Jones v. White

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

DAVID JONES,

Plaintiff,

v. Civil Action No. 5:17CV100

(STAMP)

MICHAEL S. WHITE, II, individually

and in his capacity as a representative

of the West Virginia State Police,

COLONEL J.L. CAHILL, in his official

capacity as Superintendent of

the West Virginia State Police,

JAMES W. DAVIS, JR., ESQ., individually

and in his official capacity

as a representative of the

Hancock County Prosecutor’s Office

JACK WOOD, ESQ., individually

and in his official capacity

as a representative of the

Hancock County Prosecutor’s Office

and HANCOCK COUNTY, WEST VIRGINIA,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTIONS TO DISMISS

I. Background

The plaintiff, David Jones, filed a complaint in this Court,

in which he asserts five counts under 42 U.S.C. § 1983 against the

five defendants. The complaint arises out of posts on the

plaintiff’s Facebook page that complain about local law enforcement

officers and were viewed as an online threat made to multiple

public officials. Defendant Michael S. White, II (“Trooper White”)

learned of a Facebook post about several public officials from

another law enforcement officer, and then went to the plaintiff’s

house to ask him about the post. The plaintiff admitted that he

had made the post, and Trooper White then arrested the plaintiff

and charged him with one felony count of making terroristic

threats. The initial charge was based on a Facebook post dated

June 24, 2015. On the date of the preliminary hearing on the

initial charge, the State voluntarily dismissed the initial charge

and instead charged the plaintiff with two felony counts of

retaliation against public officials.

The two new charges were based on two of the plaintiff’s

Facebook posts from the previous year. Trooper White obtained

arrest warrants from the magistrate on the two new charges.

Defendants James W. Davis, Jr., Esq. (“Mr. Davis”) and Jack Wood,

Esq. (“Mr. Wood”), the prosecutor and assistant prosecutor, issued

a subpoena to have the plaintiff’s nephew, an attorney, testify at

the preliminary hearing on the two new charges. The plaintiff’s

nephew had visited the plaintiff in jail along with two other

individuals. At the preliminary hearing on the two new charges,

the magistrate found that there was probable cause to believe the

plaintiff had committed both offenses and bound the case over to

the Circuit Court of Hancock County, West Virginia. The plaintiff

alleges that his bail was set at $200,000.00 for the initial charge

and $50,000.00 for the two new charges. All charges against the

plaintiff were later dismissed.

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Count I of the complaint alleges violations of the First

Amendment of the United States Constitution and Article III, § 7 of

the West Virginia Constitution; Count II alleges violations of the

Fourth Amendment of the United States Constitution and Article III,

§ 6 of the West Virginia Constitution; Count III alleges violations

of the Sixth Amendment to the United States Constitution; Count IV

alleges vindictive prosecution in violation of the Fourteenth

Amendment of the United States Constitution; and Count V alleges

excessive bail in violation of the Eighth Amendment to the United

States Constitution and Article III, § 5 of the West Virginia

Constitution. For relief, the plaintiff seeks a declaratory

judgment that the defendants’ alleged actions were unlawful and

violated his rights, an injunction to prohibit the defendants from

subjecting the plaintiff to the conduct alleged in the complaint in

the future, compensatory damages, and attorneys’ fees and costs.

Defendants Mr. Davis, Mr. Wood, and Hancock County, West

Virginia (“Hancock County”) have filed a motion to dismiss all

counts against them in this matter. Defendants Trooper White and

Colonel J. L. Cahill (“Colonel Cahill”) (collectively, the “State

Police defendants”) have also filed a motion to dismiss with

prejudice all claims against them. Both of the motions to dismiss

are fully briefed and ripe for review. For the following reasons,

both motions to dismiss must be granted.

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II. Applicable Law

In assessing a motion to dismiss for failure to state a claim

under Rule 12(b)(6), a court must accept all well-pled facts

contained in the complaint as true. Nemet Chevrolet, Ltd v.

Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).

However, “legal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement fail to

constitute well-pled facts for Rule 12(b)(6) purposes.” Id.

(citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This

Court also declines to consider “unwarranted inferences,

unreasonable conclusions, or arguments.” Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

The purpose of a motion under Rule 12(b)(6) is to test the

formal sufficiency of the statement of the claim for relief; it is

not a procedure for resolving a contest about the facts or the

merits of the case. 5B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule

12(b)(6) motion also must be distinguished from a motion for

summary judgment under Federal Rule of Civil Procedure 56, which

goes to the merits of the claim and is designed to test whether

there is a genuine issue of material fact. Id. For purposes of

the motion to dismiss, the complaint is construed in the light most

favorable to the party making the claim and essentially the court’s

inquiry is directed to whether the allegations constitute a

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statement of a claim under Federal Rule of Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough

facts to state a claim to relief that is plausible on is face.’”

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial

plausibility is established once the factual content of a complaint

‘allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Nemet Chevrolet,

591 F.3d at 256 (quoting Iqbal, 129 S.Ct. at 1949). Detailed

factual allegations are not required, but the facts alleged must be

sufficient “to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

III. Discussion

A. Mr. Davis, Mr. Wood, and Hancock County’s Motion to Dismiss

This motion to dismiss first argues that the plaintiff has

failed to plead any cognizable claim against Hancock County, and

that the claims against Hancock County should be dismissed as a

matter of law because the plaintiff has not satisfied the federal

pleading standard. Next, the motion argues that all claims against

Mr. Davis and Mr. Wood, who are and were county prosecutors at all

relevant times, must be dismissed due to absolute prosecutorial

immunity. The motion then contends that the defendants are also

entitled to qualified immunity as to all claims. Lastly, the

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motion asserts that monetary damages are not available in regard to

the West Virginia state constitutional claims, and that those

claims are thus moot.

The plaintiff filed a response in opposition to the motion to

dismiss. As a preliminary matter, the plaintiff withdraws his

Sixth and Eighth Amendment claims against the prosecutor

defendants. The plaintiff then argues that his Facebook posts were

protected speech because the posts were nearly a year old, made in

the context of political speech, and do not satisfy the test for

incitement to imminent lawless action under Brandenburg v. Ohio,

395 U.S. 444 (1969), or any criminal statute. The plaintiff

contends that, despite clearly established law protecting the

plaintiff’s speech, the prosecutors conspired to cause him to be

kept in custody with no charges pending and advised Trooper White

of the additional protected speech in other Facebook posts.

Specifically, the plaintiff contends that the motion to

dismiss should be denied because (1) the complaint establishes the

required elements of a § 1983 claim for retaliation in violation of

the First Amendment; (2) the complaint states § 1983 claims for

false arrest and malicious prosecution in violation of the Fourth

Amendment because neither Facebook post constitutes probable cause

for the commission of a crime; (3) the prosecutors are not entitled

to prosecutorial immunity because of well-established law that

prosecutors are not entitled to absolute immunity for

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investigations and other non-prosecutorial functions; (4) the

prosecutors are not entitled to qualified immunity because there

was no evidence that the Facebook posts met the requirements of any

criminal statute, the plaintiff’s First Amendment rights are

clearly established, and the magistrate’s issuance of a warrant did

not insulate them; (5) Hancock County is a proper defendant in this

action because the prosecutors’ action were taken in accordance

with the practices, policies, and procedures of Hancock County; (6)

the complaint states a claim that Hancock County violated the

plaintiff’s Sixth Amendment rights by attempting to interfere with

his right to the counsel of his choice; (7) the complaint states a

claim that Hancock County violated his Eighth Amendment rights by

setting his bail at an unconstitutionally high amount as part of a

pattern, practice, or custom of Hancock County; (8) the complaint

adequately states a claim for injunctive relief against Hancock

County; and (9) the complaint adequately alleges violations of the

West Virginia Constitution.

The defendants filed a reply to the plaintiff’s response in

opposition. In reply, the defendants argue that (1) the

plaintiff’s First Amendment claims must be dismissed because the

defendants are immune from any claim based upon “giving legal

advice” or their alleged involvement in any investigation, and they

cannot be held liable in connection with allegations that the

plaintiff was inappropriately held in jail; (2) the plaintiff’s

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Sixth Amendment claim against Hancock County must be dismissed

because the plaintiff had no constitutional right to be represented

by his nephew, the plaintiff did not sufficiently plead a Sixth

Amendment claim against Hancock County, and the plaintiff’s Sixth

Amendment claim is not viable simply based upon the alleged facts;

(3) the plaintiff’s Eighth Amendment claim against Hancock County

must be dismissed because the plaintiff does not allege any such

wrongdoing on the part of Hancock County; (4) any claim for

injunctive relief is moot and cannot proceed in this case because

the alleged damages do not amount to “irreparable harm” and it is

unclear how any form of injunctive relief could provide a remedy in

connection with the alleged damages; and (5) monetary damages are

not available in connection with the West Virginia constitutional

claims.

