Mullins v. Johnson

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

RALPH J. MULLINS,

Plaintiff,

v. Civ. Action No. 1:22-CV-98

(Judge Kleeh)

CRANSTON D. JOHNSON, STEVE ANDRYZCIK,

EDIE VIOLA, GARY WEBER, JEFFERY FRIEND,

DUANE TATAR, TIMOTHY P. STRANKO,

SANDY WEISS, and THE CITY OF WESTOVER,

WEST VIRGINIA,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Pending before the Court are Defendants Timothy Stranko,

Sandy Weiss, and the City of Westover’s Motion to Dismiss [ECF No.

4] and Defendants Cranston David Johnson, Steve Andryczik, Jeffrey

Friend, and any other served Defendants’ Motion to Dismiss [ECF

No. 15]. For the reasons discussed herein, the Motions [ECF Nos.

4, 15] are GRANTED IN PART and DENIED IN PART.

I. PROCEDURAL HISTORY

On September 23, 2022, Plaintiff Ralph J. Mullins

(“Plaintiff”), by counsel, filed a Complaint against Cranston D.

Johnson, Steve Andryzcik, Edie Viola, Gary Weber, Jeffery Friend,

Duane Tatar, Timothy Stranko, Sandy Weiss, and the City of

Westover. ECF No. 1. The Complaint alleges (1) 42 U.S.C. § 1983

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

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retaliation in violation of the First Amendment; (2) 42 U.S.C. §

1983 violation of the Fourth Amendment; (3) 42 U.S.C. § 1983

violation of the Fourteenth Amendment; (4) 42 U.S.C. § 1983 Monell

Liability; (5) Slander; (6) Assault; (7) Battery; (8) violation of

the West Virginia Whistle-Blower Law; and (9) Intentional

Infliction of Emotional Distress.

On October 26, 2022, Defendants Timothy Stranko (“Stranko”),

City of Westover (“Defendant Westover”), and Sandy Weiss (“Weiss”)

moved to dismiss Plaintiff’s Complaint. ECF No. 4. Plaintiff

responded in opposition to the Motion to Dismiss on November 16,

2022 [ECF No. 6] and Defendants Stranko, Westover, and Weiss

replied in support of their Motion to Dismiss (ECF No. 7].

Subsequently on April 17, 2023, Defendants Cranston David Johnson

(“Johnson”), Steve Andryczik (“Andryczik”), Jeffrey Friend

(“Friend”), and any other served Defendants also moved to dismiss

the Complaint, incorporating the previously filed memorandum in

support of dismissal [ECF No. 5]. ECF No. 15. On May 16, 2023,

Plaintiff responded in opposition, incorporating its previously

filed memorandum response [ECF No. 6]. ECF No. 16.1 The Motions to

Dismiss [ECF Nos. 4, 15] are thus briefed and ripe for review.

1 Appearing that all Defendants were served, the Court construes the two

motions to seek dismissal of Plaintiff’s Complaint as to all named

Defendants, excluding Count VI and Count VII against Defendant Johnson.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

II. FACTUAL ALLEGATIONS

Plaintiff Ralph Mullins was appointed to the Westover City

Council in the Fall of 2016 and continued to serve through the

first months of 2022. ECF No. 1, Compl. at ¶ 43. During his time

in office, Plaintiff alleges there were instances of corruption

and police misconduct involving Mayor Cranston D. Johnson

(“Johnson”) and the Westover Police Department (“WPD”) Id. at ¶¶

44-45. Plaintiff believed that as a councilmember, “he was in a

unique position to speak out against the injustices and misdealings

he saw throughout the municipality.” Id. at ¶ 44.

Between December 31, 2018, and August 28, 2019, Plaintiff

contends that Westover Police Officer Aaron Dalton engaged in acts

of police brutality. Id. at ¶ 49. Plaintiff requested and was

granted documents relating to the subject events. Id. at ¶ 50. On

October 5, 2020, Plaintiff claimed he called Westover City Attorney

Timothy Stranko (“Stranko”) regarding his conduct as City Attorney

and his alleged involvement in a sexual harassment case involving

Officer Dalton, but his call went unanswered. Id. at ¶ 51-52.

Following the resignation of Westover’s Chief of Police,

Plaintiff called for an investigation into the Westover City

Council and Johnson. Id. at ¶ 53. As reason for the investigation,

Plaintiff alleges that the City Council attempted to cover-up

Officer Dalton’s “wrongful arrest and beating” of Andre P. Howton.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Id. at ¶ 54. As part of the “cover-up”, Plaintiff contends he,

along with other councilmembers, was delayed information regarding

a letter from members of the WPD calling for Officer Dalton’s

removal. Id. at ¶¶ 60-66. Moreover, Stranko denied Plaintiff access

to the letter. Id. at ¶¶ 67-70. The letter was ultimately published

in the news after being obtained via a Freedom of Information Act

request. Id. at ¶ 72.

Due to his “outspoken nature”, Plaintiff claims Defendant

Johnson harassed him, utilizing his power and influence as Mayor.

Id. at ¶ 85. For example, Plaintiff alleges Johnson used the

Westover City ordinances as a form of harassment and retaliation.

Id. at ¶ 87. Namely, on July 14, 2021, Plaintiff received a notice

of violation from Westover Code Enforcement stating Plaintiff

violated City Code 11111.07 by not cutting the grass at his home.

Id. at ¶ 88. Though the City of Westover had previously cut the

subject grass, the Director of Public Works informed Plaintiff

that he was responsible for cutting the grass on the embankment at

his house. Id. at ¶¶ 89-92. Then, on September 20, 2021, Plaintiff

received a second notice of City Code violation, stating he failed

to take down a sign for a closed business (City Code 1741.09). Id.

at ¶ 93. Plaintiff contends the violation was improper because his

carwash business was only temporarily closed due to COVID-19. Id.

at ¶ 94. Plaintiff also claims that City Clerk Sandra Weiss

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

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(“Weiss”) filed a false employee grievance against him, which the

City Council used to take “public action” against him. Id. at ¶¶

96-99.

The bulk of Plaintiff’s allegations culminated at a Westover

City Council Meeting on February 22, 2022. See generally, ECF No.

1. During the meeting, Plaintiff and Defendant Johnson “exchanged

words in a contentious debate,” regarding Plaintiff’s right to

record the meeting. Id. at ¶¶ 100-04. Plaintiff contends he was

wrongfully refused the opportunity to record the meeting regarding

“the handling of the police misconduct cases in Westover.” Id. at

¶ 104. Upon Plaintiff and Defendant Johnson exchanging words,

Plaintiff alleges Johnson stood up, approached Plaintiff’s desk,

and “began attempting to shove” him. Id. at ¶¶ 101-02. The Chief

of Police tried to put himself between Plaintiff and Johnson, but

“Johnson was able to make contact with the Plaintiff’s right

shoulder by shoving in the Plaintiff’s direction, causing him to

stagger backwards and twist his knee.” Id. at ¶ 103. As a result,

Plaintiff claims he tore his meniscus. Id. at ¶ 109. Defendant

Johnson was further charged with misdemeanor battery following the

February 22, 2022, City Council Meeting. Id. at ¶ 107.

