Ali v. Raleigh County

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 Jason Redden in His Capacity as a Parole Officer

with the West Virginia Division of Correction’s Motion to Dismiss the Plaintiff’s Complaint

(Document 5) and Memorandum of Law in Support (Document 6), the Plaintiff’s Response in

Opposition (Document 21), and Defendant Jason Redden’s Reply to the Plaintiff’s Response

(Document 27). 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 motion should be granted in part and denied in part as more fully explained below.

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 or political subdivision 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

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.

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during which they receive on-the-job training and attend the West Virginia State Police Academy.

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

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received a phone call from a State Trooper regarding a case he had worked on while a deputy.

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

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[him] less than an hour earlier to confirm [he] was in Beckley, arrived at the scene and transported

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

3 The Plaintiff asserts the first two causes of action only against the Raleigh County Sheriff’s Department and

Defendant Tanner.

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Constitutional Rights in Violation of 42 U.S.C. § 1985(3), Count VI - Neglect to Prevent

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

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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.

DISCUSSION

Defendant Redden, having filed this motion specifically in his capacity as a parole officer

for the West Virginia Division of Corrections, sets forth several different grounds for dismissal.

A. Sovereign Immunity

Mr. Redden first argues that all of the Plaintiff’s claims against him, in his official capacity

as a parole officer, should be dismissed because he is entitled to sovereign immunity. Mr. Redden

was a parole officer working in an official capacity for the West Virginia Division of Corrections

at the time of the Plaintiff’s allegations, and he argues that claims against him in that capacity are

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considered claims against the State itself. Because the State of West Virginia has sovereign

immunity, Mr. Redden argues that he also has sovereign immunity from any claims filed against

him in his official capacity.

In his response in opposition, the Plaintiff concedes that his claims against Defendant

Redden in his official, as opposed to his individual, capacity may be subject to dismissal on

grounds of sovereign immunity. The Plaintiff also concedes in his response that the Section 1983

claims against Defendant Redden in his official capacity as a parole officer with the West Virginia

Division of Corrections are subject to dismissal. The Court finds that all claims against Defendant

Redden in his official capacity as a parole officer for the West Virginia Division of Corrections

should be dismissed.

B. Qualified Immunity

Mr. Redden contends that the Plaintiff’s Section 1983 claims against him must be

dismissed because he is entitled to qualified immunity. He argues that the Plaintiff has failed to

establish that Mr. Redden violated any clearly established constitutional law and is therefore

entitled to qualified immunity. The Plaintiff counters that the “Amended Complaint sets forth

hundreds of detailed factual allegations” explaining how Defendant Redden played a role in the

unconstitutional plan to arrest him, and that Defendant Redden’s motion should therefore be

denied.

Under the doctrine of qualified immunity, “[g]overnmental officials performing

discretionary functions are shielded from liability for money damages so long ‘as their conduct

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

would have known.’” Tomashek v. Raleigh Cty. Emergency Operating Ctr., No. 2:17-CV-01904,

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2018 WL 522420, at *3 (S.D.W. Va. Jan. 23, 2018) (Goodwin, J.) (quoting Maciariello v. Sumner,

973 F.3d 295, 298 (4th Cir. 1992)). Defendants asserting a qualified immunity defense first bear

the burden of “demonstrating that the conduct of which the plaintiff complains falls within the

scope of the defendant’s duties.” In re Allen, 106 F.3d 582, 594 (4th Cir. 1997) (internal quotation

marks omitted.)

Officials are protected even if they make reasonable mistakes of fact or law, so long as they

do not violate a clearly established statutory or constitutional right. Pearson, 555 U.S. at 231–32.

Courts are advised to “ask first whether a constitutional violation occurred and second whether the

right violated was clearly established.”4 Id. “A constitutional right is ‘clearly established’ when

its contours are sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013) (internal quotation

marks and citations omitted); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“This is not to

say that an official action is protected by qualified immunity unless the very action in question has

previously been held unlawful . . . but . . . that in the light of pre-existing law the unlawfulness

must be apparent.”). The reasonableness analysis is objective. Courts must “examine[] only the

actions at issue and measure[] them against what a reasonable police officer would do under the

circumstances,” but the inquiry “must be filtered through the lens of the officer’s perceptions at

the time of the incident.” Rowland v. Perry, 41 F.3d 167, 172-73 (4th Cir. 1994). “[T]he officer's

subjective state of mind is not relevant to the qualified immunity inquiry but his perceptions of the

objective facts of the incident in question are.” Id. at 173.

