# Ali v. Raleigh County

> District Court, S.D. West Virginia · March 29, 2018

URL: https://www.frixlaw.com/law-library/cases/10727349

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 29, 2018
- **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/10727349

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

MARQUEL ALI,

Plaintiff,

v. CIVIL ACTION NO. 5:17-cv-03386

RALEIGH COUNTY, et al.

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendant Raleigh County, Raleigh County Sheriff’s
Department, and Steven Tanner’s Motion to Dismiss the Plaintiff’s Complaint (Document 7) and
Memorandum of Law in Support (Document 8), the Plaintiff’s Response in Opposition (Document
19), and Defendants Raleigh County, Raleigh County Sheriff’s Office, and Steven Tanner’s Reply
to the Plaintiff’s Response (Document 28). The Court has also reviewed the Plaintiff’s Complaint
(Document 1), Amended Complaint (Document 23), and all attached exhibits. For the reasons
stated herein, the Court finds that the motions should be granted in part and denied in part.
FACTUAL ALLEGATIONS
The Plaintiff, Marquel Ali, initiated this action with a complaint filed in this Court on June
23, 2017. The Plaintiff originally named the following entities as Defendants: Raleigh County, a
municipal corporation organized under the laws of the State of West Virginia, Raleigh County
Sheriff’s Department (Sheriff’s Department), a law enforcement agency established, maintained,
and controlled by Raleigh County, the City of Beckley, a municipal corporation organized under
the laws of the State of West Virginia, 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. Mr. Ali also named several individuals as Defendants, in both their individual and
official capacities: Mr. Steven Tanner, a resident of Raleigh County, West Virginia, and the Sheriff
of Raleigh County during the applicable time frame, Mr. Gary Epling, a resident of Raleigh

County, West Virginia, and a detective with the Raleigh County Sheriff’s Department, Mr.
Kenneth Pack, a resident of Raleigh County, West Virginia, and an officer with the WVSP, Mr.
David Snuffer, a resident of Raleigh County, West Virginia, and an officer with the BPD, and Mr.
Jason Redden, a citizen of Raleigh County, West Virginia, and, during the applicable time, a parole
officer with the West Virginia Department of Corrections.1 (Amended Compl. at ¶ ¶ 2-13.)2 The
Plaintiff alleges that “all acts of the Defendants 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 ¶ 14.)
Mr. Ali, “an African American male with a dark complexion,” was hired by the Defendant

Raleigh County Sheriff’s Department as a deputy and began his employment on March 18, 2014.
(Id. at ¶ 1, 17.) The Sheriff’s Department requires all new hires to complete a probationary year
during which they receive on-the-job training and attend the West Virginia State Police Academy.

1 Subsequent to the time period in which most of the Plaintiff’s allegations took place, Mr. Redden became a deputy
with the Defendant Raleigh County Sheriff’s Department. The Plaintiff does not specifically allege when Mr. Redden
became a deputy sheriff.

2 On June 7, 2017, Mr. Ali filed a Motion for Leave to File Amended Complaint (Document 4). While that motion
was pending, the parties proceeded to brief the pending motions to dismiss. While those motions were being fully
briefed, this Court issued its Order (Document 22) granting the motion and ordering the Plaintiff’s amended complaint
to be filed. After the granting of this motion, the Defendants proceeded to fully brief their motions to dismiss the
original complaint. Because arguments presented by the parties in the motions to dismiss were not substantively
altered by the filing of the amended complaint, the Court applies those arguments to the Plaintiff’s amended complaint.
2
According to the Plaintiff, four other new deputies were hired at the same time as him, and one of
them was also an African American. The other African American had a “very light complexion,”
as alleged by Mr. Ali. (Id. at ¶ 19.) Mr. Ali alleges that he was, in fact, “the only African
American officer employed with the Defendant Sheriff’s Department who had a dark complexion.”
(Id. at ¶ 21.)