Following the altercation, Plaintiff sought an accommodation

from Defendant Stranko to attend the March 2022 City Council

meeting remotely, but the request was denied. Id. at ¶¶ 111-112.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Plaintiff wanted to attend the meeting remotely because he “was

advised to keep his person away from City Council meetings by his

physician.” Id. at ¶ 216. Because he was unable to attend remotely,

Plaintiff did not attend the March 21, 2022, City Council meeting.

Id. at ¶ 112. During the March meeting, the City Council

unanimously voted to censure Plaintiff regarding his conduct

during the executive session at the February 22, 2022, meeting.

Id. at ¶¶ 119-23. Plaintiff believes the censure was based on false

accusations and procedurally improper. Id. at ¶¶ 113-18.

Additionally, Plaintiff contends City Councilmember, Edie

Viola (“Defendant Viola”) attempted to defame him, and harm his

reputation by visiting Plaintiff’s mother’s place of work and

stating that “[h]e is nothing but a big fat, lying, son of a

bitch.” Id. at ¶ 175.

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

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as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

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

Defendants move to dismiss Counts I, II, III, IV, V, VIII,

and IX alleging Plaintiff failed to state claims upon which relief

can be granted. ECF Nos. 4, 15. Defendants also argue that

Defendants are entitled to certain immunities. The Court will

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

discuss each claim in turn.

A. 42 U.S.C. § 1983 Constitutional Claims – Counts I, II, III

Under 42 U.S.C. § 1983, Plaintiff alleges retaliation in

violation of the First Amendment to the Constitution, unlawful

seizure in violation the Fourth Amendment to the Constitution, and

deprivation of equal protection under law in violation of the

Fourteenth Amendment to the Constitution. See ECF No. 1.

Proper application of [§ 1983 suits] against public

officials requires careful adherence to the distinction

between personal- and official-capacity action suits.

Personal-capacity suits seek to impose personal

liability upon a government official for actions he

takes under color of state law. Official-capacity suits,

in contrast, generally represent only another way of

pleading an action against an entity of which an officer

is an agent. As long as the government entity receives

notice and an opportunity to respond, an official-

capacity suit is, in all respects other than name, to be

treated as a suit against the entity. It is not a suit

against the official personally, for the real party in

interest is the entity. Thus, while an award of damages

against an official in his personal capacity can be

executed only against the official’s personal assets, a

plaintiff seeking to recover on a damages judgment in

an official-capacity suit must look to the government

entity itself.

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation

marks and citations omitted).

i. Official capacity

Because an official-capacity suit is “essentially a claim

against the [entity],” official-capacity claims “should be

dismissed as duplicative” when the entity is also named as a

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defendant. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004)

(citing Kentucky, 473 U.S. at 165-66). Plaintiff has brought the

same § 1983 claims against Defendants Johnson, Andryzcik, Viola,

Weber, Friend, Tatar, Stranko, and Weiss in their official

capacities as he asserted against Defendant City of Westover.

Accordingly, this court finds that these claims are duplicative

and hereby DISMISSES all official-capacity § 1983 First, Fourth,

and Fourteenth Amendment claims against the named individual

Defendants.

ii. Individual capacity

“[T]o establish personal liability in a § 1983 action, it is

enough to show that the official, acting under color of state law,

caused the deprivation of a federal right.” Kentucky, 473 U.S. at

166 (internal citation omitted). Here, the alleged deprivation of

Plaintiff’s federal rights is three-fold: (1) Defendant Johnson

and “other council persons” violated his First Amendment

“constitutional rights by retaliating against him for speaking

mere words of public concern.” [ECF No. 1, at ¶ 132]; (2) Defendant

Johnson violated Plaintiff’s Fourth Amendment constitutional

rights by “unreasonably seizing Plaintiff” at the February 22,

2022, city council meeting [Id. at ¶ 144]; and (3) the Defendant

City of Westover denied Plaintiff equal protection of the law [Id.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

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at ¶ 150]. The Court will address each of Plaintiff’s claims under

§ 1983 in turn.

1. Count I: § 1983 First Amendment Claim

Plaintiff’s First Amendment claim fails to state a claim upon

which relief can be granted. The First Amendment provides that

“Congress shall make no law ... abridging the freedom of speech.”

U.S. CONST. amend. I. The First Amendment right to free speech

includes not only the affirmative right to speak, but also the

right to be free from retaliation by a public official for the

exercise of that right. See ACLU v. Wicomico County, Md., 999 F.2d

780, 785 (4th Cir. 1993) (“Retaliation, though it is not expressly

referred to in the Constitution, is nonetheless actionable because

retaliatory actions may tend to chill individuals’ exercise of

constitutional rights.”).

[T]o state a colorable retaliation claim under

Section 1983, a plaintiff ‘must allege that

(1) he engaged in protected First Amendment

activity, (2) the defendant took some action

that adversely affected his First Amendment

rights, and (3) there was a causal

relationship between his protected activity

and the defendant's conduct.’

Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d

474, 499 (4th Cir. 2005)).

Public employees are “entitled to be protected from firings,

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demotions and other adverse employment consequences resulting from

the exercise of their free speech rights, as well as other First

Amendment rights.” Alderman v. Pocahontas Cty. Bd. of Educ., 675

S.E.2d 907, 916 (W. Va. 2009) (citing Pickering v. Board of

Education, 391 U.S. 563 (1968)). In cases involving a public

employee’s speech, courts apply the Pickering standard. Pickering,

391 U.S. 563.

“To determine if a public employee has a

cognizable First Amendment claim for

retaliatory discharge, we apply a test derived

from Pickering v. Bd. of Educ., 391 U.S. 563

(1968), in which we consider: [‘](1) whether

the public employee was speaking as a citizen

upon a matter of public concern or as an

employee about a matter of personal interest;

(2) whether the employee's interest in

speaking upon the matter of public concern

outweighed the government's interest in

providing effective and efficient services to

the public; and (3) whether the employee's

speech was a substantial factor in the

employee's termination decision.[’] McVey v.

Stacy, 157 F.3d 271, 277–78 (4th Cir. 1998).”

Billioni v. Bryant, 998 F.3d 572, 576 (4th Cir. 2021). “Speech

involves a matter of public concern if it affects the social,

political, or general well-being of a community.” Bloom v. Bd. of

Educ. of Monongalia Cnty., No. 1:13CV128, 2013 WL 5966398, at *3

(N.D.W. Va. Nov. 8, 2013) (quoting Edwards v. City of Goldsboro,

178 F.3d 231, 246 (4th Cir. 1999)). However, “[p]ersonal

grievances, complaints about conditions of employment, or

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expressions about other matters of personal interest do not

constitute speech about matters of public concern that are

protected by the First Amendment.” Id.

Importantly, “when public employees make statements pursuant

to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.”

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). “Specifically, a

public employee with ‘a confidential, policymaking, or public

contact role’ who ‘speaks out in a manner that interferes with or

undermines the operation of the agency’ enjoys ‘substantially less

First Amendment protection than does a lower level employee.’”

