Quigley v. City of Huntington WV

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

HARRY LAWRENCE QUIGLEY,

Plaintiff,

v. Case No. 3:17-cv-01906

CITY OF HUNTINGTON WV;

SHANE BILLS (in both his official and

personal capacity);

JOSEPH CICCARELLI in both his official and

personal capacity);

JOEY KOHER in both his official and

personal capacity);

JASON SMITH in both his official and

personal capacity); and

JAMES TALBERT in both his official and

personal capacity);

Defendants.

PROPOSED FINDINGS AND RECOMMENDATIONS

On March 16, 2017, Plaintiff Harry Lawrence Quigley (“Quigley”), proceeding pro

se, filed a complaint pursuant to 42 U.S.C. § 1983. (ECF No. 2). Quigley was granted leave

to amend the complaint in June 2017. (ECF Nos. 19, 23). Currently before the court are

the motion and renewed motion of defendants City of Huntington, Shane Bills, and

Joseph Ciccarelli to dismiss the complaint and first amended complaint. (ECF Nos. 14,

24). Plaintiff has filed a response in opposition to the motions to dismiss, (ECF No. 18),

and the time for filing a reply memorandum has expired. Therefore, the motions are fully

briefed and ready for resolution. The parties were also given an opportunity to argue their

positions at a motion hearing held on June 20, 2017.

This matter is assigned to the Honorable Robert C. Chambers, United States

District Judge, and by standing order has been referred to the undersigned United States

Magistrate Judge for the submission of proposed findings of fact and recommendations

for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the

undersigned RECOMMENDS that the presiding District Judge GRANT, in part, and

DENY, in part, the defendants’ motions, as follows: DENY the Motions to Dismiss of

Defendants the City of Huntington and Shane Bills; GRANT the Motion to Dismiss of

Defendant Joseph Ciccarelli, without prejudice; and GRANT the Motion to Dismiss any

claim for injunctive relief that seeks an Order enjoining the defendants from future

employment as law enforcement officers. The undersigned further RECOMMENDS

that Defendant Ciccarelli be removed from the caption of the case and that the remaining

parties be permitted to complete discovery in this civil action.

I. Relevant Factual Allegations

On March 17, 2016, Quigley was arrested by a City of Huntington, West Virginia

police officer and was subsequently charged with the misdemeanor offense of

brandishing. After spending ten days in jail and appearing three times before a county

magistrate, the charge against Quigley was dismissed. Quigley now sues under 42 U.S.C.

§ 1983, claiming, in relevant part, that Defendants Bills, Ciccarelli, and the City of

Huntington (“Huntington”) violated Quigley’s rights under the Fourth Amendment to the

United States Constitution. The allegations most relevant to the pending motions are as

follows:

In March 2016, Quigley, a 68-year old law-abiding citizen, lived at 101 Eighth

Avenue in Huntington, West Virginia. When he needed groceries, Quigley routinely

walked from his residence to a Kroger supermarket located one block away. On several of

these walks, Quigley interacted with a 45-year-old man, Jason David Blankenship, who

lived in a home adjacent to Kroger. Quigley was cordial, but kept his interactions with

Blankenship brief, because Blankenship usually appeared intoxicated.

At approximately 7:30 p.m. on Thursday, March 17, 2016, Quigley walked to

Kroger to pick up some beverages to share with a friend. As he prepared to enter the store,

Quigley was addressed by Blankenship, who was sitting on his front porch with two other

adult males. Blankenship waved money at Quigley and asked him to buy Blankenship and

his friends an 18-pack of beer. Noting that all three of the men appeared intoxicated,

Quigley refused the request. The men exchanged words, then Blankenship and his two

friends came down from the porch and surrounded Quigley. One of Blankenship’s friends

punched Quigley in the eye. In fear for his safety, Quigley pulled a straight blade knife

from his pocket and pointed it at the attacker. The three men began to inch away as they

looked past Quigley. Quigley turned to see what the men were looking at and saw a Cabell

County deputy crouched on one knee aiming a gun at Quigley. The deputy, who was

present because he routinely patrolled the Kroger parking lot, instructed Quigley to drop

the knife. Quigley immediately complied.

By this time, several Huntington Police Department cruisers had arrived at the

scene. Quigley was handcuffed, frisked, and ordered to sit in the back of a cruiser. Quigley

saw some of the Huntington police officers speaking to Blankenship and his friends, while

another Huntington police officer took a photograph of Quigley’s black eye. None of the

officers interviewed Quigley; instead, they began to transport him to the Huntington

police station. On the way, Quigley asked the transporting officer if Blankenship and his

friends were being arrested as well. The officer replied: “No, we didn’t see anything.” The

officer added that Blankenship had urged the Huntington police not to arrest Quigley.

Once Quigley arrived at the police station, he was fingerprinted and photographed.

He was then taken before a county magistrate, who interrogated the police officer about

the arrest. The officer advised the magistrate that all of the men involved in the

confrontation were drunk, even though Quigley was not intoxicated. Without asking

Quigley for his version of the events, the magistrate advised Quigley that he was being

charged with misdemeanor brandishing and would be assigned a public defender. The

magistrate set a $5000 bond, which Quigley could not afford. Ten days later, Quigley’s

89-year-old aunt drove 80 miles to Huntington and posted Quigley’s bond.

Quigley appeared before another county magistrate on March 30, 2016 for his

preliminary hearing. Because Blankenship and his friends failed to appear, the magistrate

rescheduled the hearing to May 19, 2016. On May 19, 2016, Blankenship appeared and

advised the magistrate that he did not wish to proceed with the charge. Therefore, the

charge was dismissed.