1. Hancock County

This Court finds that Hancock County is not a proper defendant

in this action because the plaintiff does not allege that the

prosecutors’ actions were taken in accordance with any specific

practice, policy, or procedure of Hancock County. Under Monell v.

Department of Social Services of City of New York, “[l]ocal

governing bodies . . . can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where . . . the action

that is alleged to be unconstitutional implements or executes a

policy statement, ordinance, regulation, or decision officially

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adopted and promulgated by that body’s officers.” 436 U.S. 658,

690 (1978).

The United States Court of Appeals for the Fourth Circuit has

set forth the following pleading standard for a Monell claim:

To prevail on a Monell claim, [the plaintiff] “must point

to a persistent and widespread practice[] of municipal

officials, the duration and frequency of which indicate

that policymakers (1) had actual or constructive

knowledge of the conduct, and (2) failed to correct it

due to their deliberate indifference.”

Holloman v. Markowski, 661 F. App’x 797, 799 (4th Cir. 2016)

(quoting Owens v. Balt. City State’s Attorney’s Office, 767 F.3d

379, 402 (4th Cir. 2014)).

Here, the plaintiff does not allege any persistent or

widespread practice on the part of Hancock County in connection to

his Sixth Amendment, Eighth Amendment, or any other claim. The

plaintiff also does not allege that Hancock County policymakers had

any actual or constructive knowledge of unconstitutional conduct,

or that the policy makers were deliberately indifferent to any

unconstitutional conduct. Thus, Hancock County cannot be sued

under § 1983, and the plaintiff’s claims against Hancock County

fail under Twombly.

2. Mr. Davis and Mr. Wood

a. First and Fourth Amendment Claims

i. Prosecutorial Immunity

This Court finds that Mr. Davis and Mr. Wood are entitled to

prosecutorial immunity as to the First and Fourth Amendment claims

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against them. “In initiating a prosecution and in presenting the

State’s case, the prosecutor is immune from a civil suit for

damages under [§] 1983.” Imbler v. Pachtman, 424 U.S. 409, 431

(1976). The United States Court of Appeals for the Fourth Circuit

has recently described prosecutorial immunity as follows:

Absolute immunity protects “the vigorous and fearless

performance of the prosecutor’s duty” that is so

essential to a fair, impartial criminal justice system.

Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S.Ct. 984,

47 L.Ed.2d 128 (1976). As representatives of the people,

prosecutors have a responsibility to enforce the laws

evenhandedly and to exercise independent judgment in

seeking justice. See id. at 423-24, 96 S.Ct. 984. “The

public trust of the prosecutor’s office would suffer if

he were constrained in making every decision by the

consequences in terms of his own potential liability in

a suit for damages.” Id. at 424-25, 96 S.Ct. 984. No

matter how conscientious a prosecutor may be, “a

defendant often will transform his resentment at being

prosecuted into the ascription of improper and malicious

actions to the State’s advocate.” Id. at 425, 96 S.Ct.

984. Without immunity from suit, this threat of

retaliatory litigation would predispose prosecutors to

bring charges based not on merit but on the social or

political capital of prospective defendants. See id. at

438, 96 S.Ct. 984 (White, J., concurring) (“[T]he fear of

being harassed by a vexatious suit, for acting according

to their consciences would always be greater where

powerful men are involved.” (internal quotation marks

omitted)).

The protection that absolute immunity affords “is not

grounded in any special ‘esteem for those who perform

[prosecutorial] functions, and certainly not from a

desire to shield abuses of office.’” Kalina v. Fletcher,

522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)

(quoting Malley v. Briggs, 475 U.S. 335, 342, 106 S.Ct.

1092, 89 L.Ed.2d 271 (1986)). Rather, it stems from

courts’ recognition that “any lesser degree of immunity

could impair the judicial process itself.” Id. (quoting

Malley, 475 U.S. at 342, 106 S.Ct. 1092).

