Isner v. City of Elkins

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JERRY LEE ISNER, II,

Plaintiff,

v. CIVIL NO. 2:21-CV-27

(KLEEH)

CITY OF ELKINS and

CORPORAL C. BOATRIGHT,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

Pending before the Court is a motion to dismiss filed by the

Defendants, Corporal C. Boatright (“Boatright”) and the City of

Elkins (“City of Elkins”) (together, “Defendants”). For the

reasons discussed herein, the Court GRANTS IN PART and DENIES IN

PART the motion.

I. PROCEDURAL HISTORY

On December 16, 2021, Plaintiff Jerry Lee Isner, II

(“Plaintiff”) filed a complaint against Defendants, asserting four

causes of action: (I) Excessive Force (42 U.S.C. § 1983) (against

Boatright); (II) Reckless/Malicious Conduct (W. Va. Code § 29-12A-

5(b)(2)) (against Boatright); (III) Deliberate Indifference (42

U.S.C. § 1983) (against the City of Elkins); and (IV) Injunctive

Relief (against the City of Elkins). Defendants filed the pending

motion to dismiss on January 26, 2022. The motion is fully briefed

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

and ripe for review. The Court held a hearing on the motion on

May 16, 2022.

II. FACTS1

Plaintiff was arrested on or about March 27, 2020, by the

Elkins Police Department. Compl., ECF No. 1, at ¶ 1. He was

carrying a .22 rifle in an alley. Id. Plaintiff was tazed,

immobilized, and handcuffed. Id. Then Boatright, a police officer

employed by the City of Elkins, kicked and struck him in the head

and body. Id. ¶¶ 1, 2. Plaintiff alleges that he did not pose a

threat at the time he was kicked and struck, so the actions

constituted unlawful force. Id. ¶ 3. Plaintiff alleges that the

actions were malicious, as evidenced by repeated threats made

toward Plaintiff by Boatright. Id. ¶ 4. He alleges that he

suffered serious physical and emotional injuries. Id. ¶ 5.

III. STANDARD OF REVIEW

Rule 12(b)(6) allows a defendant to move for dismissal upon

the ground that a complaint does not “state a claim upon which

relief can be granted[.]” In ruling on a 12(b)(6) motion to

dismiss, a court “must accept as true all of the factual

allegations contained in the complaint.” Anderson v. Sara Lee

Corp., 508 F.3d 181, 188 (4th Cir. 2007) (citations omitted). A

1 For purposes of analyzing the motion to dismiss, the Court assumes that

Plaintiff’s asserted facts are true.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

court is “not bound to accept as true a legal conclusion couched

as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286

(1986).

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plausibility exists “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). A motion to dismiss “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). Dismissal is

appropriate only if “it appears to a certainty that the plaintiff

would be entitled to no relief under any state of facts which could

be proven in support of his claim.” Johnson v. Mueller, 415 F.2d

354, 355 (4th Cir. 1969).

IV. DISCUSSION

As discussed below, the motion to dismiss is denied with

respect to Counts One and Two and granted with respect to Counts

Three and Four. The Court further finds that W. Va. Code § 55-7-

13d does not bar Plaintiff from recovery at this stage. Finally,

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

at this juncture, the motion with respect to punitive damages is

granted in part and denied in part.

A. Count One – Excessive Force (Boatright)

The Court denies the motion to dismiss with respect to Count

One. Qualified immunity can be afforded to government officials

for discretionary acts taken in their official capacity. The

protection extends to “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,

341 (1986). An officer, generally, is protected by qualified

immunity if his “actions could reasonably have been thought

consistent with the rights . . . alleged to have [been] violated.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987).

The test to determine whether an officer is entitled to

qualified immunity is two-fold: the Court must determine “(1)

whether a constitutional violation occurred; and (2) whether the

right was clearly established at the time of the violation[.]”

Jones v. City of Martinsburg, 961 F.3d 661, 667 (4th Cir. 2020)

(citation omitted). In determining whether a right is clearly

established, the “dispositive inquiry . . . is whether it would be

clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Brosseau v. Haugen, 543 U.S. 194, 198–

99 (2004) (citation omitted). The Court can address either prong

first. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

Under the Fourth Amendment’s “reasonableness” analysis, force

is not excessive if it is objectively reasonable under the

circumstances facing the officer, without regard to his underlying

intent. Graham v. Conner, 490 U.S. 386, 397 (1989). The “calculus

of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly

evolving – about the amount of force that is necessary in a

particular situation.” Id. at 396–97.