On June 20, 2016, Quigley visited the Huntington Police Department and

requested the return of his knife, providing the clerk with a copy of the dismissal order

from his criminal case. Quigley was told he would need a property release form issued by

the magistrate clerk. When Quigley went to the magistrate court the following day, he was

told by the magistrate clerk that the court did not issue property release forms. Quigley

then wrote to Huntington’s city attorney, Chief of Police Ciccarelli, the magistrate who

dismissed the criminal case, the Governor of West Virginia, a state senator, a state

representative, and the United States Department of Justice. However, his knife was not

returned until July 10, 2017, after the initial status conference in this action.

According to Quigley, at no time before, during, or after his arrest and detention

did any arresting or investigating officer ask him for his version of the events that

occurred on March 17, 2016. Quigley claims that the defendant police officers arrested

him without doing a reasonable investigation and without probable cause. In addition, he

claims that the police officers provided false information to the magistrate, resulting in

Quigley’s ten-day detention. Quigley further claims that his Fourth Amendment rights

were violated by Defendant Ciccarelli, who failed to return Quigley’s knife after receiving

a written request. Finally, Quigley contends that Defendants Ciccarelli and Huntington

are liable under § 1983 by failing to properly train and supervise the police officers and

by promoting a custom, policy, and practice of ignoring federally protected civil rights.

II. Grounds Stated in the Motion to Dismiss

As previously stated, the motions to dismiss were filed on behalf of the City of

Huntington, Shane Bills, and Joseph Ciccarelli. The remaining defendants have not yet

been served with process and, thus, have not been required to respond to the second

amended complaint. The Huntington Police Department was previously dismissed as a

party by Plaintiff in the course of filing the first amended complaint. The undersigned

notes that Huntington, Defendant Bills, and Defendant Ciccarelli filed their dispositive

motions prior to the filing of the second amended complaint; however, to the extent the

second amended complaint cures deficiencies raised by the defendants in their motions,

the undersigned finds it just and judicially efficient to consider the second amended

complaint in making findings and recommendations herein.

In their motions, the defendants argue that the complaint and first amended

complaint should be dismissed because Quigley fails to provide factual allegations to

support a conclusion that his constitutional rights were violated. Indeed, the defendants

contend that there are no factual allegations related to any of the defendants. Instead, the

defendants are only mentioned by name in the request for relief. In addition, the

defendants assert that this court lacks jurisdiction to grant a portion of the declaratory

relief that Quigley requests; that being, that the defendant police officers “be enjoined and

prohibited from employment in any law enforcement capacity elsewhere in the United

States.”

Defendants also provide a memorandum in support of the motion to dismiss in

which they raise the affirmative defense of qualified immunity on behalf of Bills and

Ciccarelli. Defendants acknowledge that the critical issue is whether the officers had

probable cause to support their warrantless arrest of Quigley. They argue that based upon

the events of March 17, 2016, as outlined by Quigley, the officers clearly had probable

cause to make the arrest and acted appropriately under the circumstances. Defendants

rely heavily upon Quigley’s admission that the first officer on the scene witnessed Quigley

holding a knife that was pointed at the other three men.1

III. Motion to Dismiss Standard

Defendants have filed their motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6). Rule 12(b)(6) permits the court to dismiss a complaint that fails to

state a claim upon which relief may be granted. A complaint fails to state a claim when,

viewing the factual allegations as true and in the light most favorable to the plaintiff, the

complaint 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); see also Ashcroft v. Iqbal,

556 U.S. 662 (2009) (“A claim has facial plausibility when the plaintiff pleads factual

1 Defendants also argue that Quigley’s due process claim should be dismissed, because he does not implicate

any of the named defendants in that claim. Based upon Quigley’s filings under Rule 5.1 of the Federal Rules

of Civil Procedure, the undersigned believes that Quigley directs his due process claim to the State of West

Virginia. Accordingly, that claim will not be addressed in this PF&R.

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged”). The Supreme Court further explained the “plausibility”

standard in Iqbal, stating:

The plausibility standard is not akin to a “probability requirement,” but it

asks for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are “merely consistent with” a

defendant’s liability, it “stops short of the line between possibility and

plausibility of ‘entitlement to relief.”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted).

“Where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’” Iqbal, 556 U.S. at 679. Determining whether a complaint

states a facially plausible claim for relief is a “context-specific task that requires the court

to draw on its judicial experience and common sense.” Id. (citing Iqbal v. Hasty, 490 F.3d

143, 157–158 (2nd Cir. 2007)).

In ruling on a Rule 12(b) motion, the court must accept as true all of the factual

allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 (2007). In

contrast, the court is not required to accept the legitimacy of legal conclusions. Iqbal, 556

U.S. at 678. To survive a motion to dismiss, a complaint must plead both a factual and

legal basis for relief. Id. (“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice” to establish a facially plausible

complaint). Courts are required to liberally construe pro se complaints, such as the one

filed in this action. Erickson, 551 U.S. at 94. However, even under this less stringent

standard, the complaint still must contain sufficient factual allegations to support a valid

legal cause of action. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.

2003). The court may not rewrite the pleading to include claims that were never

presented, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998); construct the

plaintiff’s legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993);

or “conjure up questions never squarely presented” to the court. Beaudett v. City of

Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). A Rule 12(b)(6) motion should be granted

only ‘“where the complaint lacks a cognizable legal theory or sufficient facts to support a

cognizable legal theory.’” Hartmann v. Calif. Dept. of Corr. & Rehab., 707 F.3d 1114, 1122

(9th Cir.2013) (citing Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1102 (9th

Cir.2008)).

IV. Discussion

Plaintiff’s complaint against Defendants Bills, Ciccarelli, and the City stems from

his alleged unconstitutional arrest, pretrial confinement, and prosecution. The Fourth

Amendment to the United States Constitution protects the right of individuals to be free

from unreasonable search and seizure. See Manuel v. City of Joliet, 137 S. Ct. 911, 917

(2017). This right extends from arrest to pretrial detention, both before and after the

institution of legal process. Id. at 918-19.