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Because absolute immunity safeguards the process, not the

person, it extends only to actions “intimately associated

with the judicial phase of the criminal process.”

Imbler, 424 U.S. at 430-31, 96 S.Ct. 984. All other

actions are entitled only to qualified immunity. Buckley

v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125

L.Ed.2d 209 (1993). To determine whether a particular

act is “intimately associated with the judicial phase,”

Imbler, 424 U.S. at 430, 96 S.Ct. 984, we employ a

functional approach. We look to “the nature of the

function performed,” without regard to “the identity of

the actor who performed it,” “the harm that the conduct

may have caused,” or even “the question whether it was

lawful.” Buckley, 509 U.S. at 269, 271, 113 S.Ct. 2606

(internal quotation marks and citation omitted). The

official claiming absolute immunity “bears the burden of

showing that such immunity is justified for [each]

function in question.” Burns v. Reed, 500 U.S. 478, 486,

111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

Nero v. Mosby, No. 17-1166, 2018 WL 2090902, at *4-5 (4th Cir. May

7, 2018).

Here, the plaintiff’s allegations are based on Mr. Davis and

Mr. Wood’s actions as prosecutors and, thus, “fall squarely under

the umbrella of absolute immunity.” Id. at *5. Thus, Mr. Davis

and Mr. Wood would be absolutely immune from this civil action even

if they acted maliciously or improperly in prosecuting the

plaintiff. Accordingly, this Court finds that the plaintiff’s

claims against Mr. Davis and Mr. Wood cannot proceed.

This Court notes that the plaintiff has raised several

arguments for the first time in his response. First, the plaintiff

argues in his response that his First Amendment claims against the

prosecutors should not be dismissed because the prosecutors

provided legal advice to the State Police defendants. However, the

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plaintiff did not allege in his complaint that the prosecutors

provided legal advice, and, thus, this Court cannot consider the

argument in ruling on the motion to dismiss. Second, the plaintiff

argues in his response that his claims are based upon the

prosecutors’ involvement in the investigation of his charges. The

plaintiff also did not allege in his complaint that the prosecutors

were involved in the investigation. Thus, that argument also

fails.

Additionally, the plaintiff argues in his response that his

claims should not be dismissed because they are based on the

prosecutors holding him in jail for “hours” while new complaints

against him were being prepared. This Court finds that this claim

must be dismissed because it was not unconstitutional to hold the

plaintiff in jail for several hours while the complaint was being

prepared. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53-54

(1991) (“[T]he Fourth Amendment does not compel an immediate

determination of probable cause upon completing the administrative

steps incident to arrest.”); Lund v. Hennepin Cty., 427 F.3d 1123,

1127 (8th Cir. 2005) (finding no due process violation where “the

County’s outprocessing procedures delayed [the plaintiff’s] release

for twelve hours with the knowledge of the County and its

officials”).

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ii. Qualified Immunity

Even if Mr. Davis and Mr. Wood were not entitled to

prosecutorial immunity, they would still be entitled to qualified

immunity. “Government officials performing discretionary functions

are entitled to qualified immunity from liability for civil damages

to the extent that ‘their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” Winfield v. Bass, 106 F.3d

525, 530 (4th Cir. 1997) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). In reviewing a qualified immunity defense, this

Court must identify the specific right that the plaintiff asserts

was infringed by the challenged conduct, recognizing that the right

must be defined at the appropriate level of particularity. Taylor

v. Waters, 81 F.3d 429, 433 (4th Cir. 1996). This Court must then

consider “whether, at the time of the claimed violation, this right

was clearly established and ‘whether a reasonable person in the

official’s position would have known that his conduct would violate

that right.’” Winfield, 106 F.3d at 530 (internal quotations

omitted).

Here, the plaintiff has not alleged that Mr. Davis and Mr.

Wood clearly violated the law when they prosecuted the plaintiff

for violations of West Virginia Code § 61-5-27(c)(1). Section

61-5-27(c)(1) provides that it is illegal for individuals to cause

or threaten to cause harm to public officials in retaliation for

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the public official’s performance or nonperformance of an official

duty. This Court finds that the plaintiff’s Facebook posts

establish probable cause that the plaintiff violated

§ 61-5-27(c)(1).

