Brown v. Belt

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,

Clay County Sheriff’s office;

GARRETT SAMPLES, JR., Sheriff,

Clay County Sheriff’s Office;

TYLER CARUTHERS, Deputy Sheriff,

Clay County Sheriff’s Office; CLAY

COUNTY COMMISSION; COLONEL C.R. “JAY”

SMITHERS, Superintendent, WV State

Police; STEVEN DEMASKE, Trooper, WV

State Police; and TYLER DANA MCFEELEY,

Trooper, WV State Police,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants Tyler Dana McFeeley (“Trooper

McFeely”) and C.R. “Jay” Smithers’s (“Colonel Smithers”)

(collectively, the “State Defendants”) motion to dismiss, filed

June 5, 2018. A third state defendant, Trooper Steven Demaske,

is not shown to have been served with process and has not

appeared.

Also pending is the State Defendants’ motion to

designate their motion to dismiss as unopposed and dismiss

plaintiff’s claims for failure to prosecute, filed July 30,

2018, which motion is denied as moot, as hereinafter noted.

I. Facts as Alleged

Plaintiff Dan Brown is a resident of Clay, West

Virginia. First Am. Compl. (“Compl.”) ¶ 4. On July 26, 2013,

defendant Deputy Robert Belt, a deputy sheriff of Clay County,

West Virginia saw Mr. Brown on the side of the road with a flat

tire. Id. ¶ 10. Deputy Belt then approached Mr. Brown,

allegedly without any reasonable suspicion, began to conduct a

traffic stop for driving under the influence (“DUI”) and

searched his vehicle. Id. ¶ 11. Mr. Brown alleges that Deputy

Belt caused the blowout of his tire that resulted in the officer

pulling him over, id. ¶ 33, and that Deputy Belt knew of Mr.

Brown’s whereabouts due to information obtained from Shonda

Tanner, a mutual acquaintance, id. ¶¶ 30-33. When Deputy Belt

ordered Mr. Brown to undergo three field sobriety tests, the

“Horizontal Gaze Nystagmus,” the “Walk and Turn,” and the “One-

Leg Stand,” Mr. Brown pointed out that he suffered from several

physical disabilities that prevented him from being able to

adequately complete the tests. Id. ¶¶ 12-17. In particular, he

has long had nystagmus, an eye condition, as well as a leg

injury that makes him unable to place weight on his leg. Id. ¶¶

15-16. Mr. Brown has been determined by the United States

Social Security Administration to be fully disabled. Id. ¶ 25.

Although Mr. Brown told Deputy Belt that he was “100% disabled”

and “could not take the normal tests for DUI,” Deputy Belt

continued to administer the three tests without offering

accommodations. Id. ¶¶ 12, 21. Following the tests, Deputy

Belt arrested Mr. Brown for DUI. Id. ¶ 21.

Mr. Brown did take a preliminary breath test, and the

result showed a blood alcohol level of 0.0. Id. ¶ 18. He asked

to be given a blood test to provide further proof of his

sobriety, but Deputy Belt failed to request or administer one.

Id. ¶¶ 19-20.

The DUI charge was later dismissed, and when Mr. Brown

contested the revocation of his driver’s license in an

administrative hearing, Deputy Belt admitted to being negligent

when filling out the DUI information sheet. Id. ¶¶ 22-23. Also

at this hearing, Deputy Belt is said to have stated that he had

never received training on compliance with the Americans with

Disabilities Act (“ADA”) or on how to provide reasonable

accommodations to disabled individuals whose disability impairs

their ability to pass field sobriety tests. Id. ¶ 23.

Over a year and a half after the July 2013 incident,

on or about February 20, 2015, Mr. Brown reported a robbery of

over $40,000 worth of tools from his property. Id. ¶¶ 26-27.

Deputy Belt responded to Mr. Brown’s call to the authorities yet

did not file a police report or investigate the robbery. Id. ¶¶

26-27. Because Deputy Belt did not file a police report, Mr.

Brown’s insurance claim was made more difficult to support. Id.

¶¶ 28-29. Additionally, the tools were never recovered. Id. ¶

29. Mr. Brown believes this failure to investigate to be

retaliation for the original DUI charge being dismissed. Id. ¶

26.

On May 22, 2015, Mr. Brown was once again arrested for

DUI. Id. ¶ 36. Mr. Brown alleges on good faith information and

reasonable belief that Deputy Belt communicated to members of

the West Virginia State Police to “target” the plaintiff and

charge him with DUI. Id. ¶ 35. West Virginia State Troopers

Huff, Tallman and defendant Demaske were the arresting officers

for charges of DUI, left of center driving, and no proof of

insurance. Id. ¶ 36. Mr. Brown informed the officers of his

disability and subsequently failed the three standard field

sobriety tests. Id. ¶¶ 64, 67. He later took a breath test

which revealed that he had a blood alcohol level of 0.0. Id. ¶

65. All three charges were later dismissed after the officers

failed to appear or present any proof of impairment. Id. ¶ 37.