4 “Courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’” Smith v.

Ray, 781 F.3d 95, 106, fn 3 (4th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

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The Plaintiff asserts that Mr. Redden participated in a warrantless arrest pursuant to a false

tip, a false or wrongful arrest and improper investigation, abuse of process, and malicious

prosecution in violation of Section 1983. Accepting the alleged facts as true and drawing all

reasonable inferences in the Plaintiff’s favor, the Court finds that Defendant Redden is not entitled

to qualified immunity. The Plaintiff alleges that the Defendants sought to maliciously arrest and

prosecute him in retaliation for challenging his termination with the civil service commission and

because he intended to sue the Raleigh County Defendants regarding his termination. He states

that his cousin was in the vehicle when the Defendants initiated the interaction in question. The

Plaintiff admits that his cousin was on parole, was being monitored by an ankle bracelet, and that

at some point during the interaction the Defendants told him they were looking for his cousin in

reference to a hold and commit order by his parole officer.

However, the Plaintiff also alleges that Defendant Redden worked in conjunction with the

other individual Defendants to purposefully delay arresting the Plaintiff’s cousin until he was with

the Plaintiff, and that it was Defendant Redden’s delay that allowed the other Defendants to use

probable cause to initiate the traffic stop of the Plaintiff and his cousin. In other words, the

Plaintiff alleges that without Defendant Redden knowingly conspiring with the other Defendants,

there would have been no way to initiate the traffic stop in the first place. Mr. Ali further implies

that the Defendants potentially planted evidence in his car during the search. Accepting these

allegations as true, the Plaintiff has appropriately stated causes of action under Section 1983 for

several constitutional violations. The requirement that law enforcement officers have probable

cause and/or obtain a warrant before making an arrest is a clearly established right.5 While

5 In referencing the Plaintiff’s constitutional right to be free of arrest without probable cause, the Court does not

intend to exhaust all constitutional rights that may have been violated in this alleged scheme.

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Defendant Redden in his capacity as a parole officer may have had sufficient probable cause to

arrest the Plaintiff’s cousin, that probable cause did not extend to the Plaintiff absent the unlawful

scheme that the Plaintiff alleges here. Conspiring together to initiate this scheme against the

Plaintiff in a malicious and retaliatory manner violates this clearly established constitutional right.

Defendant Redden’s qualified immunity defense should therefore be denied.

C. Failure to Satisfy the Pleading Standard

Defendant Redden argues that all of the remaining claims against him in his individual

capacity should be dismissed because the Plaintiff has failed to state claims which satisfy the

pleading standard.

1. Warrantless Arrest

Defendant Redden argues that Count IV of the amended complaint should be dismissed

because the Plaintiff has failed to assert any factual allegations supporting the claim that Defendant

Redden is liable for warrantless arrest. Mr. Redden asserts that the Plaintiff has not alleged that

Mr. Redden filed a criminal complaint against him, filed a police report, placed him in handcuffs

or had any part in his arrest. Therefore, Defendant Redden argues that Count IV should be

dismissed against him.

The Plaintiff counters that Defendant Redden did play a critical role in his arrest. Mr. Ali

contends that, it was Defendant Redden who “provided the drug task force with a pretextual reason

to pull Mr. Ali out of his vehicle at gunpoint and detain and arrest him.” (Pl.’s Resp. in

Opposition, at 10.) Thus, Mr. Ali argues that he has satisfactorily pled sufficient facts for his

claim of warrantless arrest to survive Defendant Redden’s motion to dismiss.