The Supreme Court has “stressed the importance of resolving

[qualified] immunity questions at the earliest possible stage in

litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations

omitted). “The right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Graham, 490

U.S. at 396. “The ‘reasonableness’ of a particular use of force

must be judged from the perspective of a reasonable officer on the

scene, rather than the 20/20 vision of hindsight.” Id. (citation

omitted). As the Supreme Court has stated,

The test of reasonableness under the Fourth

Amendment is not capable of precise definition

or mechanical application, however, its proper

application requires careful attention to the

facts and circumstances of each particular

case, including the severity of the crime at

issue, whether the suspect poses an immediate

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

threat to the safety of the officers or

others, and whether he is actively resisting

arrest or attempting to evade arrest by

flight.

Id. (citations omitted).

A violation of a constitutional right “may be clearly

established if the violation is so obvious that a reasonable state

actor would know that what they are doing violates the

Constitution, or if a closely analogous case establishes that the

conduct is unconstitutional.” Siebert v. Severino, 256 F.3d 648,

654–55 (7th Cir. 2001) (citation omitted). When the conduct of a

government official “is so patently violative of the

constitutional right that reasonable officials would know without

guidance from the courts that the action was unconstitutional,

closely analogous pre-existing case law is not required to show

that the law is clearly established.” Mendoza v. Block, 27 F.3d

1357, 1361 (9th Cir. 1994).

As the Fourth Circuit noted in Jones, “in 2013, it was clearly

established that suspects can be secured without handcuffs when

they are pinned to the ground, and that such suspects cannot be

subjected to further force.” 961 F.3d at 668. In 2020, the Jones

court, likewise, denied summary judgment because “Jones, although

armed, had been secured by the officers immediately before he was

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

released and shot; and (2) Jones, although armed, was incapacitated

at the time he was shot.” Id.

Here, Defendants argue that Boatright is entitled to

qualified immunity because his actions were objectively

reasonable. Defendants offer context for Plaintiff’s allegations

and attach the criminal complaint that was filed against Plaintiff.

Defendants argue that Plaintiff had committed a severe crime by

shooting a police officer, he posed a risk to officer safety and

the safety of others by using his firearm in public, he ignored

officer commands, he continued to use explicative language, he

spat on Boatright, and he resisted arrest and was combative. In

response, Plaintiff states that he was defenseless and

incapacitated at the time that Boatright struck and kicked him,

which is clearly a violation of his Fourth Amendment rights.

At this stage, the Court must assume that Plaintiff’s asserted

facts are true. Plaintiff was lying on the ground, handcuffed,

defenseless, and incapacitated, at the time that Boatwright struck

him. Jones makes clear that this is a violation of Plaintiff’s

Fourth Amendment rights. See 961 F.3d 661. With respect to Count

One, Plaintiff has asserted “enough facts to state a claim to

relief that is plausible on its face.” See Twombly, 550 U.S. at

570. The Court denies the invitation to consider Defendants’

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

version of the facts and finds that Count One is sufficiently pled.

The motion to dismiss is DENIED with respect to Count One.

B. Count Two – Reckless/Malicious Conduct (Boatright)

The Court denies the motion to dismiss with respect to Count

Two. W. Va. Code § 29-12A-5(b) provides:

(b) An employee of a political subdivision is

immune from liability unless one of the

following applies:

(1) His or her acts or omissions were

manifestly outside the scope of

employment or official responsibilities;

(2) His or her acts or omissions were

with malicious purpose, in bad faith, or

in a wanton or reckless manner; or

(3) Liability is expressly imposed upon

the employee by a provision of this code.

Here, Plaintiff argues that Boatwright’s conduct falls within

W. Va. Code § 29-12A-5(b)(2), which provides that employees of

political subdivisions are not immune from liability when their

acts/omissions are “with malicious purpose, in bad faith, or in a

wanton or reckless manner[.]” During the motion hearing, Plaintiff

clarified that Count Two asserts a statutory claim for malicious

conduct under West Virginia’s Governmental Tort Claims and

Insurance Reform Act. Defendants argue that because the conduct

was reasonable under the Fourth Amendment analysis, it could not

have been malicious or reckless under § 29-12A-5(b).

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

Again, the Court takes Plaintiff’s alleged facts as true at

this stage. Plaintiff was on the ground, handcuffed and

incapacitated, when Boatwright kicked and struck him. It would be

premature to make a finding that the circumstances in this case

were reasonable based on Defendants’ asserted facts. The Court,

therefore, DENIES the motion to dismiss with respect to Count Two.

C. Count Three – Deliberate Indifference (City of Elkins)

The Court grants the motion to dismiss with respect to Count

Three. A municipality is liable under § 1983 if it follows a

custom, policy, or practice by which local officials violate a

plaintiff’s constitutional rights. Monell v. Dep’t of Social

Servs. of City of New York, 436 U.S. 658, 694 (1978). “[T]he

substantive requirements for establishing municipal liability for

police misconduct are stringent indeed. The critical Supreme Court

decisions have imposed this stringency in a deliberate effort to

avoid the indirect or inadvertent imposition of forms of vicarious

liability rejected in Monell.” Spell v. McDaniel, 824 F.2d 1380,

1391 (4th Cir. 1987).

