Lane v. Fayette County Sheriff's Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JAMES LANE,

Plaintiff,

v. Civil Action No. 2:18-cv-01223

FAYETTE COUNTY COMMISSION,

ETHAN A. SHREWSBURY,

RYAN FOX and BRIAN FERNANDEZ,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendant Fayette County Commission’s

motion to dismiss the amended complaint, filed January 30, 2019.

I. Background

On or around August 12, 2016, defendant Ethan A.

Shrewsbury, a Fayette County deputy sheriff, responded to a 911

call from an individual at “Adventures on the Gorge.” Am.

Compl. ¶¶ 13-14. The individual reported to 911 dispatch that

plaintiff Lane was intoxicated and had a “perceived lack of

ability to properly and safely supervise his child.” Id. ¶ 14.

Lane was arrested for public intoxication and child neglect and

transported to the Fayette County Sheriff’s Department (“the

Sheriff’s Department”) by defendant Shrewsbury for processing.

Id. ¶ 12, 14.

Shrewsbury later reported that “Plaintiff attempted to

attack him” while he was being processed at the Sheriff’s

Department. Id. ¶ 15. According to the written reports made by

Shrewsbury and “other deputies,” Shrewsbury “delivered an open

hand palm strike to the right side of plaintiff’s face in

response to this attack.” Id. Plaintiff, however, alleges that

Shrewsbury’s report is devoid “of any information that would

explain the other injuries [that plaintiff] suffered.” Id.

Those injuries include “multiple facial lacerations, bruises,”

and “multiple facial fractures requiring surgical intervention,”

as shown by the plaintiff’s medical records. Id. ¶ 16; Pl.’s

Ex. A. Plaintiff claims these injuries resulted from being

“repeatedly struck by Shrewsbury, “knocked to the ground” by

defendant Ryan Fox, and “tazed” by defendant Brian Fernandez,”

all of whom were Fayette County deputy sheriffs and “acted as .

. . agents/employees of the Fayette County Sheriff’s

Department.” Am. Compl. ¶¶ 4, 16.

Plaintiff claims that medical records documenting his

injuries contradict Shrewsbury’s report, which allegedly states

that he “administered one blow to the right side of plaintiff’s

face.” Am. Compl. ¶ 16. He further alleges that defendant

Fernandez tazed him “numerous times” while he was “restrained,”

and that defendant Fox “failed to intervene on plaintiff’s

behalf and was responsible for using excessive force and

knocking plaintiff to the ground.” Id.

As a result of the alleged events, plaintiff

instituted this action on August 10, 2018. He amended his five-

count complaint on December 11, 2018. The amended complaint

charges as follows: violations of Fourth and Fourteenth

Amendments to United States Constitution/42 U.S.C. § 1983 (Count

I); assault and battery (Count II); intentional infliction of

emotional distress (Count III); negligent supervision/training

(Count IV); and spoliation (Count V). The Commission seeks

dismissal of Counts I, II, III, and IV. See Def.’s Mot.

Dismiss.

II. Legal Standard

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

a pleading contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Rule 12(b)(6)

correspondingly provides that a pleading may be dismissed when

there is a “failure to state a claim upon which relief can be

granted.”

To survive a motion to dismiss, a pleading must recite

“enough facts to state a claim to relief that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also Monroe v. City of Charlottesville, 579 F.3d

380, 386 (4th Cir. 2009) (quoting Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008)). In other words, the “[f]actual

allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (citation

omitted).

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

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

allegations contained in the complaint . . . .’” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Twombly, 550 U.S. at

572). Such factual allegations should be distinguished from

“mere conclusory statements,” which are not to be regarded as

true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet

that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal

conclusions.”). Second, 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).

