The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
IRENE WILKES,
Plaintiff,
v. CIVIL ACTION NO. 5:17-cv-03606
RALEIGH COUNTY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Defendants Raleigh County and the Raleigh County Sheriff’s
Department’s Motion to Dismiss the Plaintiff’s Complaint (Document 10) and Memorandum of
Law in Support (Document 11), the Plaintiff’s Response in Opposition (Document 14), and the
Defendants’ Reply (Document 18). The Court has also reviewed the Defendant, Beckley Police
Department’s Motion to Dismiss the Plaintiff’s Complaint (Document 12) and Memorandum of
Law in Support (Document 13), the Plaintiff’s Response in Opposition (Document 15), and the
Defendant’s Reply (Document 19). Finally, the Court has reviewed the Plaintiff’s Complaint
(Document 1) and all attached exhibits. For the reasons stated herein, the Court finds that the
Defendants’ motion should be granted.
FACTUAL ALLEGATIONS
The Plaintiff, Irene Wilkes, initiated this action with a complaint filed in this Court on July
13, 2017. The Plaintiff originally named the following entities as Defendants: Raleigh County, a
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municipal corporation organized under the laws of the State of West Virginia, Raleigh County
Sheriff’s Department, a law enforcement agency established, maintained, and controlled by
Raleigh County, Beckley Police Department (BPD), a law enforcement agency established,
maintained, and controlled by the City of Beckley and the West Virginia State Police (WVSP), a
state law enforcement agency organized under the laws of the State of West Virginia, operating as
the Beckley/Raleigh County Drug and Violent Crime Unit. (Compl. at ¶ 1-8.) The Plaintiff
alleges that the Defendants’ acts were done “under the color and pretense of [the law] of the State
of West Virginia and under the authority of the office” by which they were employed. (Id. at ¶
8.)
Ms. Wilkes, a “long-time resident of Raleigh County, West Virginia and a respected
member of her community,” owned a 2011 Chrysler 200 automobile that she “often allowed her
grandson,1 who was in his early twenties and a recent college graduate,” to use. (Id. at ¶ 12-13.)
On June 23, 2015, while driving said automobile with his cousin, law enforcement officers stopped
her grandson, searched the car, and subsequently arrested him and his cousin for narcotics
violations. After the arrest, the Defendants seized the Plaintiff’s car and subsequently searched
the Plaintiff’s home without a warrant. The defendants filed no charges against Ms. Wilkes
regarding any illegal activity and she was never engaged in the trafficking or use of illegal drugs.
On July 13, 2015, the Defendants initiated a forfeiture proceeding pursuant to West
Virginia law to permanently take ownership of the Plaintiff’s automobile. Ms. Wilkes received
notice of the initiation of the proceedings on August 4, 2015, but the Defendants did not provide
1 The Plaintiff’s grandson, Marquel Ali, brought a separate civil action against the named Defendants here and several
other defendants challenging the stop and arrest referenced here. That case, Civil Action No. 5:17-cv-03386, is
currently pending before this Court.
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her with a copy of the petition. On August 24, 2015, Ms. Wilkes filed a “Notice of Claim in
Response to the Petition for Forfeiture” wherein she stated that she “was the registered owner of
the vehicle seized by the Defendants” and gave notice that she had a claim to the property. (Id.
at ¶ 28.) The Defendants never scheduled a hearing on the petition after her response, but also
never withdrew their petition. Finally, in June 2017, after her grandson was acquitted of the
charges filed against him during the 2015 arrest, the Defendants returned the automobile to Ms.
Wilkes. Throughout that time, Ms. Wilkes “made all monthly payments for the vehicle and [for
the] continuation of insurance related to the same.” (Id. at ¶ 34.)
