The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAN BROWN,
Plaintiff,
v. Civil Action No. 2:15-cv-11549
ROBERT BELT, Deputy Sheriff, et al.,
Defendants.
ORDER
Pending before the court is the plaintiff’s motion for
leave to amend the complaint, filed on September 15, 2016.1
Plaintiff included a proposed amended complaint. The defendants
responded with objections. This order is directed to the motion
and the proposed amended complaint.
Amendment of a complaint after a responsive pleading
has been filed is permitted by leave of court, which will be
given freely “when justice so requires.” Fed. R. Civ. P. 15(a).
Authority supports the court’s imposition of conditions on its
leave to amend under Rule 15(a) “as an appropriate means of
balancing the interests of the party seeking the amendment and
those of the party objecting to it.” 6 Wright & Miller, Federal
1 The court ruled on the other requests in the motion in its order entered on
October 13, 2017.
Practice and Procedure § 1486 (3d ed.), Westlaw. Accordingly,
the court chooses to grant leave to amend and to allow some,
albeit not all, of the claims in the proposed amended complaint
to stand.
On October 13, 2017, the court granted in part and
denied in part the defendants’ motion to dismiss the original
complaint. Insofar as the allegations in the proposed amended
complaint are identical, or closely related, to those in the
original complaint, the court is guided by its reasoning in that
earlier memorandum opinion and order.
In particular, the claim of negligent hiring, referred
to in the heading of the fourth cause of action on p. 13 of the
proposed amended complaint, has not been pled, and is therefore
stricken. Additionally, the sixth cause of action for wrongful
arrest on July 26, 2013 is time-barred because of a one-year
statute of limitations on such a claim under W. Va. Code § 55-2-
12(c), and therefore stricken.
Having disposed of this preliminary matter on the
basis of the earlier analysis, the court proceeds to consider
the defendants’ objections to the remainder of the proposed
amendments.
Defendants argue that counts 7, 8, 10, 12, 13, and 15
are completely unrelated to the claims in the original complaint
and do not meet the requirements of permissive joinder under
Rule 20 of the Federal Rules of Civil Procedure. The rule
states:
(2) Defendants. Persons--as well as a vessel,
cargo, or other property subject to admiralty
process in rem--may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20.
The court agrees with the defendants that in those counts, joint
and several liability is not asserted. However, the face of the
amended complaint shows that the counts arise out of the same
series of transactions or occurrences, satisfying the second
prong of the disjunctive provision in Rule 20(2)(A). In broad
terms, plaintiff alleges a pattern of discriminatory and
retaliatory conduct against him by law enforcement agents in
Clay County, West Virginia, and identified members of the West
Virginia State Police, arising in part out of his alleged
disabilities, and in part motivated by his litigation against
some of the actors implicated. Defendants do not argue that the
requirement of Rule 20(2)(B) is not met, nor would such an
argument have merit. Accordingly, the court allows the
amendment as to the wrongful arrest claim against State Trooper
Steven Demaske (count 7), wrongful arrest claims against Trooper
Tyler McFeeley (counts 8 and 10), Section 1983 retaliation
claims (counts 12 and 13), and the wrongful arrest claim against
multiple defendants (count 15).
Defendants object to allowing counts 9 and 14 inasmuch
as they relate to a July 5, 2016 arrest of the plaintiff for
driving under the influence, for which the defendants argue
there was probable cause. Defendants further raise the
qualified immunity defense. However, the court does not see fit
to consider or rule on these defenses at this procedural
juncture, without the benefit of full briefing of the matter.
Moreover, count 9 alleges being placed in a dark room with a red
light for four hours, an allegation that is arguably not covered
by the probable cause for arrest, and count 14 is presented as a
retaliatory Section 1983 claim. Therefore, the counts are
allowed to stand.
The court similarly overrules the objection that no
constitutional violation is alleged in count 14 inasmuch as the
allegedly retaliatory action suffices for pleading purposes.
“Conduct that retaliates against the exercise of a
constitutionally protected right is actionable, even if the
conduct would have been proper if motivated by a different
reason.” Gunter v. Morrison, 497 F.3d 868, 873 (8th Cir. 2007)
(internal citation omitted).
Defendants object to count 11, for failure to
investigate an alleged robbery of a building2 and theft and to
file a police report. Plaintiff alleges that on February 20,
2015, he was the victim of a break-in and robbery and that
Deputy Robert Belt refused to investigate it and failed to
produce a police report. Am. Compl. ¶¶ 107-11. Plaintiff says
that more than $40,000 worth of tools were stolen. Id. at ¶
108. As a result, plaintiff encountered numerous problems with
his insurance company. Id. at ¶ 112-14. Inasmuch as the
plaintiff labels this claim “retaliatory” under Section 1983,
the claim is allowed at this stage in the spirit of favoring the
right to amend.
Finally, the court dismisses from the amended
complaint Magistrate Jeffrey Boggs. “When acting in his
judicial capacity a judge is immune from civil liability for any
and all official acts.” Pritchard v. Crouser, 332 S.E.2d 611,
614 (W. Va. 1985) (internal citations omitted).
This order under Rule 15, guided by the principle of
liberally allowing amendments, is in no way prejudicial against
any possible future action the court may take, by Fed. R. Civ.
2 Maybe burglary was meant.
P. 12 or otherwise, with regard to any of the claims in the
amended complaint that are allowed herein.
In sum, it is ORDERED as follows:
1. The motion for leave to amend be, and it hereby is,
granted except as set forth below.
2. The proposed amended complaint is accepted as filed
with the following exceptions:
a. Magistrate Jeffrey Boggs is dismissed from this
action.
b. The claim of negligent hiring in count 4 is
dismissed.
ec. Count 6 for wrongful arrest is dismissed.
3. The Clerk shall file the amended complaint attached
to the motion as of this date.
4. The plaintiff shall serve process on the defendants
on or before April 20, 2018.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: March 30, 2018
LO ph TD =p —D
John T. Copenhaver, Jr.
United States District Judge