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 Defendants West Virginia State Police and Corporal Kenneth

Pack’s Motion to Dismiss (Document 38) and Memorandum in Support (Document 39), the

Plaintiff’s Response in Opposition (Document 43), and the Defendants’ Reply (Document 45).

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.

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

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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, rendering those claims irrelevant to these Defendants and their motion to dismiss.

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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).

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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 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 West Virginia State Police and Corporal Kenneth Pack move for dismissal of the

Plaintiff’s amended complaint on several grounds.

A. Sovereign Immunity

The WVSP and Defendant Pack first argue that all the Plaintiff’s claims against the WVSP

specifically and Defendant Pack in his official capacity as an officer with the WVSP should be

dismissed based on the doctrine of sovereign immunity. The Defendants argue because the

WVSP is an agency of the State of West Virginia, any suit against it or against Defendant Pack in

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his official capacity are suits against the state, and such suits are prohibited by the doctrine of

sovereign immunity pursuant to Will v. Michigan Department of State Police, 491 U.S. 58 (1989).

The Plaintiff concedes in his response in opposition that his Section 1983 claims against

the West Virginia State Police and Defendant Pack in his official capacity as a state police officer

are subject to dismissal on sovereign immunity grounds. He contends, however, that his state

claims against the Defendants that fall outside of the purview of Section 1983 are not barred by

sovereign immunity. According to Mr. Ali, the United States Supreme Court’s opinion in Will

only bars Section 1983 suits, but all other claims not brought pursuant to Section 1983 may

continue so long as he has pled sufficient facts to state a claim for which relief may be granted, a

standard he argues he has satisfied. Mr. Ali further argues that Will does not apply to Defendant

Pack in this instance. Although employed by the West Virginia State Police, Mr. Ali argues

Defendant Pack was working as a member of the Beckley/Raleigh County Drug and Violent Crime

Unit, rendering whatever sovereign immunity might normally apply to the West Virginia State

Police inapplicable here pursuant to West Virginia Code § 15-10-4(b). Thus, the Plaintiff argues

that Defendant Pack is not entitled to sovereign immunity under Will.

The Court finds that sovereign immunity is applicable to the Plaintiff’s claims against the

West Virginia State Police and Defendant Pack in his official capacity as a state trooper. As the

Plaintiff has conceded, his Section 1983 claims against the WVSP and Defendant Pack in his

official capacity are barred under sovereign immunity, and they must therefore be dismissed. The

Court further finds, however, that any remaining counts against the WVSP and Defendant Pack in

his official capacity must also be dismissed. “The Eleventh Amendment traditionally ‘bars

citizens from bringing suits in federal court against their own states.’” Hupp v. Cook, 2:17-CV-

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00926, 2017 WL 3392780, at *3 (S.D.W. Va. Aug. 7, 2017) (Johnston, C.J.) (quoting Bragg v.

W.Va. Coal Ass’n., 248 F.3d 275. 291 (4th Cir. 2001)). This bar extends to “state officials sued

in their official capacities for retrospective money damages,” as they are considered arms of the

state. Id.; see also, Will, 491 U.S. at 70-71. “Where, as here, ‘a State’s federal-court

participation is involuntary’ . . . the State retains the full protection of the Eleventh Amendment.”

Hupp, 2017 WL 3392780 at *3. Thus, because the Plaintiff brought this action in federal court,

and because the Defendants have not waived their Eleventh Amendment right to sovereign

immunity, sovereign immunity is applicable here as to the West Virginia State Police and

Defendant Pack in his official capacity as an officer of the West Virginia State Police.

Moreover, the Plaintiff’s argument that Defendant Pack is not entitled to sovereign

immunity in his official capacity as a state trooper pursuant to West Virginia Code § 15-10-4(b) is

without merit. According to West Virginia law,

[w]hile temporarily assigned to work with another law-enforcement

agency or agencies, criminal justice enforcement personnel and

other state and local law-enforcement officers shall have the same

jurisdiction, powers, privileges and immunities, including those

relating to the defense of civil actions, as such criminal justice

enforcement personnel would enjoy if actually employed by the

agency to which they are assigned, in addition to any

corresponding or varying jurisdiction, powers, privileges and

immunities conferred by virtue of their continued employment

with the assisting agency.