Shortly thereafter, Ms. Wilkes filed her complaint in this case pursuant to 42 U.S.C. § 1983,
wherein she sets forth three counts. Count I alleges unlawful seizure and pursuit of forfeiture,
Count II alleges deprivation of property without due process of law and under color of law, and
Count III alleges conversion.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009);
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “[T]he legal sufficiency of a complaint
is measured by whether it meets the standard stated in Rule 8 [of the Federal Rules of Civil
Procedure] (providing general rules of pleading) . . . and Rule 12(b)(6) (requiring that a complaint
state a claim upon which relief can be granted.)” Id. Federal Rule of Civil Procedure 8(a)(2)
requires that a pleading must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the Court
must “accept as true all of the factual allegations contained in the complaint.” Erikson v. Pardus,
551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those
facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are
insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Furthermore, the Court
need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E.
Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice…
[because courts] ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Iqbal, 556 U.S. at 678 (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570.) In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570.) In the
complaint, a plaintiff must “articulate facts, when accepted as true, that ‘show’ that the plaintiff
has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S.
at 557.) “Determining whether a complaint states [on its face] a plausible claim for relief [which
can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
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DISCUSSION
Defendants Raleigh County and the Raleigh County Sheriff’s Department move for
dismissal of the Plaintiff’s complaint on several grounds.
A. Stand-Alone Entities
The Raleigh County Defendants first argue that all of the claims against the Raleigh County
Sheriff’s Department and the BPD should be dismissed because neither the Sheriff’s Department
nor the BPD are entities capable of being sued. As it relates to the Sheriff’s Department, the
Defendants state that “there is no organic authority in state law that creates a sheriff’s department
or sheriff’s office,” thus rendering the sheriff’s office incapable of facing suit. As to the BPD, the
Defendants rely on West Virginia Code § 29-12A-3(b) and its definitions of “municipality” and
“political subdivisions.” The Defendants argue that this state law makes the BPD an
instrumentality of the city and therefore not an entity capable of being sued. The Plaintiff counters
that previous case law from this Court is incorrect, and that a sheriff’s department in the state of
West Virginia is capable of being sued.
The Plaintiff contends that both entities can face suit. She contends that West Virginia
Code § 29-12A-3(c), part of the West Virginia Governmental Tort Claims and Insurance Reform
Act, does not provide sheriff’s departments with state immunity from lawsuits. The Plaintiff
further argues that the West Virginia Supreme Court of Appeals “has not questioned” whether a
sheriff’s office is capable of facing suit. The Plaintiff also asserts that the Defendants ask this
Court to broaden its ruling in Webb v. Raleigh Cty. Sheriff's Dep't, No. 5:09-CV-01253, 2010 WL
3702648 (S.D.W. Va. Sept. 16, 2010), an exercise the Plaintiff argues the Court should not
undertake.
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The Court finds that neither the Raleigh County Sheriff’s Department nor the BPD are
entities capable of being sued. With respect to the Raleigh County Sheriff’s Department, this
Court has previously found on multiple occasions that,
[w]hile West Virginia law provides for the election of sheriffs and
the appointment of sheriff’s deputies, there is no organic authority
in state law that creates a sheriff’s department or sheriff’s office.
This stands in contrast to entities such as volunteer fire departments
and emergency service organizations, the existence of which is
provided for by state law and both of which qualify as political
subdivisions under Section 29-12A-3(c) [of the West Virginia
Code].
Webb v. Raleigh Cty. Sheriff's Dep't, No. 5:09-CV-01253, 2010 WL 3702648, at *7 (S.D.W. Va.
Sept. 16, 2010); Tomashek v. Raleigh Cty. Emergency Operating Ctr., No. 2:17-CV-01904, 2018
WL 522420, at *2-3 (S.D.W. Va. Jan. 23, 2018) (Goodwin, J.); see also, Kowalyk v. Hancock Cty.,
No. CIV.A. 5:08CV181, 2009 WL 981848, at *2 (N.D.W. Va. Apr. 9, 2009).
Further, this Court has made similar findings regarding police departments in general and
the BPD specifically. The Court finds that the BPD “exist[s] only to serve the City of Beckley
and [is], therefore, [an] instrumentality or extension of the [City of Beckley.]” See, Polk v. Town
of Sophia, No. 5:13-CV-14224, 2013 WL 6195727, at *4 (S.D.W. Va. Nov. 27, 2013); see also
Tofi v. Napier, No. 2:10-CV-01121, 2011 WL 3862118, at *4 (S.D.W. Va. Aug. 31, 2011)
(Johnston, J.). Thus, the BPD is not susceptible to the instant lawsuit and all of the claims filed
against Defendants Raleigh County Sheriff’s Department and the BPD should be dismissed.