Mr. Ali alleges that, throughout his employment with the Defendant Sheriff’s Department,
he was frequently subjected to racial slurs and other inappropriate treatment. Defendant Tanner
would often call him “boy” or refer to him as a “thug,” other white officers would place bets on
whether he would make it through his training at the police academy, and he would often receive
write-ups while white officers “who engaged in the same activity were not issued any form of
reprimand or other discipline.” (Id. at ¶ 23-28.) On March 16, 2015, Mr. Ali was subjected to
an interrogation regarding allegations by someone he had arrested. A white officer was present
with Mr. Ali when he made the arrest, but was not subjected to the same interrogation and
investigation. On the following day, “one day prior to the end of his one year probationary

period,” Mr. Ali was terminated from his employment by Defendant Tanner. (Id. at ¶ 38.) Mr.
Ali appealed his termination to the Raleigh County Civil Service Commission, and attended a
hearing on June 2, 2015. The parties were required to submit proposed findings of fact and
conclusions of law to the Commission by June 22, 2015.
On June 23, 2015, one day after the submission of those findings of fact, the Plaintiff’s
cousin contacted him and asked for a ride. The Plaintiff’s cousin was on parole at the time and
owned no vehicle, so the Plaintiff agreed to pick him up. Prior to picking up his cousin, Mr. Ali
received a phone call from a State Trooper regarding a case he had worked on while a deputy.

3
The trooper asked the Plaintiff if he was currently in Beckley. Mr. Ali stated that he was in
Beckley, and proceeded to pick up his cousin some twenty minutes later. While in route to do so,
“[a]pproximately one-half mile from the residence . . . Plaintiff noticed several unmarked police
cars parked in a car wash parking lot.” (Id. at ¶ 53.) Mr. Ali proceeded to his cousin’s house
where, after waiting several minutes, his cousin placed a bag in the trunk and got in the car. The

two decided to go to Burger King, and when exiting the drive through with their food, the
Plaintiff’s car was “barricaded in by several unmarked police cars, including the cars Mr. Ali had
seen near the residence when he picked up his cousin.” (Id. at ¶ 61.) “The officers who were
involved in the traffic stop knew Mr. Ali and the vehicle he drove,” and also “knew that [Mr. Ali]
owned a personal firearm . . . .” (Id. at ¶ 62.)
One of the officers approached Mr. Ali at gunpoint and asked him if he had a firearm.
Although Mr. Ali responded that he did not have a firearm in the car, he was forced to the ground
and handcuffed. After the Defendant officers had begun searching his car, Mr. Ali was asked to
sign a consent form, and signed it, although it “had been previously completed by Defendants

and/or agents of Defendants and was also incorrectly dated ‘6-22-2015.’” (Id. at ¶ 70.) After
signing the form, the Plaintiff saw Defendant Epling “approach the back of the car carrying a mid-
to-large sized brown or manila color envelope/package.” (Id. at ¶ 73.) Upon completing the
search of the vehicle, the Defendants allegedly found illegal drugs in the trunk and a small amount
of marijuana on the Plaintiff’s cousin. Both the Plaintiff and his cousin were arrested. The
Plaintiff was charged with two counts of possession of a controlled substance with intent to deliver
and conspiracy to commit a felony. “After Mr. Ali was arrested, the State Trooper who had called
[him] less than an hour earlier to confirm [he] was in Beckley, arrived at the scene and transported

4
Mr. Ali to the Beckley State Police office, then to jail.” (Id. at ¶ 80.) According to Mr. Ali, the
Defendants conspired together to wrongfully and maliciously arrest and prosecute him in
retaliation for his intent to bring a discrimination lawsuit against Defendant Raleigh County
Sheriff’s Department and Defendant Tanner.
The Defendants interrogated Mr. Ali and his cousin and conducted a criminal investigation

of the charges, during which time the Defendants proactively “took steps to hide [] exculpatory
evidence from Mr. Ali for nearly two years.” (Id. at ¶ 100.) “Over the nearly two years following
Mr. Ali’s arrest, Defendants failed and/or refused to disclose or produce material evidence related
to Mr. Ali’s case despite repeated requests by Mr. Ali’s counsel.” (Id. at ¶ 103.) The Defendants
also made various false claims regarding why they pulled the Plaintiff over in the Burger King
parking lot. On February 13, 2017, Mr. Ali’s first criminal trial began in the Circuit Court of
Raleigh County, West Virginia. On February 15, after being informed that certain individuals in
court had been seen speaking with potential defense witnesses in the hallway, the court declared a
mistrial sua sponte. On May 22, 2017, a second criminal trial began on the same charges. On

