Goines v. Nicholson

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

FRANK GOINES, II,

Plaintiff,

v. CIVIL NO. 1:23-CV-83

(KLEEH)

THUNDER NICHOLSON,

JOHN WYATT, and

JEREMY FARLING,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

Pending before the Court is an Amended Partial Motion to

Dismiss. For the reasons discussed herein, the Court GRANTS the

motion.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Frank Goines (“Plaintiff”) asserts that Defendants

Thunder Nicholson (“Nicholson”), John Wyatt (“Wyatt”), and Jeremy

Farling (“Farling”) (together, “Defendants”) wrongfully and

illegally arrested and detained him on February 21, 2022, in

Kingwood, West Virginia. Compl., ECF No. 1, at ¶ 2. Nicholson

and Wyatt filed an amended partial motion to dismiss on November

22, 2023. It is fully briefed and ripe for review. Farling joined

in and adopted by reference Section III.B of the memorandum in

support of the motion to dismiss. The court convened a hearing on

the motion on February 14, 2024.

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

II. FACTS

The following set of facts is taken from the Complaint.

Nicholson is a trooper with the West Virginia State Police (the

“State Police”) and is being sued in his individual and official

capacities. Id. ¶¶ 5–6. Wyatt was also a trooper with the State

Police and is being sued in his individual and official capacities.

Id. ¶¶ 7–8. Farling was a deputy with the Preston County Sheriff’s

Department and is being sued in his individual and official

capacities. Id. ¶¶ 9–10.

The afternoon of February 21, 2022, Plaintiff, who is a black

man, was at his home in Kingwood, West Virginia, when his adult

sister, who did not reside in the home, began arguing with him

about an issue involving their mother. Id. ¶ 12. Plaintiff,

fearing that his sister would become physical, called 911, seeking

assistance in removing his sister from his home. Id. ¶ 13. Farling

was dispatched to Plaintiff’s home. Id. ¶ 14. When Farling

arrived, Plaintiff came to the front porch with the door open,

explained why he called 911, and told Farling that his sister had

left. Id. ¶ 15. Farling asked Plaintiff who was in the home, and

Plaintiff told him that he and his wife, who was standing in the

doorway, were at home. Id. ¶ 16. During the conversation,

Plaintiff’s mother could be heard inside the home speaking to

Plaintiff and Farling. Id.

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

Farling then told Plaintiff that Plaintiff “lied” because he

did not tell Farling that Plaintiff’s mother was also in the home.

Id. ¶ 17. Plaintiff denied lying and explained that he thought

Farling wanted to know who was present during his argument with

his sister, and his mother had been in her room during the

argument. Id. ¶ 18. Plaintiff then returned inside his home.

Id. ¶ 19. Farling and Plaintiff’s wife spoke more, and then

Plaintiff’s wife attempted to return inside. Id. As she entered

the home and attempted to shut the door, Farling pushed through

the door, grabbed her by the hands, and placed them behind her

back. Id. When Farling saw that Plaintiff was video recording,

he stopped. Id.

Farling then exited the home and spoke with Plaintiff’s mother

on the porch. Id. ¶ 20. Plaintiff’s mother confirmed that her

daughter had started an argument with Plaintiff, which is why

Plaintiff called 911. Id. ¶ 21. Plaintiff’s mother confirmed

that her daughter had left before Farling arrived. Id. While

Farling speaking with Plaintiff’s mother, Nicholson and Wyatt

arrived. Id. ¶ 22. Farling then began yelling at Plaintiff

through a window to come out and speak with him. Id. ¶ 23. Farling

had previously told Plaintiff that he was not under arrest for

anything. Id. Wyatt told Nicholson to arrest Plaintiff for

obstruction. Id. ¶ 25.

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

As directed, Plaintiff came out of the house and off the

porch, holding his cell phone with both hands in front of him.

Id. ¶ 24. At that time, all three defendants grabbed Plaintiff by

his arms, forcefully removed the cell phone from his hands, placed

his hands behind his back, and handcuffed him. Id. Plaintiff was

placed in the back of Nicholson’s cruiser and taken to the Preston

County Sheriff’s Office, where he was searched, fingerprinted, and

photographed. Id. ¶ 25. Plaintiff was then transported to Preston

County Magistrate Court, where he was arraigned and posted bail.

Id. Plaintiff was under the conditions of bail for 11 months,

until January 11, 2023, when the Preston County Prosecuting

Attorney dismissed the obstruction charge. Id. ¶ 26.