B. Immunity Under the West Virginia Tort Claims and Insurance Reform Act
Defendant Raleigh County argues that the Plaintiff’s claims should be dismissed against it
as it is immune from liability for its employees’ intentional acts. The Defendants assert that West
Virginia Code § 29-12A-4(c)(2), part of the West Virginia Governmental Tort Claims and
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Insurance Reform Act (WVGTCIRA), provides for liability for municipalities or political
subdivisions for the negligent acts of their employees, but that those governmental entities are not
liable for the intentional acts of their employees. The Defendants argue that all of the Plaintiff’s
allegations in Counts I, II, and III involve intentional acts, and the Defendants therefore cannot be
held liable resulting in the dismissal of the claims.
The Plaintiff responds that her complaint sets forth allegations of negligence in all of her
claims such that the complaint should not be dismissed. She contends that her claims for unlawful
seizure in Count I, for deprivation of property without due process in Count II, and for conversion
in Count III all sufficiently allege duties and breaches of duty by the Defendants such that she has
purported negligence actions as opposed to intentional actions on the part of the Defendants’
employees.
West Virginia Code § 29-12A-4(c)(2) states that “[p]olitical subdivisions are liable for
injury, death, or loss to persons or property caused by the negligent performance of acts by their
employees while acting within the scope of employment.” However, political subdivisions are
not liable for “intentional malfeasance on the part of their employees.” Poe v. Town of Gilbert,
W. Va., No. 2:11-CV-00645, 2012 WL 3853200, at *8 (S.D.W. Va. Sept. 5, 2012) (Johnston, J.)
(citing Mallamo v. Town of Rivesville, 477 S.E.2d 525, 533-34 (W.Va. 1996)); Polk v. Town of
Sophia, No. 5:13-CV-14224, 2013 WL 6195727, at *7 (S.D.W. Va. Nov. 27, 2013). Regarding
the difference between a negligent act and an intentional act, “a mere allegation of negligence
cannot turn an intentional tort into negligent conduct.” Weigle v. Pifer, 139 F. Supp. 3d 760, 780
(S.D.W. Va. 2015) (Copenhaver, J.) (internal citations omitted). “Conduct that supports a
negligence claim can be distinguished from conduct that supports an intentional tort claim by
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examining the subjective intent of the alleged tortfeasor. Intentional torts, as distinguished from
negligent or reckless torts . . . generally require that the actor intend the consequences of an act,
not simply the act itself.” Id.; Asbury v. Ritchie Cty. Comm'n, No. 1:16CV132, 2018 WL 445110,
at *4 (N.D.W. Va. Jan. 16, 2018).
Here, as to Count I, the Plaintiff alleges that Raleigh County2 unlawfully seized her
automobile “with the specific intent to deprive the Plaintiff of her federal and state constitutional
rights to be free from unlawful seizure of her property.” (Compl. at ¶ 44.) Regarding Count II,
the Plaintiff alleges that Raleigh County deprived her of her automobile without due process of
law and did so “intentionally and or with deliberate indifference in seeking the forfeiture of
Plaintiff’s property . . . .” (Id. at ¶ 53.) Accepting the Plaintiff’s allegations as true, the Court
finds that Counts I and II state claims for recovery that stem from intentional actions. The
Plaintiff specifically claims that the Defendants “intentionally failed to dismiss the forfeiture
proceeding, and failed to schedule a hearing allowing Plaintiff to contest the forfeiture of her
vehicle,” and did so with the “specific intent to deprive Plaintiff of her” federal and state rights.
