Wittkamper v. Jefferson County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

GREGORY H. WITTKAMPER,

as Administrator of the

Estate of Stephen Michael

Wittkamper,

Plaintiff,

v. CIVIL NO. 3:23-CV-177

(KLEEH)

JEFFERSON COUNTY SHERIFF’S DEPARTMENT,

SHERIFF THOMAS H. HANSEN,

DEPUTY K.J. STIPANOVIC,

DEPUTY C. ELLIS,

DEPUTY R. JENKINS, and

DEPUTY T. STEPLY,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

Pending before the Court is a motion to dismiss. For the

reasons discussed herein, the motion is GRANTED IN PART and DENIED

IN PART.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Gregory H. Wittkamper (“Plaintiff”), as

administrator of the Estate of Stephen Michael Wittkamper, brings

this suit against the Jefferson County Sheriff’s Department (the

“Sheriff’s Department”), Sheriff Thomas H. Hansen (“Sheriff

Hansen”), Deputy K.J. Stipanovic (“Deputy Stipanovic”), Deputy C.

Ellis (“Deputy Ellis”), Deputy R. Jenkins (“Deputy Jenkins”), and

Deputy T. Steply (“Deputy Steply”). Plaintiff brings the following

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

causes of action relating to the death of Stephen Wittkamper: Tort

of Outrage and Intentional Infliction of Emotional Distress (Count

One); Deliberate Indifference Under 42 U.S.C. § 1983 (Count Two);

Battery (Count Three); Negligent Retention and Hiring (Count

Four); and Wrongful Death (Count Five).

The case was originally filed in the Circuit Court of

Jefferson County, West Virginia, Case Number 23-C-77. On July 20,

2023, it was removed to the Northern District of West Virginia and

assigned to the Honorable Gina M. Groh, United States District

Judge, at the Martinsburg point of holding court. On July 24,

2023, the case was transferred to the undersigned District Judge.

On July 27, 2023, a motion to dismiss was filed by the Sheriff’s

Department, Sheriff Hansen, Deputy Stipanovic, and Deputy Jenkins

[ECF No. 4]. The motion is fully briefed and ripe for review.

Deputy Ellis and Deputy Steply filed a motion for joinder in the

motion to dismiss [ECF No. 12]. For good cause, the motion for

joinder is GRANTED.

II. FACTS

For purposes of analyzing the motion to dismiss, the Court

assumes the following facts, taken from the Complaint, are true.

The decedent, Stephen Michael Wittkamper (“Mr. Wittkamper”), had

been living with William “Bill” Cummings and his wife Barbara

Cummings for approximately seven or eight years. Compl., ECF No.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

1-1, at ¶ 7. On April 24, 2021, Bill Cummings called 911 and

reported that there was an “event,” also described in the Complaint

as a “conflict,”1 involving his wife and Mr. Wittkamper. Id. ¶¶

1, 6, 7. Bill Cummings was awakened by the incident and asked Mr.

Wittkamper to leave. Id. ¶ 7.

Mr. Wittkamper went downstairs to the area of the home where

he was living, and shortly thereafter, Deputies Stipanovic, Ellis,

Jenkins, and Steply arrived. Id. ¶¶ 6, 7. The Deputies understood

that Mr. Wittkamper was experiencing a “mental health issue.” Id.

¶ 7. Mr. Wittkamper reported to them that he “didn’t feel well

and thought he was on a ‘trip.’” Id. Mr. and Mrs. Cummings

advised the Deputies that the behavior was unusual for Mr.

Wittkamper and that he never used drugs or alcohol or displayed

any violent tendencies. Id. Mr. Wittkamper was having a

“temporary mental health issue.” Id.

The Deputies did not evaluate Mr. Wittkamper’s mental health

issues. Id. ¶ 8. Instead, they approached Mr. Wittkamper

aggressively, in a manner specifically calculated to create and/or

increase risk to the officers and Mr. Wittkamper. Id. It was

immediately clear to the Deputies that Mr. Wittkamper was

“extremely obese” and “not in a physical condition where he posed

1 Plaintiff’s Response states that Mr. Wittkamper hit Mrs.

Cummings. See Response, ECF No. 8, at 1.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

any realistic threat” to them. Id. ¶ 9. Nor could Mr. Wittkamper

comply, due to his obesity, with the Deputies’ orders to place his

hands behind his back. Id. Further, Mr. Wittkamper had just woken

from sleep, was nude, and was unarmed. Id. He did not resist

arrest. Id. ¶ 28.