On January 15, 2016, Mr. Brown called the police to

report a man invading his home and battering him. Id. ¶ 38.

Defendant Trooper McFeeley, a West Virginia State Trooper,

responded to the call and arrested Mr. Brown for burglary,

destruction of property, and providing false information to the

state police, all without prosecuting the alleged crimes that

Mr. Brown called to report. Id. ¶ 39. Mr. Brown asserts that

this arrest was in retaliation for filing the original complaint

in this lawsuit on July 27, 2015 against defendants Deputy Belt,

Clay County Sheriff Garrett Samples, Jr., and the Clay County

Commission (“the Commission”). Id. at 21-22.

Later, on July 5, 2016, Mr. Brown was driving in

downtown Clay when he was in a minor car accident. Id. ¶ 43.

Deputy Belt responded to the accident along with Deputy Tyler

Caruthers, a fellow Clay County deputy sheriff. Id. ¶ 44. They

conducted DUI field sobriety tests and charged Mr. Brown with

DUI. Id. ¶¶ 44-45, 48. Mr. Brown had informed the deputies

that he was physically unable to pass the field sobriety tests,

yet the officers continued to conduct the same three field

sobriety tests as had been conducted by Deputy Belt at a

previous stop. Id. ¶¶ 47-48, 67. Mr. Brown participated in a

breath test which again showed that he had a blood alcohol level

of 0.0. Id. ¶ 65. Mr. Brown admitted to taking his daily

prescription medications but also stated that no one had ever

told him they might impair his ability to drive. Id. ¶ 49. Mr.

Brown requested a blood test to prove that he had only taken his

prescribed medications, but the officers refused. Id. ¶ 50.

Upon arriving at the police station, Mr. Brown was taken to a

dark closet and held there for approximately four hours while

waiting for an expert from the Charleston, West Virginia

detachment who was to conduct specialized testing of the

plaintiff. Id. ¶¶ 46, 51-52. During that time, he was placed

under a “red light” for further testing of impairment. Id. ¶

52. This treatment triggered a migraine, and the officers would

not allow Mr. Brown to take his medication to alleviate it. Id.

This charge for DUI was still pending as of plaintiff’s filing

of his motion to amend the complaint on September 15, 2016. Id.

¶ 54.

On July 23, 2016, Trooper McFeeley arrested Mr. Brown

for another burglary. Id. ¶ 53. Mr. Brown claims that upon

arrest, Trooper McFeeley elected not to believe Mr. Brown’s

story regarding the incident and that the officer’s choice was

motived by retaliatory intent for the filing of this lawsuit on

July 27, 2015. Id. ¶¶ 105, 151

II. Procedural Posture

On July 27, 2015, plaintiff filed his original

complaint with the court against Deputy Belt, Sheriff Samples,

and the Commission for the actions taken by Deputy Belt during

the July 26, 2013 DUI arrest. The complaint contained five

“causes of action” which the court treated as Counts 1 through

5, namely, Count 1, failure to provide reasonable accommodation

under Title II of the ADA, 42 U.S.C. § 12132, and § 504 of the

Rehabilitation Act, 29 U.S.C. § 794; Count 2, negligent hiring,

supervision, and/or training; Count 3, Fourth and Fourteenth

Amendment due process violations; Count 4, wrongful arrest; and

Count 5, intentional infliction of emotional distress (“IIED”).

On October 13, 2017, the court ruled on the joint motion to

dismiss of Deputy Belt, the Commission and Sheriff Samples, the

only defendants then charged in the complaint. ECF No. 26.

Pursuant to that motion, the court dismissed the negligent

hiring prong of Count 2 and all of Counts 4 (wrongful arrest)

and 5 (IIED) but did not dismiss any other claims. Id. at 15.

On September 15, 2016, the plaintiff filed for leave

to amend the complaint. The court granted the motion on March

30, 2018, and the First Amended Complaint with the named

defendants as set forth in the case caption above was deemed

filed on that same day, thereby adding as defendants Deputy

Caruthers, Trooper Demaske, Trooper McFeeley, Colonel Smithers

and Magistrate Jeffrey Boggs. The court at the same time

ordered that the negligent hiring claim, now in Count 4, be

dismissed; that the July 26, 2013 action for wrongful arrest

against Deputy Belt, now in Count 6, was time barred due to the

one-year statute of limitations and was dismissed; and that

Magistrate Boggs, named in several counts, be dismissed from the

action. ECF No. 29, at 6.