(Id. at ¶ 41, 53.) These allegations clearly indicate that the Defendants intended the consequences
of their actions. That is, the Plaintiff specifically alleges as to Counts I and II that the Defendants
intentionally seized her property and prevented her from exercising her due process rights and to
keep her automobile away from her unlawfully. At no point in Counts I and II of her complaint
does the Plaintiff allege a duty or a breach of that duty, essential elements of a negligence claim.
Therefore, because political subdivisions are not liable for intentional malfeasance under state law,
2 Because the Court previously found that neither the Raleigh County Sheriff’s Department nor the Beckley Police
Department are entities capable of being sued, the only remaining Defendant at issue in regards to this specific motion
is Raleigh County.
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and because the Plaintiff has failed to allege claims based on negligence in Counts I and II, the
motion to dismiss Counts I and II should be granted.
C. 42 U.S.C. § 1983 Claims Against Raleigh County
Raleigh County moves for dismissal of any claims brought by the Plaintiff pursuant to 42
U.S.C. § 1983. Raleigh County argues that the Plaintiff has failed to sufficiently plead that a
Raleigh County policy or custom was being executed during the allegations in question, and it
therefore cannot be sued as a local governmental entity for the claims brought by the Plaintiff.
The Plaintiff argues that a single instance of a constitutional violation supports a claim under
Section 1983 when that incident constitutes the decision of a local policymaker, and further argues
that she has sufficiently alleged a governmental policy that led to her injuries here.
Pursuant to 42 U.S.C. § 1983,
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
A local government cannot be sued under 42 U.S.C. § 1983 for injuries caused by its employees
or agents unless it is the “execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy” that
causes the injury. Monell v. Dep’t of Soc. Servs. Of City of N.Y., 436 U.S. 658, 694 (1978).
“Municipal liability attaches only where the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S.
469, 481 (1986). “To qualify as a ‘final policymaking official,’ a municipal official must have
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the responsibility and authority to implement final municipal policy with respect to a particular
course of action.” Asbury, 2018 WL 445110, at *8.
The Court finds that the Plaintiff has failed to sufficiently plead a violation of an official
policy or custom such that Raleigh County can be held liable for the Plaintiff’s Section 1983
claims. In the Plaintiff’s only remaining count, Count III, the Plaintiff alleges that the
“Defendants unlawfully prohibited [her] from maintaining and exercising control over her personal
property,” together with several other allegations stemming from the Defendants’ actions
regarding her automobile. (Compl. at ¶ 58-64.) However, at no point in her complaint does the
Plaintiff allege that Raleigh County maintained an official custom or policy of unlawfully seizing
property and preventing citizens from using it. Further, regarding the Plaintiff’s argument that a
single allegation of a constitutional violation is sufficient to support her Section 1983 claim, at no
point in her complaint has the Plaintiff named a single individual who may constitute an official
municipal policymaker such that his or her actions would amount to a policy or custom sufficient
to plead a Section 1984 action pursuant to Pembaur. Throughout her complaint, the Plaintiff
merely refers to “Defendants” regarding the governmental entities and law enforcement bodies she
has filed an action against, but at no point does she single out an individual who may have had
authority to make or institute a relevant policy.
Given these allegations and the lack of any factual basis to support the existence of a policy
or custom on the part of Defendant Raleigh County, the Court finds that the Plaintiff has failed to
sufficiently plead a violation of 42 U.S.C. § 1983. The Plaintiff’s complaint should be dismissed.
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Inasmuch as the Court has found that both the Raleigh County Sheriff’s Department and
the BPD should be dismissed, and that the Plaintiff’s claims under Section 1983 should be
dismissed, the Court does not address the Defendants’ remaining arguments.
CONCLUSION
WHEREFORE, after careful consideration, the Court ORDERS that the Defendants
Raleigh County and the Raleigh County Sheriff's Department’s Motion to Dismiss the Plaintiff’ □
Complaint (Document 10) and the Defendant, Beckley Police Department’s Motion to Dismiss the
Plaintiff's Complaint (Document 12) be GRANTED. The Court further ORDERS that
Defendants Raleigh County, Raleigh County Sheriff's Department, and Beckley Police
Department be DISMISSED from this action.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: March 27, 2018
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA
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