Austin v. Preston Cnty. Comm'n, No. 1:13CV135, 2014 WL 5148581, at

*6 (N.D.W. Va. Oct. 14, 2014) (quoting McVey v. Stacy, 157 F.3d

271, 278 (4th Cir. 1998)).

If a public employee is speaking as a citizen on a matter of

public concern, “[t]he question becomes whether the relevant

government entity had an adequate justification for treating the

employee differently from any other member of the general public.”

Austin, 2014 WL 5148581, at *5 (quoting Garcetti, 547 U.S. at 418).

The plaintiff also “bears the initial burden of proving that his

exercise of his First Amendment rights ‘was a “substantial” or

“motivating” factor in the employer's decision” to alter the

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plaintiff’s conditions of employment. Bland v. Roberts, 730 F.3d

368, 375 (4th Cir. 2013), as amended (Sept. 23, 2013) (quoting

Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993); Sales v. Grant,

158 F.3d 768, 775–76 (4th Cir. 1998)). Furthermore, “a plaintiff

pursuing a First Amendment retaliation claim must show, among other

things, that the government took an ‘adverse action’ in response

to his speech that ‘would not have been taken absent the

retaliatory motive’.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S.

468, 477 (2022) (internal quotations omitted).

Here, Plaintiff asserts that Johnson and “City Council, in

their official capacity” violated his First Amendment rights by

retaliating against him for expressing “concerns for the safety

and welfare of the citizens of Westover as it pertains to the

Westover Police Department.” Id. at ¶ 137. Because the Court has

already dismissed the official-capacity claims against the

councilmembers and none of the facts in support of the First

Amendment claim specifically identify any of the councilmembers,

the Court construes Count I to be raised only against Defendant

Johnson in his individual capacity. Plaintiff also argues that

Defendant Johnson violated his First Amendment rights “when he

assaulted, battered, and censured the Plaintiff for his mere use

of words, which were intended to address an issue of public

concern.” Id. at ¶ 140.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

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Defendants contend that the First Amendment claim should be

dismissed for several reasons: (1) Plaintiff does not identify the

particular speech which he contends is protected [ECF No. 5 at pp.

8-10] and (2) the Defendants’ alleged retaliatory action did not

adversely affect Plaintiff’s freedom of speech [ECF No. 5 at pp.

10-13].

Viewing the Complaint in the light most favorable to the

Plaintiff, the subject speech, which Plaintiff contends is

protected, can be understood as the “expression of concerns for

the safety and welfare of the citizens of Westover as it pertains

to the Westover Police Department.” ECF No. 1, at ¶ 137. Plaintiff

contends this speech is protected because he spoke as a citizen on

a matter of public concern, and not as a councilman. Id. at ¶¶

133-34. Issues of police misconduct can be reasonably viewed as a

matter of public concern because they affect the social, political,

and general well-being of the community of Westover.

However, given that the statements appear to have been made,

at least in part, during a council meeting and to other elected

officials, there is reason to believe that the statements were

made pursuant to Plaintiff’s official duties. Moreover, Plaintiff

states that as “a Council Member for the City of Westover,

Plaintiff was in a unique position to speak out against the

injustices and misdealings he saw throughout the municipality.”

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Id. at ¶ 45. Given that a city council member is a public employee

with “a confidential, policymaking, or public contact role”,

Plaintiff’s speech could “enjoy[] ‘substantially less First

Amendment protection.’” Austin, 2014 WL 5148581, at *6 (quoting

McVey, 157 F. at 278).

Regardless, assuming only for argument’s sake that Plaintiff

spoke as a private citizen on a matter of public concern, the First

Amendment claim still fails at the 12(b)(6) stage because Plaintiff

did not plead sufficient facts to support that Defendant Johnson

adversely affected his First Amendment rights or that there was a

causal relationship between his speech and the alleged retaliatory

conduct. Plaintiff alleges adverse employment action in the form

of “City Code violations, public censure, verbal and physical

violence, and . . . freezing his [councilmember] privileges.” ECF

No. 1, at ¶ 135.

First, the City Code violations from Westover Code

Enforcement and Public Works for the City of Westover are neither

conditions of Plaintiff’s employment nor related to Plaintiff’s

alleged protected speech. The City of Westover has a legitimate

interest in enforcing its codes regarding uncut grass (City Code

1111.07) and inactive businesses (City Code 1741.09). Moreover,

Plaintiff’s Complaint does not readily dispute that he did in fact

violate the provisions. While he contends his car wash business

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was not permanently closed, it had been temporarily closed for a

year and a half when he was cited for the violation. See Id. at ¶¶

93-94. Enforcing the City Codes did not adversely affect or deter

Plaintiff’s free speech and Plaintiff has not plead a causal

relationship between the code violations and his speech. Rather,

the code violations occurred in July and September of 2021, and

Plaintiff’s claimed protected speech occurred and/or continued

through at least February 2022. See Id. at Count I.

Second, the Court is persuaded by Defendants’ argument that

the censure is not a First Amendment violation and thus, cannot

serve as a materially adverse action in support of Plaintiff’s

claim. The Supreme Court of the United States recently concluded

that a governing body’s censure does not qualify “as a materially

adverse action,” in a First Amendment retaliation claim. Houston

Cmty. Coll. Sys., 595 U.S. at 479. In Houston Cmty. Coll. Sys.,

the Court found that an elected official’s right to speak was not

materially deterred by an elected board’s censure of the public

official due to his own conduct. Id. at 478-79. The Court reasoned

that “we expect elected representatives to shoulder a degree of

criticism about their public service from their constituents and

their peers and to continue exercising their free speech rights

when the criticism comes.” Id. at 478. Moreover, the Court noted

that “[t]he First Amendment surely promises an elected

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representative . . . the right to speak freely on questions of

government policy. But just as surely, it cannot be used as a

weapon to silence other representatives seeking to do the same.”

Id. (emphasis added). Ultimately, the Court found that the censure

did not infringe upon the public official’s First Amendment rights

because the censure itself “was a form of speech by elected

representatives”; “it concerned the public conduct of another

elected representative”; “[e]veryone involved was an equal member

of the same deliberative body”; and did not prevent the official

from doing his job. Id. at 478.

Here, the censure cannot support Plaintiff’s claim because

the censure was itself protected speech and the Complaint and its

attached exhibits show that the censure was unrelated to

Plaintiff’s claimed protected speech regarding the Westover

police. As an initial matter, Houston Cmty. Coll. Sys. supports

the councilmembers’ right to censure Plaintiff based upon his

conduct and the facts alleged do not support that the censure

otherwise deterred Plaintiff’s speech.

Regardless, the censure was unrelated to the claimed

protected speech. Plaintiff’s Complaint states that the Westover

City Council voted to censure him based upon his “actions during

the executive session on February 22, 2022.” ECF No. 1, at ¶¶ 115-

23. Moreover, the news article Plaintiff attached to his Complaint

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as Exhibit O states that Plaintiff “refused when asked to turn off

his recording device” during the City Council’s executive session.