The Deputies proceeded to incapacitate Mr. Wittkamper by

shooting him in the back with a taser. Id. ¶ 10. They also forced

his arms behind him, causing him pain, suffering, and injuries.

Id. ¶ 11. After placing handcuffs on Mr. Wittkamper, they left

him lying face down on the floor. Id. This placed Mr. Wittkamper

in physical distress due to his obesity. Id. His protuberant

abdomen prevented him from breathing while his hands were cuffed

and the Deputies were holding him down. Id. The Deputies refused

to rotate him into a position where he could breathe until it was

too late to recover from the distress. Id. Mr. Wittkamper had a

cardiac event, resulting in his death. Id.

III. STANDARD OF REVIEW

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

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

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

a court “must accept as true all of the factual allegations

contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d

181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

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.

MA.R.T.in, 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

A. Dismissal of the Sheriff’s Department

The parties agree that the Sheriff’s Department is not a

proper party to the suit. Therefore, the motion to dismiss is

GRANTED in this respect, and the Sheriff’s Department is DISMISSED

from the Complaint. The Court will not consider Defendants’

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

alternative and additional arguments to dismiss claims against the

Sheriff’s Department.

B. Immunity from State Law Causes of Action for the

Individual Defendants (III.C)

In section III.C of the motion, Defendants ask the Court to

dismiss the state law causes of action against the individual

defendants because they are immune from suit under the West

Virginia Governmental Tort Claims and Insurance Reform Act (the

“Act”). Plaintiff argues that Defendants’ interpretation of the

Act is incorrect and that the Deputies are not immune because their

acts could be considered malicious, in bad faith, wanton, or

reckless.

Under West Virginia law, employees of a political subdivision

generally are immune from liability unless one of the following

applies:

(1) His or her acts or omissions were

manifestly outside the scope of

employment or official responsibilities;

(2) His or her acts or omissions were with

malicious purpose, in bad faith, or in a

wanton or reckless manner; or

(3) Liability is expressly imposed upon the

employee by a provision of this code.

W. Va. Code § 29-12A-5(b). The Supreme Court of Appeals of West

Virginia has held that in the context of this statute, the terms

“willful,” “wanton,” and “reckless” mean that

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

the actor has intentionally done an act of an

unreasonable character in disregard of a risk

known to him or so obvious that he must be

taken to have been aware of it, and so great

as to make it highly probable that harm would

follow. It usually is accompanied by a

conscious indifference to the consequences,

amounting almost to willingness that they

shall follow; and it has been said that this

is indispensable.

Holsten v. Massey, 490 S.E.2d 864, 877 (W. Va. 1997).

The Court finds that the Complaint alleges facts that could

support a finding that the Deputies’ actions were malicious, in

bad faith, wanton, or reckless. According to the Complaint, Mr.

Wittkamper was naked, unarmed, “extremely obese,” and undergoing

a “mental health issue.” He was not resisting arrest. The

Deputies tased him in the back, handcuffed him, and held him face

down on the floor on his protuberant stomach. They continued to

hold him in that position despite his being unable to breathe.

Moreover, Plaintiff alleges claims for battery (Count III) and

excessive force (Count II) which, when accompanied by plausible

factual support, fall “manifestly outside the scope of [a law

enforcement officer’s] employment.” The Deputies are not,

therefore, immune under section 29-12A-5(b). The motion to dismiss

is DENIED in this respect. With respect to Sheriff Hansen,

however, Plaintiff has not pled sufficient facts indicating that

he falls within one of the exceptions under section 29-12A-5(b).

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

Plaintiff does not allege a specific fact outside conclusory

elements of the purported claims against Sheriff Hansen. The

plausibility standard requires more than these legal conclusions.

See Iqbal, 556 U.S. at 678. As such, Sheriff Hansen is DISMISSED

from the state law causes of action (Counts One, Three, Four,

Five).