W. Va. Code § 15-10-4(b) (emphasis added). Mr. Ali relies on this statutory language providing

that the assisting officer with a temporary assignment “shall have the same jurisdiction, powers,

privileges and immunities as . . . the agency to which they are assigned” in arguing that Defendant

Pack as an officer with the West Virginia State Police assigned to the Drug and Violent Crime

Unit is not part of the state agency when acting as a member of the Drug and Violent Crime Unit.

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The Plaintiff ignores the end of the statutory language, however, which states that the

officer assigned to the cooperating unit has the same privileges and immunities as the unit to which

he is assigned “in addition to any corresponding or varying . . . privileges and immunities

conferred by virtue of [his] continued employment with the assisting agency.” Id. (emphasis

added). Here, because the officer in question is a trooper with the WVSP, the assisting agency

would be the WVSP, and the assisting officer assigned to the DVCU would retain the same

immunity he has as an officer with the WVSP. In other words, the WVSP does not lose its

immunity from Section 1983 suits as a state agency simply because one of its troopers works in

conjunction with another law enforcement agency, and neither does Defendant Pack as an officer

of the WVSP.

In sum, the Court finds that all the Plaintiff’s claims against the West Virginia State Police

and Defendant Pack in his official capacity as a state trooper should be dismissed.

B. Qualified Immunity

Defendant Pack also argues that he is entitled to qualified immunity from the Plaintiff’s

claims. He asserts a general qualified immunity to all the Plaintiff’s claims and a qualified

immunity from the Plaintiff’s negligence claims in particular. Defendant Pack first asserts that

qualified immunity bars the Plaintiff’s claims in Counts VI and X wherein the Plaintiff alleges

negligent acts on Defendant Pack’s behalf. Relying on Clark v. Dunn, 465 S.E.2d 374 (W.Va.

1995), he argues that West Virginia law bars negligence claims against a state agency not within

the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act. Because

the West Virginia State Police is not subject to this act, Defendant Pack argues that the negligence

claims against him are barred by qualified immunity. Defendant Pack further argues that all the

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remaining claims against him are barred by his qualified immunity because, in all the facts alleged

against him, he was attempting in good faith to carry out discretionary duties as an officer of the

West Virginia State Police. He asserts that the Plaintiff’s claims turn on his subjective intent and

are thus barred under the qualified immunity standard.

The Plaintiff counters that Defendant Pack is not entitled to qualified immunity. With

respect to the negligence claims specifically, Mr. Ali argues that he has sufficiently pled that

Defendant Pack’s acts, along with the acts of the other Defendants, were malicious in nature.

Thus, Mr. Ali contends that Clark v. Dunn does not apply, and Defendant Pack is not shielded

from his negligence claims. Mr. Ali further counters that qualified immunity does not shield

Defendant Pack from the remainder of the claims because he has sufficiently pled that Defendant

Pack did not act in good faith. He claims that he has asserted “numerous violations of his rights,

including . . . equal protection, freedom from discrimination and warrantless and false arrest,” and

that the facts he alleges establish a plausible claim that Defendant Pack, in working with the other

Defendants, did not act in good faith. (Pl.’s Resp. in Opp., at 12.)

“Qualified immunity is ‘a different kind of limited immunity to the State and its law

enforcement officer for discretionary acts negligently committed within the scope of his

employment.’” Hupp, 2017 WL 3392780 at *4. According to the West Virginia Supreme

Court of Appeals,

[i]n the absence of an insurance contract waiving the defense, the

doctrine of qualified or official immunity bars a claim of mere

negligence against a state agency not within the purview of the west

Virginia Governmental Tort Claims and Insurance Reform Act,

W.Va. Code § 29-12A-1, et seq., and against an officer of that

department acting within the scope of his or her employment, with

respect to the discretionary judgments, decisions, and actions of the

officer.