ECF No. 1, Ex. O.2 By Plaintiff’s own pleading, the censure was

not retaliation for him speaking out on matters of public concern

but was a response to him refusing to cease recording the executive

session. Plaintiff does not plead the existence of a rule or

practice of allowing such recordings. Rather, executive sessions

are commonly understood to be for private or sensitive matters,

which cannot be discussed publicly on the record. There is again

a legitimate interest in maintaining the confidentiality of

executive session discussions and prohibiting the recording of

such conversations. Accordingly, Plaintiff cannot rely upon the

censure in support of his First Amendment retaliation claim.

2 Plaintiff relies upon, and attaches to his Complaint as Exhibit M.,

Advisory Opinion 2021-22 from the West Virginia Ethics Commission, to

argue he was permitted to record the executive session and thus contends

the censure was improper. However, the Advisory Opinion provides in

pertinent part:

that the Ethics Act does not prohibit a city

council from barring a public official or public

employee from recording executive sessions. If a

city council allows its members to record its

executive session, the Requester and other City

Officials may not, however, improperly disclose

confidential information contained in the

recordings or use confidential information to

further their own interests or the interests of

other persons.

ECF No. 1, Ex. M (emphasis added). Based upon the clear language of the

Advisory Opinion, the Westover City Council is permitted to bar a public

official from recording an executive session. Moreover, Plaintiff could

not disclose the recording, if permitted to record the executive session.

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Third, the same is true regarding the alleged retaliatory

acts of violence. By Plaintiff’s own pleading, Defendant Johnson’s

alleged violence towards him during the February 22, 2022, City

Council meeting was not caused by Plaintiff’s claimed protected

speech. See ECF No. 1, at ¶ 104 (“Defendant Johnson committed this

battery over a dispute with Plaintiff as to whether he could record

a meeting . . .”); Id. at ¶ 166 (“Defendant Johnson physically

assaulted and battered Plaintiff because Plaintiff was recording

the City Council executive session.”). Thus, these allegations do

not support the necessary retaliatory causation.

Fourth and finally, the Complaint does not adequately allege

that Plaintiff was stripped of his councilmember privileges due to

his expression of protected speech. Plaintiff alleges that

following the February 2022 meeting, “he was advised to keep his

person away from City Council meetings by his physician.” ECF No.

1, at ¶ 216. Assuming this is true, Plaintiff chose to not attend

the bi-weekly City Council meetings. Defendants did not refuse

Plaintiff entry at the meetings. Rather, Plaintiff elected to not

attend the meetings and argues that he was retaliated against

because the City Council decided “to not make a decision regarding

Plaintiff’s ability to video conference or call into the bi-weekly

City Council meetings.” Id. at ¶ 219. As alleged, Plaintiff does

not offer facts to support that other councilmembers were permitted

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to participate remotely. And ultimately, Plaintiff was not

stripped of the privileges of his position because he was not

prohibited from physically attending the meetings.

Accordingly, Defendants’ Motions to Dismiss as to Count I are

GRANTED [ECF No. 4, 15] and Plaintiff’s First Amendment claim,

Count I, is DISMISSED.

2. Count II: § 1983 Fourth Amendment Claim

Plaintiff claims that Defendant Johnson,3 while acting under

the color of law, violated his Fourth Amendment rights by

unreasonably seizing him [ECF No. 1, at ¶ 244] and using excessive

force [ECF No. 6 at p. 11] at the February 22, 2022, City Council

meeting. The Fourth Amendment to the United States Constitution

provides,

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.

U.S. Const. amend. IV. “A person is ‘seized’ only when, by means

of physical force or a show of authority, his freedom of movement

is restrained.” Trulock v. Freeh, 275 F.3d 391, 400 (4th Cir.

3 The Court construes Count II to only assert claims against Defendant

Johnson.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

2001). “To state an excessive force claim under the Fourth

Amendment, a plaintiff must show that he was seized and that the

force used was objectively unreasonable.” Est. of Green v. City of

Annapolis, No. 1:22-CV-03198-JRR, 2023 WL 6381453, at *12 (D. Md.

Sept. 30, 2023); Graham v. Connor, 490 U.S. 386, 395 (1989)).

“The Fourth Amendment prohibits government actors from

committing unreasonable seizures. . . . the Supreme Court has made

clear that “the [Fourth] Amendment[ ] ... applies in the civil

context as well.” Meeks v. McClung, No. 2:20-CV-00583, 2023 WL

8791686, at *8 (S.D.W. Va. Dec. 19, 2023) (quoting Soldal v. Cook

Cnty., 506 U.S. 56, 67 (1992)).

“Only rarely ... has the [Supreme] Court considered the nature

of fourth amendment restrictions on the conduct of government

officials in noncriminal investigations.” United States v. Attson,

900 F.2d 1427, 1430 (9th Cir. 1990) (internal citation omitted).

Yet, while the reach of the fourth amendment

has been extended to include various types of

governmental conduct outside the

traditionally recognized area of law

enforcement, the Court has been careful to

limit this expansion to governmental conduct

that can reasonably be said to constitute a

“search” or a “seizure” within the meaning of

the fourth amendment. The types of non-law

enforcement conduct to which the Court has

extended the scope of the amendment are thus

typically motivated by some sort of

investigatory or administrative purpose

designed to elicit a benefit for the

government.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Id. See also, United States v. Andrews, No. 1:12CR100-1, 2014 WL

1663369, at *2 (N.D.W. Va. Apr. 23, 2014) (noting “non-law

enforcement governmental conduct only constitutes a search if

‘such conduct has as its purpose the intention to elicit a benefit

for the government in either its investigative or administrative

capacities.’”). “The question whether one is a private actor for

Fourth Amendment purposes ‘necessarily turns on the degree of the

Government's participation in the private party's activities.”

Horton v. Vinson, No. 1:14CV192, 2015 WL 4774276, at *18 (N.D.W.

Va. Aug. 12, 2015) (quoting Skinner v. Ry. Labor Execs. Ass'n, 489

U.S. 602, 614 (1989)).

Furthermore, in the context of a § 1983 claim, “a person acts

under color of state law only when ‘acting with power possessed by

virtue of [his] employment with the state’”. Mull v. Griffith, No.

5:17-CV-94, 2019 WL 5295189, at *3 (N.D.W. Va. Oct. 18, 2019)

(internal quotation omitted). The Fourth Circuit has established

“[a]s a general rule, ‘a public employee acts under color of state

law while acting in his official capacity or while exercising his

responsibilities pursuant to state law.’” Conner v. Donnelly, 42

F.3d 220, 223 (4th Cir. 1994). Importantly, “the under-color-of-

state-law element of § 1983 excludes from its reach merely private

conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

marks and citations omitted).