C. Punitive Damages Against the Individual Defendants for

State Law Causes of Action (III.F)

In section III.F of the motion, Defendants argue that punitive

damages may not be recovered against any of the individual

defendants for the state law claims (Counts One, Three, Four, and

Five).

Under West Virginia law, when an employee of a political

subdivision is sued in his official capacity, punitive damages may

not be asserted against that employee. See Huggins v. City of

Westover Sanitary Sewer Bd., 712 S.E.2d 482, 487–88 (W. Va. 2011).

Punitive damages, however, may be assessed against political

subdivision employees in their individual capacities. See id.

(noting that if the mayor was sued in his individual capacity,

punitive damages would be allowed, if warranted). In Huggins, the

Supreme Court of Appeals of West Virginia could not find any

language in the Complaint indicating that the mayor was sued in

his individual capacity, so it found that punitive damages were

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

not recoverable. Id.

Here, in the Complaint, Plaintiff alleges that the Deputies

are “individually liable due to their personal involvement.”

Compl., ECF No. 1-1, at ¶ 26. Although these assertions are

included under the header for Count Two (the Section 1983 claim),

not the state law claims, the Court still finds it reasonable to

read the full Complaint, including the allegations of intentional

misconduct placing the Deputies outside the scope of their job

duties, as asserting claims against the Deputies in their

individual capacities. As such, the Court GRANTS this portion of

the motion in part, finding that Plaintiff cannot recover punitive

damages against the individual defendants in their official

capacities. It DENIES this portion of the motion in part, finding

that Plaintiff may recover punitive damages against the individual

defendants in their individual capacities.

D. Qualified Immunity for the Deputy Defendants for the

§ 1983 Claim (Count Two) (III.G)

In section III.G of the motion, Defendants argue that the

Deputies are entitled to qualified immunity because the

allegations arise from discretionary acts done in the performance

of their official duties. They further argue that Plaintiff failed

to sufficiently plead how the Deputies’ alleged force, use of

handcuffs, and use of a taser clearly violated Mr. Wittkamper’s

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

rights when they are clearly within the officers’ discretionary

duties. Plaintiff argues that he has sufficiently pled that the

Deputies violated clearly established rights and are not entitled

to qualified immunity.

Qualified immunity can be afforded to government officials

for discretionary acts taken in their official capacity. The

protection extends to “all but the plainly incompetent or those

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

341 (1986). Qualified immunity protects those police officers who

could reasonably believe that their actions were lawful, in light

of clearly established law at the time of the action. Pegg v.

Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017).

The test to determine whether an officer is entitled to

qualified immunity is two-fold: (1) whether, taken in the light

most favorable to the party asserting the injury, the facts alleged

show that the officer’s conduct violated a constitutional right,

and (2) whether that right was clearly established such that a

reasonable person would have known. Siegert v. Gilley, 500 U.S.

226, 232 (1991). The Court can address either prong first.

Pearson v. Callahan, 129 S.Ct. 808 (2009). “For a right to be

clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.” Safar v.

Tingle, 859 F.3d 241, 246 (4th Cir. 2017) (citation and internal

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

quotations omitted).

In Plaintiff’s response, he cites “[e]xcessive force used in

an arrest” as a Constitutional violation that took place. He

argues that the Fourth Circuit has found that “[d]eploying a taser

is a serious use of force” that is designed to “inflict[] a painful

and frightening blow.” See Estate of Armstrong ex rel. Armstrong

v. Village of Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016)

(citations omitted). He does not, however, cite any specific

authority indicating that such a painful and frightening use of

force was unlawful here.

“[A]pprehension by the use of deadly force is

a seizure subject to the reasonableness requirement of the Fourth

Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). The Fourth

Circuit has recognized that

the determination whether a reasonable person

in the officer’s position would have known

that his conduct would violate the right at

issue must be made on the basis of information

actually possessed by the officer at the

critical time, or that was then reasonably

available to him, and in light of any

exigencies of time and circumstance that

reasonably may have affected the officer’s

perceptions.

Pritchett v. Alford, 973 F.2d 307, 312–13 (4th Cir. 1992) (internal

citations omitted). Under the Fourth Amendment’s “reasonableness”

analysis, force is not excessive if it is objectively reasonable

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

under the circumstances facing the officer, without regard to his

underlying intent. Graham v. Connor, 490 U.S. 386, 397 (1989).