In the plaintiff’s First Amended Complaint, he asserts

for the first time claims against Trooper McFeeley and Colonel

Smithers. He also alleges claims against the West Virginia

State Police, not named as a party to this action and for whom

the plaintiff has not issued a summons. Accordingly, the court

does not address claims against that entity, but does treat the

reference to the West Virginia State Police as an indication

that the named state defendants are being sued in their official

capacity. As noted, the plaintiff also asserts claims against

Trooper Steven Demaske and issued summons to him on April 19,

2018, but there is no proof that service has been perfected.

The First Amended Complaint raises sixteen “causes of

action,” which the court treats as Counts 1 through 16. One or

more of Trooper Demaske, Trooper McFeeley or Colonel Smithers is

the subject of the following ten counts: Count 2, failure to

provide reasonable accommodations under Title II of the ADA and

§ 504 of the Rehabilitation Act during the second DUI traffic

stop, on May 22, 2015, against Trooper Demaske, Colonel

Smithers, a supervising officer of the West Virginia State

Police, and naming the West Virginia State Police; Count 4,

negligent supervision and/or training arising from the May 22,

2015 DUI arrest against Colonel Smithers and naming the West

Virginia State Police; Count 5, violation of Due Process Rights

under the Fourth, Fifth, and Fourteenth Amendments of the

Constitution under 42 U.S.C. § 1983 arising from the May 22,

2015 DUI arrest against Colonel Smithers, Trooper Demaske and

naming the West Virginia State Police; Count 7, wrongful arrest

for DUI on May 22, 2015 against Trooper Demaske; Count 8,

wrongful arrest for burglary, destruction of property and

providing false information to state police on January 15, 2016

against Trooper McFeeley; Count 10, wrongful arrest for burglary

on July 23, 2016 against Trooper McFeeley; Count 12, retaliation

claim under the First and Fourteenth Amendments and 42 U.S.C.

§ 1983 for “targeting” Mr. Brown in the DUI arrest on May 22,

2015 against Trooper Demaske, Colonel Smithers and naming the

West Virginia State Police; Count 13, retaliation claim under

the First and Fourteenth Amendments and 42 U.S.C. § 1983 for

wrongful arrest for burglary, destruction of property, and

providing false information to state police on January 15, 2016

against Trooper McFeeley; Count 15, retaliation claim under 42

U.S.C. § 1983 for wrongful arrest for burglary on July 23, 2016

against Trooper McFeeley, Colonel Smithers and naming the West

Virginia State Police; and Count 16, intentional infliction of

emotional distress/outrage against all State Defendants for all

of the allegations contained in the First Amended Complaint

against them.

The State Defendants filed, on June 5, 2018, a motion

to dismiss the claims against them in the First Amended

Complaint, and later, on June 11, 2018, Deputy Belt, Deputy

Caruthers, Sheriff Samples and the Commission (collectively, the

“County Defendants”) did the same. The plaintiff did not

initially respond to these motions, but the court ordered him to

file a response by a certain date, which he failed to do.

Ultimately, the plaintiff filed his response, which the court

permitted and each group of defendants filed their own reply.

Regarding the State Defendants’ motion to dismiss and

supporting memorandum, the court notes in particular the

confusing language in the abbreviated motion to dismiss as set

forth in the phrase: “Plaintiff’s claims are barred by the

applicable statute of limitations and inapplicable to Defendants

Smithers and McFeeley.” Defs. Smithers & McFeely’s Mot.

Dismiss, ECF No. 36, at 1 (underlining supplied). Additionally,

in their memorandum in support of their motion to dismiss, the

State Defendants attempt to “incorporate by reference the Motion

to Dismiss arguments of any co-defendants to the extent that

those argument[s] apply to Plaintiff’s claims against all

Defendants.” Defs. Smithers & McFeely’s Mem. Supp. Mot. Dismiss

(“State Defs.’ Mem.”), ECF No. 37, at 16 n.3. The court

declines to consider any such later-filed County Defendant

arguments that were merely, at best, imagined at the time of the

filing of the State Defendants’ motion to dismiss. Accordingly,

the court will only evaluate the arguments actually made in the

State Defendants’ briefings in support of their motion to

dismiss.

Before plaintiff filed his response to the motions to

dismiss, Colonel Smithers and Trooper McFeeley filed a motion to

designate their motion to dismiss as unopposed and to dismiss

plaintiff’s claim for failure to prosecute. ECF No. 49.

Inasmuch as the court granted plaintiff’s motion to extend the

time for him to file a response, ECF No. 51, an order with which

the plaintiff eventually complied, this motion is moot.

III. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires that

a pleader provide “a short and plain statement of the claim

showing . . . entitle[ment] to relief.” Fed. R. Civ. P.

8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007). Rule

12(b)(6) correspondingly permits a defendant to challenge a

complaint when it “fail[s] to state a claim upon which relief

can be granted . . . .” Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide

“‘fair notice of what the . . . claim is and the grounds upon

which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),

overruled on other grounds, Twombly, 550 U.S. at 563); see also

Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007).