A Puerto Rico Federal District Court previously analyzed

whether a mayor’s alleged violent conduct could qualify as an

action under color of law. Rodriguez-Rodriguez v. Ortiz-Velez, 405

F. Supp. 2d 162, 166–67 (D.P.R. 2005). In Rodriguez-Rodriguez, a

mayor was sued under § 1983 following an incident in which a mayor

hit the plaintiff, a former police officer, in the eye with a metal

object. Id. at 164. In assessing the totality of the circumstances,

the Court noted that “plaintiff's own evidence describe[d] a sudden

occurrence which ballooned into an uncontrolled, irrational and

violent scenario.” Id. at 167. The Court found that the mayor’s

actions were private ones, and that he just happened to be mayor.

Id. at 168. In reaching its conclusion, the Court reasoned that

there was “no indication that this activity was related in any

manner to the position he held or to his duties, nor [was] there

any evidence that [the mayor’s] involvement in the physical

confrontation with [Plaintiff] was related to either of these, or

that he could not have engaged in that same conduct had he not

been Mayor.” Id. at 167-68. Thus, the Court concluded that “the

circumstances surrounding the incident established that his

actions were personal in nature and unrelated to his position as

Mayor or to the performance of the duties of that office.” Id. at

168.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Plaintiff’s Fourth Amendment claim here offers little more

than a conclusory restatement of law. Specifically, Plaintiff does

not provide facts to support the assertions that Defendant Johnson

was acting under color of law, as required for a § 1983 claim, or

that he was in fact “seized” in violation of the Fourth Amendment.

Viewing the allegations in the light most favorable to Plaintiff,

the only fact supporting that Defendant Johnson was acting under

color of law is that the altercation occurred at a City Council

meeting. Plaintiff does not offer any other facts to show that

Defendant Johnson’s conduct related in any manner to his position

or his mayoral duties. Rather, the alleged conduct was personal in

nature and beyond the scope of a mayor’s role and responsibilities.

Regarding the seizure, Plaintiff does not any allege facts to

support that his freedom of movement was restricted by Defendant

Johnson at the February 22, 2022, City Council meeting. No facts

indicate that Plaintiff felt that he was not free to leave the

meeting. Furthermore, to the extent Plaintiff tried to stretch its

factual pleadings through its reply briefing to include excessive

force allegations, the claim still fails. In addition to providing

no facts to support he was in fact seized, the facts do not support

that “shoving in the Plaintiff’s direction” [ECF No. 1, ¶ 103]

qualifies as objectively unreasonable and an excessive use of

force.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Accordingly, Plaintiff’s § 1983 Fourth Amendment claim fails

because Plaintiff did not plead sufficient facts to support that

Defendant Johnson acted under color of law or that Plaintiff was

seized in violation of the Fourth Amendment. Thus, Defendants’

Motions to Dismiss [ECF Nos. 4, 15] as to Count II are GRANTED and

the § 1983 Fourth Amendment claim, Count II, is DISMISSED.

3. Count III: § 1983 Fourteenth Amendment Claim

The Fourteenth Amendment to the Constitution provides United

States citizens the right to be treated equally under the law. “No

State shall . . . deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV, § 1.

The equal protection clause “secure[s] every person within

the State's jurisdiction against intentional and arbitrary

discrimination.” Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000) (quotation marks and alteration omitted). The equal

protection clause “requires that the states apply each law, within

its scope, equally to persons similarly situated, and that any

differences of application must be justified by the law’s

purpose.” Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 818

(4th Cir. 1995). “To succeed on an equal protection claim, a

plaintiff must first demonstrate that he has been treated

differently from others with whom he is similarly situated and

that the unequal treatment was the result of intentional or

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648,

654 (4th Cir. 2001). The court then considers “whether the

disparity in treatment can be justified under the requisite level

of scrutiny.” King v. Rubenstein, 825 F.3d 206, 220 (4th Cir.

2016).

A plaintiff may bring a “class of one” equal protection claim

by alleging “that []he has been intentionally treated differently

from others similarly situated and that there is no rational basis

for the difference in treatment.” Willis v. Town of Marshall, N.C.,

426 F.3d 251, 263 (4th Cir. 2005) (quoting Olech, 528 U.S. at 564);

see also Sansotta v. Town of Nags Head, 724 F.3d 533, 542–44 &

n.13 (4th Cir. 2013).

Plaintiff alleges that he was treated differently than other

councilmembers, and thus discriminated against, because of his

beliefs regarding police brutality. ECF No. 1, at ¶¶ 150-52.

Defendants contend that the Fourteenth Amendment claim must fail

because Plaintiff’s Complaint does not specify how he was

discriminated against, does not identify how he was treated

differently under law, or that enforcement of any law was

irrational. ECF No. 5, at pp. 14-15. The Court agrees that

Plaintiff has not pled a legally cognizable claim under the Equal

Protection Clause of the Fourteenth Amendment. Plaintiff has

failed to even allege that anyone in his same or similar situation

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

was treated differently under the law, or that any such alleged

treatment was not “rationally related to a legitimate state

interest.”

While Plaintiff claims he was treated differently than the

other councilmembers, he does not point to a law which was

differently enforced against him because of his views on police

brutality. Furthermore, he does not offer facts to support that

any alleged difference in treatment was not rational.

Moreover, the only laws discussed in Plaintiff’s Complaint

relate to City Codes discussing business signage and unkept grass.

The facts as alleged by Plaintiff do not support that Westover’s

enforcement of these codes deprived him of equal protection under

the law. Plaintiff’s violation or believed-violation of the City

Codes provides a rational basis for the City’s enforcement, which

is completely unrelated to the issue of police brutality. Thus,

Defendants’ Motions to Dismiss [ECF Nos. 4, 15] as to Count III

are GRANTED and Count III of Plaintiff’s Complaint is DISMISSED.

In conclusion, Plaintiff has failed to allege facts showing that

these Defendants personally acted to deprive Plaintiff of any

constitutional rights. Therefore, Plaintiff’s § 1983 claims in

Counts I, II and III against Defendants in their individual

capacities fail and must be dismissed. Defendants’ Motions to

Dismiss Counts I, II, and III are GRANTED. ECF Nos. 4, 15.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

B. Count IV: § 1983 Monell Claim

To prevail in suit against a municipality on a § 1983 claim,

a plaintiff must plausibly allege that the state actor defendant

(1) deprived plaintiff of a constitutional right and (2) acted

under color of state law. Philips v. Pitt County Mem’l Hosp., 572

F.3d 176, 180 (4th Cir. 2009). “Local governing bodies . . . can

be sued directly under § 1983 for monetary, declaratory, or

injunctive relief where . . . the action that is alleged to be

unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.” Monell v. Dep’t of Social

Servs. of City of New York, 436 U.S. 658, 690 (1978). A

municipality is liable under § 1983 if it follows a custom, policy,

or practice by which local officials violate a plaintiff’s

constitutional rights. Id. at 694.

A local government establishes a “policy or custom” in four

ways:

(1) through an express policy, such as a

written ordinance or regulation; (2) through

the decisions of a person with final

policymaking authority; (3) through an

omission, such as a failure to properly train

officers, that “manifest[s] deliberate

indifference to the rights of citizens”; or

(4) through a practice that is so “persistent

and widespread” as to constitute a “custom or

usage with the force of law.”