The July 7, 2014 Facebook post includes a link to an article

about Judge Martin J. Gaughan’s work with teenage drug addicts.

Above the link, the plaintiff writes in the post that “Hancock

County Judge Martin J. Gaughan feels sympathetic to heroin users”

and urges “heroin users” to go to Judge Gaughan’s home, “take what

you want, trash the place and terrorize HIS family.” That post

also urges the “heroin users” to not “forget the nasty New

Cumberland mayor on Ridge Ave who hides behind her home security

system.” ECF No. 1-5. The August 24, 2014 Facebook post provides

a link to an article about Representative Randy Swartzmiller’s

involvement with the State Dangerous Wild Animals Board. Along

with the link to the article, the plaintiff includes in the post

Representative Swartzmiller’s home address and instructions to

“criminals and crackheads” to go to the home and “do everything you

have done to terrorize other citizens of Hancock County. Help

yourself to his stuff . . . . Camp out in woods and stay as long

as you like.” ECF No. 1-7.

After reviewing both of these posts, this Court finds that the

plaintiff did, in violation of the West Virginia statute, express

dissatisfaction with public officials and then threaten to harm

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those public officials. Thus, the defendant prosecutors properly

prosecuted the plaintiff for violating the statute. The plaintiff

does not allege any facts that might show that Mr. Davis and Mr.

Wood violated clearly established statutory or constitutional

rights in prosecuting the plaintiff under the statute. Instead,

the facts show that Mr. Davis and Mr. Wood had probable cause to

believe that the plaintiff violated the statute. Accordingly, Mr.

Davis and Mr. Wood are entitled to qualified immunity.

c. Inflammatory Statements

The plaintiff has alleged that Mr. Davis and Mr. Wood made

inflammatory statements to the press. Specifically, the plaintiff

alleges prosecutors made inflammatory statements in a certain

newspaper article in which the prosecutors were asked to comment on

the charges filed against the plaintiff. The article in question

states:

Neither Wood nor Hancock County Prosecutor Jim Davis

would elaborate on why the terrorist threat charges were

dropped.

“It’s just that the ones we’re pursuing are much more

specific and are very appropriate,” Davis said. “It’s

just a better way to go.”

Davis said the case is not so much about free speech than

about the proper use of free speech.

“People have free speech, but you can’t yell ‘fire’ in a

crowded theater . . . You have to be responsible about

it,” he said.

ECF No. 1-11. This Court finds that none of the prosecutors’

statements in the article can be characterized as inflammatory.

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The statements are simply a generic report to the press about the

nature of the charges filed against the plaintiff. Thus, the

plaintiff’s inflammatory statements claim fails under Twombly and

must be dismissed.

d. Sixth Amendment Claim

The plaintiff has withdrawn his Sixth Amendment claim as to

Mr. Wood and Mr. Davis, but maintains it as to Hancock County. For

the reasons discussed previously, Hancock County is not a proper

defendant in this case and all claims against it must be dismissed,

including the Sixth Amendment claim. Even if Hancock County were

not dismissed from the case and the plaintiff had not withdrawn the

claim against Mr. Davis and Mr. Wood, the claim would still fail as

to all three defendants on the merits.

In his Sixth Amendment claim, the plaintiff alleges that the

defendants violated his constitutional right to counsel by

subpoenaing his nephew, Jerry Krzys, who is an attorney. Jerry

Krzys had visited the plaintiff in jail while he was being held on

the two felony counts of retaliation under West Virginia Code

§ 61-5-27. However, at the time the subpoena was issued, attorney

Philip Sbrolla, not Jerry Krzys, was the plaintiff’s attorney of

record. Furthermore, Jerry Krzys was not licensed to practice law

in the state of West Virginia at the time the subpoena was issued.

Thus, any conversation that Jerry Krzys had with the plaintiff at

the jail was not protected by attorney-client privilege, and the

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plaintiff’s Sixth Amendment right to counsel was not violated by

the subpoena.

e. Eighth Amendment Claim

In his Eighth Amendment claim, the plaintiff alleges that the

defendants conspired to set his bail at an unconstitutionally high

amount in violation of the Eighth Amendment. However, Mr. Wood and

Mr. Davis are prosecutors and, thus, do not set bail. Rather, the

presiding judge set the plaintiff’s bail. See W. Va. Code

§ 62-1C-3 (“The amount of bail shall be fixed by the court or

justice with consideration given to the seriousness of the offense

charged, the previous criminal record of the defendant, his

financial ability, and the probability of his appearance.”).

