# Launi v. The Hampshire County Prosecuting Attorney's Office

> District Court, N.D. West Virginia · August 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10725774

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** August 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

NORMAN LAUNI, II,

Plaintiff,

v. CIVIL ACTION NO.: 3:19-CV-65
(GROH)

THE HAMPSHIRE COUNTY
PROSECUTING ATTORNEY’S OFFICE,
THE MORGAN COUNTY
PROSECUTING ATTORNEY’S OFFICE,
THE MINERAL COUNTY
PROSECUTING ATTORNEY’S OFFICE,
DAN JAMES, JR., Individually and
in his official capacity as Prosecuting Attorney
for Hampshire and Morgan Counties,
JOHN OURS, Individually and in his
official capacity as Prosecuting Attorney
for Hampshire and Morgan Counties,
JOHN OURS, Individually and in his
official capacity as Special Prosecutor
in Mineral County, CORPORAL SCOTT NAZELROD,
Individually and in his official capacity
as a West Virginia State Trooper,
COLONEL CAHILL, Superintendent of the
West Virginia State Police, in his official capacity,
THE COUNTY COMMISSION OF HAMPSHIRE COUNTY, WEST VIRGINIA,
THE COUNTY COMMISSION OF MORGAN COUNTY, WEST VIRGINIA
And THE COUNTY COMMISSION OF MINERAL COUNTY, WEST VIRGINIA,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING THE
COUNTY AND PROSECUTING ATTORNEY DEFENDANTS’ MOTION TO DISMISS

Currently pending before the Court is a Motion to Dismiss filed jointly by all
remaining Defendants, styled as the “County and Prosecuting Attorney Defendants.”
ECF No. 40. The Plaintiff filed a Memorandum in Opposition to the Defendants’ Motion
to Dismiss. See ECF No. 42-1.1 The Defendants filed a Reply in Support of their Motion
to Dismiss, and the matter is now fully briefed and ripe for the Court’s consideration. ECF
No. 44.
I. FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2019, Norman Launi, II (“Plaintiff”) filed a complaint in this Court
pursuant to 42 U.S.C. § 1983. ECF No. 1. On July 3, 2019, the Plaintiff sought leave to
amend his complaint prior to serving the named Defendants. ECF No. 2. The Court
granted the Plaintiff’s motion [ECF No. 3] and the Plaintiff’s amended complaint [ECF No.
4] was filed on July 15, 2019. The claims in the amended complaint arise out of his arrest
and criminal trial for domestic battery and assault. The background facts of the Plaintiff’s
alleged unlawful arrest and prosecution are as follows.
On August 16, 2016, Captain John Eckerson died. His death was believed to be
caused by exposure to illicit substances during a field test. Defendant Dan James (“Mr.
James”), who was at the time the prosecuting attorney for Hampshire County, West

Virginia, made allegations that the Plaintiff was involved in Captain Eckerson’s death—
even though Mr. James knew the Plaintiff was out of town at the time of his death.
Defendant James contacted the West Virginia State Police to investigate the matter.
Defendant Corporal Scott Nazelrod was assigned to investigate the matter.
The Plaintiff alleges that in December of 2016, Penny Hartman, the Plaintiff’s
former partner, began harassing the Plaintiff. On January 25, 2017, Mr. James notified
Cpl. Nazelrod that he had been contacted by Ms. Hartman who informed him that she

1 The Plaintiff filed a Motion for Leave to file a Response exceeding the page limitation allowed by
the Local Rules, which the Court granted. See ECF No. 43. However, the Plaintiff never separately filed
his Response upon the docket. Nonetheless, the Court still considered the Plaintiff’s Response, which was
attached to his Motion for Leave.
had video recordings of the Plaintiff committing domestic violence against her. Mr. James
asked Cpl. Nazelrod to investigate the matter. After interviewing Ms. Hartman about her
claims, Cpl. Nazelrod assisted Ms. Hartman in obtaining a domestic violence protective
order against the Plaintiff. The protective order required the Plaintiff to relinquish his

firearms. Cpl. Nazelrod also interviewed the Plaintiff regarding Ms. Hartman’s claims.
During this interview, the Plaintiff denied any physical assault and gave an alibi or
explanation for each of Ms. Hartman’s allegations. The Plaintiff alleges that Cpl.
Nazelrod’s investigation into Ms. Hartman’s claims took place while he was supposed to
be investigating the death of Captain Eckerson.
On February 18, 2017, the domestic violence protective order was dismissed at
Ms. Hartman’s request. On April 6, 2017, the Plaintiff was informed that Ms. Hartman still
wanted to pursue domestic violence charges against him. The Plaintiff sought to pursue
allegations of stalking and harassment against Ms. Hartman, but Cpl. Nazelrod laughed
at the Plaintiff’s request and said he could not take cross complaints.