May 26, 2017, after a four-day trial, the jury returned a defense verdict, finding Mr. Ali not guilty
on all charges. Not quite three months later, Mr. Ali filed this action.
Mr. Ali’s amended complaint sets forth eleven counts: Count I - Race Discrimination,
Count II - Color Discrimination,3 Count III - Discrimination and Interference with Plaintiff’s
Right to Equal Benefit of the Law in Violation of 42 U.S.C. § 1981, Count IV - Warrantless Arrest
Pursuant to False Tip in Violation of 42 U.S.C. § 1983, Count V - Conspiracy to Interfere with
Constitutional Rights in Violation of 42 U.S.C. § 1985(3), Count VI - Neglect to Prevent

3 The Plaintiff asserts the first two causes of action only against the Raleigh County Sheriff’s Department and
Defendant Tanner.
5
Conspiracy to Interfere with Plaintiff’s Rights, Count VII - False/Wrongful Arrest and Improper
Investigation and Prosecution in Violation of 42 U.S.C. § 1983, Count VIII - Abuse of Process,
Count IX - Malicious Prosecution, Count X - Negligent Infliction of Emotional Distress, and Count
XI - Outrage.
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).
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…

6
[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.

DISCUSSION
The Raleigh County Defendants move for dismissal of the Plaintiff’s amended complaint
on several different grounds.
A. Raleigh County Sheriff’s Office is not Capable of Being Sued
These Defendants argue that the Plaintiff’s complaint should be dismissed in its entirety as
to the Raleigh County Sheriff’s Department because the sheriff’s department is not an entity that

is capable of being sued. 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. The Plaintiff counters that previous case law from this Court is incorrect, and that a
7
sheriff’s departments in the state of West Virginia is capable of being sued. The Plaintiff 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 Court finds that the Raleigh County Sheriff’s Department is not an entity capable of
being sued. As this Court has previously found on multiple occasions,
[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). Accordingly, the
Defendants’ motion to dismiss should be granted and all of the counts filed specifically against the
Raleigh County Sheriff’s Department should be dismissed.
B. Title VII Claims Against Defendant Steven Tanner
Defendant Tanner argues that the Plaintiff’s Title VII claims in Counts I and II against him
in his individual capacity should be dismissed. Defendant Tanner argues that the Plaintiff cannot
pursue Title VII claims against him because he was the Plaintiff’s supervisor, not employer, and
as a supervisor was not liable in his individual capacity for Title VII violations. The Plaintiff
8
counters that his Title VII claims are viable. He argues that courts outside the Fourth Circuit have
held that supervisors can be liable under Title VII in their individual capacities, and seeks to have
this Court adopt that view.
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against
any of its employees “with respect to his . . . terms, conditions, or privileges of employment”

because of that individuals race or color, among other things. 42 U.S.C. § 2000e-2(a). In
considering who is deemed to be an “employer,” the Fourth Circuit has held that “supervisors are
not liable in their individual capacities for Title VII violations.” Lissau v. S. Food Serv., Inc., 159
F.3d 177, 181 (4th Cir. 1998). This conclusion has been reached by a majority of other circuit
courts that have considered the issue. See, Dici v. Pennsylvania, 91 F.3d 542, 552 (3rd Cir. 1996);
Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir. 1994); Williams v. Banning, 72 F.3d 552, 554
(7th Cir. 1995); Smith v. St. Bernards Regional Medical Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994);
Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996). Further, this Court has recently applied
the Fourth Circuit’s holding, continuing to find that supervisors are not liable in their individual

capacities for alleged Title VII violations. See, Lieving v. Pleasant Valley Hosp., Inc., No. CIV.A.
3:13-27455, 2014 WL 1513851, at *5 (S.D.W. Va. Apr. 11, 2014) (Chambers, J.); Hallman-
Warner v. Bluefield State Coll., No. 1:17-CV-02882, 2018 WL 1309748, at *6 (S.D.W. Va. Jan.
19, 2018), report and recommendation adopted, No. CV 1:17-02882, 2018 WL 1309726 (S.D.W.
Va. Mar. 13, 2018).
The Plaintiff does not argue that Defendant Tanner was his employer, rather than his
supervisor, pursuant to Title VII. Thus, the Court finds that the Plaintiff’s Title VII claims against
Defendant Tanner in his individual capacity, pled in Counts I and II, should be dismissed.