In order 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.’” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.

at 570); see also Monroe v. City of Charlottesville, 579 F.3d

380, 386 (4th Cir. 2009).

Application of the Rule 12(b)(6) standard requires

that the court “‘accept as true all of the factual allegations

contained in the complaint . . . .’” Erickson, 127 S. Ct. at

2200 (quoting Twombly, 127 S. Ct. at 1965); see also South

Carolina Dept. Of Health And Environmental Control v. Commerce

and Industry Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004)

(quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)).

The court must also “draw[] all reasonable . . . inferences from

th[e] facts in the plaintiff's favor . . . .” Edwards v. City

of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

IV. Discussion

A. Statute of Limitations

1. Effect of Granting the Motion to Amend the Complaint

Colonel Smithers and Trooper McFeeley argue that the

claims asserted against them in Counts 2, 4, 5, 8, 12, 13, and

certain claims in Count 16 should be dismissed because those

claims are barred by the applicable statute of limitations

periods. State Defs.’ Mem., ECF No. 37, at 5-9. The claims to

which the statute of limitations defense is being raised arise

from the arrests of Mr. Brown on May 22, 2015 by Trooper Demaske

and January 15, 2016 by Trooper McFeeley.1

Here, the plaintiff moved to amend his complaint to

include these claims against the State Defendants on September

1 The plaintiff offers no response to the statute of limitations

claims other than to suggest that the statute of limitations

periods (it is unspecified which ones) should be tolled until

all of the underlying criminal charges against him are

dismissed. Pl.’s Resp., ECF No. 53, at 11.

15, 2016, and filed as an attachment to that motion, his First

Amended Complaint. ECF No. 23. The court granted the

plaintiff’s motion on March 30, 2018 with the above-enumerated

exceptions set forth at page 8 and instructed the Clerk to file

the First Amended Complaint as of that date. ECF Nos. 29, 30.

The Court of Appeals for the Fourth Circuit has noted

that “courts have generally concluded that when a motion for

leave to amend is later granted, the amended complaint is deemed

timely even if the court’s permission is granted after the

limitations period ends.” Angles v. Dollar Tree Stores, Inc.,

494 F. App’x 326, 330 (4th Cir. 2012). In support of this

contention, the court in Angles cited an opinion of the Eighth

Circuit which noted:

where the petition for leave to amend the complaint

has been filed prior to expiration of the statute of

limitations, while the entry of the court order and

the filing of the amended complaint have occurred

after the limitations period has expired. . . . the

amended complaint is deemed filed within the

limitations period.

Mayes v. AT & T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir.

1989) (citing Rademaker v. E.D. Flynn Export Co., 17 F.2d 15, 17

(5th Cir. 1927); Longo v. Pa. Elec. Co., 618 F.Supp. 87, 89

(W.D. Pa. 1985), aff'd, 856 F.2d 183 (3d Cir. 1988); Eaton Corp.

v. Appliance Valves Co., 634 F. Supp. 974, 982–83 (N.D. Ind.

1984), aff'd on other grounds, 790 F.2d 874 (Fed. Cir. 1986);

Gloster v. Pa. R.R., 214 F.Supp. 207, 208 (W.D. Pa. 1963)). The

Angles court also cited a Seventh Circuit opinion which stated:

As a party has no control over when a court renders

its decision regarding the proposed amended complaint,

the submission of a motion for leave to amend,

properly accompanied by the proposed amended complaint

that provides notice of the substance of those

amendments, tolls the statute of limitations, even

though technically the amended complaint will not be

filed until the court rules on the motion.

Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993).

Accordingly, the court finds that, for purposes of the

statutes of limitations, the amended complaint is deemed filed

as of September 15, 2016.

2. The Applicable Limitations Periods

Regarding plaintiff’s ADA claims, the Fourth Circuit

has found:

Because Title II of the ADA does not contain a statute

of limitations, federal courts “borrow the state

statute of limitations that applies to the most

analogous state-law claim.” A Soc'y Without A Name v.

Virginia, 655 F.3d 342, 347 (4th Cir. 2011). Although

“the most analogous statute need not be identical,”

state legislation containing a statute of limitations

will only control if it provides substantially “the

same rights and remedies” as the ADA. Wolsky v. Med.

Coll. of Hampton Roads, 1 F.3d 222, 224–25 (4th Cir.

1993). . . . Given the substantially similar language

between the ADA and the Rehabilitation Act . . . we

have applied the same analysis to determine the

applicable statute of limitations for Rehabilitation

Act claims.

Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir.

2017). A court in the Northern District of West Virginia has

found, and this court agrees, that “the West Virginia Human

Rights Act [WVHRA] is the most analogous West Virginia law to

the Americans with Disabilities Act, and it is fully consistent

with the Act and its underlying policies”2 and that the WVHRA has

a two year statute of limitations found at West Virginia Code §

55-2-12.3 Roe v. Cty. Commm’n of Monongalia Cty., 926 F. Supp.