“The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second

judgments – in circumstances that are tense, uncertain, and rapidly

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

particular situation.” Id. at 396–97.

In the Complaint, Plaintiff alleges that Mr. Wittkamper was

naked, “extremely obese” with a “protuberant abdomen,” unarmed,

“not in a physical condition where he posed any realistic threat

to the officers,” and experiencing a “mental health issue.”

Assuming that Plaintiff’s allegations are true at this stage, it

would be possible for a jury to find that tasing Mr. Wittkamper in

the back under these circumstances was unreasonable and,

therefore, excessive. Assuming the factual allegations to be true,

Mr. Wittkamper was not posing an immediate threat to the safety of

officers or others and was not actively resisting arrest or

attempting to evade arrest by flight.2 For these reasons, and at

2 In their reply, Defendants argue that the decedent had been

accused of a very recent assault and battery and “therefore

show[ed] a propensity for violence at the present time.” Reply,

ECF No. 9, at 7. They also argue that “with the decedent currently

in the same residence as the Cummings [sic], and being a larger

individual, Mr. Wittkamper posed an immediate threat to both the

Cummings [sic] and the deputies at the scene.” Id. Finally,

Defendants argue that Mr. Wittkamper was not complying with lawful

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

this stage of litigation, Defendants’ motion to dismiss is DENIED

to the extent that it argues that the Deputies are entitled to

qualified immunity for Count Two.

E. Section 1983 Claim Against Sheriff Hansen (III.H)

In section III.H of the motion, Defendants argue that Count

Two of the Complaint should be dismissed against Sheriff Hansen.

In Count Two, Plaintiff asserts a claim of Deliberate Indifference

under 42 U.S.C. § 1983. Plaintiff alleges that the Deputies, in

using unreasonable force, acted pursuant to a policy or custom of

the Sheriff’s Department. He asserts that the Sheriff’s Department

failed to adopt clear policies and failed to properly train its

officers. In their motion, Defendants argue that Count Two should

be dismissed against Sheriff Hansen because the Complaint fails to

state what policy or custom of the Sheriff’s Department the

Deputies allegedly acted upon or how the Sheriff’s Department

orders. Id. The Court finds that these asserted facts do not

trigger application of qualified immunity. The assessment of

whether a suspect is a threat is made at the moment when force is

used. See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996);

see also Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005)

(stating that “events should be reviewed outside the context of

the conduct that precipitated the seizure”). In addition, neither

his large size nor his presence in the home establish that he was

a threat in the moment when force was used. Finally, Plaintiff

has pled that Mr. Wittkamper was not complying with lawful orders

because he was too obese to put his hands behind his back as

instructed. Assuming Plaintiff’s facts are true at this stage,

Mr. Wittkamper was not posing a threat, and a jury could find that

the use of force deployed was unreasonable.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

failed to train its deputies. They argue that the Complaint relies

only on conclusory statements. Plaintiff argues that these

allegations are sufficient to survive a motion to dismiss.

Under certain circumstances, a plaintiff may sue a

supervisory official for constitutional injuries inflicted by his

subordinates. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994)

(citation omitted). “[L]iability is premised not upon respondeat

superior but upon ‘a recognition that supervisory indifference or

tacit authorization of subordinates’ misconduct may be a causative

factor in the constitutional injuries they inflict on those

committed to their care.’” Id. (citing Slakan v. Porter, 737 F.2d

368, 372-73 (4th Cir. 1984)). The Fourth Circuit has established

three elements necessary to establish supervisory liability under

Section 1983:

(1) that the supervisor had actual or

constructive knowledge that his subordinate

was engaged in conduct that posed “a pervasive

and unreasonable risk” of constitutional

injury to citizens like the plaintiff;

(2) that the supervisor’s response to that

knowledge was so inadequate as to show

“deliberate indifference to or tacit

authorization of the alleged offensive

practices”; and

(3) that there was an “affirmative causal

link” between the supervisor’s inaction and

the particular constitutional injury suffered

by the plaintiff.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

Shaw, 13 F.3d at 799. “Establishing a ‘pervasive’ and

‘unreasonable’ risk of harm requires evidence that the conduct is

widespread, or at least has been used on several different

occasions and that the conduct engaged in by the subordinate poses

an unreasonable risk of harm of constitutional injury.” Id.

