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 MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

Pending before the Court is a motion to dismiss filed by

Defendants Iambamrung and Fallinger. 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 denied the original motions to dismiss as moot. See

ECF No. 45.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

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

(together, “Defendants”).2 Iambamrung and Fallinger (together,

the “Officers”) 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

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

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

denied the request. See ECF No. 59.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

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 and

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. ¶ 28.

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.

¶ 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

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

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;

 Count Five – Negligent Hiring, Training,

and Supervision;

 Count Six – Abuse of Process; and

 Count Seven – Negligence.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

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

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

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

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 discussed below, the motion to dismiss is

granted in its entirety.

A. The Alcohol and Drug Overdose Prevention and Clemency

Act

In 2015, the West Virginia Legislature enacted the Alcohol

and Drug Overdose Prevention and Clemency Act (the “Act”). In the

Act, the Legislature made the express finding that “it is in the

public interest to encourage citizens to intervene in drug and

alcohol overdose situations by seeking potentially life-saving

emergency medical assistance for others without fear of being

subject to certain criminal penalties.” W. Va. Code § 16-47-2(b).

Plaintiff, as the individual for whom medical assistance was

sought, has asserted that he is entitled to certain protections

under the Act.

While the Act affords some protections for the individual for

whom medical assistance was sought, Plaintiff has not sufficiently

alleged that he is entitled to those protections. Under the Act,

the biggest benefactors are the persons who report the need for

emergency medical assistance: “a person who, in good faith and in

a timely manner, seeks emergency medical assistance for a person

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

who reasonably appears to be experiencing an overdose may not be

held criminally responsible for a violation of” several specific

crimes. See id. § 16-47-4(a). This immunity can also extend to

“the person for whom emergency medical assistance was sought”

(here, Plaintiff), but only if certain conditions are met. For

such a person to be entitled to immunity under the Act, he or she

must, “after receiving that assistance, . . . participate[] in,

compl[y] with, and complete[] a substance abuse treatment or

recovery program approved by the court.” Id. § 16-47-5(a).

Alternatively, a court may consider other sentencing and clemency

options, including deferred prosecution, pretrial diversion, drug

court, probation, conditional discharge, a weekend jail program,

a community service or work program, and more. Id. Plaintiff has

not alleged that he participated in any of the above or that the

state court considered any of the above. Accordingly, for purposes

of deciding this motion, the Court cannot find that Plaintiff is

entitled to any immunity under the Act.

Additionally, the Court cannot conclude that the Officers are

entitled to any immunity under the Act. The Act provides, “Except

in cases of willful, wanton or reckless misconduct, law-

enforcement personnel are immune from civil liability for citing

or arresting a person who is later determined to qualify for

immunity” under Chapter 16, Article 47. Id. § 16-47-6. Because

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

there is nothing before the Court indicating that Plaintiff

qualifies for protection under the Act, the Court cannot afford

the Officers the related immunity at this stage. For purposes of

this motion, the Court concludes that the immunity contemplated in

the Act does not apply to either Plaintiff or the Officers.

B. Counts One and Two – Excessive Force and Battery

In Count One, Plaintiff asserts that the Officers violated

his constitutional rights by unreasonably using excessive force.

In Count Two, he asserts that the Officers committed the tort of

battery against him. The Officers argue that both counts should

be dismissed as insufficiently pled. In response, Plaintiff

asserts that “there was no indication that an arrest was necessary”

because “Officers should be well trained and knowledgably [sic]

enough when working in a college town like Morgantown to know when

to treat a potential alcohol overdose for what it is — a medical

emergency requiring medical assistance, not a crime for which force

is needed to arrest the individual suffering.” Response, ECF No.

39, at 5. He argues, therefore, that “the force used to remove

Mr. Held from his apartment and transport him to NCRJ was excessive

from the outset.” Id.

This Court is not in a position to determine whether the

Officers should have used their discretion to arrest someone who

broke the law in their presence. Exhibit 2 to the amended

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

complaint indicates that Plaintiff was 20 years old when these

events occurred. See Exh. 2, Amended Compl., ECF No. 1-2.

Plaintiff admits that he “consumed too much alcohol” and was

“covered in his own vomit.” Am. Compl., ECF No. 21. The Officers

observed Plaintiff’s intoxicated state, including his vomit.

Clearly, they had probable cause to arrest him. See W. Va. Code

§ 60-3A-24(a)(1) (“Any person who is under the age of twenty-one

years who . . . consumes . . . alcoholic liquor is guilty of a

misdemeanor . . . .”). Any argument that the arrest was

“excessive from the outset” is baseless.

With respect to Count One, the Court agrees with the Officers

that Plaintiff has not identified any facts surrounding the arrest

itself that could be considered excessive. Plaintiff alleges that

the Officers arrested him, “rip[ped] him from his bedroom,” and

took him to NCRJ. See Am. Compl., ECF No. 21, at ¶ 24. With

respect to Count Two, under West Virginia law, an officer may use

a reasonable amount of force to bring an arrestee under his

control. See State ex rel. Mullins v. McClung, 17 S.E.2d 621, 624

(W. Va. 1941) (finding that the arrest of a misdemeanant may be

effected by the use of “such reasonable force, including the use

of a club, as the surrounding circumstances apparently require”);

see also Lowe v. Spears, No. 3:06-0647, 2009 WL 1393860, at *6

(S.D.W. Va. May 15, 2009) (Chambers, J.) (dismissing a common law

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

battery claim against a police officer at summary judgment because

there was no showing of excessive force during the arrest).