74, 78 (N.D.W. Va. 1996). The court concludes that the ADA

claims are subject to a two-year limitations period.

Section 1983 claims are subject to the limitations

period applied by the forum state to personal injury actions.

Wilson v. Garcia, 471 U.S. 261, 280 (1985); see also Owens v.

2 The WVHRA provides that “equal opportunity in . . . public

accommodations is hereby declared to be a human right or civil

right of all persons without regard to . . . disability.” W.

Va. Code 5-11-2. Title II of the ADA and § 504 of the

Rehabilitation Act similarly state that no person with a

disability should be discriminated against by a public entity on

the basis of that disability. See 42 U.S.C. § 12132; 29 U.S.C.

§ 784(a).

3 “Every personal action for which no limitation is otherwise

prescribed shall be brought: (a) Within two years next after the

right to bring the same shall have accrued, if it be for damage

to property; (b) within two years next after the right to bring

the same shall have accrued if it be for damages for personal

injuries; and (c) within one year next after the right to bring

the same shall have accrued if it be for any other matter of

such nature that, in case a party die, it could not have been

brought at common law by or against his personal

representative.” W. Va. Code § 55-2-12 (emphasis added).

Okure, 488 U.S. 235, 240 (1989) (holding that “where a state has

one or more statutes of limitations for certain enumerated

intentional torts, and a residual statute for all other personal

injury actions, courts considering § 1983 claims should borrow

the general or residual statute for personal injury actions”).

In West Virginia, Section 1983 claims are subject to the two-

year period set forth in West Virginia Code § 55-2-12. See,

e.g., Sattler v. Johnson, 857 F.2d 224, 226-27 (4th Cir. 1988);

Bell ex rel. Bell v. Bd. of Educ. of Cty. of Fayette, 290 F.

Supp. 2d 701, 709-10 (S.D.W. Va. 2003).

Regarding plaintiff’s state law claims for negligent

supervision and training, under West Virginia law, “claims in

tort for negligence, professional negligence, and

misrepresentation (fraudulent or negligent) are governed by a

two-year statute of limitation.” Trafalgar House Constr., Inc.

v. ZMM, Inc., 211 W. Va. 578, 583, 567 S.E.2d 294, 299 (2002)

(citing W. Va. Code 55-2-12).

Plaintiff’s state law claims for wrongful arrest are

subject to a one-year statute of limitations under West Virginia

law. See Canterbury v. Laird, 221 W. Va. 453, 455, 655 S.E.2d

199, 202 (2007) (“[O]ne year statute of limitations found in W.

Va. Code § 55-2-12(c) . . . controls a claim for false

arrest.”).

Finally, the IIED claims against the State Defendants

have a two-year statute of limitations period. Richards v.

Walker, 813 S.E.2d 923, 930 (W. Va. 2018) (“The statute of

limitations for a claim of intentional infliction of emotional

distress is two years.”).

Here, the State Defendants’ argument that those claims

were raised outside the applicable statute of limitations is

based on the date the court granted the motion to amend and the

date the First Amended Complaint was filed, March 30, 2018. The

date on which the analysis should have been grounded is

September 15, 2016.

The ADA, § 1983, negligent supervision and training,

and IIED claims arising out of the May 22, 2015 arrest and set

forth in Counts 2, 4, 5, 12 and 16, were filed within the two-

year periods. The § 1983 and IIED claims arising from the

January 15, 2016 arrest and set forth in Counts 13 and 16 have a

two-year limitations period and the wrongful arrest claim set

forth in Count 8 has a one-year statute of limitations, and the

motion to amend the complaint was filed within both of those

periods. It further appears to the court that the § 1983 and

IIED claims arising out the July 23, 2016 arrest and set forth

in Counts 15 and 16 have a two-year limitations period and the

wrongful arrest claim set forth in Count 10 has a one-year

limitations period, and the motion to amend the complaint was

filed within those periods.4

Accordingly, each of the State Defendants’ statute of

limitations defenses is denied.

B. Failure to State a Claim

The State Defendants move to dismiss, for failure to

state a claim upon which relief may be granted, Counts 10

(wrongful arrest) and 15 (retaliation under § 1983), each of

which arises out of plaintiff’s arrest by Trooper McFeeley on

July 23, 2016, as well as Count 16 (IIED) insofar as it arises

out of that same arrest. State Defs.’ Mem., ECF No. 37, at 10-

13.

4 The court notes that wrongful arrest has a statute of

limitations of one year in West Virginia and that Trooper

Demaske might be able to assert such a defense to Count 7

(wrongful arrest on May 22, 2015) once he is served with

process. However, the Fourth Circuit has stated that a district

court may only address a statute of limitations defense, sua

sponte, in narrow circumstances such as when that defense

plainly appears on the face of either a petition for habeas

corpus or a complaint filed in forma pauperis. See Eriline Co.