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In support of his claim of warrantless arrest, the Plaintiff asserts that Defendant Redden

intentionally and maliciously worked with the Defendants in waiting for Mr. Ali to be with his

cousin to provide the other Defendants with the pretextual probable cause necessary to search his

car and eventually arrest him. The Plaintiff further alleges that the Defendants arrested Mr. Ali

without any warrant or other legal process. The Plaintiff further asserts in his complaint that the

Defendants conducted these actions pursuant to a report they knew was erroneous and false.

Viewing these facts in the light most favorable to the Plaintiff, and drawing all reasonable

inferences in his favor, the Court finds that the Plaintiff has pled sufficient facts to state a claim

against Defendant Redden for a warrantless arrest under Section 1983. Defendant Redden’s

motion to dismiss this claim in Count IV should be denied.

2. Conspiracy to Violate Plaintiff’s Civil Rights

Defendant Redden also argues the Plaintiff has failed to properly plead a claim against him

for conspiracy to interfere with constitutional rights in violation of 42 U.S.C. § 1985. Defendant

Redden argues that Mr. Ali did not specifically plead how Defendant Redden coordinated his

sworn statements and testimony with the other Defendants, or what that testimony was. Further,

Defendant Redden argues that Mr. Ali claims that Defendant Redden was acting under the

authority of the Beckley Police, Raleigh County Sheriff’s Department, and West Virginia State

Police, when Defendant Redden was still employed as a parole officer by the West Virginia

Division of Corrections at the time. Thus, Defendant Redden contends Mr. Ali has failed to state

a claim for civil rights conspiracy against him.

The Plaintiff counters that he has appropriately pled a conspiracy between two or more

people, including Defendant Redden, because he pled that Defendants Redden and Epling were

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motivated by specific class-based, discriminatory animus against him. 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

in connection with the conspiracy.” Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citing

Buschi, 775 F.2d at 1257).

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Here, 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 claims that Defendants Redden, Pack, Epling, and Snuffer met 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). Defendant Redden’s motion to dismiss Count V should

be denied.

3. Neglect to Prevent Conspiracy

Defendant Redden argues that the Plaintiff’s claim in Count VI that Defendant Redden had

the power to prevent the conspiracy against Mr. Ali, but failed to do so, should be dismissed.

Defendant Redden claims that the Plaintiff’s allegations amount to little more than conclusions,

which are insufficient to state a claim, because there is no specific mention of any facts which

suggest Defendant Redden could have prevented the conspiracy. The Plaintiff counters that he

has clearly shown that each and every defendant had the power to prevent or aid in preventing the

commission of the illegal acts against him, and thus, the claim in Count VI should proceed against

Defendant Redden.

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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 . . . .

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).

Again, the Plaintiff has alleged that the Defendants, including Defendant Redden,

conspired together to use the Plaintiff’s cousin and a false tip in order to manufacture probable

cause to arrest the Plaintiff on drug charges without a warrant. Importantly, the Plaintiff has

alleged that Defendant Redden specifically postponed the arrest of the Plaintiff’s cousin, a parolee,

until the cousin was with the Plaintiff, so that the other Defendants would have the requisite

probable cause necessary to stop the Plaintiff’s vehicle. Further, the Plaintiff has alleged that the

Defendants, including Redden, conspired to coordinate their testimony, talked to witnesses and

hid evidence in an effort to wrongfully convict him in retaliation for his contesting his termination

from the Sheriff’s Department and his intent to file suit against Sheriff Tanner and the Raleigh

County Sheriff’s Department. Accepting the factual allegations as true, and drawing reasonable

inferences in the light most favorable to the Plaintiff, the Court finds that the Plaintiff has pled

sufficient facts to support the claim of neglect to prevent conspiracy contained in Count VI. The

motion to dismiss this claim against Defendant Redden should be denied.

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4. False Arrest and Improper Investigation and Prosecution

Defendant Redden also requests dismissal of the Plaintiff’s claim in Count VII of wrongful

arrest and improper investigation pursuant to 42 U.S.C. § 1983. Defendant Redden argues that

the Plaintiff has failed to properly allege any facts that state how Defendant Redden falsely arrested

or improperly investigated and prosecuted the Plaintiff, and that, therefore, his claim in Count VII

amounts to mere conclusions such that it should be dismissed. The Plaintiff counters that he has

alleged Defendant Redden knew of and attempted to hide evidence that proved Mr. Ali was

innocent, and that he has stated sufficient facts to support this claim.