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter

v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)). Plaintiff contends

Defendant Westover is liable under Monell through the decisions or

conduct of Defendants Johnson and Stranko who are “high enough in

the [City of Westover] government” such that their “actions can be

said to represent a government decision.” ECF No. 1, at ¶ 161.

The Supreme Court of the United States has held that Monell

liability can attach to municipalities when the policy and custom

is based upon a single incident. See Pembaur v. City of Cincinnati,

475 U.S. 469 (1986).

[I]t is plain that municipal liability may be

imposed for a single decision by municipal

policymakers under appropriate circumstances.

No one has ever doubted, for instance, that a

municipality may be liable under § 1983 for a

single decision by its properly constituted

legislative body—whether or not that body had

taken similar action in the past or intended

to do so in the future—because even a single

decision by such a body unquestionably

constitutes an act of official government

policy.

Id. at 480. “The fact that a particular official — even a

policymaking official — has discretion in the exercise of

particular functions does not, without more, give rise to municipal

liability based on an exercise of that discretion.” Id. at 481-82

(internal citation omitted). Accordingly, the Court must determine

whether Plaintiff plausibly alleged that the City of Westover

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

established a policy or custom through the decisions of persons

with final policymaking authority.

1. Final Policymaking Authority

The threshold matter is whether Plaintiff sufficiently

pleaded that Mayor Johnson or Attorney Stranko had “final

policymaking authority.” “A final policymaker for the purposes of

municipal liability is someone who has the responsibility and

authority to implement final municipal policy with respect to a

particular course of action.” Lytle, 326 F.3d at 472

(quoting Riddick v. School Bd. of City of Portsmouth, 238 F.3d

519, 523 (4th Cir. 2000)). “The question of who possesses final

policymaking authority is one of state law.” Riddick, 238 F.3d at

523 (internal citation omitted).

“In order to determine which officials possess final

policymaking authority for the allegedly unconstitutional action

in question, we must look to the relevant legal materials,

including state and local positive law, as well as custom or usage

having the force of law.” Id. (internal quotation marks omitted),

(citing Jett v. Dallas Independent School District, 491 U.S. 701,

737 (1989)).

Helpful in determining whether an official is

a final decisionmaker is an inquiry into: (1)

whether the official is constrained by

policies of other officials or legislative

bodies; (2) whether the official’s decision on

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

the issue in question is subject to meaningful

review; and (3) whether the policy decision

purportedly made by the official is within the

realm of the official’s grant of authority.

Valentino v. Village of South Chicago Heights, 575 F.3d 664, 676

(7th Cir. 2009) (internal quotation marks omitted).

Plaintiff names the City of Westover, West Virginia, in his

Complaint, and specifically alleges that “the Constitutional

violations complained of were decisions made by Defendant City of

Westover’s Mayor, Defendant Dave Johnson, and/or its attorney,

Defendant Timothy Stranko.” ECF No. 1, Compl., ¶ 160. The

Constitutional violations alleged are in Counts I, II, and III:

retaliation in violation of the First Amendment, unlawful seizure

in violation of the Fourth Amendment, and denial of equal

protection under the Fourteenth Amendment to the Constitution.

Plaintiff further alleges that Defendants Johnson and Stranko’s

decision-making “can be said to represent a government decision.”

Id. at ¶ 161.

The Court must determine whether Plaintiff has sufficiently

pled final policymaking authority by Defendants Johnson and

Stranko regarding the alleged constitutional violations. First,

there are no allegations in the Complaint that Defendant Stranko

had “final policymaking authority.” Instead, Plaintiff stopped

short at alleging Stranko was “high enough” in the City of Westover

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

government for his decision to represent a government decision Id.

at ¶ 161. Such an allegation is necessary to establish a municipal

policy or custom. Pembaur, 475 U.S. at 471. Without it, the Monell

claim as it relies upon Defendant Stranko’s authority and conduct

fails.

As to Defendant Johnson, Plaintiff states that the “final

policymaker is the Mayor of Westover, Defendant Johnson, with

respect to the Westover City Council as an executive,

administrative, legislative body.” Id. at ¶ 157. Thus, Plaintiff

has sufficiently alleged, at the pleading stage, that Defendant

Johnson possessed final policymaking authority. Regardless,

however, the Monell claim still fails because Plaintiff cannot

show that the City of Westover, through Defendant Johnson, deprived

him of a constitutional right. As discussed supra, Plaintiff has

not stated a viable claim under the First, Fourth, or Fourteenth

Amendments, upon which to attach municipal liability. Because none

of the underlying conduct pled supports a constitutional

violation, it follows that such conduct can similarly not support

an unlawful government decision, policy, or custom. Thus,

Defendants’ Motions to Dismiss [ECF Nos. 4, 15] are GRANTED as to

Count IV and the Monell claim, Count IV, is DISMISSED.

C. Count V: Slander Claim

Plaintiff’s slander claim (Count V) fails to allege an

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

actionable defamatory statement, and thus Defendants’ Motions to

Dismiss [ECF Nos. 4, 15] are GRANTED as to Count V.4

Under West Virginia law, slander is “defamation through oral

means.” Spears v. Cable News Network, CNN, No. 1:18-CV-162, 2019

WL 3752921, at *2 (N.D.W. Va. Aug. 8, 2019). Slander is “[a] false

. . . oral statement that damages another's reputation.” Pritt v.

Republican Nat. Comm., 210 W.Va. 446, 557 S.E.2d 853, 861 n.12

(2001) (quoting Black's Law Dictionary (7th ed. 1999)).

“Plaintiffs who are public officials or public figures must prove

by clear and convincing evidence that the defendants made their

defamatory statement with knowledge that it was false or with

reckless disregard of whether it was false or not,” – i.e., actual

malice. Haught v. Fletcher, 246 W. Va. 424, 429, 874 S.E.2d 27, 32

(2022) (citing Syl. Pt. 2, State ex rel. Suriano v. Gaughan, 198

W. Va. 339, 342, 480 S.E.2d 548, 551 (1996); New York Times Co. v.

Sullivan, 376 U.S. 254, 280 (1964)).

“A court must decide initially whether as a matter of law the

challenged statements in a defamation action are capable of a

defamatory meaning.” Syl. Pt. 6, Long v. Egnor, 176 W.Va. 628, 346

S.E.2d 778, 780 (1986). See Blankenship v. Trump, 558 F. Supp. 3d

316, 327 (S.D.W. Va. 2021). As such, the Court must initially

4 The Court construes Count V as only being alleged against Defendant

Viola.

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

determine whether a “statement is one of fact or opinion,” because

a “statement of opinion which does not contain a provably false

assertion of fact is entitled to full constitutional protection.”

Ballengee v. CBS Broad., Inc., 331 F. Supp. 3d 533, 545 (S.D.W.

Va. 2018), aff'd, 968 F.3d 344 (4th Cir. 2020) (quoting Pritt, 210

W.Va. at 557); Syl. Pt. 4, Maynard v. Daily Gazette Co., 191 W.

