# Held v. Monongalia Emergency Medical Services, Inc.

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

URL: https://www.frixlaw.com/law-library/cases/10726830

## Case

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

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10726830

## How later opinions describe it (automated extraction)

- 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”

## 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 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726830. Public record. Not legal advice.