9
C. Dismissal Based on the “Same Actor Inference”
The Defendants assert that Mr. Ali’s claims must be dismissed based on the “same actor
inference,” arguing that because Defendant Tanner both hired and fired him, a strong inference
results against discrimination. However, the Court has previously found that the Raleigh County
Sheriff’s Department is not an entity capable of being sued, and that the Title VII claims against

Defendant Tanner in his individual capacity are not legally viable. Thus, the Court need not
address the Defendants’ arguments for dismissal regarding the “same actor inference” in relation
to Mr. Ali’s Title VII claims.
D. Immunity Under the West Virginia Tort Claims and Insurance Reform Act
The Defendants Raleigh County, Steven Tanner, and Raleigh County Sheriff’s Department
also assert that the Plaintiff’s tort claims should be dismissed because they are immune from suit
for torts stemming from intentional acts. The Defendants argue that the claims in Counts IV, V,
VI, VII, VIII, IX, X, and XI all arise out of the intentional acts of individuals and thus cannot
continue against Defendant Raleigh County or Defendant Tanner in his capacity as then Sheriff of

Raleigh County. The Plaintiff counters that he has sufficiently pled that Defendant Tanner has
personal liability for the intentional torts alleged in the amended complaint, and further argues that
he has sufficiently alleged intentional misrepresentations on the part of Raleigh County and the
sheriff’s department such that their immunity has been lost.
West Virginia Code § 29-12A-4 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,

10
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, 197 W. Va. 616 (1996)); Polk v. Town of Sophia, No. 5:13-
CV-14224, 2013 WL 6195727, at *7 (S.D.W. Va. Nov. 27, 2013).
The Plaintiff’s claims in Counts VIII, IX, X, and XI are tort law claims brought by the
Plaintiff based on allegations of intentional acts by the Defendant law enforcement officers.

Count VIII alleges abuse of process, Count IX alleges malicious prosecution, Count X alleges
negligent infliction of emotional distress, and Count XI alleges outrage. Thus, inasmuch as
Raleigh County is a political subdivision, it cannot be sued for the intentional acts of the Defendant
officers. The Defendants’ motion should be granted as to Counts VIII, IX, X, and XI, and those
counts should be dismissed as to Defendant Raleigh County. However, because the Plaintiff
alleges that Defendant Tanner also took part in intentional misconduct and has personal liability
for intentional torts, the motion to dismiss these claims against him should be denied. Further,
Counts IV, V, VI, and VII are not brought under state law tort theories, but are federal law claims
pursuant to 42 U.S.C. Sections 1981, 1983, and 1985, and will be discussed herein.

E. 42 U.S.C. § 1983 Claims Against Raleigh County
The Defendants seek dismissal of the Plaintiff’s Section 1983 claims against Raleigh
County, Steven Tanner, and the Raleigh County Sheriff’s Department. The Defendants argue that
a local government may only be sued under a Section 1983 claim when the plaintiff alleges that
the execution of a government custom or policy causes the alleged injury. The Defendants
contend that the Plaintiff has failed to allege that a Raleigh County custom or policy motivated or
caused the allegations in the amended complaint, and all the Section 1983 claims against Raleigh
County should be dismissed.

11
The Plaintiff counters that a single instance of a constitutional violation supports a Section
1983 claim, and that he has sufficiently alleged a governmental policy that led to his injuries. He
argues that his complaint clearly provides allegations of acts by Defendant Tanner that, although
they only occurred once, constitute sufficient conduct to satisfy a single decision by a municipal
policymaker such that Raleigh County as a governmental entity should be held liable.

