The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
ERIK WYER,
Plaintiff,
v. CIVIL ACTION NO.: 3:22-CV-145
(GROH)
WILLIAM SHEPPARD,
individually and as an employee
of the Town of Ridgeley, and
THE TOWN OF RIDGELEY, WV,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING THE DEFENDANTS’ MOTION TO DISMISS
Currently pending before the Court is the Defendants’ Motion to Dismiss. ECF No.
23. The Plaintiff filed a Response in Opposition. ECF No. 26. 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. 29.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 26, 2022, Erik Wyer (“Plaintiff”) filed a complaint alleging six counts
against the Defendants. ECF No. 1. The Defendants filed a Motion to Dismiss. Four days
after filing a Response in Opposition, the Plaintiff filed a Motion seeking leave to amend
his complaint. ECF No. 20. The Court granted the Plaintiff’s motion [ECF No. 21] and the
Plaintiff filed an amended complaint. ECF No. 22. Shortly thereafter, the Defendants
again moved to dismiss. ECF No. 23. The claims in the Amended Complaint arise out of
the Plaintiff’s employment and termination from his position as chief of police for the town
of Ridgeley, West Virginia.
According to the Amended Complaint, the Plaintiff was hired by the Defendants on
September 23, 2021, to be chief of police for the town of Ridgeley. ECF No. 22 at 2. The
Plaintiff states that Mayor Sheppard “interfered with, obstructed, and hindered” him from
performing his duties as the chief of police. Id. at 3. The paragraphs that follow contend
the Mayor ordered Plaintiff to “continuously cite a property owner for the condition of his
property in order to raise funds for the town”; “unreasonably cite motorists in order to
defray and [sic] the costs of a proposed building . . .”; “refrain from issuing citations to
residents of Ridgeley during an election year”; but “ordered that non-Ridgeley residents
be cited ‘in order to bring money in.’” Id.
The Plaintiff further alleges that he “discovered that the town, the mayor, the police
commissioner, members of the town council, and employees of the town were acting and
engaging in unlawful practices and abusing their authority.” Id. Despite receiving praise
“by the members of the Town Council of Ridgeley at a town council meeting on April 12,
2022, for performing his duties in an exemplary manner,” the Plaintiff’s employment was
terminated by the Mayor on May 6, 2022. Id. at 6–7. The Plaintiff also avers that he was
improperly denied a pretermination hearing under W. Va. Code § 8-14A-3.
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’ Reply aptly points out that the Plaintiff failed
to meaningfully respond to arguments seeking the dismissal of Count Two, claims against
the Town and the Mayor in his official capacity, and the request for punitive damages.
Given the Plaintiff’s failure to rebut these arguments, and finding they have been
appropriately raised, the Court concludes summary dismissal appropriate of these claims.
a. Counts One through Three must be dismissed because Plaintiff was not an
“Officer” as defined by the statute.
The Defendants argue that Counts One, Two, and Three must be dismissed
because the Plaintiff is not an “Officer” under W. Va. Code § 8-14A-1. Count One alleges
a § 1983 violation under the Fourteenth Amendment. Count Two is for a violation of due
process under the West Virginia Constitution. Count Three presents a violation of W. Va.
Code § 8-14A-1 et. seq. These three counts fail as a matter of law.
“Police officer[” . . . ] means any police officer . . . of a police . . . department
employed by the city or municipality, but shall not include (a) the highest ranking officer
of the police . . . department[.]” W. Va. Code § 8-14A-1 (emphasis added). In the Plaintiff’s
Response on these counts, he offers rebuttal in response to the Defendants’ argument
that the Plaintiff is not an “accused officer.” However, the Plaintiff never counters the
argument that he was not an “officer” as defined by the statute because he was the
highest ranking officer, which excludes him under W. Va. Code. § 8-14A-1(6). See Minor
v. City of Stonewood, No. 13-0758, 2014 WL 1672941, at *1 (W. Va. Apr. 25, 2014)
(upholding circuit court’s decision finding chief of police was “no longer a policeman and,
therefore, could not have been entitled to a hearing under the statute, which applies only
to police officers and firefighters[,]” . . . “so the statute clearly excludes petitioner from the
definition of police officer”).
Because the Plaintiff was not an “Officer” as defined by the relevant statutes,
Counts One through Three must fail. Further, even if the Plaintiff were an Officer, the
Defendants remaining arguments for dismissal of these counts are similarly persuasive,
and the Court finds dismissal would be appropriate under those theories as well.
b. Count Four fails for two reasons: the Plaintiff was not an “Officer” and a
statutory remedy is available to the Plaintiff.