III. Discussion

A. Section 1983 Claims – Count I

Plaintiff first alleges that the officers’ “excessive

force, assault and battery” violated plaintiff’s Fourth

Amendment right “to be free from unreasonable search and

seizures and unreasonable intrusions on his bodily integrity”

and was “egregious, outrageous, and an abuse of power in

violation of Plaintiff’s right under the Fourteenth Amendment to

due process of law.” Am. Compl. ¶¶ 20-21. Plaintiff further

alleges that “the violations of his constitutional rights were

caused by implementation of a custom, policy, or official act of

[the Commission], including, among other things, permitting the

excessive use of force, assault, and battery of

arrested/detained individuals, including Plaintiff.” Id. ¶ 22.

Plaintiff brings these claims pursuant to 42 U.S.C.

§§ 1983, 1988. Section 1983 provides that

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

. . . subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured.

Id. § 1983. “For purposes of Section 1983, a municipality is

considered a ‘person’ and thus is subject to suit.” Hunter v.

Town of Mocksville, 897 F.3d 538, 553 (4th Cir. 2018). However,

“a municipality cannot be held liable solely because it employs

a tortfeasor -- or, in other words, a municipality cannot be

held liable under § 1983 on a respondeat superior theory.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

A local government is liable under § 1983 only when

“through its deliberate conduct, the [local government] was the

‘moving force’ behind the injury alleged.” Bd. of Cty. Comm’rs

of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997) (emphasis in

original) (quoting Monell, 436 U.S. at 694). Such occurs “when

execution of [the] government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be

said to represent official policy, inflicts the injury.”

Monell, 436 U.S. at 694; see also Semple v. City of Moundsville,

195 F.3d 708, 712 (4th Cir. 1999). “Section 1983 plaintiffs

seeking to impose liability on a municipality must, therefore,

adequately plead and prove the existence of an official policy

or custom that is fairly attributable to the municipality and

that proximately caused the deprivation of their rights.”

Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994).

While “[t]he recitation of facts need not be particularly

detailed . . . courts have dismissed Monell claims when the

plaintiff has alleged nothing more than a municipality’s

adherence to an impermissible custom.” Owens v. Baltimore City

State’s Attorneys Office, 767 F.3d 379, 403 (4th Cir. 2014)

(finding plaintiff stated a claim by alleging “reported and

unreported cases” of the police department “knowingly and

repeatedly suppressing exculpatory evidence in criminal

prosecutions”). The factual allegations of a policy or custom

must “raise a right to relief above the speculative level,” see

Twombly, 550 U.S. at 555, and “permit the court to infer more

than the mere possibility of misconduct.” Iqbal, 556 U.S. at

679; Cook v. Howard, 484 F. App’x 805, 810 (4th Cir. 2012).

A local government manifests a “policy or custom” in

four ways:

(1) through an express policy, such as a written

ordinance or regulation; (2) through the decisions of

a person with final policymaking authority; (3)

through an omission, such as a failure to properly

train officers, that “manifest[s] deliberate

indifference to the rights of citizens”; or (4)

through a practice that is so “persistent and

widespread” as to constitute a “custom or usage with

the force of law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting

Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)). In his

response to the Commission’s motion to dismiss, plaintiff argues

that the Commission fell under category three when it

demonstrated deliberate indifference by “fail[ing] to provide

adequate training to its police officers regarding the booking

process.” Pl.’s Resp. 4. The amended complaint itself makes no

mention of “deliberate indifference.”

“‘Deliberate indifference’ is a stringent standard of

fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (quoting Brown, 520 U.S. at

410). Nonetheless, deliberate indifference for purposes of

§ 1983 may be alleged in two ways. First, the plaintiff may

allege “[a] pattern of similar constitutional violations by

untrained employees.” Connick, 563 U.S. at 62 (quoting Brown,

520 U.S. 397, 409 (1997)); see also Moody v. City of Newport

News, 93 F. Supp. 3d 516, 538 (E.D. Va. 2015). “Policymakers’

continued adherence to an approach that they know or should know

has failed to prevent tortious conduct by employees may

establish the conscious disregard for the consequences of their

action—the ‘deliberate indifference’—necessary to trigger

municipal liability.” Connick, 563 U.S. at 62; City of Canton

v. Harris, 489 U.S. 378, 397 (1989) (O’Connor, J., concurring in

part and dissenting in part) (“[M]unicipal liability for failure

to train may be proper where it can be shown that policymakers

were aware of, and acquiesced in, a pattern of constitutional

violations involving the exercise of police discretion.”).