42 U.S.C. § 1983 states that:
Every 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, 436 U.S. at 694.
Further, “[i]n a § 1983 suit or a Bivens action—where masters do not answer for the torts
of their servants—the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”
Iqbal, 556 U.S. at 677. See also Iqbal, 556 U.S. at 693, (Souter, J., dissenting) (stating that “[l]est
there be any mistake, in these words the majority is not narrowing the scope of supervisory
liability; it is eliminating Bivens supervisory liability entirely.”)
The Court finds the Plaintiff has failed to sufficiently plead a policy or custom such that
Raleigh County can be held liable for the Plaintiff’s Section 1983 claims. The Plaintiff alleges
12
that the individual Defendant law enforcement officers conspired together to violate his
constitutional rights on one occasion. The Plaintiff has not alleged any policy or custom of
violating other citizen’s rights, nor has the Plaintiff alleged that Defendants Raleigh County or
Raleigh County Sheriff’s Department failed to adequately train its officers. An allegation of one
incident of unconstitutional activity is not sufficient to impose local governmental liability. The

Plaintiff’s claims brought pursuant to Section 1983 against Defendant Raleigh County4 in Count
IV should be dismissed.
F. Punitive Damages
The Raleigh County Defendants also argue that the claims against them for punitive
damages should be dismissed because West Virginia Code Section 29-12A-17 prohibits an award
of punitive damages against a municipality or political subdivision. The Plaintiff concedes that
West Virginia law does, in fact, prohibit an award of punitive damages to a municipality or political
subdivision. The Defendants’ motion to dismiss the claims for punitive damages against Raleigh
County should be granted.

G. Defendant Tanner’s Liability Under W.Va. Code § 7-14A-4
The Defendants argue that the claims against Defendant Tanner as Sheriff of Raleigh
County should be dismissed because he cannot be held liable for the alleged conduct of his deputies
pursuant to West Virginia Code § 7-14A-4. Given this statute, the Defendants argue that
Defendant Tanner cannot be held liable for the claims brought pursuant to of Section 1983 and
other state law tort violations committed by his deputies.

4 The Court notes that the Raleigh County Defendants also argue in their motion that the Section 1983 claims should
be dismissed based on the Will Doctrine, and argue that Raleigh County is not a “person” for the purposes of Section
1983. Because the Court finds here that the Section 1983 claims against Raleigh County should be dismissed, the
Court does not address that argument.
13
The Plaintiff counters that West Virginia state law and this Court’s prior precedent hold
otherwise. According to Mr. Ali, Defendant Tanner’s arguments disregard this Court’s holding
in Webb v. Raleigh County Sheriff’s Department, No. 5:09-CV-01253, 2010 WL 3702648 (S.D.W.
Va. Sept. 16, 2010). The Plaintiff argues that, in Webb, this Court held that West Virginia Code
§ 7-14A-4 conflicted with West Virginia Code § 29-12A-4, part of the West Virginia

Governmental Tort Claims and Insurance Reform Act (WVGTCIRA). Based on this conflict, the
Plaintiff contends that the ruling in Webb should also extend to the Sheriff himself, and the claims
against Defendant Tanner should not be dismissed.
The office of sheriff is a constitutional office filled by popular vote. Pursuant to West
Virginia law, deputy sheriffs are defined as, among other things, “[p]ersons appointed by a sheriff
as his deputies whose primary duties as such deputies are within the scope of active, general law
enforcement and as such are authorized to carry deadly weapons, patrol the highways, perform
police functions, make arrests or safeguard prisoners.” W.Va. Code § 7-14-2. West Virginia law
further limits the liability of sheriffs regarding the actions of their deputies by stating that “no

sheriff shall be held jointly or severally liable on his official bond or otherwise for any act or
conduct of any deputies . . . except in cases where such deputy is acting in the presence of and
under the direct, immediate, and personal supervision of such sheriff.” W.Va. Code § 7-14A-4.
In Webb, this Court examined the interplay between that statute and a more recently
enacted conflicting statute, the WVGTCIRA. Webb, 2010 WL 3702648 at *7-8. This Court
found that “[a]s the most recent of the two conflicting statutes, Section 29-12A-4(c)(2) takes
precedence over Section 7-14A-4.” Id. at 7. The newer statute, Section 29-12A-4(c)(2), states
that “political subdivisions are liable for injury, death, or loss to persons or property caused by the

14
negligent performance of acts by their employees while acting within the scope of employment.”
Because that more recent statute takes precedence, and because it allows for political subdivisions
such as county commissions to be held liable for the negligence of their employees in certain
circumstances, this Court held that a lawsuit against the Raleigh County Commission for the acts
of deputies could continue. Id. at 8. The Court further found that, pursuant to W.Va. Code § 29-