Accordingly, this Eighth Amendment conspiracy claim against the

prosecutor defendants fails under Twombly.

f. Monetary Damages

The plaintiff has requested monetary damages in connection

with his West Virginia state constitutional claims. However, the

West Virginia Constitution does not contain any provision allowing

for monetary damages as a result of alleged state constitutional

violations. See Smoot v. Green, No. 2:13-10148, 2013 WL 5918753,

at *4 (S.D. W. Va. Nov. 1, 2013) (“[The defendants] assert that

Article III of the West Virginia Constitution does not give ruse to

claims for money damages against them. They are correct.”). Thus,

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the plaintiff’s claim for monetary damages in connection with the

alleged state constitutional violations fails under Twombly.

g. Injunctive Relief

The plaintiff has also requested an order enjoining the

defendants from “subjecting [the plaintiff] to the conditions set

forth in the Complaint.” ECF No. 1 at 15. This Court first notes

that

[t]he United States Supreme Court has ruled that

“[n]either a state nor its officials acting in their

official capacities are persons under Section 1983.”

Will v. Michigan Department of State Police, 491 U.S. 58,

71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Litigants are

not provided a forum by Section 1983 when they seek a

remedy against a state for alleged deprivation of civil

liberties.

Orum v. Haines, 68 F. Supp. 2d 726, 730 (N.D. W. Va. 1999).

“[C]laims for back pay, monetary damages, and retrospective

declaratory relief are barred by the Eleventh Amendment . . . .

However . . . the Eleventh Amendment does not prohibit a suit in

federal court to enjoin prospectively a state official from

violating federal law.” Meiners v. Univ. of Kansas, 359 F.3d 1222,

1232 (10th Cir. 2004) (citing Ex parte Young, 209 U.S. 123, 159–60

(1908)).

As to the claim against the prosecutor defendants for

prospective injunctive relief, the Fourth Circuit has stated:

Where a § 1983 plaintiff also seeks injunctive relief, it

will not be granted absent the plaintiff’s showing that

there is a “real or immediate threat that [he] will be

wronged again . . . in a similar way.” Simmons [v. Poe],

47 F.3d [1370,] 1382 [4th Cir. 1995] (quoting City of Los

18

Angeles v. Lyons, 461 U.S. 95, 111 . . . (1983)). Even

assuming [the plaintiff] could make out a violation of

his constitutional rights, “past wrongs do not in

themselves amount to that real and immediate threat of

injury.” Simmons, 47 F.3d at 1382 (quoting Lyons, 461

U.S. at 103 . . .).

Raub v. Campbell, 785 F.3d 876, 885–86 (4th Cir. 2015).

Here, this Court finds that the plaintiff has not shown any

real or immediate threat that he will be wronged again in a similar

way absent injunctive relief. Even assuming the prosecutor

defendants had violated the plaintiff’s constitutional rights, the

past violation would not amount to a real and immediate threat of

further constitutional violations. Thus, the plaintiff’s

allegation that he will be similarly injured in the immediate

future is merely speculative and does not entitle him to injunctive

relief.

B. State Police Defendants’ Motion to Dismiss

In their motion to dismiss, the State Police defendants argue

that the plaintiff pleads no facts that show that he has a

plausible claim to relief against them under the Sixth and Eighth

Amendments. Additionally, the State Police defendants argue that

Trooper White is entitled to qualified immunity from the

plaintiff’s claims against him under the First and Fourth

Amendments because he had at least arguable probable cause to

arrest the plaintiff. Lastly, the State Police defendants contend

that the official capacity claims against them fail as a matter of

law because the plaintiff cannot seek monetary damages or

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retrospective declaratory relief against government officials sued

in their official capacities, and he has pled no facts to show that

there is an imminent threat of future harm to him that would

warrant prospective injunctive relief.

