the City argues it is “immune from any claim requesting punitive damages”

pursuant to West Virginia Code Section 29-12A-7(a) [Id. at 9-10].

LEGAL STANDARD

In reviewing the sufficiency of a complaint under Federal Rule of Civil Procedure

12(b)(6), a district court must accept the factual allegations in the complaint as true. Zak

v. Chelsea, 780 F.3d 597, 601 (4th Cir. 2015) (citing Matrix Capital Mgmt. Fund, LP v.

Bearing Point, Inc., 576 F.3d 172, 176 (4th Cir. 2009)). While a complaint does not need

detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement

to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do. Belf Ati. Corp. v. Twombly, 550 U.S. 544, 555

(2007). indeed, courts “are not bound to accept as true a legal conclusion couched as a

factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

A complaint must be dismissed if it does not allege “‘enough facts to state a claim

to relief that is plausible on its face.’ Bell Ati. Corp. v. Twombly, 127 S. Ct. 1955, 1974

(2007) (emphasis added).” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

“Aclaim 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, 678 (2009). This requires “more than a sheer possibility

that a defendant has acted unlawfully.” fd. However, when reviewing the sufficiency of a

complaint, a court may also consider “documents incorporated into the complaint by

reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor

issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A court may consider documents

attached to a motion to dismiss when they are “integral to and explicitly relied on in the

complaint and . . . the plaintiffs do not challenge [their] authenticity.” American

Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.

1992). “But in the relatively rare circumstances where facts sufficient to rule on an

affirmative defense are alleged in the complaint, the defense may be reached by a motion

to dismiss filed under Rule 12(bX6),” so long as “all facts necessary to the affirmative

defense ‘clearly appear[] on the face of the complaint.” Goodman v. Praxair, ine., 494

F.3d 458, 464 (4th Cir. 2007) (quoting Richmond, Fredericksburg & Potomac R.R. v.

Forst, 4 F.3d 244, 250 (4th Cir. 1993)).

DISCUSSION

As noted, Count | alleges that the City of Weirton was "negligent in not setting and

enforcing regulations to require all persons arrested by its police to be secured while in

custody at all time[s]” [Doc. 1-3 at J 21]. Count Il alleges that the City “was aware of...

Eric Popish['s] past use of excessive force, but allowed him to continue as a police officer

without providing proper supervision or re-training” [Id. at 24}. Count Ill alleges the same

as Count Il, and further states that plaintiff “is entitled to punitive (exemplary) damages

from the Defendants” [Id. at Jf 27-28}. Finally, Count IV alleges civil rights violations for

malicious prosecution [Id. at J] 30-31]. This Court finds that Count |, Count IV, and any

request for punitive (exemplary) damages should be DISMISSED as to the City of Weirton.

A. Count I

Plaintiff alleges when he was taken to the police station he “had his handcuffs

removed by Defendant, Eric Popish[,] and was seated on a bench” and “[d]espite the

bench being equipped with hardware to which Plaintiff could have been handcuffed, the

Defendant, Eric Popish, failed to do so" [Doc. 1-3 at [J 12-13]. Count | of the Complaint

alleges “[t]he Defendant, City of Weirton, WV, was negligent in not setting and enforcing

regulations to require all persons arrested by its police to be secured while in custody at

all time(s)” [Id. at ] 21]. Thus, plaintiff seemingly alleges that the City of Weirton should

have had a policy requiring police officers to handcuff, or otherwise secure, arrestees to

a bench, or other immovable object, while seated in the police station. It seems the logic

would then follow that, had such policy been in place, Officer Popish would have followed

said policy, which would have prevented plaintiff from “reach[ing] toward” his daughter

when she shouted, and therefore plaintiff would not have been “pulled . . . off the bench,

slammed .. . to the floor and tazed . . . four (4) times” [Id. at {| 14]. Hence, plaintiff is

alleging that the City of Weirton was negligent in not creating and implementing this policy.

Because the City of Weirton is a political subdivision of the State of West Virginia,

the Governmental Tort Claims and Insurance Reform Act, West Virginia Code Sections 29-

12A-1, et seq., that governs the legal immunity of political subdivisions, is implicated in the

lawsuit. Brooks v. City of Weirton, 202 W.Va. 246, 248, 503 S.E.2d 814, 816 (1998).