In two recent decisions issued by the United States Court of Appeals for the Fourth

Circuit (“Fourth Circuit”), claims of false arrest and malicious prosecution were

considered. See Smith v. Munday, 848 F.3d. 248 (4th. Cir. 2017); Humbert v. Mayor and

City Council of Baltimore City, 866 F.3d 546 (4th Cir. 2017). The Fourth Circuit reiterated

that such claims are addressed under the Fourth Amendment and to succeed on this type

of Fourth Amendment claim, a plaintiff must show that “the defendant (1) caused (2) a

seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3)

criminal proceedings terminated in [the] plaintiff’s favor.” Humbert, 866 F.3d at 555

(quoting Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012). In both Humbert and

Smith, the Fourth Circuit readily accepted that the plaintiff had met the first and third

elements of a Fourth Amendment claim, but analyzed the second element in greater

detail. Accordingly, as in this case, the pivotal issue was whether there was probable cause

to support the arrest.

“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.”

Smith, 848 F.3d at 253 (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)). ‘“While

probable cause requires more than bare suspicion, it requires less than that evidence

necessary to convict.’” Id. (quoting United States v. Gray, 137 F.3d 765, 769 (4th Cir.

1998)). Probable cause is an objective standard that “turns on two factors: the suspect’s

conduct as known to the officer, and the contours of the offense thought to be committed

by that conduct.” Id. (internal quotation marks and citation omitted). In the context of an

arrest, probable cause ‘“means facts and circumstances within the officer’s knowledge

that are sufficient to warrant a prudent person, or one of reasonable caution, in believing

the circumstances shown, that the suspect has committed … an offense.’” Humbert, 866

F.3d at 555 (quoting Cahaly v. Larosa, 796 F.3d 399, 407 (4th Cir. 2015)). The “probable-

cause inquiry ‘examine[s] the facts within the knowledge of the arresting officers to

determine whether they provide a probability on which reasonable and prudent persons

would act; [the courts] do not examine the subjective beliefs of the arresting officers to

determine whether they thought that the facts constituted probable cause.’” Smith, 848

F.3d at 253 (quoting Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016)). In collecting

the facts to conduct the probable-cause inquiry, the arresting officer “need not ‘exhaust []

every potential avenue of investigation’ … [b]ut an investigating officer must still conduct

some sort of investigation and assemble individualized facts that link the suspect to the

crime.” Id. at 254 (internal citation omitted).

With respect to detention on a warrantless arrest, when a suspect is brought before

a neutral judge or magistrate, who makes a finding that probable cause supports the arrest

of the suspect for the crime charged, the seizure is considered reasonable and, thus, does

not violate the Fourth Amendment prohibition against unreasonable seizure. Gerstein v.

Pugh, 420 U.S. 103, 114-15 (1975). Nevertheless, if the probable cause finding of the judge

or magistrate is “predicated solely on a police officer’s false statements … then … [the

suspect] is confined without constitutionally adequate justification.” Manuel, 137 S. Ct. at

918. In short, “[l]egal process has gone forward, but it has done nothing to satisfy the

Fourth Amendment’s probable-cause requirement.” Id. at 918-19.

With this framework in mind, the undersigned examines the pleadings filed by

Quigley to determine the sufficiency of the factual allegations against each defendant.

Given Quigley’s pro se status, the undersigned had construed the allegations liberally and

has considered the additional facts and arguments contained in Quigley’s Response to

Defendants’ Motion to Dismiss, as Quigley expressly incorporates those allegations and

arguments into the second amended complaint. (ECF No. 28-1 at 9).

A. Sufficiency of the Allegations Against Shane Bills

Quigley identifies Defendant Bills as one of the Huntington police officers that

handcuffed, frisked, and arrested Quigley on March 17, 2016. Quigley asserts that the

arrest was made without probable cause, because Bills failed to conduct a reasonable

investigation before arresting Quigley. According to Quigley, before arresting him, Bills

should have interviewed Quigley to find out what happened, instead of talking only to the

three men that accosted him. Quigley contends that had Bills conducted even a minimal

investigation, he would have learned that Quigley was a 68-year-old man, walking alone

at dusk, while the other three younger men were spending the evening drinking on the

front porch. Bills would have learned that Quigley was on his way to Kroger and was

minding his own business when he was verbally harassed and then physically surrounded

by the three highly intoxicated and aggressive men. Bills would have learned that a

skirmish ensued when one of the men punched Quigley in the face, without just

provocation, causing Quigley to suffer a black eye. Only then did Quigley pull out a knife

to protect himself, and he did not use or attempt to use knife. Before the attack could go

any further, a Cabell County deputy appeared at the scene. Quigley dropped his knife

immediately upon being told to do so by the deputy, and Quigley expressed great relief at

the officer’s presence. Quigley adds that he was not confrontational, and he fully

cooperated with all of the instructions given to him by the Huntington police officers who

arrived at the scene later. None of the men who instigated the assault on Quigley was

injured, but all three of the men were clearly intoxicated. In contrast, Quigley alleges that

he was not intoxicated, and he was the only individual at the scene to have an injury.

Notwithstanding plain evidence that Quigley was the victim of an attack, rather than the

perpetrator of a crime, none of the Huntington police officers ever spoke with him.

Moreover, when the police officers spoke to the three instigators, at least one of them

urged the police not to arrest Quigley.

