# Gaylord v. City of Beckley, West Virginia

> District Court, S.D. West Virginia · July 25, 2018

URL: https://www.frixlaw.com/law-library/cases/10727820

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** July 25, 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/10727820

## How later opinions describe it (automated extraction)

- finding that although negligent hiring, training and supervision claims against state agencies involve discretionary functions for immunity purposes, no such limitations apply to claims against political subdivisions

## Opinion text

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

BECKLEY DIVISION

RAYMOND JOSEPH GAYLORD, JR.,

Plaintiff,

v. CIVIL ACTION NO. 5:18-cv-00177

CITY OF BECKLEY, WEST VIRGINIA,
and DEAN R. BAILEY,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendants’ Motion to Dismiss Plaintiff’s Complaint
(Document 7), the Defendants’ Memorandum of Law in Support of Their Motion to Dismiss
Plaintiff’s Complaint (Document 8), and the Plaintiff’s Response to Defendants’ Motion to Dismiss
Complaint (Document 10). In addition, the Court has reviewed the Plaintiff’s Complaint
(Document 1). For the reasons stated herein, the Court finds that the motion should be granted
in part and denied in part.
FACTUAL ALLEGATIONS
The Plaintiff, Raymond Joseph Gaylord, Jr., initiated this action with a complaint filed on
January 30, 2018. He named as Defendants the City of Beckley, West Virginia, and Officer Dean
R. Bailey.
Mr. Gaylord was employed as a contracted special investigator for the federal Office of
Personnel Management during the relevant time period. Although his primary residence was in
North Carolina, he rented a temporary residence in Beckley, West Virginia, for his work. The
lease agreement provided that the landlord would pay for utilities. On or about October 14, 2016,
the utilities were cut off, and Mr. Gaylord contacted the landlord. The landlord became
belligerent and threatened to call the police. Mr. Gaylord then discovered that the landlord did
not own the property.

The same day, Officer Bailey of the Beckley Police Department responded to a call about
the issue, describing a verbal disturbance. Officer Bailey explained the procedure for seeking an
eviction to the landlord, then proceeded to Mr. Gaylord’s residence. Mr. Gaylord was standing
in his doorway speaking to another officer when Officer Bailey arrived. He spoke to Officer
Bailey through the screen door, but declined to exit his home when requested. Officer Bailey
then “busted through the screen door and attacked Mr. Gaylord.” (Compl. at ¶ 10.) Mr. Gaylord
suffered “a severe laceration to the head.” (Id.) Officer Bailey charged Mr. Gaylord with
obstruction, which led to the termination of Mr. Gaylord’s employment contract, although the
charge was later dismissed.

Mr. Gaylord asserts that Officer Bailey is liable under 42 U.S.C. § 1983 for excessive force,
unlawful seizure of a person, and unlawful entry of home. He asserts a § 1983 claim against the
City of Beckley Police Department for “engag[ing] in a pattern, practice or custom of using
obstruction as a charge when no facts support it,” to “provid[e] a pretextual reason for using
excessive force and…to arrest without any criminal activity.” (Id. at ¶ 23-24.) Finally, Mr.
Gaylord asserts state law claims of assault and battery and negligence against Officer Bailey, and
state law claims of negligent hiring, retention, supervision, and general negligence against the City
of Beckley.

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STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions
devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

557) (internal quotation marks omitted).
The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson 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. Iqbal, 556 U.S. at 679. 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).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
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, 588
F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “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 Defendants argue that the complaint does not sufficiently detail the “specific force
used by Defendant Bailey, how the Plaintiff sustained a laceration to his head, or how Defendant’s
conduct was objectively unreasonable.” (Def.s’ Mem. at 6.) The Defendants next assert that the
Plaintiff’s unlawful seizure and unlawful entry claims are barred by a one-year statute of