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Syl. Pt. 6, Clark, 465 S.E.2d at 374; Syl. Pt. 7, Jarvis v. W. Virginia State Police, 711 S.E.2d 542,

544 (W.Va. 2010). Because the West Virginia State Police is not a political subdivision, but a

state agency and thus an arm of the State of West Virginia, “the State Police is not subject to the

West Virginia Governmental Tort Claims and Insurance Reform Act [].” Hupp, 2017 WL

3392780 at *5. Because Defendant Pack as a State Police officer is not subject to the West

Virginia Governmental Tort Claims and Insurance Reform Act, and because the Plaintiff’s claims

against him in Counts VI and X allege mere negligence, qualified immunity bars those claims and

they must be dismissed. See Sweat v. W. Virginia, No. CV 3:16-5252, 2016 WL 7422678, at *8

(S.D.W. Va. Dec. 22, 2016) (Chambers, J.) (“The doctrine of [of qualified immunity] protects all

government officials who exercise their discretion in fulfilling their duties . . . Negligence simply

is not sufficient for liability to be imposed under this standard.”) (emphasis in original).

As for the remaining counts not alleging negligence, the doctrine of qualified immunity

holds that “[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, 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–

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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.

Accepting the allegations as true and drawing all reasonable inferences in the Plaintiff’s

favor, the Court finds that Defendant Pack has not shown that he is entitled to qualified immunity

on the remaining non-negligence claims. The Plaintiff asserts that Defendant Pack, in concert

with the other individual Defendants, 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. He alleges that the Defendants sought to maliciously arrest and

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

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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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, and

admits that his cousin was on parole and being monitored by an ankle bracelet. At some point

during the interaction, the Plaintiff claims the Defendants informed him they were looking for his

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

However, Mr. Ali also alleges that the Defendant knowingly worked in conjunction with

Defendant Redden to purposefully delay arresting the Plaintiff’s cousin until he was with the

Plaintiff, and that it was this delay that allowed the Defendants to ascertain the improper probable

cause to initiate the traffic stop of the Plaintiff. In other words, the Plaintiff alleges that

Defendant Pack and the other Defendants worked with Defendant Redden as a parole officer to

stop the Plaintiff when they knew they had no other legitimate reasonable suspicion or probable

cause to stop and eventually arrest him. Mr. Ali further implies that the Defendants potentially

planted evidence in his car during the search and continued to take part in the conspiracy by

coordinating their testimony and assisting in the other Defendants’ failure to turn over exculpatory

evidence.

Accepting those 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 before making an arrest is a clearly established right. While

Defendant Pack may have had sufficient probable cause to arrest the Plaintiff’s cousin, that

probable cause did not extend to the Plaintiff without the scheme that the Plaintiff alleges here.

Further, Mr. Ali alleges that Defendant Pack continued to be involved in the alleged improper

investigation and prosecution after the arrest. Conspiring together to initiate this scheme against

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the Plaintiff in a malicious and retaliatory manner violates clearly established constitutional rights,

and the Defendants’ qualified immunity defense should be denied as to the remaining non-

negligence claims.

C. Heightened Pleading Standard

Defendant Pack argues that any remaining civil rights claims against him should be

dismissed because the Plaintiff has failed to satisfy the heightened pleading standard in civil rights

cases. According to Defendant Pack, the plaintiff must “allege the specific conduct violating the

plaintiff’s right, the time and place of that conduct, and the identity of the responsible officials.”

(Defs.’ Mem. in Supp., at 7.) He asserts that the Plaintiff has failed to satisfy that standard here,

because the Amended Complaint only refers to actions taken generally by a group of “Defendants.”

Defendant Pack argues that the Plaintiff’s complaint fails to identify precisely who removed

Plaintiff from his vehicle, handcuffed him, asked him to sign a consent to the search warrant, and

several other actions that Defendant Pack argues are necessary for the Plaintiff to specify in detail

to allow his civil rights claims to survive the motion to dismiss stage. Because the Plaintiff has

failed to plead the appropriate facts, Defendant Pack argues that all the civil rights claims should

be dismissed.

The Plaintiff counters that he has not failed to adequately plead his civil rights claims.

Mr. Ali contends that he only needs to allege facts supporting a plausible claim under the holdings

established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.

662 (2009). He argues that he has done so here, asserting that his complaint does allege specific

allegations that Defendant Pack was involved in his arrest and the search of his car. He further

claims that his complaint contains allegations that Defendant Pack provided contradictory

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testimony during his criminal trials. Thus, Mr. Ali argues that he has satisfied any and all

pleading standards imposed on his civil rights claims, and they should not be dismissed.