S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006).

1. Count 10 (wrongful arrest against Trooper McFeeley)

As grounds for his tenth cause of action, plaintiff

alleges that he was illegally arrested for burglary by Trooper

McFeeley on July 23, 2016. “[T]he gist of the action for false

imprisonment [also called false arrest] is illegal detention of

a person without lawful process or by an unlawful execution of

such process.” Riffe v. Armstrong, 197 W.Va. 626, 640, 477

S.E.2d 535, 549 (1996).

The Fourth Amendment permits a police officer to

arrest a suspect without a warrant if there is probable cause to

suggest that the suspect committed a felony. U.S. v. Watson,

423 U.S. 411, 417 (1976). That officer may even make the arrest

if the felony was not committed in the officer’s presence. Id.

at 418. Burglary is a felony offense in West Virginia. W. Va.

Code § 61-3-11(a).

Here, the only factual allegation against Trooper

McFeeley is that he chose not to believe the plaintiff regarding

the burglary for which he was arrested. Compl., ECF No. 30, at

¶ 152. The plaintiff admits that the magistrate found probable

cause, arraigned the plaintiff, and assigned the case to another

Clay County magistrate, and at the time the motion to amend the

complaint was filed, the case was still pending in Clay County

Court. Id. at ¶¶ 153-156. Plaintiff does not claim that his

arrest was wrongful or that Trooper McFeeley lacked probable

cause, but only states that this arrest was the result of

retaliation. Id. at ¶ 105. Without arguing that the arrest was

illegal in some manner, a conclusory allegation that it was

retaliatory cannot support a wrongful arrest claim. See

Twombley, 550 U.S. at 570 (Pleadings require “enough facts to

state a claim to relief that is plausible on its face.”); see

also infra Section IV.C.3, at p. 20-24 (discussing why any claim

asserting retaliation by Trooper McFeeley is a conclusory

allegation). Accordingly, Count 10 is dismissed.

2. Count 15 (Retaliation claim against Trooper McFeeley

and Colonel Smithers)

Count 15 asserts a § 1983 retaliation claim under the

First Amendment against Trooper McFeeley and Colonel Smithers.

The plaintiff alleges that his arrest on July 23, 2016 was

performed in retaliation for the filing of the original

complaint in this lawsuit against the three County Defendants on

July 27, 2015. The State Defendants argue that this claim

should be dismissed for failure to state a claim.5

Section 1983 claims require that a plaintiff allege

that a right secured by the Constitution or laws of the United

States has been violated and that the violation was committed by

a person acting under color of state law. West v. Atkins, 487

U.S. 42, 48 (1988). The Fourth Circuit has held that:

In order to state a colorable retaliation claim under

Section 1983, a plaintiff ‘must allege that (1) []he

engaged in protected First Amendment Activity, (2) the

defendant[] took some action that adversely affected

[his] First Amendment rights, and (3) there was a

causal relationship between [his] protected activity

and the defendant[’s] conduct.’

Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting

Constantine v. Rectors & Visitors of George Mason Univ., 411

F.3d 474, 499 (4th Cir. 2005)).

Regarding the first element set forth above, “the

First Amendment right to free speech includes not only the

5 Trooper McFeeley focuses his failure to state a claim arguments

on the claims for wrongful arrest and intentional infliction of

emotional distress arising from the July 23, 2016 arrest.

Trooper McFeeley does not raise any specific arguments as to why

the § 1983 action for the July 23, 2016 arrests should be

dismissed, but inasmuch as the briefing states that “Plaintiff’s

claims against Trooper McFeeley arising out of Defendant Trooper

McFeeley’s July 23, 2016 arrest of Plaintiff should be dismissed

because Plaintiff has failed to state a claim for which relief

can be granted,” State Defs.’ Mem., ECF No. 37, at 12, the court

will determine whether the plaintiff failed to state a § 1983

retaliation claim.

affirmative right to speak, but also the right to be free from

retaliation by a public official for the exercise of that

right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th

Cir. 2000). “The filing of a lawsuit carries significant

constitutional protections, implicating the First Amendment

right to petition the government for redress of grievances, and

the right of access to courts.” ACLU of Md. v. Wicomico Cty.,

Md., 999 F.3d 780, 785 (4th Cir. 1993) (quoting Hoeber on Behalf

of NLRB v. Local 30, 939 F.2d 118, 126 (3d Cir. 1991)) (internal

quotations omitted).

The second element of establishing a First Amendment

retaliation claim requires that the plaintiff “suffer[] adverse

action if the defendant’s allegedly retaliatory conduct would

likely deter ‘a person of ordinary firmness’ from the exercise

of First Amendment rights.” Constantine, 411 F.3d at 500

(citations omitted).