limitations. The Defendants argue that the § 1983 claim against the City of Beckley does not
adequately allege an official policy to charge people with obstruction in order to conceal police
misconduct. Next, the Defendants contend that the state law claims contain only bare legal
conclusions without adequate factual allegations. If the Court finds the state law claims sufficient,
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Defendant Bailey asserts that he is immune from liability for such claims because he was acting
within the scope of his employment and not with malicious purpose, in bad faith, or in a wanton
or reckless manner. Finally, the Defendants seek dismissal of any claim for punitive damages.
In response, Mr. Gaylord stresses that Officer Bailey was responding to a civil matter when
he became aggressive and attacked and injured Mr. Gaylord. He argues that the factual

allegations, in combination with reasonable inferences, are sufficient to state a plausible excessive
force claim. Mr. Gaylord further contends that a two-year statute of limitations is applicable to
§1983 claims in West Virginia. He argues that his allegations against the City of Beckley are
sufficient to state a §1983 claim that the Beckley Police Department has a policy, established by
training or general practice, of charging obstruction without probable cause. Mr. Gaylord next
argues that his complaint contains sufficient factual allegations to support his state law causes of
action against both Defendant Bailey and the City of Beckley. Finally, Mr. Gaylord argues that
Defendant Bailey is not entitled to immunity for the state law claims because his conduct was
malicious, in bad faith, and/or wanton or reckless. He further contends that punitive damages for

the state law claims are available against Defendant Bailey, although he concedes that punitive
damages are unavailable against the City of Beckley.
A. Excessive Force
The Fourth Amendment provides a right to be free from unreasonable seizures, including
the use of excessive force. Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). Although
Officer Bailey’s motion to dismiss is based on the pleading standard, rather than a defense of
qualified immunity, case law evaluated qualified immunity in excessive force cases is helpful in
evaluating the “unreasonableness” element of an excessive force claim. The Fourth Circuit has

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held that courts should “assess the objective reasonableness of force…in full context, with an eye
toward the proportionality of the force in light of all the circumstances.” Rowland v. Perry, 41
F.3d 167, 173 (4th Cir. 1994). Factors to consider in excessive force cases include “the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham

v. Connor, 490 U.S. 386, 396 (1989).
Here, Mr. Gaylord has alleged that Officer Bailey came to his residence in response to a
civil landlord tenant dispute. As such, there was no evidence of any crime. When Mr. Gaylord
declined to step outside to speak to Officer Bailey—also not a criminal act—Officer Bailey broke
through his screen door, attacked him, and placed him under arrest. The complaint does not
contain details of the “attack,” but does allege that he suffered a severe laceration to his head due
to Officer Bailey’s actions. It can reasonably be inferred that an attack that caused a severe
laceration involved the use of force. Given that Mr. Gaylord had committed no crime, posed no
threat, and was not resisting or fleeing, the Court finds that his allegations are sufficient to state a

§ 1983 claim for excessive force. Thus, the Defendants’ motion to dismiss should be denied as
to Count I.
B. Unlawful Seizure and Unlawful Entry – Statute of Limitations
The Defendants move to dismiss the unlawful seizure and unlawful entry claims, brought
pursuant to 42 U.S.C. § 1983, based on the statute of limitations applicable to analogous claims
under state law. However, the United States Supreme Court has “expressly rejected the practice
of drawing narrow analogies between § 1983 claims and state causes of action.” Owens v. Okure,
488 U.S. 235, 248 (1989) (citing Wilson v. Garcia, 471 U.S. 261, 272 (1985)). Instead, the