12A-5, suits against individual officer employees of a political subdivision could go forward where
the plaintiff has alleged facts that show that the actions of the officer employees were manifestly
outside the scope of their official duties or were made with a malicious purpose, in bad faith, or in
a wanton or reckless manner. Id.
Similarly, Mr. Ali has alleged facts that, when taken as true, provide that the Defendant
officers’ actions were made with a malicious purpose. The Plaintiff alleges that Defendants
Tanner, Epling, Snuffer, Pack, and Redden conspired together to maliciously arrest him without
probable cause and prosecute him in a retaliatory manner based on the Plaintiff’s challenge to his
termination and his plan to file suit based on racial discrimination. Defendant Tanner’s motion

regarding his liability under West Virginia Code § 7-14A-4 should be denied.
H. Defendant Tanner in his Official Capacity
The Defendants seek dismissal of the claims against Defendant Tanner in his official
capacity. The Defendants argue that claims against Defendant Tanner in his official capacity as
Sheriff of Raleigh County cannot proceed because they are merely suits against the entity. The
Plaintiff concedes the same in his response and argues that, although the claims may continue
against Defendant Tanner in his individual capacity, the claims against him in his official capacity
should be dismissed pursuant to Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The Court

15
finds that the claims against Defendant Tanner in his official capacity as Sheriff of Raleigh County
should be dismissed.
I. Exhaustion of Federal and State Remedies Regarding Title VII Claims
The Raleigh County Defendants also seek to dismiss the Plaintiff’s claims alleged in
Counts I and II under Title VII of the Civil Rights Act for race and color discrimination. The

Defendants argue that the Plaintiff did not timely file these claims because he did not sufficiently
show that he exhausted his administrative remedies with the United States Equal Employment
Opportunity Commission (EEOC). The Defendant also alleges that the Plaintiff failed to exhaust
his state administrative remedies by failing to appeal the results of his civil service hearing to the
Raleigh County Circuit Court.
The Plaintiff counters that he did, in fact, exhaust his EEOC remedies, and filed an exhibit
stating as much. The Plaintiff further argues that he was not required under state law to pursue
an appeal of his grievance proceeding before filing his Title VII discrimination claims because
nothing in Title VII requires exhaustion of state remedies before filing such a suit.

The Court finds that it need not address these arguments, however. The Plaintiff brought
his Title VII claims against the Raleigh County Sheriff’s Department and Defendant Steven Tanner
only. As the Court has previously held above, the Raleigh County Sheriff’s Department is not an
entity capable of being sued, and all of the claims against it should be dismissed. Further, the
Court has previously found that the Title VII claims against Defendant Steven Tanner should be
dismissed because, as a supervisor, as opposed to an employer, he is not liable under Title VII.
The Title VII claims must be dismissed because the Plaintiff has not named an entity that is subject
to suit with respect to those claims.

16
J. 42 U.S.C. § 1981 Claims
The Raleigh County Defendants seek dismissal of the Plaintiff’s claims in Count III
brought pursuant to 42 U.S.C. § 1981. The Defendants argue that the Plaintiff’s claim for
discrimination and interference with his rights to equal benefits under the law should have been
brought pursuant to 42 U.S.C. § 1983 as opposed to 42 U.S.C. § 1981. The Defendants base their

argument on the United States Supreme Court holding, in Jett v. Dallas Independent School
District, that Section 1983 is the exclusive remedy for a claim against a state actor accused of
violating rights secured under Section 1981. The Plaintiff disagrees. He argues that the holding
in Jett is inappropriate given the 1991 amendments to the Civil Rights Act, and asks this Court to
disregard both the holding in Jett and the Fourth Circuit’s affirmation of it to find that the Plaintiff
can plead a claim for discrimination under Section 1981 against state actors in their individual
capacities.
In Jett, the Supreme Court found that Section 1983 of the Civil Rights Act provides the
only remedy for violations of the rights guaranteed in Section 1981 of the same Act. See, Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). The Fourth Circuit affirmed this ruling in
Dennis v. County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). There, the Fourth Circuit held that
discrimination claims against state actors, specifically a county government in that case, must be
brought under Section 1983, as that “is the ‘exclusive remedy for violation of the rights guaranteed
in § 1981.’” Id. (quoting Jett, 491 U.S. at 733). The Dennis court specifically explained in its
finding that it “[did] not believe that this aspect of Jett was affected by the Civil Rights Act of
1991 . . . We think the correct reading of the amendment . . . recognizes that [the addition of]
subsection (c) [to § 1981] did not purport to overrule Jett’s holding with respect to municipal