Construing these allegations in the light most favorable to Quigley, the complaint

states a plausible claim that Quigley was arrested without probable cause. Although

Quigley had a knife, nothing about the scene, as described by Quigley, suggested that he

was the aggressor. Given that Quigley was the only person injured, the facts available to

Bills (as alleged by Quigley) likely would have led a reasonable and prudent police officer

to suspect that Quigley was the victim, rather than the instigator, and that Quigley

believed he was in imminent danger of serious bodily injury at the hands of his three

attackers when he pulled out his knife. Consequently, Quigley was not brandishing a knife

“in a manner to cause or threaten a breach of the peace”;2 rather he was acting in self-

defense.3 In essence, the peace had already been breached by the three abusive and

intoxicated men, and Quigley was merely acting to restore the peace. See State v. Neal,

No. 15-0684, 2016 WL 6520222, at *4-5 (W.Va. Nov. 3, 2016) (unpublished) (holding that

brandishing charge requires a breach of the peace). At a minimum, these factual

circumstances arguably should have caused a reasonable and prudent officer to conduct

an investigation of the readily available facts, which undoubtedly would have included

asking Quigley his version of the events. See Safar v. Tingle, 859 F.3d 241, 246 (4th Cir.

2017) (recognizing a failure to investigate claim under § 1983, which “tests an officer’s

efforts to establish probable cause before seeking a warrant.”)

Quigley also contends that his false arrest led to unnecessary detention. Rather

than being given a summons to appear later, Quigley was incarcerated for ten days on a

misdemeanor charge. Of note, from the facts alleged by Quigley, Defendant Bills and the

other Huntington police officers who arrested Quigley did not witness any part of the

2 The misdemeanor crime of brandishing is set forth in West Virginia Code § 61-7-11, which states:

It shall be unlawful for any person armed with a firearm or other deadly weapon, whether

licensed to carry same or not, to carry, brandish or use such weapon in a way or manner to

cause, or threaten, a breach of the peace.

Therefore, carrying, or even brandishing a knife, is not criminal unless the act was done “in a way or manner

to cause, or threaten, a breach of the peace.”

3 The elements of self-defense have been stated as follows:

[A] defendant who is not the aggressor and has reasonable grounds to believe, and actually

does believe, that he is in imminent danger of death or serious bodily harm from which he

could save himself only by using deadly force against his assailant has the right to employ

deadly force in order to defend himself.

State v. Hughes, 197 W. Va. 518, 524, 476 S.E.2d 189, 195 (1996) (quoting State v. W.J.B., 166 W. Va. 602,

606, 276 S.E.2d 550, 553 (1981)).

alleged brandishing. According to Quigley, the Cabell County deputy was the only law

enforcement officer who observed Quigley with the knife, and immediately ordered

Quigley to drop it. (ECF No. 28-1 at 6-7). The Huntington police officers did not arrive at

the scene until after Quigley had dropped the knife. West Virginia law has long provided

that probable cause to make a warrantless arrest on a misdemeanor charge exists only

“when the facts and circumstances within the knowledge of the arresting officer are

sufficient to warrant a prudent man in believing that a misdemeanor is being committed

in his presence.” State v. Forsythe, 460 S.E.2d 742, 744 (W. Va. 1995) (emphasis added);

see, also, W. Va. Code § 62-10-6; and State v. Lutz, 85 W. Va. 330, 101 S.E. 434, 438 (1919)

((holding that legislation did not change the common law, which provided that “an officer

had no authority to make an arrest for a misdemeanor though committed in his presence

unless it involved a breach of the peace.”). “For an offense to be committed in the presence

of an officer, it is not necessary that all parts of the offense must be seen by the officer.

S/he must be close enough at hand to be aware through some of the senses—sight, smell,

hearing, etc.—that the offense is being committed.” State v. Forsythe, 460 S.E.2d 742,

745 (1995) (quoting Cleckley, Handbook on West Virginia Criminal Procedure I–170–71

(2nd ed. 1993) (emphasis added)). The facts, as alleged by Quigley, indicate that the

arresting officers did not witness any part of the misdemeanor offense for which Quigley

was detained.

Although it is not entirely clear from the complaint if Defendant Bills was the

officer that spoke with the county magistrate, Quigley further alleges that the magistrate

was given false information at the initial appearance, which made the magistrate

incorrectly conclude that Quigley and the other three men were all drunk together and

were equal participants in the confrontation, with Quigley being the only one to draw and

brandish a weapon. Quigley adds that Defendant Bills prepared a complaint that omitted

significant facts and, thus, was fabricated and false. Quigley contends that the “false”

complaint misled the magistrate as to the existence of probable cause for the brandishing

charge. Based on the false and misleading information supplied by the arresting officers,

the magistrate set a $5000 bond; an amount which effectively forced Quigley into

confinement at the regional jail for a period of ten days. Ultimately, the charge against

Quigley was dismissed when the prosecution’s witness declined to testify.

In summary, while Quigley’s factual allegations do not conclusively prove a Fourth

Amendment violation by Defendant Bills, the undersigned FINDS that Quigley has

alleged sufficient facts to withstand a motion to dismiss and should be permitted a

reasonable opportunity to develop his case. Therefore, the Motion to Dismiss of

Defendant Shane Bills should be denied.

B. Sufficiency of the Allegations Against Joseph Ciccarelli

Quigley alleges two violations of his constitutional rights by Defendant Ciccarelli,

including: (1) the failure to promptly return the knife that was confiscated from Quigley

at the time of his arrest; and (2) the failure to properly train and educate Huntington

police officers. (ECF No. 28-1 at 2-3). To support these claims, Quigley points to an August

2013 publication in the West Virginia Record captioned “Seventh Civil Rights Lawsuit in

Past Year Filed Against Huntington Police” and Quigley’s own personal experiences. (Id.

at 3). Defendant Ciccarelli argues that these “facts” are insufficient to state a plausible

claim under 42 U.S.C. § 1983.