Based on these facts, Plaintiff brings the following causes

of action:

(1) Illegal Search and Seizure Under 42 U.S.C. § 1983;

(2) Violations of the West Virginia Constitution:

Article III, Sections 6 and 10;

(3) Battery;

(4) Negligence, Gross Negligence, Recklessness;

(5) Intentional Infliction of Emotional Distress; and

(6) Abuse of Process.

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

III. STANDARDS OF REVIEW

12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows

the Court to dismiss an action for lack of jurisdiction over the

subject matter. A plaintiff bears “the burden of proving that

subject matter jurisdiction exists.” Evans v. B.F. Perkins Co.,

166 F.3d 642, 647 (4th Cir. 1999). In considering a motion to

dismiss pursuant to Rule 12(b)(1), the court should “regard the

pleadings as mere evidence on the issue, and may consider evidence

outside the pleadings without converting the proceeding to one for

summary judgment.” Id. (citation omitted). The court should grant

the motion “only if the material jurisdictional facts are not in

dispute and the moving party is entitled to prevail as a matter of

law.” Id. (citation omitted). When a defendant asserts multiple

defenses, “questions of subject matter jurisdiction must be

decided first, because they concern the court’s very power to hear

the case.” Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4

(4th Cir. 1999) (citations and quotation marks omitted).

Rule 12(b)(6)

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 12(b)(6) motion to dismiss, a court “must accept as

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

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).

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 942, 952 (4th Cir. 1992). Dismissal is

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

plaintiff would be entitled to no relief under any state of facts

which could be proven in support of its claim.” Johnson v.

Mueller, 415 F.2d 354, 355 (4th Cir. 1969).

IV. DISCUSSION

The Court finds that Wyatt and Nicholson are entitled to

Eleventh Amendment immunity for 42 U.S.C. § 1983 claims asserted

against them in their official capacities; that the West Virginia

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

Constitutional claims fail as a matter of law; and that the simple

negligence claims against Wyatt and Nicholson are dismissed.

A. “Official Capacity” Claims Under 42 U.S.C. § 1983

In Count One, Plaintiff asserts that Defendants engaged in an

illegal search and seizure under 42 U.S.C. § 1983. Wyatt and

Nicholson argue that they are entitled to immunity under the

Eleventh Amendment with respect to claims in Count One against

them in their official capacity.

The Eleventh Amendment provides, in pertinent part, “The

Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State[.]”

“[A]bsent waiver by the State or valid congressional override, the

Eleventh Amendment bars a damages action against a State in federal

Court.” Kentucky v. Graham, 473 U.S. 159, 169 (1985). “This

immunity applies to . . . state employees acting in their official

capacity.” Harter v. Vernon, 101 F.3d 334, 337 (4th Cir. 1996).

“[A] suit against a state official in his or her official capacity

is not a suit against the official but rather is a suit against

the official’s office. . . . As such, it is no different from a

suit against the State itself.” Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989) (citations omitted).

While 42 U.S.C. § 1983 provides a federal cause of action for

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

alleged violations of an individual’s constitutional right, it

does not abrogate the Eleventh Amendment. Quern v. Jordan, 440

U.S. 332, 338-345 (1979). Because Nicholson and Wyatt are State

Police officers, they are entitled to Eleventh Amendment immunity

in their official capacities. The Court, therefore, GRANTS the

motion to dismiss in this respect and DISMISSES Count One against

Nicholson and Wyatt to the extent that it asserts claims against

them in their official capacities.

B. West Virginia Constitutional Claims

In Count Two, Plaintiff alleges that Defendants violated his

rights under Article III, Sections 6 and 10, of the West Virginia

Constitution. Article III, Section 6, provides:

The rights of the citizens to be secure in

their houses, persons, papers and effects,

against unreasonable searches and seizures,

shall not be violated. No warrant shall issue

except upon probable cause, supported by oath

or affirmation, particularly describing the

place to be searched, or the person or thing

to be seized.

Article III, Section 10, provides, “No person shall be deprived of

life, liberty, or property, without due process of law, and the

judgment of his peers.”

Defendants have moved to dismiss the state constitutional

claims against them under both sections. The parties agree that

under Fields v. Mellinger, 851 S.E.2d 789 (W. Va. 2020), Plaintiff

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GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

may not assert a claim for monetary damages under Section 6. As

such, the Court GRANTS the motion to dismiss in this respect.