17
liability . . . .” Dennis, 55 F.3d at 56; see also, Toomer-Frazier v. Columbia, City of, 680 F. App'x
244, 245 (4th Cir. 2017).
The Plaintiff argues that the Court should disregard the holdings of Jett and Dennis. In
reliance on Stout v. Reuschling, a case from the United States District Court for the District of
Maryland, the Plaintiff argues that Jett and Dennis merely stand for the proposition that Section

1981 claims cannot be asserted as independent causes of action against a state or municipal entity
only. See, Stout v. Reuschling, No. CIV.A. TDC-14-1555, 2015 WL 1461366, at *7 (D. Md. Mar.
27, 2015).
The Court is not persuaded by the ruling in Stout. While the Stout court’s analysis is based
on the 1991 amendments to the Civil Rights Act, the Fourth Circuit specifically explained in
Dennis that it did not believe those amendments altered the Supreme Court’s holding in Jett.
Given the rulings of the Supreme Court and the Fourth Circuit, the Court finds that Section 1981
does not provide an independent cause of action. The Plaintiff’s claims in Count III should be
dismissed.

K. Conspiracy to Interfere Pursuant to 42 U.S.C. § 1985(3)
The Defendants further argue that the Plaintiff has failed to properly plead a claim against
them for conspiracy to interfere with constitutional rights in violation of 42 U.S.C. § 1985(3) in
Count V of the amended complaint. The Defendants argue that Mr. Ali has failed to allege with
any specificity which of the Defendants agreed to the conspiracy, any specific racial animus or
racial bias, or any racially motivated acts. Thus, the Defendants argue that the Section 1985(3)
claim in Count V should be dismissed.

18
The Plaintiff counters that he has appropriately pled a conspiracy between two or more
people by alleging that Defendants Redden and Epling were motivated by specific class-based,
discriminatory animus against him in retaliation for challenging his termination and because of his
intent to sue the Defendants for racial discrimination. He has further pled that Defendant Redden
and others deprived him of the equal enjoyment of rights under the law and caused him injuries by

their overt acts. Mr. Ali therefore claims he has sufficiently pled a plausible claim for conspiracy
to violate his civil rights.
Section 1985(3) provides:
If two or more persons in any State or Territory conspire…for the
purpose of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws[.]…[I]n any case of
conspiracy set forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in furtherance of the object
of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege
of a citizen of the United States, the party so injured or deprived may
have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). This cause of action is directed at those who conspire to deprive protected
classes of people of their rights. Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985). The
federal remedy, construed broadly, is for “conspiracies involving invidious animus toward a class
of persons” who are not adequately protected by the state. Id. at 1258 (internal quotation marks
omitted). The elements of proof for a § 1985(3) cause of action are: “(1) a conspiracy of two or
more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus
to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which
results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants
19
in connection with the conspiracy.” Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citing
Buschi, 775 F.2d at 1257).
The Court finds that the Plaintiff has sufficiently alleged facts to state a claim for
conspiracy under 1985(3). First, the Plaintiff has stated sufficient allegations to meet the
conspiracy elements. He alleges that the Defendants Redden, Pack, Epling and Snuffer got

together to falsely create the probable cause necessary to arrest the Plaintiff and to coordinate
testimony to deprive the Plaintiff of equal enjoyment of his lawful rights in a manner that resulted
in his injury as a consequence of an overt act. The Plaintiff also satisfies the discriminatory
animus element because he alleges that the Defendants committed these actions at the behest of
Defendant Tanner, who was acting with discriminatory animus relating to the Plaintiff’s race and
his intent to sue Defendant Tanner and Raleigh County in a discrimination lawsuit.
Assuming these allegations to be true, the Plaintiff has sufficiently stated a plausible claim
for relief pursuant to 42 U.S.C. § 1985(3). The Defendants’ motion to dismiss Count V should
be denied.