On April 7, 2017, the Plaintiff was charged with three counts of domestic battery
and one count of domestic assault. The criminal complaint did not include any of the
information from the Plaintiff’s interview with Cpl. Nazelrod. The Plaintiff alleges that the
criminal complaint was prepared by Mr. James. After the Plaintiff’s arraignment, he was
required to relinquish his guns and badge. Ms. Hartman attempted to get the charges
against the Plaintiff dismissed, but she was unsuccessful. Ms. Hartman informed the
Plaintiff that she was intimidated into bringing the charges and testifying at the trial. While
going through discovery in preparation for trial, the Plaintiff noticed that a portion of his
interview with Cpl. Nazelrod was not in discovery. The Plaintiff recorded the interview on
his own recording device, so he still had access to the entire conversation, including the
portion not provided in discovery. The Plaintiff avers that the interview was edited to
remove any portion mentioning Mr. James. The Plaintiff’s case ultimately proceeded to
trial and, he was acquitted of all the charges against him.

In the Plaintiff’s instant amended complaint, he asserts fifteen claims for relief. The
Plaintiff claims Mr. James, Mr. Ours and Cpl. Nazelrod each violated his due process
rights under the Fifth and Fourteenth Amendments to the United States Constitution. The
Plaintiff further asserts that Mr. James, Mr. Ours and Cpl. Nazelrod each violated his due
process rights under W. Va. Const. art. III, §§ 10 and 14. The Plaintiff asserts Mr. James,
Mr. Ours and Cpl. Nazelrod each violated his Fourth and Fourteenth Amendment right
against unreasonable seizure. The Plaintiff further asserts a claim for vicarious liability
against the Hampshire County Commission for the constitutional violations committed by
Mr. James; the Morgan County Commission for the constitutional violations committed by
Defendant James; the Mineral County Commission for the constitutional violations

committed by Mr. Ours; the Hampshire County Prosecutor’s Office for constitutional
violations committed by Mr. James; and the Morgan County Prosecuting Attorney’s Office
for constitutional violations committed by Mr. James. The Plaintiff asserts a claim for
negligent training and oversight against Defendant Colonel Cahill of the West Virginia
State Police. The Plaintiff also asserts three alternate counts against the Morgan County
Commission, the Hampshire County Commission and the Mineral County Commission
for negligent training and oversight.
This Court previously dismissed Counts 7–9 and 13, which comprised all counts
against Cpl. Nazelrod, the West Virginia State Police and Col. Cahill. See ECF No. 36.
Thus, the Court now considers whether counts 1–6, 10–12, 14–15 and alternative counts
1–3 can survive the Defendants’ Motion to Dismiss.
II. APPLICABLE LEGAL STANDARDS
A complaint must contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules
of Civil Procedure allows a defendant to challenge the complaint’s sufficiency in this
regard by moving to dismiss a complaint for failing “to state a claim upon which relief can
be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, the complaint
must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the pleading standard under Rule
8 “does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 555). Thus, “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’

Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
enhancements.’” Id. (quoting Twombly, 550 U.S. at 555, 557).
When reviewing a Rule 12(b)(6) motion, the court assumes that the complaint’s
well-pleaded allegations are true, resolves all doubts and inferences in favor of the plaintiff
and views the allegations in a light most favorable to the plaintiff. Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). Only factual allegations receive the
presumption of truth. Iqbal, 556 U.S. at 678-79. A court may also consider facts derived
from sources beyond the four corners of the complaint, including documents attached to
the complaint, documents attached to the motion to dismiss “so long as they are integral
to the complaint and authentic” and facts subject to judicial notice under Federal Rule of
Evidence 201. Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
III. DISCUSSION
As an initial matter, the Defendants argue that the issues of whether probable