The parties disagree as to whether Plaintiff may assert a

claim under Section 10. In the 1996 case of Hutchison v. City of

Huntington, a landowner asserted a Section 10 claim against the

city based on the city’s delay in issuing him a building permit.

479 S.E.2d 649, 655 (W. Va. 1996). The Supreme Court of Appeals

wrote, without analysis, “There is no dispute among the parties

that a private cause of action exists where state government, or

its entities, cause injury to a citizen by denying due process.

To suggest otherwise would make our constitutional guarantees of

due process an empty illusion.” Id. at 660. The court ultimately

did not decide whether the evidence was sufficient to establish

the Section 10 claim because it found that liability was barred by

the West Virginia Immunity Statute, W. Va. Code § 29-12A-5(a).

Id.

Fourteen years later, in Fields, when the Supreme Court held

that West Virginia does not recognize a private right of action

for monetary damages for a violation of Section 6, the Court

emphasized that alternative remedies for the plaintiff were

available. Fields, 851 S.E.2d at 799. The plaintiff’s alternative

remedies were evidenced by his assertion of state law claims of

negligence in hiring, retention, and supervision; battery; and

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

outrageous conduct. Id. They were also evidenced by his federal

claims under 42 U.S.C. §§ 1983 and 1985. Id. The court “[found]

little guidance from the Hutchison opinion” to aid its decision,

noting that Hutchison provided no analysis. Id. at 793.

Two years later, the Supreme Court decided Stepp, in which

the plaintiff, as the plaintiff has here, brought state

Constitutional claims under Sections 6 and 10. The Supreme Court

held that “[c]laims for excessive force by police officers during

the course of arrest, alleging a violation of West Virginia’s

Constitution, must be analyzed under the specific textual source

of such protection, rather than as a broad, general claim under

Article III, Section 10 alleging a violation of substantive due

process.” Syl. Pt. 4, Stepp v. Cottrell, 874 S.E.2d 700 (W. Va.

2022). The right to be free from excessive force during an arrest,

investigatory stop, or other seizure is guaranteed by the search

and seizure clause in Section 6, not by Section 10. Id. at 704.

The court also noted that, like in Fields, alternative

remedies were available for the plaintiff, citing Stepp’s federal

claims under 42 U.S.C. § 1983 and state law claims for battery and

negligence. Id. at 708. The Stepp court acknowledged the

Hutchison case but distinguished it, noting that Hutchison was

based on procedural due process, while Stepp was based on

substantive due process. Id. at 704.

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

Here, in his response brief, Plaintiff has tried to salvage

his Section 10 claim by arguing that it relates to procedural, as

opposed to substantive, due process. The Court disagrees. The

allegations in this case are like those in Stepp because they

involve an alleged unlawful use of force. They are a far cry from

the permitting issue in Hutchison that fell within the bounds of

procedural due process. Stepp makes it clear that an unlawful

use-of-force claim is to be analyzed under Section 6, not Section

10 — and West Virginia does not recognize a private cause action

for monetary damages under Section 6.

Further, Plaintiff has alternative remedies here. The

alternative remedies are evidenced by the federal claims he asserts

under 42 U.S.C. § 1983. They are also evidenced by his state law

claims of battery; negligence, gross negligence, and recklessness;

intentional infliction of emotional distress; and abuse of

process. For these reasons, Plaintiff’s claim under Section 10

fails as a matter of law. The motion to dismiss is GRANTED in

this respect, and Count Two is DISMISSED.

C. Qualified Immunity for Simple Negligence

The parties agree that Nicholson and Wyatt (State Police

officers) are entitled to qualified immunity with respect to the

simple negligence claims. As such, the Court GRANTS the motion to

dismiss in this respect and DISMISSES Count Four to the extent

GOINES V. NICHOLSON ET AL. 1:23-CV-83

MEMORANDUM OPINION AND ORDER

GRANTING AMENDED PARTIAL MOTION TO DISMISS [ECF NO. 11]

that it alleges simple negligence against Nicholson and Wyatt.

Vv. CONCLUSION

For the reasons discussed above, the amended partial motion

to dismiss is GRANTED. The Court ORDERS as follows:

° Count One is DISMISSED, to the extent that

it asserts claims against Nicholson and

Wyatt in their official capacities;

e Count Two is DISMISSED in its entirety; and

e Count Four is DISMISSED against Nicholson

and Wyatt.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: February 26, 2024

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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