Finally, the causation element requires that the

plaintiff in a First Amendment retaliation action “must show, at

the very least, that the defendant was aware of her engaging in

protected activity.” Constantine, 411 F.3d at 501 (citing Dowe

v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653,

657 (4th Cir. 1998)).

Here, even assuming the first two elements are met,

the plaintiff has not demonstrated that Trooper McFeeley was

aware the plaintiff brought the original lawsuit. The original

lawsuit was brought in July 2015 and the arrest occurred in July

2016. However, there are no allegations that anyone

communicated to or with Trooper McFeeley to encourage him to

arrest the plaintiff as retaliation for his filing the original

lawsuit against police officers working for the Clay County

Commission, a separate organization than the one that employs

Trooper McFeeley. While the plaintiff alleges that Deputy Belt

communicated with other troopers of the West Virginia State

Police (Clinton Nichols and/or Aaron Nichols) encouraging them

to “target” the plaintiff, Compl., ECF No. 30, at ¶ 35, there is

no allegation that someone encouraged Trooper McFeeley in the

same fashion.6 Additionally, as Trooper McFeeley nor any other

state troopers or their actions were named or implicated in the

original complaint, there is no indication that he had knowledge

that the original complaint was even filed. Finally, inasmuch

as the plaintiff’s motion to amend the complaint to include

6 The plaintiff summarily states that “based on good faith

information and belief . . . the Defendants have continued to

retaliate against the Plaintiff and that retaliation has been

consistent and ongoing since the original DUI traffic stop that

occurred on or about July 26, 2013.” Compl., ECF No. 30, at ¶

34. However, this does not indicate that Trooper McFeeley had

knowledge of the original lawsuit.

Trooper McFeeley and other state troopers was filed in September

2016, after the July 23, 2016 arrest, he could not have

retaliated against the plaintiff for filing or attempting to

file suit against him or his colleagues.

The plaintiff has not pled facts sufficient for his

First Amendment retaliation claim against Trooper McFeeley to

survive a motion to dismiss, and the allegation that the arrest

was retaliatory is merely conclusory. Therefore, this claim is

dismissed.

Correspondingly, Colonel Smithers argues that inasmuch

as there are no factual allegations against him for retaliation,

the plaintiff is suing him for supervisory liability yet has not

set forth adequate facts to maintain such a claim against him.

State Defs.’ Mem., ECF No. 37, at 10-11.7 The only allegation

pled against Colonel Smithers, and others, is that they “failed

to . . . provide reasonable accommodations; create policies or

procedures; and properly train employees and staff to prevent

the Plaintiff from being discriminated against based upon his

disabilities.” Compl., ECF No. 30, at ¶ 61.

7 The State Defendants use West Virginia law in support of the

motion to dismiss the § 1983 claim in Count 15 against Colonel

Smithers; however, the court must apply federal law.

“Because vicarious liability is inapplicable to . . .

§ 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.” Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009). Supervisory liability may be established

against a defendant for § 1983 claims, see Shaw v. Stroud, 13

F.3d 791, 799 (4th Cir. 1994), but the court need not evaluate

such an argument inasmuch as plaintiff’s retaliation claim

cannot stand against Colonel Smithers’s subordinate, Trooper

McFeeley. See Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir.

2012) (“Supervisors . . . cannot be liable under § 1983 without

some predicate constitutional injury at the hands of the

individual [state] officer.”) (internal quotations and citations

omitted).

As noted above, the plaintiff has not adequately pled

a § 1983 retaliation claim against Trooper McFeeley, and the

corresponding claim for supervisory liability and training

against Colonel Smithers is dismissed.8 Consequently, Count 15

is dismissed.

8 The capacity in which the State Defendants are being sued is

not identified in the complaint. In the plaintiff’s response,

he states that “if it is unclear whether the Complaint states

claims against the individuals in their official capacities

versus against them in their respective individual capacities,

the Plaintiff respectfully requests leave . . . to clarify that

3. Count 16 (IIED from the July 23, 2016 arrest)

Count 16 asserts a claim for IIED against both State

Defendants. The only claim for IIED that the State Defendants

contest arises from the July 23, 2016 arrest by Trooper

McFeeley. The State Defendants assert that this claim should be

dismissed for failure to state a claim upon which relief can be

granted. State Defs.’ Mem., ECF No. 37, at 11-12, 13-14.