cause existed to charge and prosecute the Plaintiff and whether a due process violation
occurred are controlled by collateral estoppel. In a prior Order granting the motion to
dismiss filed by Cpl. Nazelrod, the West Virginia State Police and Col. Cahill, the Court
concluded that the Plaintiff failed to allege a Brady violation because his trial resulted in
an acquittal and there were sufficient details in the criminal complaint against the Plaintiff
to establish probable cause. See ECF No. 36 at 7–8 & 10–11.
In response, the Plaintiff simply reasserts that the Court was incorrect when it
decided these issues in its prior Order; however, the Plaintiff advances no legitimate
argument that issue preclusion, or collateral estoppel, does not apply. Accordingly, the
Court concludes that its prior holding, insofar as it is applicable to the instant motion, is

controlling upon those specific issues that were previously determined by the Court.
A. Absolute Prosecutorial Immunity Shields Defendants James and Ours
The Fourth Circuit has clearly explained when a prosecutor enjoys absolute
immunity:
A prosecutor enjoys absolute immunity for prosecutorial functions
“intimately associated with the judicial phase of the criminal process.” Imbler
v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In
other words, absolute immunity is afforded prosecutors when acting “within
the advocate’s role.” Buckley v. Fitzsimmons, 509 U.S. 259, 278, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993).

Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (4th Cir. 2000).
Prosecutorial immunity is not confined to the walls of a courtroom. Instead, it
includes “actions preliminary to the initiation of a prosecution and actions apart from the
courtroom.” Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993) (citations and quotations
omitted). “A prosecutor acts as an advocate or ‘officer of the court’ when performing tasks,

such as (1) initiating a judicial proceeding, (2) presenting evidence in support of a search
warrant application, (3) conducting a criminal trial, bond hearing, grand jury proceeding
or pre-trial hearing, (4) engaging in ‘an out-of-court effort to control the presentation of [a]
witness' testimony,’ and (5) making a ‘professional evaluation of the evidence assembled
by the police and appropriate preparation for its presentation at trial or before the grand
jury after a decision to seek an indictment has been made.’” Broadnax v. Pugh, No. CV
5:15-03736, 2017 WL 5617768, at *3 (S.D. W. Va. Oct. 24, 2017), report and
recommendation adopted, No. 5:15-CV-03736, 2017 WL 5585630 (S.D. W. Va. Nov. 20,
2017) (collecting cases).
The Plaintiff argues that “Defendant James is not subject to absolute immunity for

procuring a prosecution devoid of probable cause . . . .” ECF No. 42-1 at 14. The Plaintiff
further contends that Defendant James “interviewed witnesses associated with the case
and directed law enforcement in the course of their investigation.” Id. at 15. Thus, the
Plaintiff argues, “it is beyond clear that [Defendant James] is not entitled to the protective
cloak of absolute immunity.” Id. The Plaintiff also argues that because Defendant James
was the elected prosecutor in another county than where the prosecution took place, he
is not entitled to immunity. See Id. at 14–16.
As explained supra, the Court previously found that probable cause existed; to the
extent the Plaintiff’s arguments rely upon a lack of probable cause, those arguments are
soundly rejected for reasons more fully explained in the Court’s prior Order. The Fourth
Circuit “has held that a state prosecuting attorney is absolutely immune from liability for
damages for conspiring with police officers to present false testimony and for withholding
exculpatory evidence prior to trial, as those actions are ‘intimately associated with the

judicial process.’” Smith v. McCarthy, 349 F. App’x 851, 859 (4th Cir. 2009)
(quoting Carter v. Burch, 34 F.3d 257, 262–63 (4th Cir. 1994)). The scenario the Fourth
Circuit described in Smith is the crux of the Plaintiff’s allegations in the instant case.
Accordingly, the Court finds that Defendant James enjoys absolute prosecutorial
immunity from the Plaintiff’s claims. This analysis applies with equal force to the
allegations against Defendant Ours, and therefore, the Court concludes that Defendant
Ours also enjoys absolute immunity.
B. Defendants James and Ours Also Enjoy Qualified Immunity
Assuming arguendo that absolute immunity does not apply to every claim against
Defendants James and Ours, they are still shielded by qualified immunity. Courts must

consider the following threshold question when determining whether a defendant is
entitled to qualified immunity: “Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional right?”
Saucier v. Katz, 533 U.S. 194, 201 (2001). If the allegations do not give rise to a
constitutional violation, no further inquiry is necessary. Id. On the other hand, if a violation
can be shown, then the court must determine whether the right was clearly established in
the specific context of the case. See id.
However, courts may address whether the right is clearly established first. See
Pearson v. Callahan, 555 U.S. 223 (2009). The Pearson Court noted that the doctrine of
qualified immunity “balances two important interests – the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson
at 230.