Because the amended complaint includes no facts indicating that

the Officers used excessive force, the motion to dismiss is GRANTED

in this respect, and Counts One and Two are DISMISSED WITH

PREJUDICE against the Officers.

C. Count Three – Unlawful Arrest

In Count Three, Plaintiff appears to assert that the Officers

lacked probable cause to arrest him. The Officers argue that Count

Three should be dismissed because it was obvious to them that

Plaintiff had committed a crime, and they were in the home

lawfully.

Again, Exhibit 2 to the amended complaint indicates that

Plaintiff was 20 years old. See Exh. 2, Amended Compl., ECF No.

1-2. Plaintiff admits that he “consumed too much alcohol” and was

“covered in his own vomit.” Am. Compl., ECF No. 21. The Officers

observed Plaintiff’s intoxicated state, including his vomit.

Clearly, they had probable cause to arrest him. See W. Va. Code

§ 60-3A-24(a)(1) (“Any person who is under the age of twenty-one

years who . . . consumes . . . alcoholic liquor is guilty of a

misdemeanor . . . .”). The Officers had received a call to come

to the home, and by all accounts they were in the home lawfully.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

Accordingly, the motion to dismiss is GRANTED in this respect, and

Count Three is DISMISSED WITH PREJUDICE against the Officers.

D. Count Four – Intentional Infliction of Emotional

Distress

Plaintiff alleges that the Officers’ actions during his

arrest constituted intentional infliction of emotional distress

(“IIED”). In the Officers’ motion, they argue that Plaintiff has

failed to set forth sufficient facts to support an IIED claim.

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 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).

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

On its face, the amended complaint fails to state an IIED

claim against the Officers. Plaintiff alleges that the Officers

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

NCRJ. See Am. Compl., ECF No. 21, at ¶ 24. These allegations do

not rise to the level of outrageous conduct. Accordingly, the

motion to dismiss is GRANTED in this respect, and Count Four is

DISMISSED WITH PREJUDICE against the Officers.

E. Count Six – Abuse of Process

In Count Six, Plaintiff argues that the Officers unlawfully

arrested, detained, seized, prosecuted, and pursued criminal

charges against him. He asserts that the Officers “had no

reasonable basis or belief that he was engaged in or had engaged

in any criminal activity.” Id. ¶ 107. The Officers move to

dismiss Count Six against them, arguing that they had a reasonable

basis to believe that Plaintiff had engaged in criminal activity.

“Generally, abuse of process consists of the willful or

malicious misuse or misapplication of lawfully issued process to

accomplish some purpose not intended or warranted by that process.”

Williamson v. Harden, 585 S.E.2d 369, 372 (W. Va. 2003) (quoting

Preiser v. MacQueen, 352 S.E.2d 22, 28 (W. Va. 1985)). The

elements of an abuse of process claim include “first, an ulterior

purpose, and second, a willful act in the use of the process not

proper in the regular conduct of the proceeding.” Preiser, 352

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

S.E.2d at 28 n.8 (citation omitted). Notably, “there is no

liability where the defendant has done nothing more than carry out

the process to its authorized conclusion, even though with bad

intentions.” Id.

Again, Exhibit 2 to the amended complaint indicates that

Plaintiff was 20 years old. See Exh. 2, Amended Compl., ECF No.

1-2. Plaintiff admits that he “consumed too much alcohol” and was

“covered in his own vomit.” Am. Compl., ECF No. 21. The Officers

observed Plaintiff’s intoxicated state, including his vomit, which

is a crime in West Virginia. See W. Va. Code § 60-3A-24(a)(1)

(“Any person who is under the age of twenty-one years

who . . . consumes . . . alcoholic liquor is guilty of a

misdemeanor . . . .”). As such, it is simply untrue that the

Officers “had no reasonable basis or belief that he was engaged in

or had engaged in any criminal activity.” Plaintiff was charged

with underage consumption, among other crimes, and he has not set

forth any facts indicating that the Officers’ arrest was improper.

His claim for abuse of process fails as a matter of law. The

Officers’ motion to dismiss is GRANTED in this respect, and Count

Seven is DISMISSED WITH PREJUDICE against the Officers.

V. CONCLUSION

For the reasons discussed above, the Officers’ motion to

dismiss is GRANTED [ECF No. 25]. Counts One, Two, Three, Four,

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

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS BY

DEFENDANTS IAMBAMRUNG AND FALLINGER [ECF NO. 25]

and Six, as they pertain to the Officers, are DISMISSED WITH

PREJUDICE. It does not appear that Plaintiff asserts claims

against the Officers in Counts Five and Seven. If he does, he has

failed to set forth facts sufficient to state a claim.

Accordingly, all claims against the Officers are dismissed, and

the Clerk is DIRECTED to terminate Iambamrung and Fallinger as

defendants 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 Bla

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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