Section 29-12A-5(a)(4) of the Act states that political subdivisions are immune from liability

if a claim results from “[a]doption or failure to adopt a law, including, but not limited to, any

statute, charter provision, ordinance, resolution, rule, regulation or written policy.” W.Va.

Code § 29-12A-5(a)(4). Plaintiff has asserted a negligence claim against the City of

Weirton for an alleged failure to create a specific “regulation or written policy.” Thus, under

the plain language of the statute, the City of Weirton is statutorily immune from such a

claim, and it therefore must be dismissed as a matter of law. See State ex rel. City of

Bridgeport v. Marks, 233 W.Va. 449, 455, 759 S.E.2d 192, 198 (2014) (‘In this case,

there can be no question that the claims asserted by [plaintiff] emanate from an alleged

failure to adopt ‘regulation or written policy.’ Because the claims at issue fall squarely

within the purview of West Virginia Code § 29-12A-5(a)(4), the City and the Police

Department are entitled to statutory immunity from liability for the claims asserted against

them by [the plaintiff].”).

Accordingly, Count | of the plaintiff's Complaint [Doc. 1-3] is hereby DISMISSED as

to defendant City of Weirton.

B. Count IV

Count IV of the Complaint alleges the City of Weirton violated the plaintiff's civil

rights by “maliciously prosecut{ing] the Plaintiff, Raymond Smith, which criminal charge was

subsequently dismissed” [Doc. 1-3 at J 31]. Thus, while not stated directly, it is presumed

plaintiff asserts this claim pursuant to 42 U.S.C. § 1983.

Defendant, City of Weirton, first argues that “Section 1983 claims are not viable

against cities, and plaintiffs claim against the City of Weirton should therefore be

dismissed as a matter of law’ [Doc. 5 at 2]. The City argues that “claims under Section

1983 are directed at persons. . . the City of Weirton is a city and is not a person. . . [and]

therefore [it is] clear that the City of Weirton is not amenable to a Section 1983 claim” [Id.].

Bluntly, the City is wrong—it is a “person” under the law. While the City is correct

that the Supreme Court of the United States stated in Will v. Michigan Department of

State Police, 491 U.S. 58 (1989), “neither a State nor its officials acting in their official

capacities are ‘persons’ under § 1983," the Court also said “States are protected by the

Eleventh Amendment while municipalities are not.” Wéil/, 491 U.S. at 70. The Court went

on to state that immunity from suit under § 1983 “applies only to State or governmental

entities that are considered ‘arms of the State’ for Eleventh Amendment purposes.” /d.

The City cites several cases in which federal courts have found government entities,

such as state prisons, to be immune from suit under § 1983, but such entities were found

to be “arms of the State” for Eleventh Amendment purposes. Here, plaintiff is not suing

a prison, but the City of Weirton itself. Thus, an “arms of the State” analysis is not

necessary. It is clear that “[t]he bar of the Eleventh Amendment to suit in federal courts

extends to States and state officials in appropriate circumstances, but does not extend to

counties and similar municipal corporations.” Mt. Healthy City Sch. Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977) (citing Lincoin Cty. v. Luning, 133 U.S. 529, 530

(1890); Moor v. County of Alameda, 411 U.S. 693, 717-21 (1973)) (internal citations

omitted). Therefore, because the City of Weirton is a “person” for the purposes of § 1983,

it can be party to a § 1983 action, and thus Count IV will not be dismissed on that ground.

However, malicious prosecution claims have a one year statute of limitations. See

Herbert J. Thomas Mem'| Hosp. Ass'n v. Nutter, 238 W.Va. 375, 390, 795 S.E.2d 530,

545 (2016) (“Numerous torts such as libel, defamation, false arrest, false imprisonment,

and majicious prosecution take the one-year statute of limitations set forth in West Virginia

Code § 55-2-12(c).") (quoting Wilt v. State Auto. Mut. Ins. Co., 203 W.Va. 165, 170, 506

S.E.2d 608, 613-14 (1998); see also Snodgrass v. Sisson's Mobile Home Sales, Inc..,

161 W.Va. 588, 593-95, 244 S.E.2d 321, 325 (1978); Rodgers v. Corp. of Harpers Ferry,

179 W.Va. 637, 640-41, 371 S.E.2d 358, 361-62 (1988). Since the allegedly improper

arrest occurred on January 10, 2016, and this action was filed on July 18, 2017, the

malicious prosecution claim is barred by the applicable statute of limitations.