The plaintiff filed a response in opposition to the motion to

dismiss. As a preliminary matter, the plaintiff withdraws his

Sixth and Eighth Amendment claims, but not his West Virginia

constitutional claims, against Trooper White in his individual

capacity. The plaintiff states that, with respect to those claims,

he seeks only injunctive relief against the State Police defendants

in their official capacities for their federal constitutional

violations. The plaintiff then argues that Trooper White ignored

fundamental First Amendment principles by arresting the plaintiff

without a warrant for allegedly making a conditional threat in a

political Facebook post. Next, the plaintiff argues that, after it

was determined that the complaint would be dismissed, Trooper White

looked for additional protected speech to retaliate against the

plaintiff and conspired to keep the plaintiff in custody when no

charges were pending. The plaintiff further contends that the

State Police defendants fail to offer a single case supporting the

conclusion that any of the speech at issue is unprotected or that

the plaintiff could be twice arrested and incarcerated for engaging

in protected speech.

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Specifically, the plaintiff contends that the motion to

dismiss should be denied because (1) the complaint establishes the

required elements of a § 1983 claim for retaliation in violation of

the First Amendment; (2) the complaint states § 1983 claims for

false arrest and malicious prosecution in violation of the Fourth

Amendment because neither Facebook post constitutes probable cause

for the commission of a crime; (3) Trooper White is not entitled to

qualified immunity because there was no evidence that the Facebook

posts met the requirements of any criminal statute, the plaintiff’s

First Amendment rights are clearly established, and the

magistrate’s issuance of a warrant did not insulate him; (4) the

complaint states a claim that the State Police defendants violated

the plaintiff’s Sixth Amendment rights by attempting to interfere

with his right to the counsel of his choice; (5) the complaint

states a claim that the plaintiff’s Eighth Amendment rights were

violated because his bail was set at an unconstitutionally high

amount as part of a pattern, practice, or custom of the State

Police; (6) the complaint adequately states a claim for injunctive

relief against the State Police defendants; and (7) the West

Virginia Constitution allows for monetary damages.

The State Police defendants filed a reply to the plaintiff’s

response in opposition. In reply, the State Police defendants

argue that (1) the plaintiff does not allege any facts to overcome

Trooper White’s qualified immunity from his claims under the First

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and Fourth Amendments; (2) the plaintiff does not allege any facts

to state a claim under the Sixth or Eighth Amendments against them;

(3) the plaintiff does not allege any facts that would entitle him

to injunctive relief; and (4) the plaintiff does not allege any

claims under the West Virginia Constitution.

1. First and Fourth Amendment Claims

a. Qualified Immunity

Like the prosecutor defendants, the State Police defendants

are entitled to qualified immunity from the plaintiff’s First and

Fourth Amendment claims against them. The plaintiff alleges that

the State Police defendants violated his First Amendment rights by

arresting him in retaliation for engaging in constitutionally-

protected speech. The plaintiff alleges that the State Police

defendants violated his Fourth Amendment rights because he was

arrested without a warrant or exigent circumstances.

The Fourth Circuit has stated:

Qualified immunity protects [police] officers who commit

constitutional violations but who, in light of clearly

established law, could reasonably believe that their

actions were lawful. Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). When evaluating whether a

right was clearly established at the time of a violation,

courts do not ask whether the right allegedly violated

was established “as a broad general proposition” but

whether “it would be clear to a reasonable official that

his conduct was unlawful in the situation he confronted.”

Raub v. Campbell, 785 F.3d 876, 882 (4th Cir. 2015)

(quoting Saucier v. Katz, 533 U.S. 194, 201–202, 121

S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

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Pegg v. Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017).

“[Q]ualified immunity protects law officers from ‘bad guesses in

gray areas,’ and it ensures that they may be held personally liable

only ‘for transgressing bright lines.’” Gomez v. Atkins, 296 F.3d

253, 261 (4th Cir. 2002) (quoting Maciariello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992)).

Here, the State Police defendants are entitled to qualified

immunity because they had probable cause to support the arrest of

the plaintiff and, thus, reasonably believed that their actions

were lawful. See Pegg, 845 F.3d at 119 (finding that the police

officers were entitled to qualified immunity where probable cause

existed for the arrest). West Virginia’s terroristic threat

statute makes it a felony to “knowingly and willfully threaten[] to

commit a terrorist act, with or without the intent to commit the

act.” W. Va. Code § 61-6-24(b). The plaintiff admitted to Trooper

White that he made a Facebook post threatening to “hunt [four

police officers] down and put a bullet in their head” because he

was “sick of the corruption.” ECF No. 1-1, 1-2. Under the West

Virginia statute, a terroristic act includes an act “[l]ikely to

result in serious bodily injury or damage to property or the

environment” and intended to “[r]etaliate against a branch or level

of government for a policy or conduct of the government.”