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Supreme Court held, “where state law provides multiple statutes of limitations for personal injury
actions, courts considering § 1983 claims should borrow the general or residual statute for personal
injury actions.” Id. at 249-50. In short, the statute of limitations in § 1983 cases “is that which
the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384, 387 (2007). As
both this Court and the West Virginia Supreme Court have recognized, West Virginia’s two-year

general personal injury statute of limitations is applicable to §1983 actions. See W. Va. Code §
55-2-12(b); Rodgers v. Corp. of Harpers Ferry, 371 S.E.2d 358, 362 (W.Va. 1988), abrogated on
other grounds by Courtney v. Courtney, 437 S.E.2d 436 (W.Va. 1993); Ali v. Raleigh Cty., No.
5:17-CV-03386, 2018 WL 1582722, at *9 (S.D.W. Va. Mar. 29, 2018); Morales v. Robinson, No.
CIV A 205-0509, 2007 WL 1074836, at *4 (S.D.W. Va. Apr. 6, 2007) (Copenhaver, J.); Bell ex
rel. Bell v. Bd. of Educ. of Cty. of Fayette, 290 F. Supp. 2d 701, 709–10 (S.D.W. Va. 2003) (Haden,
J.). Because there is no dispute that Mr. Gaylord filed his complaint within two years of the
incident, the Court finds that the Defendants’ motion to dismiss should be denied as to Counts II
and III.

C. Section 1983 Claims Against the City of Beckley
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
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lawmakers or by those whose edicts or acts may fairly be said to represent official policy” that
causes the injury. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).
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 Defendants move to dismiss Count IV for failure to state a claim under the applicable
pleading standard. The Plaintiff alleges that the City of Beckley has a pattern, practice, or custom
of charging defendants with obstruction without supporting facts, particularly where officers have
used excessive force. He further alleges that the Beckley Police Department does not adequately
train, supervise, or discipline officers regarding probable cause, lawful detention, and proper use
of an obstruction charge. He asserts that his own arrest exemplifies officers’ practice of using an

obstruction charge to conceal their own misconduct, as well as the lack of appropriate training and
oversight. The Court finds that the Plaintiff’s complaint plausibly alleges sufficient facts to state
a § 1983 claim against the City of Beckley at this stage. Accordingly, the Defendants’ motion to
dismiss Count IV should be denied.
D. State Law Claims
The Defendants again assert that the Plaintiff has not met the applicable pleading standard
with respect to his state law claims. The Plaintiff included claims of assault and battery and
negligence against Defendant Bailey, and of negligent hiring, negligent retention, negligent

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supervision, and negligence against the City of Beckley. The complaint does not detail additional
facts or legal theories in support of those claims, instead relying on the factual allegations set forth
elsewhere in the complaint.
Assault occurs when an actor “acts intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent apprehension of such a contact, and the

other is thereby put in such imminent apprehension.” Hutchinson v. W. Virginia State Police, 731
F. Supp. 2d 521, 547 (S.D.W. Va. 2010), aff'd sub nom. Hutchinson v. Lemmon, 436 F. App'x 210
(4th Cir. 2011) (Chambers, J.) (quoting Restatement (Second) of Torts § 21 (1965)) (internal
quotation marks and punctuation omitted). Battery is similarly defined, but requires that the acts
directly or indirectly result in offensive contact. Id. “[A] claim for assault and battery made
against an officer who detains an individual in the course of a warrant-based search is judged
according to Fourth Amendment standards.” Id. Here, the Court has found that the Plaintiff
stated a claim for excessive force under § 1983 and the Fourth Amendment. The factual
allegations that supported that claim also support a claim for assault and battery: Officer Bailey

put Mr. Gaylord in imminent apprehension of harmful or offensive contact by attacking him, and,
as revealed by Mr. Gaylord’s injuries, directly or indirectly caused such harmful or offensive
contact. Accordingly, the motion to dismiss should be denied as to the state law assault and
battery claims against Officer Bailey.
However, the Plaintiff has not alleged facts that would support a negligence claim against
Officer Bailey. Thus, the state law negligence claim against Officer Bailey should be dismissed.
The West Virginia Supreme Court has applied the following test for claims of negligent
hiring or retention:

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[W]hen the employee was hired or retained, did the employer
conduct a reasonable investigation into the employee's background
vis a vis the job for which the employee was hired and the possible
risk of harm or injury to co-workers or third parties that could result
from the conduct of an unfit employee? Should the employer have
reasonably foreseen the risk caused by hiring or retaining an unfit
person?