42 U.S.C. § 1983 states that “[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.”

The Fourth Amendment mandates that a warrantless arrest be based on probable cause.

Porterfield v. Lott, 156 F.3d 563, 567 (4th Cir. 1998); Park v. Shiflett, 250 F.3d 843, 850-51 (4th

Cir. 2001). An officer must evaluate probable cause based on the totality of the circumstances at

the time of the arrest, and establish it with “facts and circumstances within the officer’s knowledge

[which] would warrant the belief of a prudent person that the arrestee had committed or was

committing an offense.” Park, 250 F.3d at 851 (quoting United States v. Manbeck, 744 F.2d 360,

376 (4th Cir. 1984)).

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Here, the Plaintiff has alleged that the Defendants, including Defendant Redden, conspired

together to use the Plaintiff’s cousin and a false tip in order to manufacture probable cause to arrest

the Plaintiff on drug charges without a warrant. As the Court has previously found, the Plaintiff

has alleged that Defendant Redden specifically postponed the arrest of the Plaintiff’s cousin, a

parolee, until he was with the Plaintiff, so that the other Defendants would have the requisite

probable cause necessary to stop the Plaintiff’s vehicle. Again, accepting the factual allegations

as true, and drawing reasonable inferences in the light most favorable to the Plaintiff, the Court

finds that the Plaintiff has pled sufficient facts to support the claim that Defendant Redden violated

his Fourth Amendment right to not be arrested without probable cause. The Defendant’s motion

to dismiss Plaintiff’s claims against Defendant Redden in Count VII should be denied.

5. Abuse of Process

Defendant Redden seeks dismissal of the Plaintiff’s claims in Count VIII for abuse of

process. He argues that the Plaintiff has alleged no specific facts regarding how Defendant

Redden, in his capacity as a parole officer with the West Virginia Division of Corrections,

unlawfully arrested, detained, or prosecuted the Plaintiff. Mr. Ali counters that he has sufficiently

pled the facts and elements required for an abuse of process violation. He further contends that,

although Defendant Redden did not specifically arrest him or draft a criminal complaint, the

Plaintiff has sufficiently pled that Defendant Redden conspired with the other Defendants and took

actions necessary to facilitate the other Defendants’ arrest of him such that Defendant Redden is

also liable under this claim.

“Generally, abuse of process consists of the willful or malicious misuse or misapplication

of lawfully issued process to accomplish some purpose not intended or warranted by that process.”

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Preiser v. MacQueen, 352 S.E.2d 22, 28 (W.Va. 1985). “To properly state a claim for abuse of

process, a plaintiff must allege: first, an ulterior purpose, and second, a willful act in the use of the

process not proper in the regular conduct of the proceeding.” Westfield Ins. Co. v. Mitchell, No.

2:12-CV-00585, 2013 WL 4742832, at *4 (S.D.W. Va. Sept. 3, 2013) (internal citations omitted).

According to the West Virginia Supreme Court, “[t]he authorities are practically unanimous in

holding that to maintain the action [for abuse of process] there must be proof of a willful and

intentional abuse or misuse of the process for the accomplishment of some wrongful object—an

intentional and willful perversion of it to the unlawful injury of another.” Preiser, 352 S.E.2d at

28.

The Court finds that the Plaintiff has sufficiently pled the required elements of a cause of

action for abuse of process. The Plaintiff alleges in his complaint that the Defendants, with

Defendant Redden as a parole officer playing a critical part, conspired together to purposefully use

the Plaintiff’s cousin to provide the probable cause necessary to arrest the Plaintiff without a

warrant and charge him with drug offenses, knowing that he was not actually involved in the

trafficking of drugs. The Plaintiff further alleges that the Defendants arrested him in this improper

manner in retaliation for the Plaintiff’s challenge of his firing from the Raleigh County Sheriff’s

Department on grounds of racial discrimination. Viewing these allegations in the light most

favorable to the Plaintiff, Mr. Ali has stated a claim for relief that is plausible on its face. Defendant

Redden’s motion should be denied as to Count VIII.