1. Failure to Return Knife

Quigley concedes that Ciccarelli was not present or involved in Quigley’s arrest or

in the confiscation of his knife. Consequently, Quigley cannot assert a Fourth Amendment

claim against Ciccarelli for unreasonable seizure. Instead, Ciccarelli’s alleged failure to

return Quigley’s knife after dismissal of the criminal case and after a written request for

the knife’s return may, at most, trigger a due process review under the Fourteenth

Amendment to the United States Constitution. See, e.g., Tinsley v. Wight, No. CIV.A.

7:09-2455-SB, 2012 WL 5305980, at *12 (D.S.C. Mar. 28, 2012), aff'd, 478 Fed. Appx 15

(4th Cir. 2012) (addressing as a due process claim plaintiff’s contention that a county

sheriff was improperly retaining plaintiff’s personal property after a wrongful seizure). To

assert a plausible due process claim, Quigley must show that his deprivation was not

“amenable to ‘rectification by … post–deprivation state remedies.’” Mora v. The City Of

Gaithersburg, MD, 519 F.3d 216, 231 (4th Cir. 2008); also, Hudson v. Palmer, 468 U.S.

517, 533 (1984) (“Accordingly, we hold that an unauthorized intentional deprivation of

property by a state employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available.”); and Parratt v. Taylor, 451 U.S. 527,

541–44 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327, 330–31 (1986).

The ability to file a state court claim for conversion has been found to constitute a

meaningful post-deprivation remedy. See Kidd v. Bradley, 578 F. Supp. 275, 276–77

(N.D.W. Va. 1984). Such a remedy is available in West Virginia. Id. (“Under the common

law of West Virginia, ‘[t]he tortious or unlawful taking of personal property, and the

exercise of ownership and dominion over it, against the consent of the owner is ... a

conversion of the property for which ... [a cause of action] will lie.’ The common law

likewise recognizes a cause of action for the negligent deprivation of, or injury to, one's

personal property rights. Inasmuch as these common law actions provide the Plaintiff at

bar with an adequate post-deprivation remedy, the Court finds that the Plaintiff has not

stated a cause of action under Section 1983.”) (citations omitted); and Goodman v.

Ramey, No. CIV.A. 2:12-0439, 2012 WL 5966642, at *4 (S.D.W. Va. Nov. 29, 2012)

(holding that plaintiff failed to state a constitutional claim for the loss of his property

when he could have challenged the taking “in a garden-variety tort claim in state court.”).

Considering that Quigley could have filed a conversion case, a due process claim

against Ciccarelli must fail. Furthermore, not only is Quigley’s complaint devoid of facts

establishing that Ciccarelli took possession of the knife, was charged with maintaining

and returning it, or was involved in the run-around Quigley experienced when he

requested his knife, but Quigley now has possession of his knife. Thus, he was not

permanently deprived of his property. Although the knife was returned to Quigley

secondary to his federal lawsuit, he certainly could have exercised a post-deprivation state

remedy. Given that an adequate post-deprivation remedy existed, and Quigley’s property

was returned, he cannot sustain a due process claim. Therefore, the undersigned FINDS

that Quigley fails to state a claim against Defendant Ciccarelli based on the delayed return

of Quigley’s confiscated knife.

2. Failure to Train and Educate

As to the inadequate training and education allegation, the undersigned similarly

FINDS that Quigley fails to state a plausible claim against Defendant Ciccarelli. Quigley

complains that Ciccarelli, as Chief of Police, failed to properly train and educate the

involved officers in matters of constitutional law, and this insufficient training was of such

a degree “that Deliberate Indifference to Constitutional rights has been, and still is, the

policy of the City of Huntington and Ciccarelli.” (ECF No. 28-1 at 3).

Claims based on respondeat superior are not permitted under § 1983. See Iqbal,

556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior.”); Monell v. Dep't

of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (“[A] municipality cannot be

held liable solely because it employs a tortfeasor—or, in other words, a municipality

cannot be held liable under § 1983 on a respondeat superior theory.”). Nonetheless,

supervisory officials may be held liable in their personal capacity for the constitutional

violations of those in their charge when “supervisory indifference or tacit authorization of

subordinates' misconduct [is] a causative factor in the constitutional injuries [the

subordinates] inflict on those committed to their care.” Shaw v. Stroud, 13 F.3d 791, 798

(4th Cir. 1994) (citing Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir. 1984)); see also

Clark v. Md. Dep’t of Pub. Safety and Corr. Servs., 316 Fed. Appx 279, 282 (4th Cir. 2013).

To state a claim under this doctrine, a plaintiff must show:

(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.

Shaw, 13 F.3d at 799. In regard to the first element, “[e]stablishing 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. “As to the

second element, a plaintiff ‘may establish deliberate indifference by demonstrating a

supervisor's continued inaction in the face of documented widespread abuses.’” Wilkins

v. Montgomery, 751 F.3d 214, 226-27 (4th Cir. 2014) (quoting Shaw, 13 F.3d at 799).

Finally, “proof of causation may be direct ... where the policy commands the injury of

which the plaintiff complains ... or may be supplied by the tort principle that holds a

person liable for the natural consequences of his actions.” Rauch v. W. Va. Div. of

Corrections, No. 2:13–cv-0468, 2014 WL 3732123, at *4 (S.D.W. Va. July 25, 2014)

(quoting Wilkins, 751 F.3d at 226-27) (citations omitted).

Here, Quigley offers insufficient facts in his complaint to satisfy all of the elements

of a supervisory claim against Ciccarelli. To meet the first element, Quigley refers to the

newspaper article published in August 2013, which discussed civil rights suits that had

been filed against Huntington police officers in the prior year. However, Quigley does not

provide any information about the lawsuits to show that they reflect widespread illegal

practice. More importantly, the newspaper article was published more than a year before

Ciccarelli became Huntington’s Chief of Police.4 Even if all of the cases cited by Quigley

established civil rights violations by Huntington police officers, there is no factual basis

to conclude that Ciccarelli had actual or constructive knowledge that his subordinates

were currently engaging in conduct posing an unreasonable risk of constitutional injury

to citizens like Quigley. Moreover, Quigley’s complaint contains no factual allegations

describing Ciccarelli’s response to claims of illegal behavior by his subordinates. Indeed,

other than his own personal experience, which did not directly involve Ciccarelli, Quigley

has not identified any alleged constitutional violation that occurred after Defendant

Ciccarelli became Chief of Police.