Turning to Count Four, the Defendants argue it must be dismissed because it is
preempted by the Whistleblower Act. The Plaintiff advances similar facts in support of
Counts Four and Five but relies upon different legal theories for relief. Count Four seeks
relief for wrongful discharge in violation of substantial public policy while Count Five
claims a violation of West Virginia’s whistleblower law. Defendants also argue Count Four
should be dismissed because the Plaintiff failed to identify any actionable source of
substantial public policy. In response, the Plaintiff simply says there are “substantial facts”
in the amended complaint to support the claim and quotes one paragraph from the
Amended Complaint. Plaintiff’s quoted language pertains to affording public employees
with due process prior to terminating their employment as the substantial public policy.
The Plaintiff’s Response only points the Court to the Amended Complaint. There
is little, if any, argument. As the Court has explained, the Plaintiff, as Police Chief of
Ridgeley, was not an “officer” as defined by the statute. Thus, he was not entitled to any
of the statutory provisions he claims and relies upon for this Count and elsewhere in his
Amended Complaint. Accordingly, Count Four fails as a matter of law because the Plaintiff
was not a law enforcement officer according to the statute as explained more fully above,
so he is not entitled to the relief he seeks.
Further, the Court finds Count Four should be dismissed based on an alternative
theory as well: “[W]here a right not existing at common law is created by statute, and a
statutory remedy for its violation is provided, the statutory remedy is exclusive and no
other remedy may be pursued.” Guevara v. K-Mart Corp., 629 F. Supp. 1189, 1191 (S.D.
W. Va. 1986) (quoting Mahoney v. Crocker National Bank, 571 F. Supp. 287, 293 (N.D.
Cal. 1983)).
c. Defendant Sheppard is entitled to qualified immunity.
The Defendants also claim that Defendant Sheppard is entitled to qualified
immunity. The Plaintiff disagrees. 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.” Id. 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 first claims that Defendant Sheppard was “not acting
within the scope of his authority, [sic] when he terminated the employment of the Plaintiff
with [sic] a hearing, as the laws [sic] clearly requires some sort of hearing to take place
for an ‘accused officer.’” ECF No. 26 at 13. The Court has explained at length that the
Plaintiff was not entitled to a hearing under the relevant statute. Accordingly, this is not a
valid basis to deny Defendant Sheppard qualified immunity.
The Plaintiff also refers to “illegal conduct” Defendant Sheppard allegedly solicited
the Plaintiff to take part in that is “outlined in the Complaint.” Id. at 14. The Court finds the
Defendants’ arguments on this point persuasive. The allegations Plaintiff includes in his
Amended Complaint present some potentially questionable or even objectionable
actions. However, questionable and objectionable actions fall short of being unlawful or
running afoul of the Whistleblower Act. There are no factual allegations of abuse, misuse,
destruction or loss of funds or resources.
Plaintiff amended his complaint in this action, yet it identifies no controlling
authority or persuasive cases showing that Defendant Sheppard’s alleged activities as
mayor violated any particularized, clearly established law. The Complaint need not
contain these authorities, but once the issues were raised by the Defendants in their
Motion to Dismiss, the Plaintiff needs to satisfactorily defend his claims. In his Response
to the Motion to Dismiss, the Plaintiff has provided no authority to undermine or dispel the
Defendants’ position. Simply stated, the Court finds the Amended Complaint fails to state
a claim under the Act, and Defendant Sheppard, is entitled to qualified immunity.
It appears to the Court that the Plaintiff alleges vicarious liability against the Town
of Ridgeley for Defendant Sheppard’s alleged constitutional violations. First, these claims
fail because, as the Court has explained, Defendant Sheppard did not commit any
underlying constitutional violation. Nonetheless, assuming his alleged conduct violated
the Constitution, the Plaintiff still fails to adequately allege a claim against the Town.
d. The Plaintiff failed to articulate facts to give rise to Monell liability.
In paragraph 43 of the Amended Complaint, Plaintiff states, “Defendant Town of
Ridgeley has municipal liability for all actions of its employees including Mayor William
Sheppard in his official capacity per 42 U.S.C. § 1983 and Monell.” ECF No. 22 at 8.
As municipal government entities, the Town 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 the Town. Instead, the Plaintiff
alleges only acts by Mayor Sheppard, 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.
Accordingly, the Plaintiff has not met the requirements of Monell, and his vicarious liability
claims against the Town must be dismissed.
IV. CONCLUSION
For those reasons more fully stated herein, the Defendants’ Motion to Dismiss is
GRANTED. ECF No. 23. The Plaintiff’s Amended Complaint [ECF No. 22] is DISMISSED
WITH PREJUDICE. The Clerk of Court is DIRECTED to remove this Civil Action from the
Court’s active docket and to terminate any outstanding motions.
The Clerk is further DIRECTED to transmit copies of this Order to all counsel of
record herein.
DATED: January 16, 2024 □
GINA $ 7GROH
UNITED STATES DISTRICT JUDGE
10