It is without doubt that qualified immunity is designed “to spare a defendant not
only unwarranted liability, but [also] unwarranted demands customarily imposed upon
those defending a long drawn out lawsuit.” Id. “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.” Rish v. Johnson, 131 F.3d 1092,
1094 (4th Cir. 1997). Qualified immunity exists to protect individuals in the performance
of their duties unless they are “plainly incompetent” or they “knowingly violate the law.”
Doe v. Broderick, 225 F.3d 440, 446 (4th Cir. 2000).
In his Response, the Plaintiff concedes that the bases of his claims are his

assertion that the prosecution lacked probable cause and committed a Brady violation.
Without these necessary predicates, which the Court finds neither existed in this case,
the Plaintiff offers nothing; accordingly, Defendant James and Defendant Ours are
entitled to qualified immunity.
C. Plaintiff Did Not Properly Plead Violations of the West Virginia Constitution
The Plaintiff also alleges Defendants James and Ours are liable for violations of
Article III, §§ 10 and 14 of the West Virginia Constitution. The Plaintiff alleges that the
purported Brady violation discussed above violated Article III, § 10 and his rights to a fair
trial under Article III, § 14. The Plaintiff seeks only monetary damages as relief.
State and federal courts in West Virginia considering this question have
consistently held that there is no damages remedy for violations of West Virginia’s
Constitution. See, e.g., S.M.B. v. W. Virginia Reg'l Jail, No. CV 3:17-1300, 2017 WL
3841894, at *5 (S.D. W. Va. Sept. 1, 2017) (“[I]n light of the near unanimous view in this

district and the Court’s reasoning above, the Court finds that Plaintiff cannot recover
money damages for violations of the state constitution.”); see also McMillion-Tolliver v.
Kowalski, No. 2:13-cv-29533, 2014 WL 1329790, *2 (S.D. W. Va., Apr. 1, 2016)
(Goodwin, J.) (“Without an independent statute authorizing money damages for violations
of the West Virginia Constitution, the plaintiff's claim must fail.”).
West Virginia does not have a statutory state law analogue to 42 U.S.C. § 1983,
which authorizes suits for damages for certain violations of the United States Constitution.
See, e.g., S.M.B. at *4; See also ECF No. 36 at 8–9. Accordingly, the Plaintiff has failed
to state a claim for relief for any alleged state constitutional violations.

D. Prosecuting Attorney’s Offices Are Not Proper Entities to be Sued
There is no legal authority in this State that creates a prosecuting attorney’s office
or renders the same capable of being sued in court. See W. Va. Const., Art. IX § 9-1;
see also W. Va. Code §§ 7-4-1, et seq. This is contrasted by such other statutorily
provided-for organizations, including county boards of education, county health
departments and public service districts, which are created by their respective statutes,
and therefore, properly named in lawsuits as political subdivisions. See W. Va. Code §
29-12A-3(c). Simply stated, in West Virginia a “Prosecuting Attorney’s Office” is not the
proper entity to be named in a lawsuit.
Federal courts in West Virginia have repeatedly reached the same conclusion.
See, e.g., Frederick v. W. Virginia Dep’t of Health & Human Servs., No. 2:18-CV-01077,
2019 WL 1198027, at *46 (S.D. W. Va. Feb. 15, 2019), report and recommendation
adopted, No. 2:18-CV-01077, 2019 WL 1173358 (S.D. W. Va. Mar. 13,

2019), reconsideration denied, No. 2:18-CV-01077, 2019 WL 1748532 (S.D. W. Va. Apr.
18, 2019) (“As noted in their Motion to Dismiss, neither the Jefferson County Sheriff's
Department or the Jefferson County Prosecuting Attorney's Office are suable entities.
Rather, the proper entity or entities to be sued are the elected officials of these offices or
the Jefferson County Commission, which is the governing body of the County.”); see also
Revene v. Charles Cty. Comm’rs, 882 F.2d 870, 874 (4th Cir. 1989); Rankin v. Berkeley
Cty. Sheriff's Dep't, 222 F. Supp. 2d 802, 807 (N.D. W. Va. 2002). Plaintiff’s claims
against various county prosecuting attorney’s offices must therefore be dismissed.
E. Plaintiff’s Monell Claims against the County Commissions Fail
In Counts 10–12, the Plaintiff alleges vicarious liability against the respective

