Held v. Monongalia Emergency Medical Services, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

FRANK BJORN XAVIER HELD,

Plaintiff,

v. CIVIL NO. 1:23-CV-59

(KLEEH)

MONONGALIA EMERGENCY MEDICAL

SERVICES, INC. et al.

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

Pending before the Court is a motion to dismiss filed by the

West Virginia Division of Corrections and Rehabilitation. For the

reasons discussed herein, the motion is GRANTED.

I. PROCEDURAL HISTORY

On July 19, 2023, Plaintiff Frank Bjorn Xavier Held

(“Plaintiff”) filed a complaint in this case. After two motions

to dismiss were filed, Plaintiff filed an amended complaint.1 In

the amended complaint, Plaintiff names Defendants Monongalia

Emergency Medical Services, Inc. (“Mon EMS”), the City of

Morgantown, PFC S. Iambamrung (“Iambamrung”), PFC Fallinger

(“Fallinger”), the West Virginia Division of Corrections and

Rehabilitation (“WVDOCR”), and John Doe Correctional Officers of

1 The Court then denied the original motions to dismiss as moot.

See ECF No. 45.

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

the North Central Regional Jail (“John Doe Correctional Officers”)

(together, “Defendants”).2 WVDOCR filed a motion to dismiss the

amended complaint pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure. The motion is fully briefed and ripe for

review.

II. FACTS

The following facts are taken from the amended complaint.

For the purposes of deciding this motion, the Court assumes that

they are true. At all relevant times, Plaintiff was attending

West Virginia University for his undergraduate studies. Am.

Compl., ECF No. 21, at ¶ 4. On August 20, 2021, Plaintiff was

drinking with friends at his apartment. Id. ¶ 16. He realized he

had consumed too much alcohol, and he went to his bedroom to rest.

Id. ¶ 17. After some time had passed, his friends became concerned

about him and called emergency services. Id. ¶ 18. Both the

Morgantown Police Department and Mon EMS arrived at the residence.

Id. ¶ 19.

The paramedics asked Plaintiff several questions, and he was

visibly upset. Id. ¶ 21. Plaintiff recalls one of the Officers

telling him that he had two options: (1) go with the paramedics to

2 Plaintiff moved to amend the amended complaint, but the Court

denied the request. See ECF No. 59.

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

the hospital, or (2) be arrested and transported to the police

station. Id. ¶ 22. Plaintiff responded by “throwing his arms in

the air and making a ‘woah’ noise.” Id. ¶ 23. The officers then

arrested him, “rip[ped] him from his bedroom,” and took him to

North Central Regional Jail (“NCRJ”). Id. ¶ 24.

The reports created by the police and Mon EMS contradict one

another. Id. ¶ 29. The police report, written by Iambamrung,

states, “Once inside the apartment, officers made contact with the

male, later identified as Frank Bjorn Xavier Held, in his bedroom

covered in vomit.” Id. ¶ 26. The report also states that Plaintiff

was extremely intoxicated, yelling, not answering questions, and

unable to follow instructions. Id. ¶ 27. The Mon EMS

documentation states that Plaintiff refused medical treatment.

Id. ¶ 28. It states that “by history and physical examination it

was determined” that Plaintiff was “alert and oriented, ha[d] no

altered level of consciousness, . . . and ha[d] no evidence

of . . . alcohol ingestion that impair[ed] patient decision-

making.” Id.

Without receiving any medical treatment, Plaintiff arrived at

NCRJ. Id. ¶ 30. By this point, Plaintiff was still intoxicated

and had become increasingly agitated. Id. He was “snarky” with

the correctional officers while they completed his intake. Id.

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

¶ 31. In response, the John Doe Correctional Officers took him

aside, removed his clothing, and conducted a strip search. Id.

¶ 32. During the search, one of the John Doe Correctional Officers

required Plaintiff to turn around and bend over, and then he or

she discharged a round of pepper spray inches away from Plaintiff’s

rectum. Id. ¶ 33. Plaintiff suffered excruciating pain and

humiliation. Id. ¶ 34.