Even when examining the allegations against Ciccarelli in the light most beneficial

to Quigley, the allegations simply do not state enough facts to raise his right to relief above

4 The undersigned takes judicial notice that Joseph Ciccarelli began his duties as Huntington’s Chief of

Police on October 31, 2014. See www.wsaz.com/home/headlines/Former-FBI-Agent-and-HPD-Officer-

Named -Huntington-Police -Chief.

a speculative level. To the contrary, the allegations are nothing more than labels and

conclusions reached by Quigley based on his implied presumption that, as Chief of Police,

Ciccarelli is responsible for the legal training and education of Huntington’s police

officers. To the extent Quigley intends to sue Ciccarelli in his official capacity as police

chief for the municipality’s alleged failure to train and educate, that claim is duplicative,

as the City of Huntington has been joined in the suit on the same ground. See Lyles v.

Prawdzik, No. PWG-15-1056, 2016 WL 3418847, at *2 (D. Md. June 22, 2016).

Quigley’s sparse factual allegations against Ciccarelli, based largely on supposition

and speculation, are insufficient to state a plausible case against Ciccarelli in his personal

capacity. Iqbal, 556 U.S. at 678 (holding that a complaint “does not require ‘detailed

factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.”). Therefore, the undersigned RECOMMENDS that the

complaint be dismissed against Defendant Ciccarelli. Given Quigley’s pro se status and

the fact that discovery is ongoing, the undersigned further RECOMMENDS that the

dismissal be without prejudice to allow Quigley the opportunity to reassert his claim

against Defendant Ciccarelli, in his personal capacity, should supportive facts be revealed

in the future.

C. Sufficiency of the Allegations Against the City

Quigley alleges that Huntington is liable for the police officers’ alleged

constitutional violations, because the officers were merely “implementing the custom,

policy, and practice of the entity, the City of Huntington.” (ECF No. 18 at 14). Quigley

describes this custom, policy, or practice as follows:

Arrest whoever, wherever, and however suits the arbitrary whims of the

moment. Ignore federally protected rights. Ignore the right to life. Ignore

the right to self-defense. Ignore due process of law. Ignore the Fourth

Amendment and probable cause in favor of your own personal cause. Ignore

the Fourth Circuit Appellate Court when it says in Smith v. Munday that a

cop must solicit and weigh the totality-of-circumstances, and individualize

facts to all parties, not merely a select few.

Quigley claims that this unconstitutional policy, custom, or practice has been

longstanding in nature and implicitly ratified by the Mayor and City Council of

Huntington, who represent the final policy-making authority of the municipality. (Id. at

19-21). To support his allegations, Quigley again relies on the August 2013 publication in

the West Virginia Record, his personal experience as detailed in the complaint, and the

statutory law of West Virginia, which vests the “authority, control, and discipline” of the

City’s police force in the hands of the municipality. (Id. at 21) (quoting W. Va. Code § 8-

14-1, which empowers every West Virginia municipality to “protect persons and property

within the municipality and preserve law and order therein, and for this purpose, to

provide for, establish, equip and maintain a police force or department … [which] shall be

subject the authority, control and discipline of the administrative authority.”).

‘“[T]he touchstone of the § 1983 action against a government body is an allegation

that the official policy is responsible for a deprivation of rights protected by the

Constitution,’ but local governments may also be sued ‘for constitutional deprivations

visited pursuant to governmental custom even though such a custom has not received

formal approval through the body’s official decisionmaking channels.’” Lee v. City of S.

Charleston, No. CIV. A. 2:08-0289, 2009 WL 2602378, at *9 (S.D.W. Va. Aug. 21, 2009)

(quoting Monell, 436 U.S. at 690-91). A municipality may be liable for a policy or custom

in four ways:

(1) through an express policy, such as written ordinance or regulation; (2)

through the decisions of a person with final policymaking authority; (3)

through an omission, such as a failure to properly train officers, that

“manifest[s] deliberate indifference to the rights of citizens”; or (4) through

a practice that is so “persistent and widespread” as to constitute a “custom

or usage with the force of law.”

Holder v. Town of Zebulon, Nos. 5:14-CV-18-F, 2014 WL 4416101, at *2 (E.D.N.C. Sept.

8, 2014), aff'd, 594 F. App'x 155 (4th Cir. 2015) (quoting Lytle v. Doyle, 326 F.3d 463, 471

(4th Cir.2003)). Quigley alleges a longstanding custom or practice by the Huntington

Police Department to ignore Fourth Amendment rights, to make warrantless arrests

without probable cause, and to otherwise run roughshod over recognized civil liberties.

Therefore, Quigley’s complaint “alleges a theory of custom ‘by condonation.’” Owens v.

Baltimore City State's Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014) (quoting Spell

v. McDaniel, 824 F.2d 1380, 1390 (4th Cir.1987). “Under this theory of liability, a city

violates § 1983 if municipal policymakers fail ‘to put a stop to or correct a widespread

pattern of unconstitutional conduct.’” Id. (quoting Spell, 824 F.2d at 1389). As the Fourth

Circuit explains in Owens, “[p]revailing under such a theory is no easy task”; nevertheless,

“simply alleging such a claim is, by definition, easier.” Id. at 402-03. To survive a motion

to dismiss, the complaint “need not be particularly detailed and the chance of success

need not be particularly high”; instead, the complaint need only raise a right to relief that

is plausible. Id. at 403.

