The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MEREDITH AND ROBERT COGAR, individually
and as husband and wife, and
SEAN COGAR, individually and as son
of Robert and Meredith Cogar,
Plaintiffs,
v. Civil Action No. 2:21-CV-6
(Kleeh)
SCOTT KALNA, in his individual capacity
and as an officer with and employee of
the USDA Forest Service Law Enforcement
and Investigation, and
ALLEN COGAR, in his individual capacity
and as a police officer employed by the
town of Richwood, located in Nicholas County
and as a police officer employed by the town
of Cowen, located in Webster County,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
Pending before the Court is Defendant Scott Kalna’s Motion to
Dismiss Plaintiffs’ Amended Complaint [ECF No. 21]. For the reasons
discussed herein, the Motion is GRANTED.
I. PROCEDURAL HISTORY
On March 12, 2021, Plaintiffs Meredith Cogar, Robert Cogar,
and Sean Cogar, (collectively, “Plaintiffs”), by counsel, filed a
Complaint against Defendants Scott Kalna (“Defendant Kalna”) and
Allen Cogar (“Defendant Cogar”) alleging that Defendant Kalna and
Defendant Cogar violated their constitutional rights. ECF No. 1,
Complaint. This violation allegedly occurred six years prior, on
MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
March 14, 2015. Id. Defendant Kalna, by counsel, filed a Motion
to Dismiss Plaintiffs’ Complaint on July 7, 2021. ECF No. 9. On
July 26, 2021, Plaintiffs filed a Motion to Amend their Complaint
along with a proposed Amended Complaint. ECF No. 12. On August 9,
2021, the Court granted Plaintiffs’ Motion to Amend and on August
10, 2021, Plaintiffs filed their Amended Complaint. ECF No. 16.
Defendant Scott Kalna, by counsel, filed a Motion to Dismiss
Plaintiffs’ Amended Complaint on August 19, 2021. ECF No. 21.
Plaintiffs, by counsel, responded in opposition to the motion. ECF
No. 23. Defendant Kalna’s Motion to Dismiss Amended Complaint
(“motion”) [ECF No. 21] is ripe for decision and is the subject of
this Memorandum Opinion and Order.
On September 28, 2021, Defendant Scott Kalna’s counsel filed
a suggestion of death pursuant to Rule 25 of the Federal Rules of
Civil Procedure. ECF No. 24. The notice states simply that Mr.
Kalna “has died during the pendency of this action.” Id. On
December 22, 2021, Plaintiffs filed a Motion to Strike the
Suggestion of Death. ECF No. 36.
II. AMENDED COMPLAINT
Plaintiffs Meredith, Robert, and Sean Cogar are West Virginia
residents and citizens and currently reside in Cowen, West
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
Virginia. ECF No. 19, Am. Compl. ¶ 1. Defendant Scott Kalna (now
deceased) was a resident and citizen of West Virginia and employed
by the USDA Forest Service Law Enforcement and Investigation as an
officer. Id. at ¶ 2. Defendant Allen Cogar, resident and citizen
of West Virginia, was employed as a deputized federal agent or
officer, working for the towns of Richwood and Cowen, West
Virginia, under the direction of Defendant Kalna. Id. at ¶¶ 3-4.
On or about March 9, 2017, Plaintiffs filed a claim under the
Federal Tort Claims Act 28 U.S.C. 2674, were contacted by the U.S.
Agriculture Office of their right to proceed with the filing of
the complaint on or before April 13, 2021, and assert this Court
has jurisdiction pursuant to § 1983 and Bivens.
On or about March 14, 2015, Plaintiff Sean Cogar (“Sean”) was
driving south on Route 20 in his Dodge pickup truck in Webster
County near a facility known as Camp Caesar. Id. at ¶ 8. He came
up behind a vehicle being driven by Defendants Scott Kalna and
Allen Cogar (collectively “Defendants”). Id. Allen Cogar is the
uncle to Sean Cogar. Id. at ¶ 20. Sean passed the vehicle and
Defendants began to drive aggressively at Sean, making him fear
for his safety. Id. at ¶ 9. This aggressive behavior caused Sean
to attempt to outrun the Defendants’ vehicle and “lose” them by
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
the time he arrived at his home at 714 Pretty Glade Road, Cowen,
Webster County, West Virginia. Id. at ¶ 10. Eventually Defendants
took a different route to Sean’s home and parked down the street
from the home awaiting Sean’s arrival. Id. at ¶ 11. Upon Sean’s
arrival, Defendants confronted him with their vehicle, in
Plaintiffs’ driveway, and began cursing at Sean and drawing
pistols. Id. at ¶ 12.