McCormick v. W. Virginia Dep't of Pub. Safety, 503 S.E.2d 502, 506 (W.Va. 1998). The
Plaintiff’s complaint contains no facts related to the Beckley Police Department’s hiring practices
or the hiring or retention process involving Officer Bailey. Accordingly, the motion to dismiss
should be granted as to the claims for negligent hiring and retention.
Under West Virginia law, to state a claim for negligent supervision or training, a Plaintiff
must show that “[a municipal defendant] failed to properly supervise [an employee officer] and,
as a result, [the employee officer] proximately caused injury to the [plaintiff].” Woods v. Town
of Danville, W. V., 712 F.Supp.2d 502, 515 (S.D. W. Va. 2010) (Goodwin, C.J.) (citing Taylor v.
Cabell Huntington Hosp., Inc., 538 S.E.2d 718 (W. Va. 2000); see also W. Virginia Reg'l Jail &
Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 773 (W. Va. 2014) (finding that although negligent
hiring, training and supervision claims against state agencies involve discretionary functions for
immunity purposes, no such limitations apply to claims against political subdivisions). In Taylor,
the West Virginia Supreme Court “treat[ed] negligent supervision like other claims based in
negligence.” Woods at 515. Although the Plaintiff’s complaint does not contain extensive detail
about the Beckley Police Department’s training and supervision programs, it does allege that
officers routinely charge people with obstruction without probable cause, particularly when the
officers engaged in other misconduct. The complaint also alleges that the Beckley Police
Department failed to adequately train officers regarding probable cause and appropriate use of the
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obstruction charge. Accordingly, the Court finds that the Plaintiff has adequately alleged facts
supporting a claim of negligent supervision against the City of Beckley.
Finally, the Plaintiff alleges a state negligence claim against the City of Beckley, without
further explanation. The basis for that claim is not clear to the Court, making it difficult to analyze
whether there is factual support for some negligence claim apart from negligent supervision.

Accordingly, the Court finds that the Defendants’ motion to dismiss the negligence claim against
the City of Beckley should be granted.
E. Defendant Bailey’s Immunity Claim
West Virginia Code § 29-12A-5 provides that
An employee of a political subdivision is immune from liability
unless one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope
of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision
of this code.
(c) The immunity conferred upon an employee by subsection (b) of
this section does not affect or limit any liability of a political
subdivision for an act or omission of the employee.

The Plaintiff has alleged that Officer Bailey attacked him when he declined to leave his residence
to speak with him on a civil matter. His allegations suggest that there was no basis to suspect him
of any crime. Thus, the complaint supports a conclusion that Officer Bailey was acting with
malicious purpose, in bad faith, or in a wanton and reckless manner. Therefore, the Court finds
that immunity is not applicable at this stage.
F. Punitive Damages
West Virginia Code Section 29-12A-7 provides, in relevant part, that

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in an action against a political subdivision or its employee to recover
damages for injury, death, or loss to persons or property caused by
an act or omission of such political subdivision or employee:
(a)... an award of punitive or exemplary damages against such
political subdivision is prohibited.
The statutory text bars punitive damages only “against such political subdivision,” and the Plaintiff
concedes that punitive damages are unavailable against the City of Beckley. Therefore, the
motion to dismiss the Plaintiff's punitive damages claim against Officer Bailey in his individual
capacity should be denied.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Defendants’ Motion to Dismiss Plaintiff's Complaint (Document 7) bb GRANTED as to the Count
V state law general negligence claim against both Defendants and as to the negligent hiring and
retention claim against the City of Beckley. The Court ORDERS that the Motion be DENIED
as to Counts I, II, II, lV, and the remaining claims in Count V.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER: July 25, 2018

UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF WEST VIRGINIA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10727820. Public record. Not legal advice.