In the complaint, Quigley identifies a municipal custom and cites to seven prior

civil rights lawsuits filed against the Huntington Police Department to demonstrate the

length and breadth of the alleged problem. Quigley suggests that Huntington’s knowledge

and indifference can be inferred from the the duration and frequency of civil rights suits.

Thus, Quigley has alleged enough facts to survive a motion to dismiss. Lee, 2009 WL

2602378, at *3 (noting that a complaint “must provide ‘fair notice of what the … claim is

and the grounds upon which it rests. … The complaint need not, however, ‘make a case’

against a defendant or even ‘forecast evidence sufficient to prove an element’ of the

claim,” but “raise a right of relief above the speculative level.’”) (citations omitted).

Quigley additionally alleges that Huntington failed to properly train and educate

its police officers on the subject of constitutional law. If a municipality’s failure to train

its employees rises to the level of “a deliberate indifference to the rights of its inhabitants,”

the municipality may be held accountable under § 1983. City of Canton v. Harris, 489

U.S. 378, 389 (1989). “[W]hen alleging an inadequate training policy, a complaint should

contain facts revealing: (1) the nature of the training, (2) that the training was a ‘deliberate

or conscious' choice by the municipality, and (3) that the officer's conduct resulted from

said training.” Lewis v. Simms, No. AW–11–CV–2172, 2012 WL 254024, at *3 (D. Md.

Jan.26, 2012) (quoting Drewry v. Stevenson, No. WDQ–09–2340, 2010 WL 93268, *4

(D. Md. Jan.6, 2010)). According to Quigley, Huntington’s failure to educate its police

force about constitutional and legal rights and its indifference to the consequences of that

shortcoming in training are evident not only by the number of lawsuits filed against the

Huntington Police Department, but also by the actions of every Huntington police officer

Quigley encountered on the night of his arrest. Once again, Quigley’s complaint succeeds

in stating basic facts to support a plausible lack of training claim. The complaint identifies

the type of training that is allegedly insufficient (training in law and constitutional rights),

indicates that Huntington has long been aware of its failure to train by virtue of the

multiple lawsuits alleging civil rights violations by the police force, and claims that

Quigley’s arrest and subsequent detention flowed directly from the lack of proper

training. Thus, the undersigned FINDS that Quigley states enough facts to withstand the

City of Huntington’s motion to dismiss.

D. Qualified Immunity

Defendants Bills and Ciccarelli contend that they are entitled to dismissal based

upon the affirmative defense of qualified immunity. As the complaint fails to state a claim

against Defendant Ciccarelli, the principle of qualified immunity is considered only in

relation to the claims asserted against Defendant Bills.

Government officials performing discretionary functions may be protected from

monetary damages under the doctrine of qualified immunity when “their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity “is a judicially created doctrine that stems from the conclusion that few

individuals will enter public service if such service entails the risk of personal liability for

one’s official decisions.” Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994).

This doctrine protects law enforcement officers in the exercise of their official duties from

the risk of personal liability for making “bad guesses in gray areas,” ensuring that they are

only responsible for “transgressing bright lines.” Marciariello v. Sumner, 973 F.2d 295,

298 (4th Cir. 1992). As the United States Supreme Court explained in Pearson v.

Callahan:

Qualified immunity balances two important interests-the need to hold

public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably. The protection of qualified immunity

applies regardless of whether the government official’s error is “a mistake

of law, a mistake of fact, or a mistake based on mixed questions of law and

fact.”

Id., 555 U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)).

Because qualified immunity is “an immunity from suit rather than a mere defense

to liability,” it is “effectively lost if a case is erroneously permitted to go to trial.” Id.

(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “Where the defendant seeks

qualified immunity, a ruling on that issue should be made early in the proceedings so that

the costs and expenses of trial are avoided where the defense is dispositive.” Saucier v.

Katz, 533 U.S. 194, 200 (2001). “[A] defendant can raise the qualified-immunity defense

at both the motion to dismiss and summary judgment stage.” Raub v. Bowen, 960 F.

Supp. 2d 602, 608 n.8 (E.D. Va. 2013) (citing Tobey v. Jones, 706 F.3d 379, 393–94 (4th

Cir. 2013)). Although “a qualified immunity defense can be presented in a Rule 12(b)(6)

motion … when asserted at this early stage in the proceedings, ‘the defendant faces a

formidable hurdle’ and ‘is usually not successful.’’ Owens, 767 F.3d at 396 (quoting Field

Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006)). Given that the

complaint need only state a plausible claim, and the factual allegations in the complaint

are rarely conceded, factual development is usually required to resolve the issue. Raub,

960 F. Supp. 2d at 608 (“So long as qualified immunity does not turn on disputed facts,

‘whether the officer’s actions were reasonable is a question of pure law.’”) (citing Henry

v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011)). Accordingly, in many cases, “immunity is

peculiarly well-suited for resolution at the summary judgment stage.” Id. (citing

Willingham v. Crooke, 412 F.3d 553, 558–59 (4th Cir. 2005)).

In determining the applicability of qualified immunity, the court must consider

two questions: (1) whether a constitutional or statutory right would have been violated on

the facts alleged by plaintiff, and (2) whether the right asserted was clearly established at

the time of the alleged violation. Pearson, 555 U.S. at 232. These questions may be

answered in any order that “[would] best facilitate a fair and efficient disposition of each

case.” Id. at 242. If a court finds that a claimed constitutional right was not clearly

established at the time of the alleged wrongdoing, the court may dispose of the case

without engaging in the pointless exercise of determining whether the facts alleged

actually establish a violation of that right. Id. Similarly, if a court concludes that the facts

alleged by the plaintiff do not support a reasonable inference that a constitutional right

was violated, the analysis terminates, and the complaint is subject to dismissal for failure

to state a claim.