Accordingly, Count lV of the plaintiffs Complaint [Doc. 1-3] is hereby DISMISSED

as to defendant City of Weirton.

C. Punitive Damages

Plaintiffs Complaint seeks not only general and compensatory damages but also

punitive (exemplary) damages [Doc. 1-3 at 7-8]. Section 29-12A-7(a) of the Governmental

Tort Claims and Insurance Reform Act states “[iJn any civil action involving a political

subdivision or any of its employees as a party defendant, an award of punitive or

exemplary damages against such political subdivision is prohibited.” W.Va. Code § 29-12A-

7(a). The Supreme Court of the United States has also held “that a municipality is immune

from punitive damages under 42 U.S.C. § 1983.” City of Newport v. Fact Concerts, Inc.,

453 U.S. 247, 271 (1981). Thus, itis clear punitive (exemplary) damages are not available

against the City of Weirton. Accordingly, any request for punitive (exemplary) damages

against the City of Weirton is hereby DISMISSED.

D. Counts II-III

Count Il of the Complaint, titled “Negligence, City of Weirton, WV" alleges that the

City of Weirton “was aware of Defendant, Eric Popish['s], past use of excessive force, but

allowed him to continue as a police officer without providing proper supervision or re-

training” [Doc. 1-3 at J 24], and that “as a result of this negligence, Plaintiff, Raymond

Smith, suffered part of his injuries” [Id. at | 25]. Count II! states the exact same language,

but is titled “Defendant, Eric Popish’s Excessive Force” [Id. at J 27]. While it is unclear

exactly what the plaintiff is alleging in these different titled counts with the same language,

this Court believes plaintiff is attempting to assert two negligent supervision and training

claims-the first, Count It, being based in state law, and the second, Count Ill, based on 28

U.S.C. § 1983. The Court will address each of these claims, and the City of Weirton’s

arguments for why dismissal is proper, in turn, beginning with Count [Il-the § 1983 claim.

First, the City of Weirton asserts that “Section 1983 claims are not viable against

cities, and plaintiff's claim against the City of Weirton should therefore be dismissed as a

matter of law’ [Doc. 5 at 2]. As previously discussed, municipalities, such as the City of

Weirton, are subject to suit under § 1983. Therefore, the City’s first argument fails.

Next, the City argues “that liability cannot be solely predicated on a respondeat

superior theory in a Section 1983 action” and that “a supervisor or supervising body, such

as the City, can only be held responsible for the actions of its subordinate, if the

subordinate acted pursuant to an official policy or custom for which the supervising body

is responsible" [Id. at 2-3]. The City argues that “plaintiffs Complaint does not allege that

any employee of the City of Weirton violated plaintiffs rights, pursuant to an ‘official policy

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or custom’ of the City” [Id. at 3]. The City further argues that plaintiff's Complaint “fails to

discuss any policy of the City in any way” and “plaintiffs’ [sic] Complaint does not refer to

any documented or wide-spread pattern of excessive force occurring in Weirton, West

Virginia” [Id.]. Accordingly, the City argues “all claims against the City should be dismissed

as a matter of law’ [Id.].

The City is correct that “a municipality cannot be held liable so/ely because it

employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983

on a respondeat superior theory." Monell v. Department of Soc. Servs. of City of N_Y.,

436 U.S. 658, 691 (1978). However, that does not mean municipalities are immune from

suit under § 1983 for the type of claim plaintiff asserts here. While liability cannot be

“vicariously [imposed] on governing bodies solely on the basis of the existence of an

employer-employee relationship with a tortfeasor,” it can be imposed on a municipality that,

“under color of some official policy, ‘causes’ an employee to violate another's constitutional

rights.” Id. at 692. Stated differently, “a local government may not be sued under § 1983

for an injury inflicted solely by its employees or agents,” but rather “when execution of a

government's policy or custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflicts the injury that the government

as an entity is responsible under § 1983.” fd. at 694. “Locating a ‘policy’ ensures that a

municipality is held liable only for those deprivations resulting from the decisions of its duly

constituted legislative body or of those officials whose acts may fairly be said to be those

of the municipality.” Board of Cty. Comm'rs v. Brown, 520 U.S. 397, 403-04 (1997).