As previously stated, 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.) Further, “[i]n civil rights cases against government officials, the ‘complaint can

survive a motion to dismiss only if it . . . alleges the specific conduct violating the plaintiff’s right,

the time and place of that conduct, and the identity of the responsible officials.’” Souk v. City of

Mount Hope, No. 2:14-CV-26442, 2015 WL 5698509, at *2 (S.D.W. Va. Sept. 28, 2015) (Johnson,

C.J.) (quoting Preast v. McGill, 65 F.Supp.2d 395, 403 (S.D.W. Va. 1999)). Mr. Ali has alleged

that on the morning of June 23, 2015, Defendant Pack specifically worked in concert with the other

named Defendants to create a false probable cause against him in order to arrest him and charge

him with drug crimes. He further alleges in his amended complaint that Defendant Pack worked

with the other named Defendants to provide false testimony throughout the legal proceedings

against him. These allegations set forth specific conduct that violated the Plaintiff’s

constitutional rights, the time and place of that conduct, and the identity of the responsible parties.

Thus, the Plaintiff has properly pled his civil rights claims against Defendant Pack, and his civil

rights claims should not be dismissed for failure to state a claim given the appropriate pleading

standard.

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D. 42 U.S.C. § 1981 Claims

Defendant Pack next seeks dismissal of the Plaintiff’s claims in Count III brought pursuant

to 42 U.S.C. § 1981. Mr. Pack argues that the Plaintiff has failed to state any facts indicating that

he had any racial animus toward the Plaintiff or took any personally discriminatory action.

Moreover, Defendant Pack argues 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, because Section 1981 does not provide for a remedy against

state actors. Defendant Pack bases this 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. Defendant Pack

argues that this holding was adopted by the Fourth Circuit in Dennis v. County of Fairfax, 55 F.3d

151, 156 (4th Cir. 1995), and that the Plaintiff’s claim for relief under Section 1981 should

therefore be dismissed.

The Plaintiff disagrees. He first counters that Dennis does not apply to Defendant Pack

because he was working with the Beckley/Raleigh County Drug and Violent Crime Unit and was

thus not a state actor. Moreover, Mr. Ali contends that the holding in Jett is inappropriate based

on the 1991 amendments to the Civil Rights Act. He asks this Court to disregard both the holding

in Jett and the Fourth Circuit’s affirmation of it in Dennis and to find that the Plaintiff can plead a

claim for discrimination under Section 1981 against state actors in their individual capacities.

Insofar as the Court has already addressed the Plaintiff’s arguments regarding Defendant

Pack’s work with the Drug and Violent Crime Unit and how that work affects Defendant Pack’s

immunity, the Court need not address that issue again here and finds that it does not undermine

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Defendant Pack’s status as a state actor. Regarding the Section 1981 argument specifically, 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 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.

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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

therefore be dismissed.

E. Warrantless Arrest Pursuant to False Tip in Violation of 42 U.S.C. § 1983

Defendant Pack seeks dismissal of the Plaintiff’s claims brought in Count IV alleging a

warrantless arrest pursuant to a false tip in violation of 42 U.S.C. § 1983. Defendant Pack argues

that Mr. Ali has failed to allege sufficient facts to satisfy the pleading standard of such a claim.

Defendant Pack argues that the Plaintiff has failed to allege that there was a false tip at all, and that

if there was, Defendant Pack did not receive it. Moreover, Defendant Pack argues that he had no

duty to second guess the police work of other officers, so that even if they were relying on a false

tip as alleged by the Plaintiff, he was entitled to rely on the information he received from them.

Because he was permitted to rely on the probable cause established by the drugs found in the car

to aid in the arrest of the Plaintiff, Defendant Pack argues that the warrantless arrest claim should

be dismissed as to him. The Plaintiff counters that he has alleged facts sufficient to sustain his

claim in Count IV.

The Court finds that the Plaintiff has sufficiently alleged facts to support a claim against

Defendant Pack in Count IV. To state a claim for warrantless arrest under Section 1983, the

Plaintiff must show that he was arrested without probable cause. Here, The Plaintiff has alleged

that Defendant Pack worked in concert with the other named Defendants to arrest him when no

warrant was obtained, and that Defendant Pack had knowledge of the alleged employment dispute

between the Plaintiff and the Raleigh County Sheriff’s Department. The Plaintiff has further

alleged that Defendant Pack worked in concert with the other named Defendants in arresting him

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with the knowledge that the alleged illegal activity was falsely made up by other named Defendants

in order to create probable cause. Accepting these allegations to be true, the Plaintiff has

satisfactorily alleged a claim of warrantless arrest against Defendant Pack and his motion to

dismiss Count IV should be denied.