Va. 601, 447 S.E.2d 293 (1994). See Hupp v. Sasser, 200 W. Va.

791, 798, 490 S.E.2d 880, 887 (1997) (finding defendant’s opinion

that plaintiff was a “bully” is not provably false and is totally

subjective); Giles v. Kanawha Cnty. Bd. of Educ., No. 17-0139,

2018 WL 300605, at *4 (W. Va. Jan. 5, 2018) (finding respondent’s

“feelings and opinions regarding his own judgment about

petitioner, do not include provably false assertions of fact, are

protected under the First Amendment, and cannot form the basis of

a defamation claim.”).

Here, Plaintiff, recognizes that as a member of the Westover

City Council, he was a public official at the time of the

allegations in his Complaint. ECF No. 1, at ¶ 5. Accordingly, to

plausibly plead slander against Defendant Viola, he would need to

show facts which support Viola acted with actual malice. However,

the Court need not reach this question, because Plaintiff’s

complained-of statements are opinions and thus he has failed to

plead a defamatory statement.

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

In support of his slander claim, Plaintiff asserts that

Defendant Viola told Plaintiff’s mother that “He is nothing but a

big fat, lying, son of a bitch.” ECF No. 1, at ¶ 175. The

complained-of statement, while unflattering, is clearly a matter

of opinion, which does not contain a clearly provable assertion of

fact. Assuming at the 12(b)(6) stage, that Viola did go to

Plaintiff’s mother’s place of work and make this comment, the

statement is constitutionally protected speech. Viola’s thoughts

and feelings regarding Plaintiff are her subjective opinion and

the asserted statement did not include any specific fact which

could be proven as demonstrably false. Just as calling someone a

“bully” is not defamatory, calling someone a “big fat, lying, son

of a bitch” is not actionable slander. Accordingly, Defendants’

Motions to Dismiss [ECF Nos. 4, 15] are GRANTED as to Count V and

Count V is hereby DISMISSED.

D. Count VIII: Whistle-Blower Claim

Accepting all the well-pled facts as true, Plaintiff has

sufficiently stated a claim under the West Virginia Whistle-Blower

Law. W. Va. Code § 6C-1-1, et seq. The Whistle-Blower Law

“prohibits an employer from making certain adverse employment

changes in retaliation for an employee's protected conduct.” State

ex rel. W. Virginia Att'y-Gen., Medicaid Fraud Control Unit v.

Ballard, 249 W. Va. 304, 895 S.E.2d 159, 172 (2023). In relevant

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

part, the Whistle-Blower Law states:

(a) No employer may discharge, threaten, or

otherwise discriminate or retaliate against

an employee by changing the employee's

compensation, terms, conditions, location,

or privileges of employment because the

employee, acting on his or her own volition,

or a person acting on behalf of or under

the direction of the employee, makes a good

faith report, or is about to report,

verbally or in writing, to the employer or

appropriate authority, an instance of

wrongdoing or waste.

W. Va. Code § 6C-1-3(a) (emphasis added). The statute further

defines key terms:

(d) “Good faith report” means a report of

conduct defined in this article as wrongdoing

or waste which is made without malice or

consideration of personal benefit and which

the person making the report has reasonable

cause to believe is true.

. . .

(f) “Waste” means an employer or employee's

conduct or omissions which result in

substantial abuse, misuse, destruction or loss

of funds or resources belonging to or derived

from federal, state or political subdivision

sources.

(g) “Whistle-blower” means a person who

witnesses or has evidence of wrongdoing or

waste while employed with a public body and

who makes a good faith report of, or testifies

to, the wrongdoing or waste, verbally or in

writing, to one of the employee's superiors,

to an agent of the employer or to an

appropriate authority.

(h) “Wrongdoing” means a violation which is

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

not of a merely technical or minimal nature of

a federal or state statute or regulation, of

a political subdivision ordinance or

regulation or of a code of conduct or ethics

designed to protect the interest of the public

or the employer.

W. Va. Code § 6C-1-2. “[P]roof of retaliation under the Act does

not require proof of the unlawfulness of the underlying action,”

Austin, 2014 WL 5148581, at *10 (denying summary judgment because

there was a dispute of material fact as to whether the plaintiff’s

allegations via email regarding misuse of funds, constituted

waste, and if it was causally connected to plaintiff’s

termination). Thus, a plaintiff need not show the employer broke

any laws in alleging retaliation. Id. Moreover, a plaintiff “need

only prove waste or wrongdoing to prevail under the statute” and

does not need to show a violation of federal or state law. Id.

However, reports or communications which are not made to an

employer cannot support a Whistle-Blower Law claim. Id. at *9

(rejecting argument that Facebook post accessible to the general

public was directed to plaintiff’s employer or an appropriate

authority).

Here, Plaintiff alleges that as an elected official serving

the City of Westover, he made a “good faith report” of “wrongdoing”

regarding violations of law and ethics by Defendant Johnson and

Officer Dalton. ECF No. 1, at ¶¶ 194-96. Plaintiff also alleges

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

that his reports included concerns regarding the City of Westover’s

“omissions [which] could have resulted in substantial abuse,

misuse, destruction or loss of funds or resources . . . through

lawsuits or other legal action.” Id. at ¶ 197. Plaintiff contends

that such good faith reports were made to the City Council of

Westover, Defendant Johnson, and Defendant Stranko. Id. at ¶¶ 199-

201. Finally, Plaintiff contends Defendants retaliated against him

by changing his privileges of employment, “in the forms of

municipal violations from the City itself, official censure from

City Council, essential removal of his rights as a City Council

member, public humiliation through both print and social media,

and emotional distress.” Id. at ¶ 212.

In contrast Defendants contend that Count IX should be

dismissed because “Plaintiff did not blow any whistles on anything

at all.” ECF No. 5, Motion to Dismiss at p. 20. Rather, Defendants

characterize Plaintiff’s conduct as, at best, “complaining and

noisemaking.” Id. However, viewing the allegations in the light

most favorable to the Plaintiff, the facts highlighted in

Defendants’ motion, alone, amount to sufficient pleading of “good-

faith reports” of “wrongdoing” or “waste”. See Id.; ECF No. 1, at

¶¶ 50-53, 67-69, 101-104. For example, Plaintiff pleaded that he

attempted to make a report to Defendant Stranko, as the City

Attorney, concerning a sexual harassment case and the City

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PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Attorney’s involvement [Id. at ¶ 51]; Plaintiff further alleges he

asked for an investigation into Defendant Johnson and the City

Council [Id. at ¶ 53], and that such reports were made to the City

Council of Westover and Mayor Johnson [Id. at ¶ 199].

Plaintiff additionally pled sufficient facts, which if true,

would amount to retaliation in the form of changes in his

privileges and conditions of employment. Namely, Plaintiff alleges

he was physically injured following his reports; was censured by

the Westover City Council following the February 22, 2022, City

Council meeting, and was deprived of the ability to attend counsel

meetings. These allegations are sufficient to survive dismissal at

the 12(b)(6) stage of litigation.5 Accordingly, the Court DENIES

Defendants’ Motions to Dismiss [ECF Nos. 4, 15] as to Count VIII,

as they relate to Defendant City of Westover, Defendant Johnson,

and Defendant Stranko. For clarity, Plaintiff did not allege any

facts supporting Whistle-Blower Act liability against any of the

remaining Defendants in their individual capacity, to the extent

Plaintiff asserts such causes of actions, they are DISMISSED.