Plaintiff was then given a suicide jacket and placed in a

room with other similarly dressed individuals. Id. ¶ 35. The

next day, Plaintiff’s friend posted his bail, and Plaintiff was

released. Id. ¶ 36. All criminal charges against him were

dismissed, and his record was expunged. Id. ¶ 37. Plaintiff

suffered and continues to suffer injuries and damages including,

but not limited to, physical pain and discomfort, humiliation,

mental anguish, and emotional distress. Id. ¶ 38.

Based on these facts, Plaintiff asserts the following causes

of action:

 Count One – Excessive Use of Force (42

U.S.C. § 1983);

 Count Two – Battery;

 Count Three – Unlawful Arrest;

 Count Four – Intentional Infliction of

Emotional Distress;

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

 Count Five – Negligent Hiring, Training,

and Supervision;

 Count Six – Abuse of Process; and

 Count Seven – Negligence.

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,

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

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

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

For the reasons below, the Court finds that all claims against

WVDOCR should be dismissed.

A. Count One - Excessive Use of Force (42 U.S.C. § 1983)

Count One alleges that Defendants violated Plaintiff’s

constitutional rights by unreasonably using excessive force.

WVDOCR argues that Count One must be dismissed against it because

a section 1983 claim cannot be brought against a state agency.

Under the United States Code,

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State . . . , subjects, or causes to be

subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law[.]

42 U.S.C. § 1983 (emphasis added). The Court agrees with WVDOCR:

to the extent that Plaintiff is asserting a claim against WVDOCR

under 42 U.S.C. § 1983, it fails as a matter of law. See Will v.

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[N]either

a state nor its officials acting in their official capacities are

‘persons’ under § 1983.”). Plaintiff does not address this

argument in his response. Accordingly, WVDOCR’s motion to dismiss

is GRANTED in this respect, and Count One is DISMISSED WITH

PREJUDICE against WVDOCR.

B. Count Two – Battery

In Count Two, Plaintiff alleges that “WVDOCR and/or North

Central Regional Jail is vicariously liable for the actions of the

Correctional-Officer Defendants committed within the scope of

their employment.” Am. Compl., ECF No. 21, at ¶ 62. WVDOCR argues

that it cannot be vicariously liable for the alleged battery

against Plaintiff because such conduct would be manifestly outside

of a correctional officer’s scope of employment.

Under West Virginia law,

If the plaintiff identifies a clearly

established right or law which has been

violated by the acts or omissions of the

State, its agencies, officials, or employees,

or can otherwise identify fraudulent,

malicious, or oppressive acts committed by

such official or employee, the court must

determine whether such acts or omissions were

within the scope of the public official or

employee’s duties, authority, and/or

employment. To the extent that such official

or employee is determined to have been acting

outside of the scope of his duties, authority,

and/or employment, the State and/or its

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

agencies are immune from vicarious liability,

but the public employee or official is not

entitled to immunity in accordance with State

v. Chase Securities, Inc., 188 W.Va. 356, 424

S.E.2d 591 (1992), and its progeny. If the

public official or employee was acting within

the scope of his duties, authority, and/or

employment, the State and/or its agencies may

be held liable for such acts or omissions

under the doctrine of respondeat superior

along with the public official or employee.

Syl. Pt. 12, W. Va. Reg’l Jail & Corr. Facility Auth. V. A.B., 766

S.E.2d 751 (W. Va. 2014). Some acts, such as sexual assaults, are

“manifestly outside” the scope of a public employee’s authority

and duties. Id. at 770–71.