Quigley claims that he was the subject of a warrantless arrest on a misdemeanor

charge, which was not supported by probable cause. He also claims that the arresting

officers provided the county magistrate with false information leading to Quigley’s

unlawful ten-day detention. To be reasonable, an arrest must be supported by probable

cause. Smith v. Reddy, 101 F.3d. 351, 356 (4th Cir. 1996). Consequently, an arrest without

probable cause is an unreasonable seizure. Pretrial detention without “a fair and reliable

determination of probable cause” likewise amounts to an unreasonable seizure. Manuel,

137 S. Ct. at 917-18. An individual’s right under the Fourth Amendment to be free of

unreasonable seizure was clearly established in March 2016 when Quigley was arrested.

Smith, 101 F.3d at 356. Therefore, the applicability of qualified immunity in this case is

not resolved by the second question.

Looking at the first question, the undersigned concludes that the facts, as alleged

by Quigley, state a plausible claim of a Fourth Amendment violation by Defendant Bills.

Because “a fact determinative analysis on that point is not required at this stage in the

litigation,” the undersigned FINDS that the merits of Bills’s qualified immunity defense

is not ripe for review. Richmond v. Dolphin, No. 5:10-cv-01247, 2011 WL 4436636, at *3

(S.D.W. Va. Sept. 23, 2011). As stated in Richmond, “[t]his Court is mindful that the

Supreme Court has ‘stressed the importance of resolving immunity questions at the

earliest possible stage in litigation.” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991)). For that reason, the parties will follow a compressed scheduling order, which will

allow the parties sufficient time to develop the relevant facts without unnecessarily

delaying a renewed motion for dismissal on the ground of qualified immunity.

E. Validity of Quigley’s Request for Injunctive Relief

As one element of relief, Quigley asks the Court to enter an Order “that Defendants

Shane Bills, Casey Williamson and Joseph Ciccarelli are, effective the date said Order is

signed, enjoined and prohibited from employment in any law enforcement capacity

anywhere in the United States.” (ECF No. 28-1 at 13). Defendants argue that the Court

lacks subject matter jurisdiction to award such relief, and, therefore, the request for relief

should be dismissed. The undersigned agrees with the defendants and FINDS that the

Court lacks jurisdiction to consider Quigley’s demand for injunctive relief related to future

employment of the defendants. Therefore, that claim for relief should be DISMISSED

and stricken from the pleadings.

In order to invoke Article III jurisdiction, a plaintiff seeking injunctive relief must

show an irreparable harm, a “requirement that cannot be met where there is no showing

of any real or immediate threat that the plaintiff will be wronged again [in the same way]—

a ‘likelihood of substantial and immediate irreparable injury.’” City of Los Angeles v.

Lyons, 461 U.S. 95, 111 (1983). The threat must be “sufficiently real and immediate to

show an existing controversy.” Id. at 103 (citation omitted). “Past exposure to the

defendant[s’] allegedly illegal conduct is insufficient … [instead] the plaintiff must show

that the defendant[s’] violation as to the particular plaintiff is likely to recur. This showing

‘must be premised upon more than hypothetical speculation and conjecture that harm

will occur in the future.’” Snyder v. Ocwen Loan Servicing, LLC, No. 14 C 8461, 2017 WL

2798387, at *3 (N.D. Ill. June 28, 2017) (citations omitted).

Quigley’s Fourth Amendment right to be free from unreasonable seizure may have

been violated when he was arrested and detained on March 17, 2016. However, that

experience does not establish the real and immediate threat that Quigley will be

wrongfully arrested and detained again. See Caviness v. Durham Pub. Sch. Bd. of Educ.,

No. 1:95CV00878, 1996 WL 33657236, at *9 (M.D.N.C. Dec. 16, 1996). Furthermore, the

injunctive relief requested by Quigley is so broad and far-reaching in its application that

it greatly exceeds the nature and scope of the alleged constitutional violations and seeks

relief well beyond this Court’s injunctive powers. Accordingly, it should be dismissed.

V. Proposal and Recommendations

For the reasons set forth above, the undersigned respectfully PROPOSES that the

presiding District Judge accept and adopt the findings herein and respectfully

RECOMMENDS that:

1. The Motions to Dismiss of Defendants the City of Huntington and Shane Bills,

(ECF Nos. 14, 24), be DENIED;

2. The Motions to Dismiss of Defendant Joseph Ciccarelli, (ECF Nos. 14, 24), be

GRANTED, without prejudice;

3. The Motions to Dismiss any claim for injunctive relief that seeks an order

enjoining the defendants from future employment as law enforcement officers be

GRANTED, and that claim for relief be stricken from the pleadings;

4. Defendant Ciccarelli be REMOVED from the caption of the case; and

5. The remaining parties be permitted to complete discovery in this action.

The parties are notified that this “Proposed Findings and Recommendations” is

hereby FILED, and a copy will be submitted to the Honorable Robert C. Chambers,

United States District Judge. Pursuant to the provisions of Title 28, United States Code,

Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure. The

parties shall have fourteen days (filing of objections) and three days (if received by mail)

from the date of filing this “Proposed Findings and Recommendations” within which to

file with the Clerk of this Court, specific written objections, identifying the portions of the

“Proposed Findings and Recommendations” to which objection is made and the basis of

such objection. Extension of this time period may be granted by the presiding District

Judge for good cause shown.

Failure to file written objections as set forth above shall constitute a waiver of de

novo review by the District Court and a waiver of appellate review by the Circuit Court of

Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140

(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727

F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to the opposing

parties, Judge Chambers and Magistrate Judge Eifert.

The Clerk is instructed to provide a copy of this “Proposed Findings and

Recommendations” to the Plaintiff, counsel of record, and any unrepresented party.

FILED: September 22, 2017

oe

Uni ates Magistrate Judge

28