5 The Court notes that reports made on social media or to the news media

do not support the Whistle-Blower Act claim.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

E. Count IX: Intentional Infliction of Emotional Distress Claim

A plaintiff must establish the following elements to prevail

on a claim of intentional infliction of emotional distress

(“IIED”):

(1) that the defendant’s conduct was

atrocious, intolerable, and so extreme

and outrageous as to exceed the bounds of

decency;

(2) that the defendant acted with the intent

to inflict emotional distress, or acted

recklessly when it was certain or

substantially certain emotional distress

would result from his conduct;

(3) that the actions of the defendant caused

the plaintiff to suffer emotional

distress; and

(4) that the emotional distress suffered by

the plaintiff was so severe that no

reasonable person could be expected to

endure it.

Syl. Pt. 3, Travis v. Alcon Lab’ys, Inc., 504 S.E.2d 419 (W. Va.

1998). The conduct must be “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious and utterly intolerable in a

civilized community.” Harless v. First Nat. Bank in Fairmont, 289

S.E.2d 692, 705 (W. Va. 1982). “Whether conduct may reasonably be

considered outrageous is a legal question . . .” O'Dell v. Stegall,

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

703 S.E.2d 561, 594 (W. Va. 2010) (quoting Syl. Pt. 4, Travis, 504

S.E.2d 419).

The standard for proving such a claim is very high, and

“conduct that is merely annoying, harmful of one's rights or

expectations, uncivil, mean-spirited, or negligent does not

constitute outrageous conduct. On the other hand, outrageous

conduct can include physical violence that causes bodily harm and

emotional distress.” Courtney v. Courtney, 413 S.E.2d 418, 423-24

(W. Va. 1991); Pegg v. Herrnberger, 845 F.3d 112, 122 (4th Cir.

2017) (“It is difficult to overstate the high burden of proof

required to sustain a tort claim for intentional infliction of

emotional distress/outrage.”).

In support of his IIED claim, Plaintiff alleges that Defendant

Johnson attacked him during a city council meeting on February 22,

2022, which resulted in Plaintiff tearing his meniscus. ECF No. 1,

at ¶ 223. Specifically, Plaintiff claims that “Defendant Johnson’s

actions caused Plaintiff to suffer severe emotional distress as he

was attacked at his place of work, while performing a civil duty.”

Id. at ¶ 225. Plaintiff further contends that prior to the alleged

altercation, “Defendant Johnson proceeded to stand up from his

seat and approach the desk of the Plaintiff,” and in response,

“Plaintiff also stood up from his desk and prepared to defend

himself.” Id. at ¶¶ 101-02.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

The facts as alleged are insufficient to support a claim for

IIED as a matter of law. Defendant Johnson’s alleged conduct of

shoving at Plaintiff’s shoulder during the City Council meeting

does not reasonably rise to the level of conduct which “was

atrocious, intolerable, and so extreme and outrageous as to exceed

the bounds of decency.” Syl. Pt. 3, Travis, 504 S.E.2d 419. The

alleged shove is more appropriately characterized as uncivil or

mean-spirited conduct. While this interaction could reasonably be

defined as embarrassing and unprofessional, the entirety of the

altercation, including the alleged physical violence, does not

constitute outrageous conduct. Merely alleging emotional distress

in connection with bodily injury does not meet the high burden of

supporting a claim for IIED. If that were the case, any assault or

battery claim would naturally attach an IIED cause of action.

Moreover, Plaintiff failed to plead any facts evidencing he

actually suffered emotional distress – beyond the fact that this

altercation occurred during a council meeting. Plaintiff claims he

was advised to keep “his person away from City Council meetings by

his physician,” [ECF No. 1, at ¶ 216]; he does not allege that he

stayed away due to emotional distress.6 Accordingly, Defendants’

6 In support of his Monell claim, Plaintiff alleges that he began taking

anxiety medication due to “the harassment he endured while serving on

the City Council because of his condemnation of the conduct of the City

Council, Defendant Johnson, and Defendant Stranko.” ECF No. 1, at ¶ 165.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

Motions to Dismiss [ECF Nos. 4, 15] as to Count IX are GRANTED and

Plaintiff’s IIED claim, Count IX, is DISMISSED.

F. The Court denies as moot the remainder of the Defendants’

Motions.

In addition to asserting that Plaintiff’s claims in Counts I,

II, III, IV, V, VIII, and IX are insufficiently pled and lack

merit, the Defendants also contend that (1) qualified immunity

shields the individual defendants from liability for Plaintiff’s

claims and (2) that the City of Westover is not liable for any

alleged intentional torts pursuant to W.Va. Code, 29–12A–4(b)(1)

of the West Virginia Governmental Tort Claims and Insurance Reform

Act. ECF No. 5 at pp 22-24. Based on its rulings herein, the Court

DENIES AS MOOT the remainder of these arguments. Defendants may

raise these arguments later if they believe them relevant to claims

which Defendants did not move to dismiss, such as the assault and

battery claims.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss

[ECF Nos. 4, 15] are GRANTED as to Plaintiff’s claims for (I)

retaliation in violation of the First Amendment; (II) 42 U.S.C. §

1983 violation of the Fourth Amendment; (III) 42 U.S.C. § 1983

This fact alone does not support the IIED claim because Plaintiff does

not allege that he began taking the anxiety medication following the

February 22, 2022, altercation due to emotional distress.

MULLINS v. JOHNSON, et al. 1:22-CV-98

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 4, 15]

violation of the Fourteenth Amendment; (IV) 42 U.S.C. § 1983 Monell

Liability; (V) Slander; and (IX) Intentional Infliction of

Emotional Distress. Defendants’ Motions to Dismiss [ECF Nos. 4,

15] are DENIED as to Plaintiff’s claim for (VIII) violation of the

West Virginia Whistle-Blower Law against City of Westover,

Defendant Johnson, and Defendant Stranko. Accordingly, Plaintiff's

Complaint [ECF No. 1] is DISMISSED as to Counts I, II, III, IV, V,

and IX.

Based on the Court’s rulings, the only remaining claims in

this case are Counts (VI) assault and (VII) battery against

Defendant Johnson and Count (VIII) violation of the West Virginia

Whistle-Blower Law against City of Westover, Defendant Johnson,

and Defendant Stranko. Thus, Steve Andryzcik, Edie Viola, Gary

Weber, Jeffery Friend, Duane Tatar, and Sandy Weiss are hereby

DISMISSED as Defendants.

It is so ORDERED.

The Clerk is directed to transmit copies of this Memorandum

Opinion and Order to counsel of record by the CM/ECF system.

DATED: March 26, 2024

Tom 8 Klut-

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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