F. Conspiracy to Interfere Pursuant to 42 U.S.C. § 1985(3)

Defendant Pack further seeks to dismiss the Plaintiff’s claim in Count V brought pursuant

to 42 U.S.C. § 1985(3). Defendant Pack argues that he acted as a member of the Drug Task

Force, one entity comprised of officers from several different agencies. Because this group acted

in concert in making the arrest of the Plaintiff, Defendant Pack argues that the intracorporate

conspiracy doctrine prevents the Plaintiff from bringing his Section 1985 conspiracy claim against

individual defendants who are a part of that task force, since one legal entity cannot be liable for a

conspiracy. Defendant Pack also argues that, even if the intracorporate conspiracy doctrine does

not apply, Mr. Ali has failed to plead sufficient facts to state a claim under Section 1985, and this

count must therefore be dismissed.

The Plaintiff first counters that the intracorporate conspiracy doctrine does not apply to

Defendant Pack. He asserts that he has named as defendants multiple, non-state entities as

opposed to one single entity, negating the doctrine. He further contends that he has sufficiently

plead the necessary facts for his Section 1985 claim to continue. He argues that he has alleged a

plan by the Defendants, including Defendant Pack, to wait until it was known Mr. Ali was with

his cousin in order to use the arrest of his cousin as a knowingly, false source of probable cause to

arrest Mr. Ali himself. Mr. Ali contends that he has appropriately alleged that the Defendants

were motivated by specific class-based, discriminatory animus against him in retaliation for

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challenging his termination and because of his intent to sue certain Defendants for racial

discrimination, thus putting forth a plausible claim for a conspiracy to violate his constitutional

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).

At the outset, the Court finds that the Plaintiff has sufficiently alleged facts to state a claim

for a conspiracy under Section 1985(3). First, the Plaintiff has stated sufficient allegations to

meet the conspiracy elements. He claims that Defendants Pack, Redden, Epling, and Snuffer met

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together to falsely create the probable cause necessary to arrest the Plaintiff and to coordinate

testimony in order 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 Plaintiff’s intent to sue Defendant Tanner and Raleigh County in a

discrimination lawsuit.

Further, the Court finds that the intracorporate conspiracy doctrine does not apply here,

and even if it did, the actions of Defendant Pack and his co-defendants as alleged in the complaint

would satisfy one of the doctrine’s exceptions. The intracorporate conspiracy doctrine “holds

that acts of corporate agents are attributed to the corporation itself, thereby negating the

multiplicity of actors necessary for the formation of a conspiracy.” Roberts v. Ballard, No. 2:15-

CV-15458, 2017 WL 896983, at *5 (S.D.W. Va. Mar. 7, 2017) (Johnston, C.J.) (citing Chavez v.

McIntyre, 424 F.Supp.2d 858, 861 (W.D. Va. 2006)). “The doctrine provides that an employer

‘cannot conspire with its employees, and its employees, when acting in the scope of their

employment, cannot conspire amongst themselves.’” Id. (citing McAndrew v. Lockheed Martin

Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)). Courts have applied this doctrine in the arena of

civil rights cases, and “the Fourth Circuit has consistently applied it in other contexts, including

actions brought under [Sections] 1983 and 1985.” Veney v. Ojeda, 321 F. Supp. 2d 733, 748

(E.D. Va. 2004).

“The Fourth Circuit has [also] recognized two exceptions to the general rule that agents of

a principal cannot conspire with one another or the principal itself.” Roberts, 2017 WL 896983,

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at *6. The first exception holds that the immunity found in the doctrine is not available if an

agent performs an unauthorized act in furtherance of a conspiracy. Id. (citing Buschi, 775 F.2d

at 1252-53.) The second exception applies to defendants who have “an independent personal

stake in achieving the corporation’s illegal objective.” Id. (quoting Greenville Pub. Co. v. Daily

Reflector, Inc., 496 F.2d 391, 399 (4th Cir. 1974). This second exception is satisfied where “the

agent [has] a personal interest in the illegal activity wholly separable and independent of his

relationship with the corporation,” and “stand[s] to benefit personally from the conspiracy’s

unlawful objective.” Roberts, 2017 WL 896983, at *6.