“Similarly, an act performed pursuant to a ‘custom’ that has not been formally approved by

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an appropriate decision maker may fairly subject a municipality to liability on the theory that

the relevant practice is so widespread as to have the force of law.” Id. at 404. However,

it is not enough for a § 1983 plaintiff merely to identify conduct properly

attributable to the municipality. The plaintiff must also demonstrate that,

through its deliberate conduct, the municipality was the “moving force”

behind the injury alleged. That is, a plaintiff must show that the municipal

action was taken with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal action and the

deprivation of federal rights.

Id.

“That a plaintiff has suffered a deprivation of federal rights at the hands of a

municipal employee will not alone permit an inference of municipal culpability and

causation; the plaintiff will simply have shown that the employee acted culpably." /d. at

406-07. Instead, “a plaintiff seeking to establish municipal liability on the theory that a

facially lawful municipal action has led an employee to violate a plaintiffs rights must

demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its

known or obvious consequences. A showing of simple or even heightened negligence will

not suffice.” Id. at 407.

“{D]eliberate indifference’ is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.” /d. at 410.

“A plaintiff must demonstrate that a municipal decision reflects deliberate indifference to

the risk that a violation of a particular constitutional or statutory right will follow the

decision.” Id. at 411.

This “deliberate indifference” standard is undoubtably tough to meet—but not

impossible. In fact, the Supreme Court of the United States has found in the past that an

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“inadequate training” claim (which part of plaintiff's claim here asserts a lack of “proper re-

training”) “could be the basis for § 1983 liability in ‘limited circumstances.” /d. at 407 (citing

City of Canton v. Harris, 489 U.S. 378 (1989)). A municipal decisionmaker's “continued

adherence to an approach that they know or should know has failed to prevent tortious

conduct by employees may establish the conscious disregard for the consequences of their

action—the ‘deliberate indifference’-—necessary to trigger municipal liability." fd. (citing

City of Canton, 489 U.S. at 390, 397 (“It could . . . be that the police, in exercising their

discretion, so often violate constitutional rights that the need for further training must have

been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately

indifferent’ to the need.”) (“[MJunicipal liability for failure to train may be proper where it can

be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional

violations.")).

Here, plaintiffs Complaint alleges “[t]he Defendant, Eric Popish, has prior claims

against him for excessive force and was the subject of a federal investigation for such

acts.” (Doc. 1-3 at J 17]. The Complaint alleges further that “Defendant, City of Weirton,

WV, was aware of Defendant, Eric Popishf's}, past use of excessive force, but allowed him

to continue as a police officer without providing proper supervision or re-training’” [Id. at

WM 24, 27]. This is certainly not enough proof to satisfy the high “deliberate indifference”

standard necessary to find the City of Weirton liable—but this case is not at the stage of

litigation requiring such proof. At the motion to dismiss stage, all that is required is that the

plaintiff assert sufficient facts to make his claim “plausible.” Taking plaintiff's assertions as

true, as this Court is required to do, that Officer Popish has a history of excessive force,

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and that the City of Weirton was aware of this history, the Court finds that plaintiff has

plead sufficient facts to make his claim against the City plausible. It remains to be seen

whether plaintiff will be able to meet the “deliberate indifference” standard necessary to

impose liability, but plaintiffs pleading is sufficient to allow him the opportunity to attempt

to prove his claim under that standard.

Accordingly, as to Count Ill, the City of Weirton's Motion to Dismiss [Doc. 4] is

DENIED.

Turning now to plaintiff's apparent negligent supervision and training claim under

state law (Count I), this Court finds plaintiff has plead sufficient facts to make a claim

against the City of Weirton plausible under this theory of liability. The City argues that

supervision and training of employees falls within the discretionary functions of a

government agency, and therefore the City is entitled to common law “discretionary

governmental functions immunity” [Doc. 5 at 7-9]. This Court disagrees.

The City is correct that “the broad categories of training, supervision, and employee

retention . . . easily fail within the category of ‘discretionary’ government functions.” R.Q.

v. West Virginia Div. of Corrs., No. 13-1223, 2015 WL 1741635, at *4 (W. Va. Apr. 10,

2015) (citing West Virginia Reg’! Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 514,

766 S.E.2d 751, 773 (2014)). Negligent hiring, supervision, and retention claims are not

“per se viable causes of action” against a municipality. fd. However, “to the extent

petitioner can demonstrate that the respective State agencies violated a ‘clearly

established’ right or law with respect to its training, supervision, or retention of . . . [an

employee], the State agency is not entitled to immunity.” fd. (citing A.B., 234 W.Va. at

14

515, 766 S.E.2d at 774).