§ 61-6-24(a)(3)(B)(iv).

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Furthermore, the First Amendment does not protect true

threats, even if the threat is conditional in nature. See United

States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009) (“Statements

constitute a ‘true threat’ if ‘an ordinary reasonable recipient who

is familiar with the[ir] context . . . would interpret [those

statements] as a threat of injury.’” (quoting United States v.

Roberts, 915 F.2d 889, 891 (4th Cir. 1990))); Virginia v. Black,

538 U.S. 343, 359 (2003) (“[T]he First Amendment also permits a

State to ban a ‘true threat.’” (citing Watts v. United States, 394

U.S. 705, 708 (1969))).

Based on the plaintiff’s admission regarding the Facebook

post, this Court finds that the State Police defendants had

probable cause to believe the plaintiff had violated the West

Virginia terroristic threat statute. Because the State Police

defendants had probable cause for the arrest, they are entitled to

qualified immunity from the plaintiff’s First and Fourth Amendment

claims against them.

2. Sixth and Eighth Amendment Claims

Also like with the prosecutor defendants, this Court finds

that the plaintiffs’ Sixth and Eighth Amendment claims against the

State Police defendants fail under Twombly. In his Sixth Amendment

claim, the plaintiff alleges that the prosecutor defendants issued

the subpoena to Jerry Krzys, his nephew who visited him in jail.

The plaintiff does not mention in his complaint how the State

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Police defendants are involved in the alleged Sixth Amendment

violation. Even so, Jerry Krzys was not licensed to practice law

in the state of West Virginia at the time the subpoena was issued,

and, thus, the plaintiff’s Sixth Amendment right to counsel was not

violated by the subpoena.

In his Eighth Amendment claim, the plaintiff alleges that his

bail was set at an unreasonably high amount. However, the

plaintiff also does not allege any facts to how the State Police

defendants are were involved in setting the plaintiff’s bail. Even

if the plaintiff had alleged that the State Police defendants were

involved, police officers do not have the authority to set bail.

Rather, judges set bail. W. Va. Code § 62-1C-3. Thus, the

plaintiff’s Eighth Amendment claim against the State Police

defendants also fails.

3. Monetary Damages

As is discussed above regarding the prosecutor defendants’

motion to dismiss, the West Virginia Constitution does not contain

any provision allowing for monetary damages as a result of alleged

state constitutional violations. Thus, the plaintiff’s claim for

monetary damages in connection with the alleged state

constitutional violations also fails under Twombly as to the State

Police defendants.

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4. Injunctive Relief

The plaintiff’s claim for prospective injunctive relief also

fails against the State Police defendants for the same reasons it

failed against the prosecutor defendants. Under Raub, a claim in

a § 1983 action for injunctive relief “will not be granted absent

the plaintiff’s showing that there is a ‘real or immediate threat

that [he] will be wronged again . . . in a similar way.’” Raub,

785 F.3d at 885 (quoting Simmons, 47 F.3d at 1382). Here, this

Court finds that the plaintiff has not shown any real or immediate

threat that he will be wronged again in a similar way absent

injunctive relief. The plaintiff has not pled any facts suggesting

that he will be subjected to future arrests and criminal

prosecutions based on his Facebook posts. Thus, the plaintiff’s

allegation that he will be similarly injured in the immediate

future is merely speculative and does not entitle him to injunctive

relief.

IV. Conclusion

For the reasons set forth above, J.L. Cahill and Michael S.

White, II’s motion to dismiss (ECF No. 9) and James W. Davis, Jr.,

Esq., Jack Wood, Esq. and Hancock County, West Virginia’s motion to

dismiss (ECF No. 12) are GRANTED. Additionally, Hancock County,

West Virginia, James W. Davis, Jr., Esq., and Jack Wood, Esq.’s

motion for a protective order (ECF No. 28) is DENIED AS MOOT. It

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is further ORDERED that this civil action be DISMISSED and STRICKEN

from the active docket of this Court.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein. Pursuant to Federal

Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment

on this matter.

DATED: June 5, 2018

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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