Here, Defendant Pack was an officer with the West Virginia State Police assigned to work

with other officers as part of the Drug and Violent Crime Unit. The other individual defendants

named as part of the conspiracy include a member of the Raleigh County Sheriff’s Department

and the Beckley Police Department, all members of the same unit but employed by different

agencies. The Plaintiff therefore does not allege that one agency’s employees conspired together

to interfere with his rights, but rather members of several different agencies working as one unit.

The Defendant’s reliance on Ziglar v. Abbasi in support of his position that this doctrine should

apply is specious at best. In Ziglar, the Supreme Court of the United States found that, while the

law surrounding the doctrine is unsettled, agents in several different agencies, all of which fell

under the purview of the Department of Justice, were entitled to immunity under the doctrine.

Ziglar v. Abbasi, 137 S.Ct. 1843, 1868 (2017). Here, however, the named Defendants were

employed by several different state or local government agencies and were all assigned by those

employers to work as a unit. That they worked as a unit did not undo their employment by

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separate agencies and thus the alleged acts do not constitute a conspiracy by several employees of

one corporate entity.

Moreover, even if the doctrine did apply here, Defendant Pack’s alleged actions were

unauthorized. According to the Plaintiff’s allegations, Defendant Pack knowingly met with other

law enforcement officers to put together a scheme creating probable cause, the Defendants knew

was false, in order to inappropriately arrest the Plaintiff and charge him with crimes, and further

that the Defendants worked in concert to plant evidence in his car. Accepting these allegations

as true, Defendant Pack’s conduct was not authorized. Thus, even if the Drug and Violent Crime

Unit could be considered one legal entity for the purposes of the intracorporate conspiracy

doctrine, the Defendant’s actions were not authorized and would fall into an exception of that

doctrine.

In sum, because the Plaintiff has sufficiently alleged facts to state a claim for a conspiracy

under Section 1985(3), and because the intracorporate conspiracy doctrine does not apply to

immunize Defendant Pack, the Defendant’s motion to dismiss the claim in Count V of the amended

complaint should be denied.

G. False Arrest and Improper Investigation Pursuant to 42 U.S.C. § 1983

Defendant Pack also seeks dismissal of Count VII of the Plaintiff’s complaint, arguing that

this claim is barred pursuant to a one-year statute of limitations. Here, the Plaintiff was arrested

on June 23, 2015, but did not bring this claim for false arrest until more than a year later. Thus,

according to Defendant Pack, his claim is time barred and must be dismissed. The Plaintiff

counters that, because he brings this claim pursuant to 42 U.S.C. § 1983, a two-year statute of

limitations applies and his claim in Count VII is not time barred.

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Section 1983 itself has no federally-provided statute of limitations. 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 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.). The Plaintiff filed suit

on June 23, 2017, within two years of the incident, and the Court therefore finds that Defendant

Pack’s motion to dismiss Count VII of the amended complaint should be denied.

H. Abuse of Process

Defendant Pack moves for dismissal of the Plaintiff’s claim for abuse of process in Count

VIII of the amended complaint. Defendant Pack argues that this claim is also barred by the one-

year statute of limitations for state law claims for abuse of process. The Plaintiff was arrested on

June 23, 2015, and the criminal complaint was filed against him the same day. These are the

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processes which the Plaintiff claims were abused by the Defendants, and he was required to file

his complaint within a year of these actions. Because he did not bring suit until June 2017,

Defendant Pack asserts the claim should be dismissed. The Plaintiff counters that the statute of

limitations did not begin to accrue until his acquittal on the criminal charges, which did not occur

until May 26, 2017. Thus, he contends he had a year from that date, not from June 23, 2015.