Courts have required plaintiffs to demonstrate “persistent

and widespread . . . practices of [municipal] officials,” along

with the “duration and frequency” – which indicate that

policymakers (1) had actual or constructive knowledge of the

conduct, and (2) failed to correct it due to their “deliberate

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

indifference.” Id. at 1386–91. “Sporadic or isolated violations

of rights will not give rise to Monell liability; only ‘widespread

or flagrant’ violations will.” Owens v. Baltimore City State’s

Attorneys Office, 767 F.3d 379, 402–03 (4th Cir. 2014) (citation

omitted).

“It is well settled that ‘isolated incidents’ of

unconstitutional conduct by subordinate employees are not

sufficient to establish a custom or practice for § 1983 purposes.”

Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir. 2003) (citation

omitted). However, the Fourth Circuit has recognized that “a

county’s failure to adequately train its officers can be so

egregious as to warrant a finding that it amounts to a policy or

custom for which the county should be held responsible.” Guerra

v. Montgomery Cty., 118 F. App'x 673, 676 (4th Cir. 2004)

(unpublished) (citing City of Canton v. Harris, 489 U.S. 378, 389–

90 (1989)).

Here, Defendants argue that Plaintiff has failed to allege a

custom, history, and policy of allowing excessive force.2

Plaintiff does not address this argument in its Response. The

Complaint alleges that the City of Elkins “has a custom, history

2 Defendants also argue that both claims against the City of Elkins fail due to

a lack of underlying Constitutional violation. Because the Court has already

denied the motion to dismiss with respect to Count One, it will not address

this argument.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

and policy that allows its officers to use excessive force without

consequence.” Compl., ECF No. 1, at ¶ 16. Plaintiff asserts that

the City of Elkins has violated his constitutional rights by its

deliberate indifference, which is evidenced by its failures to

address, train, or discipline Boatright. Id.3

The Court finds that Plaintiff has failed to sufficiently

plead that the City of Elkins has an official policy, custom, or

history that allows its officers to deprive individuals of their

constitutional rights. The Complaint includes only a conclusory

statement that such a policy exists and then cites the facts at

issue in this case. This single incident cannot establish Monell

liability against the City of Elkins, and in this case, the failure

of the City of Elkins to train its officers, assuming this fact to

be true, is not sufficiently egregious to warrant a finding that

it amounts to a policy or custom for which the City of Elkins

should be held responsible. As such, the Court GRANTS the motion

3 Plaintiff states that the City of Elkins’s representative informed newspapers

that an internal review found no wrongdoing by Boatright. Compl., ECF No. 1,

at ¶ 16. He argues that “[a]n impartial review of the evidence would require

the City to take action or discipline or discharge the officer involved.” Id.

Upon information and belief, Plaintiff states, the City of Elkins has taken no

action to discipline Boatright. Id. Plaintiff argues, “The failure of the

City to take action, now and in the past, perpetuates the ongoing use of

excessive force by City employees such as Boatright. This policy results in

the citizens of Elkins, and in this instance Mr. Isner, having his

constitutional rights violated during arrests.” Id.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

to dismiss with respect to Count Three and dismisses it as a matter

of law.

D. Count Four – Injunctive Relief (City of Elkins)

The Court grants the motion to dismiss with respect to Count

Four. A plaintiff “must demonstrate ‘a personal stake in the

outcome,’ showing that they have ‘sustained or [are] immediately

in danger of sustaining some direct injury as the result of the

challenged official conduct.” Maryland Shall Issue, Inc. v. Hogan,

971 F.3d 199, 220 (4th Cir. 2020) (quoting City of Los Angeles v.

Lyons, 461 U.S. 95, 101–02 (1983)). In Lyons, although the

plaintiff had previously been handcuffed and choked by a police

officer, the Supreme Court held that absent a sufficient likelihood

that he would again be wronged in a similar way, the plaintiff was

no more entitled to an injunction than any other citizen in Los

Angeles. Lyons, 461 U.S. at 111.

Here, Plaintiff seeks injunctive relief requiring the City of

Elkins to implement policies to prohibit the kicking and striking

of citizens who have been arrested and handcuffed. Compl., ECF

No. 1, at ¶ 20. Defendants argue that Plaintiff lacks standing to

request declaratory relief and that he has failed to identify a

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

justiciable controversy.4 Plaintiff did not address this argument

in his Response.

The Court finds that Plaintiff has not pled facts to indicate

that there is a sufficient likelihood that he will suffer the same

alleged wrong in the future. The Complaint cites no facts beyond

the incident at issue in this case. As such, Plaintiff is no more

entitled to an injunction than any other citizen in Elkins. The

Court GRANTS the motion to dismiss with respect to Count Four and

dismisses it as a matter of law.