To prove that a clearly established right has been infringed upon, a plaintiff

must do more than allege that an abstract right has been violated. Instead,

the plaintiff must make a “particularized showing” that a “reasonable official

would understand that what he is doing violated that right” or that “in light of

preexisting law the unlawfulness” of the action was “apparent.”

id. at *5 (citing Anderson v. Creighton, 483 U.S. 635 (1987)).

It is clearly established that a free citizen is protected from the use of excessive

force under the Fourth Amendment, and that a pretrial detainee is protected from the use

of excessive force under the Fourteenth Amendment. However, here, it is a question of

fact as to whether the City, through its alleged negligent supervision and training, infringed

upon that right according to the applicable standard. “A motion to dismiss under Rule

12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests

surrounding the facts, the merits of a claim, or the applicability of defenses." Republican

Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To survive a motion to dismiss,

a complaint need only allege “enough facts to state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 547.

Plaintiffs Complaint alleges “[t]he Defendant, Eric Popish, has prior claims against

him for excessive force and was the subject of a federal investigation for such acts,” [Doc.

1-3 at 17], and that “Defendant, City of Weirton, WV, was aware of Defendant, Eric

Popish['s], past use of excessive force, but allowed him to continue as a police officer

without providing proper supervision or re-training” [Id. at [J] 24, 27]. Taking these

assertions as true, this Court finds plaintiff has alleged sufficient facts by which it is

plausible the City could have infringed upon a clearly established right. That is not to say

15

that these allegations alone would be enough to survive a motion for summary judgment,

but the pleading alleges sufficient facts to survive this present Motion to Dismiss.

Finally, to the extent that Count Il is asserting a claim against the City based on

state vicarious liability law, this claim must also be allowed to proceed. The City first

argues that Officer Popish’s alleged conduct must “be construed as being taken outside

the scope of Officer Popish’s employment,” and because “political subdivisions are immune

from any claim involving one of their employees acting outside the scope of their

employment. . . any vicarious liability claim against the City... must be dismissed” [Doc.

5 at 6]. The City then argues that even “if plaintiffs vague allegations are construed as a

claim that Officer Popish was acting within the scope of his employment, then the City of

Weirton still could not be held vicariously liable in connection with said... claim...

[because] if an employee is immune from a claim, then the employer cannot be vicariously

liable in connection with the claim’ [Id.]. The City argues Officer Popish is immune from

liability under West Virginia Code Section 29-12A-5(b), and “[h]ence, because Officer

Popish is immune with regard to this claim, it is clear that his employer, the City of Weirton,

could not be vicariously liable with regard to the claim” [Id. at 7].

The City is correct that generally employers wil! not be found liable for the conduct

of their employees if the conduct was outside the scope of the agent's employment.

However, Officer Popish’s alleged conduct was not taken clearly outside the scope of his

employment. Additionally, if Officer Popish’s conduct was taken within the scope of his

employment, the City’s claims as to their own immunity are misplaced. Even assuming,

without deciding, that Officer Popish is immune from liability under West Virginia Code

Section 29-12A-5(b) as the City claims, that does not automatically grant the City its own

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immunity. Section 29-12A-5(c) clearly states “[t]he immunity conferred upon an employee

by subsection (b) of this section does not affect or limit any liability of a political subdivision

for an act or omission of the employee.” W.Va. Code § 29-12A-5(c). Hence, Officer

Popish's alleged immunity has no bearing on the immunity of the City itself.

Accordingly, as to Count Il, the City of Weirton’s Motion to Dismiss [Doc. 4] is

DENIED.

CONCLUSION

Accordingly, the City of Weirton’s Motion to Dismiss [Doc. 4] is hereby GRANTED

IN PART AND DENIED IN PART. As such, Counts | and IV of the plaintiff's Complaint

(Doc. 1-3], and any request for punitive (exemplary) damages, are hereby DISMISSED as

to the defendant, City of Weirton.

lt is so ORDERED.

The Clerk is directed to transmit a copy of this Order to all counsel of record herein.

DATED: October 2, 2017.

UNITED STATES DISTRICT JUDGE

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