Here, Plaintiff alleges that the John Doe Correctional

Officers “maliciously and sadistically” sprayed pepper spray on

his rectum and that doing so was “not an incident of some other

legitimate government purpose.” Am. Compl., ECF No. 21, at ¶¶ 48–

53. He characterizes the act as a sexual assault. Id. Thus, the

alleged actions of the John Doe Correctional Officers are outside

the scope of their employment, and the WVDOCR cannot be vicariously

liable for the acts. In his response, Plaintiff did not address

WVDOCR’s arguments, so the Court assumes that he concedes this

issue. The Court finds WVDOCR’s position to be correct and GRANTS

the motion to dismiss in this respect. Count Two is DISMISSED

WITH PREJUDICE against WVDOCR.

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

C. Count Five – Negligent Hiring, Training, and Supervision

Count Five asserts a claim of negligent hiring, training, and

supervision. WVDOCR argues that this claim fails against it

because he has not alleged facts indicating how WVDOCR was

negligent.

First, as an initial matter, negligent hiring, negligent

training, and negligent supervision constitute three separate

claims. See C.C. v. Harrison Cnty. Bd. of Educ., 859 S.E.2d 762,

772 (W. Va. 2021). To assert a claim of negligent hiring against

WVDOCR, Plaintiff must, at a minimum, allege facts regarding

WVDOCR’s initial decision to hire the John Doe Correctional

Officers or any irregularities attendant to their hiring. See id.

at 773 (citing Syl. Pt. 2, Par Mar v. City of Parkersburg, 398

S.E.2d 532 (W. Va. 1990)). He has not. Accordingly, he has failed

to state a claim of negligent hiring.

To assert a claim of negligent supervision, Plaintiff must

allege that “the [employer] failed to properly supervise [its

employee] and, as a result, [the employee] committed a negligent

act which proximately caused the appellant’s injury.” C.C., 859

S.E.2d at 774. When the alleged wrongful conduct by the employee

is intentional, as opposed to negligent, it cannot form the basis

of a negligent supervision claim against the employer. The same

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

rule applies to a claim for negligent training. Id. Here, the

acts alleged to have been committed by the John Doe Correctional

Officers constitute intentional conduct. Accordingly, Plaintiff

has failed to state a claim for negligent supervision or negligent

training against WVDOCR.

For an employer to be liable for negligent retention, the

employer must have been able to foresee “the possible risk of harm

or injury to co-workers or third parties that could result from

the conduct of an unfit employee.” Id. at 776 (citing McCormick

v. W. Va. Dep’t of Pub. Safety, 503 S.E.2d 502, 506 (W. Va. 1998)

(per curiam)). Plaintiff has asserted no factual allegations that

the John Doe Correctional Officers engaged in similar behavior

before Plaintiff’s arrest or any facts that would have put WVDOCR

on notice of a possible risk of harm. He has failed to state a

claim for negligent retention.

For these reasons, WVDOCR’s motion to dismiss is GRANTED in

this respect, and Count Five is DISMISSED WITH PREJUDICE against

WVDOCR.

D. Remaining Counts

Upon review of the amended complaint, the Court agrees with

WVDOCR that the remaining counts do not appear to be directed

toward WVDOCR and, if they are, do not allege facts sufficient to

HELD V. MONONGALIA EMS 1:23-CV-59

MEMORANDUM OPINION AND ORDER

GRANTING THE WEST VIRGINIA DIVISION OF CORRECTIONS

AND REHABILITATION’S MOTION TO DISMISS [ECF NO. 22]

state a claim against it. Plaintiff did not address the remaining

counts in his response. Accordingly, the motion to dismiss is

GRANTED as to the remaining counts. Counts Three, Four, Six, and

Seven are DISMISSED WITH PREJUDICE against WVDOCR.

Vv. CONCLUSION

For the reasons discussed above, WVDOCR’s motion to dismiss

is GRANTED in its entirety [ECF No. 22], and all claims against

WVDOCR are DISMISSED WITH PREJUDICE. The Clerk is directed to

TERMINATE WVDOCR as a defendant in this civil action.

It is so ORDERED.

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: September 17, 2024

Tom 8 □□

THOMAS $8. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

11