6. Malicious Prosecution

Defendant Redden further seeks dismissal of the Plaintiff’s malicious prosecution claims

alleged against him in Count IX. Defendant Redden again argues that the claim should be

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dismissed because the Plaintiff has failed to plead how Defendant Redden, in his individual

capacity as a parole officer, has caused or took part in a malicious prosecution against the Plaintiff.

The Plaintiff counters that he has sufficiently alleged the necessary elements for a malicious

prosecution claim.

According to the West Virginia Supreme Court,

[i]n an action for malicious prosecution, plaintiff must show: (1) that

the prosecution was set on foot and conducted to its termination,

resulting in plaintiff’s discharge; (2) that it was caused or procured

by defendant; (3) that it was without probable cause; and (4) that it

was malicious. If plaintiff fails to prove any of these, he can not

recover.

Syl. Pt. 3, Hines v. Hills Dep't Stores, Inc., 454 S.E.2d 385, 387 (W.Va. 1994). In a separate line

of cases, the West Virginia Supreme Court held that the requisite elements for a malicious

prosecution were only three, and included “(1) that the prosecution was malicious, (2) that it was

without reasonable or probable cause, and (3) that it terminated favorably to plaintiff.” Syl. Pt. 1,

Preiser, 352 S.E.2d at 22. However, in examining these two different delineations of the

malicious prosecution elements, the same court held that they were the same, and that

“procurement [of the prosecution by the defendant] is an inherent element in both.” Norfolk S.

Ry. Co. v. Higginbotham, 721 S.E.2d 541, 546 (W.Va. 2011).

The Plaintiff has sufficiently pled facts to satisfy the elements of a malicious prosecution

claim. Mr. Ali alleges that Defendant Redden worked in concert with other Defendants to

facilitate false probable cause so that other Defendants could arrest and eventually prosecute him.

Mr. Ali alleges that Defendant Redden admitted under oath that he was responsible for delaying

the arrest of Mr. Ali’s cousin until he was with Mr. Ali, even though he had previous opportunities

to arrest the cousin. The Plaintiff further alleges that this was done with malice in response to the

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Plaintiff’s stated intention to file suit against the Raleigh County defendants for racial animus and

discrimination. The prosecution by the Defendants terminated in Mr. Ali’s favor when the jury

found him not guilty. Again, viewing these allegations in the light most favorable to the Plaintiff,

the Court finds that the Plaintiff has sufficiently alleged a claim of malicious prosecution in Count

IX, such that Defendant Redden’s motion to dismiss should be denied.

7. Negligent Infliction of Emotional Distress

Defendant Redden moves for dismissal of the Plaintiff’s claims for negligent infliction of

emotional distress in Count X. He argues that the Plaintiff has failed to sufficiently plead the

elements for the claim or show that Defendant Redden in his capacity as a parole officer owed him

any duty. The Plaintiff counters that “Defendant Redden’s conclusory comment required no

rebuttal, other than to note that the Amended Complaint does in fact properly plead the elements

of negligent infliction of emotional distress as against Defendant Redden.” (Pls.’ Resp. in

Opposition at 17.)

Negligent infliction of emotional distress claims require “a plaintiff [who] experience[s]

serious emotional distress, after the plaintiff witnesses a person closely related to the plaintiff

suffer critical injury or death as a result of the defendant's negligent conduct.” Syl. Pt. 1, Heldreth

v. Marrs, 425 S.E.2d 157, 158 (W.Va. 1992). Here, the Plaintiff has asserted no set of facts to

support such a claim, inasmuch as he alleges that the Defendant negligently caused him emotional

distress based on acts directed at the Plaintiff, himself. Count X of the amended complaint should

be dismissed.