Here, Plaintiff has not pled any facts indicating that the

alleged misconduct was widespread or even used on several different

occasions. As such, to the extent that Count Two alleges a Section

1983 claim against Sheriff Hansen, it is DISMISSED. This portion

of the motion to dismiss is GRANTED.

F. Battery (III.I)

In section III.I of the motion, Defendants argue that Count

Three (Battery) should be dismissed against all Defendants because

Plaintiff did not plead sufficient facts. Defendants also

generally assert, without describing how it would apply here, that

it is possible for privilege to apply. Plaintiff argues that the

battery claim has been sufficiently pled, citing the Complaint’s

allegations that the Deputies tased Mr. Wittkamper and held him

down in a manner in which he could not breathe. Plaintiff states

that there is no evidence at this stage showing Defendants’

privilege to do so without consent.

In West Virginia,

An actor is subject to liability to another

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

for battery if (a) he acts intending to cause

a harmful or offensive contact with the person

of the other or a third person, or an imminent

apprehension of such a contact, and (b) a

harmful contact with the person of the other

directly or indirectly results.

W. Va. Fire & Cas. Co. v. Stanley, 216 W. Va. 40, 51, 602 S.E.2d

483, 494 (2004), overruled on other grounds, Courtney v. Courtney,

437 S.E.2d 436 (W. Va. 1993)). Defendants are correct that “[a]n

activity that would otherwise subject a person to liability in

tort for battery . . . does not constitute tortious conduct if the

actor is privileged to engage in such conduct.” Hutchinson v. W.

Va. State Police, 731 F. Supp. 2d 521, 547 (S.D.W. Va. 2010).

Taking the allegations in the Complaint as true at this stage,

the Deputies arrived at the home, tased Mr. Wittkamper in the back,

and held him down so that he could not breathe. The Court finds

that a claim of battery against the Deputies is sufficiently pled.

Defendants have not specified in their motion which privilege

supposedly applies, aside from the immunity arguments in other

areas of the brief. At this stage, given the allegations and the

lack of specificity in Defendants’ motion, this portion of the

motion to dismiss is DENIED with respect to the Deputies.

The Court finds, however, that the battery claim against

Sheriff Hansen must be dismissed because there is no allegation in

the Complaint that Sheriff Hansen arrived at the home, much less

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DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

took part in the tasing and holding down of Mr. Wittkamper. Count

Three, therefore, is additionally DISMISSED against Sheriff Hansen

for this reason.

G. Outrageous Conduct (III.J)

In section III.J of the motion, Defendants argue that the

intentional infliction of emotional distress claim should be

dismissed because it is insufficiently pled. Count One asserts

that all Defendants are liable for intentional infliction of

emotional distress (also known as the tort of outrage). Defendants

argue that Plaintiff has failed to sufficiently plead facts

supporting the claim. Plaintiff argues in response that the

“overall combination of facts alleged where the decedent was tased

to death and/or suffocated to death can support such a conclusion.”

Response, ECF No. 8, at 14. Neither party cites any legal

authority to support its position.

A plaintiff must establish the following elements to prevail

on a claim of intentional infliction of emotional distress:

(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

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DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

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).

Here, the Court finds that Plaintiff has sufficiently pled a

claim of Intentional Infliction of Emotional Distress. The

Complaint alleges that Mr. Wittkamper was naked, unarmed,

“extremely obese,” and undergoing a “mental health issue.” He was

not resisting arrest. The Deputies tased him in the back,

handcuffed him, and held him face down on the floor on his

protuberant stomach. They continued to hold him in that position

despite his being unable to breathe. The jury could find that

these actions go beyond all possible bounds of decency and are

atrocious and utterly intolerable. The motion to dismiss is DENIED

with respect to Count One.

V. CONCLUSION

For the reasons discussed, the Court ORDERS the following:

 The motion for joinder is GRANTED [ECF

No. 12]; and

WITTKAMPER 3:23-CV-177

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART MOTION TO DISMISS [ECF NO. 4]

° The motion to dismiss is GRANTED IN PART

and DENIED IN PART [ECF No. 4], as set

forth above.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to

counsel of record.

DATED: February 26, 2024

Ton 3 Kl

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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