L. Neglect to Prevent Conspiracy
The Defendants also seek to dismiss the Plaintiff’s claim in Count VI for neglect to prevent
a conspiracy to interfere with the Plaintiff’s rights. The Defendants argue that the Plaintiff failed
to bring this claim within the one-year statute of limitations. According to the Defendant, the
statute of limitations on the Plaintiff’s claim began to accrue on June 23, 2015, the day he was
arrested, resulting in the expiration of the statute of limitations on June 23, 2016. The Plaintiff
did not bring the suit until June 23, 2017, however, prompting the Defendants’ argument that this
claim should be dismissed.

20
The Plaintiff counters that, although the statute of limitations is indeed a year on this claim,
the limitations period begins to accrue from the last act that caused the plaintiff an injury. The
Plaintiff argues that the last act causing him injury was his second criminal trial, which ended in
his acquittal on May 26, 2017. Thus, the Plaintiff contends that the statute of limitations period
did not expire until May 26, 2018. Although not specifically stated in his amended complaint,

the Plaintiff brings the claim in Count VI pursuant to 42 U.S.C. § 1986, which states, in pertinent
part, that
[e]very person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do,
if such wrongful act be committed, shall be liable to the party injured
. . . for all damages caused by such wrongful act . . . .
Further, in order to maintain a cause of action under Section 1986, a plaintiff must have sufficiently
set forth a cause of action under Section 1985, because Section 1986 “merely gives a remedy for
misprision of a violation of 42 U.S.C. § 1985.” Sellner v. Panagoulis, 565 F. Supp. 238, 249 (D.
Md. 1982), aff'd, 796 F.2d 474 (4th Cir. 1986).
The Court finds that the Plaintiff has pled sufficient facts to support a claim under Section
1986. Section 1986 specifically states that “no action under the provisions of this section shall be
sustained which is not commenced within one year after the cause of action has accrued.” The
Plaintiff alleges that he was arrested on June 23, 2015, and that the Defendants conspired together
to find unlawful and improper probable cause to arrest him. However, the Plaintiff also alleges
that the Defendants continued to conspire against him by coordinating their testimony in the time
leading up to the trial, giving false testimony during pre-trial hearings and trial, and by talking to
witnesses in a manner that caused the first trial to end in a mistrial. Accepting these allegations
21
as true, is it clear that the Defendants continued to conspire against the Plaintiff at least up until
the time of his second trial, which began in May of 2017. Given these allegations, the statute of
limitations began to accrue in May of 2017. Because the Plaintiff brought his action under 42
U.S.C. § 1986 on June 23, 2017, the claim in Count VI is not barred by the applicable statute of
limitations.

The Court has reviewed the Plaintiff’s Motion for Leave to Exceed Page Limit (Document
17). The Plaintiff moves to exceed the established twenty (20) page limit in his response in
opposition to Defendants Raleigh County, Raleigh County Sheriff’s Department, and Steven
Tanner’s motion to dismiss Plaintiff’s complaint. The Plaintiff seeks to file a response of twenty-
five (25) pages in length. After careful consideration, the Court ORDERS that the motion be
GRANTED.

CONCLUSION
WHEREFORE, after careful consideration, the Court ORDERS that the Defendant
Raleigh County, Raleigh County Sheriff’s Department, and Steven Tanner’s Motion to Dismiss the
Plaintiff’s Complaint (Document 7) be GRANTED IN PART and DENIED IN PART.
Specifically, the Court ORDERS that the claims in Counts I, II and III be DISMISSED. With
respect to Defendant Raleigh County, the Court ORDERS that Counts IV, VII, VIII, IX, X, and
XI be DISMISSED. As to Defendant Steven Tanner, the Court ORDERS that all claims against
him in his official capacity as Sheriff of Raleigh County be DISMISSED, and that Counts I and

II be DISMISSED against him in his individual capacity. The Court ORDERS that all claims
against the Raleigh County Sheriff’s Department be DISMISSED. Otherwise, the Court
ORDERS that the motion be DENIED.
22
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: March 29, 2018

IRENE C. 2S q
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA

23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10727349. Public record. Not legal advice.