The Supreme Court of West Virginia has set forth the

elements necessary to plead IIED:

(1) That 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

the claims are against individual state actors acting in their

official capacities to the detriment and violative of the rights

of the Plaintiff.” Pl.’s Resp., ECF No. 53, at 9. The State

Defendants argue in their reply that since the plaintiff

purports to sue them in their official capacities, the § 1983

claims should be dismissed. State Defs.’ Reply, ECF No. 55, at

5-7 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989) (“[N]either a State nor its officials acting in their

official capacities are ‘persons’ under § 1983.”)). However, it

appears to the court that the plaintiff, in this response, is

claiming that only his ADA claims are being asserted against the

State Defendants in their official capacities, and the text of

the complaint appears to support the notion that the remaining

claims are being brought against the State Defendants in their

individual capacities.

by the plaintiff was so severe that no reasonable

person could be expected to endure it.

Philyaw v. E. Associated Coal Corp., 219 W. Va. 252, 257, 633

S.E.2d 8, 13 (2006) (quoting Syllabus Point 3, Travis v. Alcon

Labs., 202 W. Va. 369, 504 S.E.2d 419 (1998)). Courts are to

play a “gate-keeping” role in determining whether, as a matter

of law, asserted conduct could reasonably satisfy the element of

“atrocious, intolerable, and so extreme and outrageous as to

exceed the bounds of decency.” Id. Conduct which is merely

“unreasonable, unkind or unfair” is insufficient to state a

claim for IIED. Id. at 258.

Trooper McFeeley is alleged to have arrested the

plaintiff for burglary on July 23, 2016, and the plaintiff

asserts that the trooper had “discretion” as to whether to

arrest the plaintiff, and that the trooper chose “not to believe

the Plaintiff.” Compl., ECF No. 30, at ¶¶ 151-152. This

conduct cannot be said to go beyond the bounds of decency. In

fact, it does not appear that the plaintiff actually alleges

that Trooper McFeeley engaged in any wrongful conduct in this

encounter. Accordingly, the plaintiff has failed to adequately

plead a claim of IIED against Trooper McFeeley for his actions

on July 23, 2016.

As mentioned above, inasmuch as there are no specific

factual allegations pled as to Colonel Smithers’s conduct, it

appears that he is being sued in connection with the actions of

his employee. Since there is no surviving claim against Trooper

McFeeley, there can be no claim for supervisory and training

liability for IIED against Colonel Smithers arising out of the

July 23, 2016 arrest. Therefore, plaintiff’s IIED claims

against the State Defendants based on the July 23, 2016 arrest

are dismissed.

C. Count 5 Due Process Claim under § 1983 pursuant to the

Fifth and Fourteenth Amendments

Count 5 of the First Amended Complaint asserts a §

1983 claim under the Fourth, Fifth, and Fourteenth Amendments

against Colonel Smithers arising out of the May 22, 2015 DUI

arrest by Trooper Demaske. Here, the plaintiff states that he

was “arrested, seized and searched without any reasonable

suspicion by the arresting officer, or if there was reasonable

suspicion/probable cause for DUI traffic stop, the officer’s

reasonable suspicion/probable cause was based on the Plaintiff’s

disabilities.” Compl., ECF No. 30, at ¶ 79.

A substantive due process claim challenging the use of

force may lie only if neither the Fourth nor the Eighth

Amendment applies. See Graham v. Connor, 490 U.S. 386, 395

(1989). While this claim is for an unlawful arrest rather than

excessive use of force, the principle of Graham applies, and the

textually specific Fourth Amendment protection preempts the more

generalized substantive due process protection. See United

States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (“Graham simply

requires that if a constitutional claim is covered by a specific

constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of

substantive due process.”). Accordingly, the plaintiff’s § 1983

claim, insofar as it is brought under the Fifth and Fourteenth

Amendments, contained within Count 5 is dismissed.

D. Qualified Immunity

The court notes that in their reply, the State

Defendants assert that they are entitled to qualified immunity

but fail to explain why. Instead, the State Defendants merely

assert that the court may properly rule on the issue of

qualified immunity at the motion to dismiss stage. State Defs.’

Reply, ECF No. 55, at 4. It appears that the State Defendants

refer to the County Defendants’ qualified immunity arguments

raised in their motion to dismiss in support of the contention

that Trooper McFeeley and Colonel Smithers are entitled to

qualified immunity. Id. However, the court has already stated

that it will not evaluate arguments not made by the State

Defendants in their motion to dismiss or the accompanying

memorandum in support.

V. Conclusion

For the foregoing reasons, it is ORDERED that the

State Defendants’ motion to dismiss be, and it hereby is, denied

except that it is granted by dismissal as to them of the

following:

1. Count 10;

2. Count 15;

3. Count 16, but only to the extent that the IIED claim

against Trooper McFeeley and Colonel Smithers relates to

the July 23, 2016 arrest; and

4. Count 5, but only to the extent that it is brought under

the Fifth and Fourteenth Amendments against Colonel

Smithers.

It is further ORDERED that the State Defendants’

motion to designate their motion to dismiss as unopposed and to

dismiss plaintiff’s claim for failure to prosecute be, and

hereby is, denied as moot.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and to any

unrepresented parties.

ENTER: March 21, 2019