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8. Outrage

Finally, Defendant Redden seeks dismissal of the Plaintiff’s claim of outrage as alleged in

Count XI of the amended complaint. Defendant Redden argues that the Plaintiff fails to allege

such conduct that is so extreme and outrageous that it goes above and beyond conduct that was

tortious or criminal in nature to support the tort of outrage. The Plaintiff counters that Defendant

Redden and the other Defendants acted in a manner that was so extreme and outrageous that it

went beyond the bounds of decency. The Plaintiff contends that Defendant Redden played a

critical part in a conspiracy that forced the Plaintiff to face two criminal trials and, had it been

effective to its fullest extent, would have subjected the Plaintiff to several years in state prison for

a crime he did not commit—a crime that Mr. Redden and the other Defendants knew he did not

commit. Mr. Ali argues the acts of Defendant Redden and the other actors were sufficiently

outrageous and extreme to support a claim for the tort of outrage.

In West Virginia, the tort of outrage, or intentional infliction of emotional distress, follows

the Restatement of Torts (Second): “One who by extreme and outrageous conduct intentionally

or recklessly causes severe emotional distress to another is subject to liability for such emotional

distress, and if bodily harm to the other results from it, for such bodily harm.” Syl. pt. 6, Harless

v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 694 (W. Va. 1982). The West Virginia Supreme

Court has established the following elements for this claim:

(1) that the defendant's conduct was atrocious, intolerable, and so

extreme and outrageous as to exceed the bounds of decency; (2) that

the defendant acted with the intent to inflict emotional distress, or

acted recklessly when it was certain or substantially certain

emotional distress would result from his conduct; (3) that the actions

of the defendant caused the plaintiff to suffer emotional distress;

and, (4) that the emotional distress suffered by the plaintiff was so

severe that no reasonable person could be expected to endure it.

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Syl. pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W. Va. 1998) (reaffirmed in Hatfield

v. Health Mgmt. Associates of W. Virginia, 672 S.E.2d 395, 404 (W. Va. 2008). The court further

explained that “whether conduct may reasonably be considered outrageous is a legal question, and

whether conduct is in fact outrageous is a question for jury determination.” Syl. pt. 4, id.

Courts have struggled to determine whether conduct may reasonably be considered

outrageous. Courtney v. Courtney, 413 S.E.2d 418, 422 (W. Va. 1991) (reviewing several cases

considering the question). Plaintiffs must make a showing that “the defendant’s actions toward

the plaintiff were atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of

decency” and be viewed as intolerable in a civilized society. Travis, 504 S.E.2d at 425.

“[C]onduct that is merely annoying, harmful of one's rights or expectations, uncivil, mean-spirited,

or negligent does not constitute outrageous conduct. On the other hand, outrageous conduct can

include physical violence that causes bodily harm and emotional distress.” Courtney, 413 S.E.2d

at 423–424 (internal citations removed).

The Plaintiff has alleged that, by conspiring with the other Defendants, Defendant Redden

knowingly used false probable cause to facilitate the Defendants’ arrest of Mr. Ali without a

warrant. Mr. Ali alleges that the Defendants, including Defendant Redden, did so in order to

inflict emotional distress and scare him in retaliation for his intention to file a discrimination

lawsuit against Defendants Tanner and the Raleigh County Sheriff’s Department. The Plaintiff

further alleges that the Defendants falsely arrested and accused him, hid evidence from him, and

forced him to face trial twice, at the risk of facing several years in prison for crimes the Defendants

knew he did not commit. When viewing these allegations in the light most favorable to the

Plaintiff, the Court finds that he has stated conduct which can reasonably be viewed as outrageous

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and sufficient to survive the motion to dismiss. The motion to dismiss as to Count XI should be

denied.

CONCLUSION

WHEREFORE, after careful consideration, the Court ORDERS that the Defendant Jason

Redden in his Capacity as a Parole Officer with the West Virginia Division of Correction’s Motion

to Dismiss the Plaintiff's Complaint (Document 5) bb GRANTED IN PART and DENIED IN

PART. Specifically, the Court ORDERS that all of the Plaintiff's claims against Defendant

Jason Redden in his official capacity as a parole officer for the West Virginia Division of

Corrections be DISMISSED. The Court further ORDERS that the motion be GRANTED as to

Count X, and that this count be DISMISSED against Defendant Jason Redden in his individual

capacity. Otherwise, the Court ORDERS that the motion be DENIED.

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

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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