Defendants never announced they were law enforcement
officers. Id. at ¶ 13. Fearing for his life, Sean ran inside the
home to get his parents, Plaintiffs Meredith and Robert Cogar. Id.
at ¶ 14. Defendant Kalna kicked open the front door of the home
and entered Plaintiffs’ home with pistols drawn. Id. at ¶ 15.
Meredith and Robert Cogar, who were asleep, woke up to being
confronted by Defendants, or Defendant, and were instructed to
stand back or be arrested. Id. at ¶¶ 16-17. Sean was forcibly
detained, threatened, and accused of violating West Virginia law.
Id. at ¶ 18. Plaintiffs believe the defendants were drinking. Id.
at ¶ 19. Defendants knew that Sean was the nephew of Allen Cogar
and knew his car and his home address. Id. at ¶ 20.
Plaintiffs assert the following causes of action:
I. Bivens claim for Defendants intentionally, recklessly,
and/or negligently, directly, and proximately causing
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
emotional and mental distress, anxiety, frustration,
humiliation, embarrassment and fear to be suffered by
all plaintiffs without legal or other justification in
violation of state and federal laws;
II. Fourth Amendment claim against Defendants for
unreasonable search and seizure;
III. Excessive intimidation and outrageous conduct against
Defendants for unlawfully brandishing weapons at
plaintiffs and causing extreme fear without
justification in violation of Plaintiffs’ United States
and State of West Virginia constitutional, statutory,
and common law rights; and
IV. Unlawful detention and battery by Defendants’ in their
outrageous conduct and physically detaining and
battering Plaintiff Sean Cogar, without any justifiable
or reasonable cause.
Plaintiffs seek compensatory and punitive damages and a trial by
jury.
III. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure 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 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) (quoting Erickson
v. Pardus, 551 U.S. 89, 94 (2007)). A 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).
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
A motion to dismiss under Rule 12(6)(b) tests the “legal
sufficiency of a Complaint.” Francis v. Giacomelli, 588 F.3d 186,
192 (4th Cir. 2009). 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). The factual
allegations “must be enough to raise a right to relief above a
speculative level.” Twombly, 550 U.S. at 545. The facts must
constitute more than “a formulaic recitation of the elements of a
cause of action.” Id. at 555. 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 942, 952 (4th Cir. 1992).
IV. DISCUSSION
Defendant Kalna, by counsel on August 19, 2021, filed a motion
to dismiss under Rule 12(b)(6), asserting the defense of qualified
immunity because he was a federal law enforcement officer at all
times relevant to the complaint and his actions did not violate
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
“clearly established” constitutional or other rights that a
reasonable officer would have known in and around March 2015. Lange
v. California, --- U.S. ---, 141 S.Ct. 2011 (2021) (answering
question of whether officers following fleeing suspects into homes
violates their Fourth Amendment rights was not “beyond debate” in
March 2015). Because he believes he is entitled to a qualified
immunity defense, Defendant Kalna argues that Plaintiffs’ claims
for unreasonable search and seizure under the Fourth Amendment
fail.
a. Defendant Scott Kalna is entitled to qualified immunity
because the alleged constitutional violation was not clearly
established in March 2015; therefore, the Motion to Dismiss
Amended Complaint is GRANTED.
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: (1) taken in the light most favorable to the party
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right, and (2) was that right
clearly established such that a reasonable officer would have
known? Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing
Saucier v. Katz, 533 U.S. 194, 227 (2001)); Kisela v. Hughes, ---
U.S. ---, 138 S.Ct. 1148, 1152-54 (2018). 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) (citing Anderson, 493 U.S. at 201–
202). The Court can address either prong first. Pearson, 555 U.S.
at 236.