The Plaintiff’s claim for abuse of process is not barred by the statute of limitations. As

the Defendant correctly points out, the statute of limitations on an abuse of process claim in West

Virginia is one year, and that action must be brought within one year from the termination of the

acts which constitute the abuse complained of. Preiser, 352 S.E.2d at 29. Here, however, the

Plaintiff alleges that the Defendants not only committed an abuse of process when they wrongfully

arrested the Plaintiff, but continued to do so as they conspired to coordinate their testimonies and

failed to disclose exculpatory evidence to the Plaintiff. Thus, the alleged abuse of process

continued well past the Plaintiff’s arrest and was not terminated until the Plaintiff’s acquittal in

May 2017. Given these allegations, the Plaintiff’s abuse of process claim is not barred by the

statute of limitations, and the motion to dismiss Count VIII should be denied.

I. Malicious Prosecution

Defendant Pack also seeks dismissal of the Plaintiff’s claim for malicious prosecution

alleged in Count IX. He argues that the Plaintiff has put forth no allegations indicating Defendant

Pack’s personal involvement in the prosecution in any manner, and further argues that the Plaintiff

clearly states that his complaint is against Raleigh County, thus failing to state a valid claim. The

Plaintiff counters that Defendant Pack attempts to impose a higher standard than is necessary in

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pleading his malicious prosecution claim, and that he has satisfactorily alleged facts that should

allow his claim to survive a motion to dismiss.

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 statements regarding the elements

of malicious prosecution, the 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). Further, “the meaning of procurement is not

that the defendants jointly applied to the justice of the peace to issue the warrant against the

plaintiff, but that they consulted and advised together, and both participated in the prosecution,

which was carried on under their countenance and approval.” Id. (emphasis added).

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

claim. He alleges that Defendant Pack conspired with Defendant Snuffer and the other Defendant

officers to improperly arrest him and to coordinate statements and testimony to secure a conviction

against him. Specifically, with respect to the procurement, the Plaintiff has alleged that

Defendant Snuffer consulted with and conspired together with the other Defendants, including

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Defendant Pack, to ensure their testimony was consistent during the Plaintiff’s prosecution. The

Plaintiff further alleges that this was done with malice in response to Mr. Ali’s intention to file suit

against the Raleigh County Defendants for racial animus and discrimination, and that the

prosecution by the Defendants terminated in Mr. Ali’s favor when the jury found him not guilty

of the crimes charged by the Defendants. Viewing these allegations in the light most favorable

to the Plaintiff, the Court finds that Mr. Ali has sufficiently pled a claim of malicious prosecution

in Count IX.

J. Outrage

Finally, Defendant Pack seeks to dismiss the Plaintiff’s claim for outrage brought in Count

XI. He argues that the Plaintiff has failed to provide sufficient evidentiary support of any

atrocious or intolerable actions by Defendant Pack to adequately claim outrage against him. The

Plaintiff counters that he has sufficiently alleged outrageous acts on the part of Defendant Pack

such that his outrage claim should survive a motion to dismiss.

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:

(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;

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

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

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 Defendant Pack and the other named Defendants conspired

together to knowingly use false probable cause to arrest him without a warrant. He alleges that

the Defendants did so to inflict emotional distress and scare him in retaliation for his intention to

file a discrimination lawsuit against Defendant Tanner and the Raleigh County Sheriff’s

Department. The Plaintiff further alleges that the Defendants, including Defendant Pack, falsely

accused him of illegal drug activity, planted evidence in his car, hid evidence from him, and forced

him to face trial twice, at the risk of serving years in prison for crimes the Defendants knew Mr.

Ali did not commit. Accepting these allegations as true, the Court finds that the alleged conduct

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could reasonably be considered outrageous. The Plaintiff has therefore stated a claim for outrage

sufficiently plausible on its face, to defeat dismissal of Count XI.

CONCLUSION

WHEREFORE, after thorough review and careful consideration, the Court ORDERS that

the Defendants West Virginia State Police and Corporal Kenneth L. Pack’s Motion to Dismiss

(Document 38) be GRANTED IN PART and DENIED IN PART. Specifically, the Court

ORDERS that all the claims against the West Virginia State Police and Defendant Pack in his

official capacity as an officer of the West Virginia State Police be DISMISSED. The Court

further ORDERS that the motion be GRANTED as to Counts III, VI, and X, and that those counts

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

Lastly, the Court ORDERS that the Defendants’ Motion to Stay Discovery Pending the

Resolution of their Motion to Dismiss (Document 41) be TERMINATED AS MOOT.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to

any unrepresented party.

ENTER: August 28, 2018

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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