E. Damages Issues

Defendants’ motion to dismiss also raises issues with respect

to damages available. First, Defendants argue that W. Va. Code

§ 55—7-13d bars Plaintiff from recovering damages because

Plaintiff was committing a felony. Second, Defendants argue that

Plaintiff may not recover punitive damages as a matter of law.

1. Commission of a Felony, W. Va. Code § 55-7-13d

The West Virginia Code provides,

In any civil action, a person or person’s

legal representative who asserts a claim for

damages may not recover if:

Such damages arise out of the person’s

commission, attempted commission, or

immediate flight from the commission or

4 Defendants also argue that both claims against the City of Elkins fail due to

a lack of underlying Constitutional violation. As the Court has already denied

the motion to dismiss Count One, it will not address this argument.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

attempted commission of a felony; and (2) that

the person’s damages were suffered as a

proximate result of the commission, attempted

commission, or immediate flight from the

commission or attempted commission of a

felony. . . . The burden of alleging and

proving the defense . . . shall be upon the

person who seeks to assert such defense:

Provided, That in any civil action in which a

person has been convicted or pleaded guilty or

no contest to a felony, the claim shall be

dismissed if the court determines as a matter

of law that the person’s damages were suffered

as a proximate result of the felonious conduct

to which the person pleaded guilty or no

contest, or upon which the person was

convicted.

W. Va. Code § 55-7-13d.

Defendants argue that this code section prohibits Plaintiff

from recovering damages because he was engaged in a felony when

the incident at issue occurred. Plaintiff, on the other hand,

argues that state law cannot govern the § 1983 claims at issue.

At the time Plaintiff filed his response, he argued that he had

not been convicted of a felony. He has since been convicted of

two counts of malicious assault on an officer and one count of

wanton endangerment, both related to the incident at issue in this

case. Despite the convictions, Plaintiff asserts that the

malicious/reckless conduct occurred after he was in handcuffs and

arrested, so the statute would not apply.

The Court finds that W. Va. Code § 55-7-13d does not prevent

Plaintiff’s recovery for a few reasons. First, the West Virginia

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

Legislature cannot limit Plaintiff’s recovery under 42 U.S.C.

§ 1983, a federal statute. See Chapman v. Houston Welfare Rts.

Org., 441 U.S. 600, 613 (1979) (“For even though [the Supremacy]

Clause is not a source of any federal rights, it does ‘secure’

federal rights by according them priority whenever they come in

conflict with state law.”); Cutright v. Metro. Life Ins. Co., 491

S.E.2d 308, 309 (W. Va. 1997) (“The Supremacy Clause of the United

States Constitution, Article VI, Clause 2, invalidates state laws

that interfere with or are contrary to federal law.”). Second,

again, assuming Plaintiff’s asserted facts are true for purposes

of the motion to dismiss, Plaintiff was handcuffed and

incapacitated at the time he was struck. The commission of any

felony had already ceased. Thus, to the extent Defendants argue

that § 55-7-13d limits recovery under any state law claims, the

Court disagrees at this stage.5 The Court DENIES Defendants’

request to limit damages available pursuant to W. Va. Code § 55-

7-13d at this juncture of the case.

2. Punitive Damages

The Court has already dismissed the City of Elkins from this

suit, so it will not analyze whether punitive damages are available

5 Again, the Court is required to assume all facts alleged are true. Should

discovery reveal a different picture, Boatright would certainly be free to renew

this argument under Rule 56 and its standards.

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

against it. With respect to the claims against Boatright, punitive

damages are not available in § 1983 actions against officers sued

in their official capacities. Edwards v. Ashley, 70 F.3d 111,

1995 WL 668002, at *1 (4th Cir. Nov. 3, 1995) (unpublished). They

are, however, available in suits against officers in their

individual capacities. See Kentucky v. Graham, 473 U.S. 159, 167

n.13 (1985).

Defendants argue that Plaintiff’s request for punitive

damages must be dismissed altogether. Because punitive damages

are not available against Boatright in his official capacity, the

motion is GRANTED in part with respect to punitive damages. At

this juncture, the Court finds that punitive damages may be

available against Boatright in his individual capacity under

§ 1983 and may be available for Plaintiff’s state law claim under

the Governmental Tort Claims and Insurance Reform Act, so the

motion is also DENIED in part with respect to punitive damages.

V. CONCLUSION

For the reasons discussed herein, the Court GRANTS IN PART

and DENIES IN PART the motion to dismiss.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: May 31, 2022

ISNER V. ELKINS 2:21-CV-27

MEMORANDUM OPINION AND ORDER GRANTING IN PART

AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 6]

Tom 8 Klut-

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

17