The Fourth Amendment protects people, and their “houses,
papers, and effects” against “unreasonable searches or
seizures.” U.S. Const. amend. IV. “[T]he ultimate touchstone of
the Fourth Amendment is reasonableness.” Brigham City, Utah v.
Stuart, 547 U.S. 398, 403 (2006). The Fourth Amendment “prohibits
the police from making a warrantless and nonconsensual entry into
a suspect’s home in order to make a routine felony arrest.” Payton
v. New York, 445 U.S. 573, 576 (1980). However, “the warrant
requirement is subject to certain exceptions.” Brigham City, 547
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
U.S. at 403. “One important exception is for exigent
circumstances.” Lange v. California, --- U.S. ---,
141 S. Ct. 2011, 2017 (2021).
In Stanton v. Sims, the Supreme Court found that officers
were entitled to qualified immunity where they entered the home of
a fleeing misdemeanant while in hot pursuit because “the law
regarding warrantless entry in hot pursuit of a fleeing
misdemeanant is not clearly established.” 571 U.S. 3, 5–7 (2013).
The Court in Lange subsequently clarified the Stanton standard for
officers in hot pursuit of individuals suspected of misdemeanors:
The flight of a suspected misdemeanant does not always
justify a warrantless entry into a home. An officer must
consider all the circumstances in a pursuit case to
determine whether there is a law enforcement
emergency. On many occasions, the officer will have good
reason to enter—to prevent imminent harms of violence,
destruction of evidence, or escape from the home. But
when the officer has time to get a warrant, he must do
so—even though the misdemeanant fled.
Lange, 141 S. Ct. at 2024.
Here, the Court determines the alleged constitutional
deprivation was not clearly established on March 14, 2015. Compare
Stanton v. Sims, 571 U.S. 3, 5–7 (2013), with
Lange v. California, --- U.S. ---, 141 S. Ct. 2011, 2024 (2021).
The alleged offense that brought Defendant Kalna to Plaintiffs’
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MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
door is unclear. While potential charges might not be limited to
misdemeanor offenses, the parties have shown no particularly
serious crime committed by Plaintiffs, and Plaintiffs failed to
allege facts making recovery plausible in light of the state of
the law at the time of the offense.
Not until the year of 2021 would an officer “consider[ing]
all the circumstances” be required to reasonably “determine . . .
there [was] a law enforcement emergency” such that he did not have
“time to get a warrant” with respect to fleeing suspected
misdemeanants. Lange, 141 S. Ct. at 2024. The incident alleged in
Plaintiffs’ Amended Complaint occurred on March 14, 2015, making
the alleged constitutional violation here – warrantless entry by
an officer in pursuit of a fleeing suspected misdemeanant – not
clearly established in 2015 such that a reasonable official would
have known. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
Defendant Kalna is entitled to a qualified immunity defense.
As a matter of law, the alleged constitutional violation was not
clearly established and the law regarding the pursuit of a fleeing
suspected criminal into a home was not “beyond debate” in March
2015 and, therefore, Defendant Kalna did not violate clearly
established constitutional or other rights that a reasonable
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Cogar et. al v. Kalna et. al 2:21cv6
MEMORANDUM OPINION AND ORDER GRANTING
MOTION TO DISMISS AMENDED COMPLAINT [ECF NO. 21]
officer would have known. See Lange, 141 S.Ct. 2011 (2021); see
also Siegert, 500 U.S. at 232. Defendant Kalna’s Motion to Dismiss
is GRANTED pursuant to the doctrine of qualified immunity. All
claims asserted by Plaintiffs against Defendant Kalna are
DISMISSED, and Defendant Kalna is hereby DISMISSED from this
action.
Vv. CONCLUSION
For the reasons discussed above, Defendant’s Motion to
Dismiss Amended Complaint is GRANTED. ECF No. 21. Defendant's
Motion to Dismiss [ECF No. 9] is GRANTED as moot. Plaintiffs’
Motion to Strike Suggestion of Death is DENIED as moot. ECF No.
36.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all
pro se parties and counsel of record herein.
DATED: March 29, 2022
Tom 8 Kl
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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