# Held v. Monongalia Emergency Medical Services, Inc.

> District Court, N.D. West Virginia · September 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10726782

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726782. Public record. Not legal advice.