county commissions for constitutional violations on the part of Defendants James and
Ours. First, these claims fail because, as the Court has explained at length, neither
Defendant James nor Defendant Ours committed any underlying constitutional violation.
Nonetheless, assuming their alleged conduct violated the Constitution, the Plaintiff still
fails to adequately allege a claim against the county commissions.
As municipal government entities, the county commissions cannot be held liable
for the alleged actions of their employees under a theory of Respondeat Superior. See
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) (“Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy of some
nature caused a constitutional tort. In particular, we conclude that a municipality cannot
be held liable solely because it employs a tortfeasor -- or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior theory.”). “Instead, it is 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.” Id.
All § 1983 claims against municipalities have three elements: “(1) identifying the
specific ‘policy’ or ‘custom’; (2) fairly attributing the policy and fault for its creation to the
municipality; and (3) finding the ‘affirmative link’ between [the] identified policy or custom
and specific violation.” Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987) (citing City
of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985)). When a plaintiff alleges “nothing
more than a municipality’s adherence to an impermissible custom,” the complaint must
be dismissed. Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 403 (4th
Cir. 2014).

Section “1983 complaints which on critical elements of a claim merely recite legal
conclusions wholly devoid of facts may properly be dismissed for insufficiency of
statement.” Revene, 882 F.2d at 875 (quoting Strauss v. City of Chicago, 760 F.2d 765,
767 (7th Cir. 1985)). Further, “[a] single act of the type here alleged cannot suffice,
standing alone, to establish the existence of such a policy.” Id. (citing Tuttle, 471 U.S. at
823–824 (1985)).
In this matter, the Plaintiff has failed to adequately allege the existence of a policy
or custom that satisfies the requirements of pleading a plausible Monell claim. First, he
has failed to identify a policy or custom on the part of any of the county commissions.
Instead, the Plaintiff alleges only acts, not consciously adopted policies or customs from
among available alternatives. Second, he has failed to identify any other persons affected
by this alleged policy, which, as noted in Revene, is insufficient. See Revene at 875. He
identifies only a single prosecution that he claims was unconstitutional. Accordingly, the

Plaintiff has not met the requirements of Monell, and his vicarious liability claims against
the county commissions must be dismissed.
F. The County Commissions Cannot be Held Liable for Negligent Training
Finally, the Court reviews the Plaintiff’s “Alternate Counts” 1–3, which allege
negligent training against the county commissions. “The basic elements of any
negligence claim are duty, breach of that duty, causation, and damages.” Biser v. Mfrs. &
Traders Trust Co., 211 F. Supp. 3d 845, 856 (S.D. W. Va. 2016). “Under West Virginia
law, negligent supervision claims must rest upon a showing that the employer failed to
properly supervise its employees and, as a result, those employees proximately caused
injury to another.” Ferrell v. Santander Consumer USA, Inc., 859 F. Supp. 2d 812, 817–

18 (S.D. W. Va. 2012). “Plaintiffs alleging negligent supervision or training must first make
an underlying showing of a negligence claim as to an employee, and then demonstrate
that the employee was negligently trained or supervised.” Taylor v. Cabell Huntington
Hosp., Inc., 208 W. Va. 128, 538 S.E.2d 719, 725 (2000).
No negligent training claim can arise because the Plaintiff was prosecuted upon
probable cause, and no actionable Brady violation occurred. The Plaintiff offered no
arguments otherwise in response to the Defendants’ Motion. An underlying actionable
act is a prerequisite to properly alleging a negligent training claim, and therefore, the
Plaintiff’s negligent training claim fails as a matter of law.
IV. CONCLUSION
Based on the foregoing, the County and Prosecuting Attorney Defendants’ Motion
to Dismiss [ECF No. 40] is GRANTED. Specifically, for the reasons more fully stated
above, Counts 1-3 against Defendant James; Counts 4-6 against Defendant Ours;
Counts 10-12 and Alternate Counts 1-3 against the county commissions; and Counts
14-15 against the Hampshire and Morgan County Prosecuting Attorney’s Offices are
hereby DISMISSED WITH PREJUDICE.
Accordingly, because all counts and alternate counts within the Plaintiffs Amended
Complaint are dismissed, the Clerk of Court is DIRECTED to STRIKE this Civil Action
from the Court's active docket. The Clerk is further DIRECTED to terminate all pending
motions and to transmit copies of this Order to all counsel of record herein.
IT IS SO ORDERED.
DATED: August 20, 2020 7 a

CHIEF UNITED STATES DISTRICT JUDGE

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725774. Public record. Not legal advice.