Second, “in a narrow range of circumstances,” a

plaintiff may allege deliberate indifference by reference to

only a single incident. Connick, 563 U.S. at 63 (quoting Brown,

520 U.S. at 409). In City of Canton v. Harris, the Supreme

Court left “open the possibility that evidence of a single

violation of federal rights, accompanied by a showing that a

municipality has failed to train its employees to handle

recurring situations presenting an obvious potential for such a

violation, could trigger municipal liability.” Brown, 520 U.S.

at 409 (citing 489 U.S. at 390 n.10).

Here, plaintiff alleges that the Commission had a

custom of “permitting the excessive use of force, assault, and

battery of arrested/detained individuals” without pointing to

any instances of such misconduct other than the instant case.

Pl.’s Resp. 5; Am. Compl. ¶¶ 6, 22. Plaintiff does not allege

whether the Commission was aware of such conduct or if it made a

deliberate choice not to train officers in this area. See Barr

v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011) (dismissing

§ 1983 failure to train claim because plaintiff “did not allege

facts supporting a plausible inference either that the County

was on notice beforehand of a need to train in this area, or

that the County made a deliberate choice not to do so”). Even

at the motion to dismiss stage, the amended complaint lacks

adequate factual allegations to support an inference that there

may have been a pattern of unconstitutional conduct by the

Commission. “[L]abels and conclusions, and a formulaic

recitation of the elements of a cause of action will not”

survive a motion to dismiss. Twombly, 550 U.S. at 555; Newhard

v. Borders, 649 F. Supp. 2d 440, 446 (W.D. Va. 2009) (dismissing

complaint because it lacked allegations to “support a conclusion

that the Town’s governing officials were actually or

constructively aware of persistent and widespread constitutional

deprivations by Town police officers” or “any allegations of

other, similar constitutional deprivations at the hands of Town

officers”).

There remains the alternate theory “that the

unconstitutional consequences of failing to train [were]

patently obvious” and so “highly predictable” that even a single

incident of misconduct could state a claim. Connick, 563 U.S.

at 64; City of Canton, 489 U.S. at 390 n.10 (suggesting that

“the need to train officers in the constitutional limitations on

the use of deadly force” is “‘so obvious,’ that failure to do so

could properly be characterized as ‘deliberate indifference’ to

constitutional rights”); see also Gallimore v. Henrico Cty.

Sch. Bd., 38 F. Supp. 3d 721, 727 (E.D. Va. 2014) (dismissing

complaint because plaintiff did not allege “that the School

Board failed to train school administrators in an area where

there is an obvious need for training”). Yet, the amended

complaint contains no allegations to suggest that the need for

training on the booking and processing of suspects or the use of

excessive force was so obvious as to amount to deliberate

indifference. Indeed, it never mentions deliberate indifference

at all.

Section 1988 provides no support to plaintiff’s suit.

Section 1988 permits a successful § 1983 plaintiff to recover

attorney’s fees, but it does not “in itself . . . create any

cause of action.” Johnson v. Ryder Truck Lines, Inc., 575 F.2d

471, 474 (4th Cir. 1978). Rather, it “instructs federal courts

as to what law to apply in causes of action arising under

federal civil rights acts.” Moor v. County of Alameda, 411 U.S.

693, 703-06 (1973)).

Accordingly, plaintiff’s constitutional claims under

§ 1983 and § 1988 must be dismissed as to the Commission.

B. State Law Tort Claims – Counts II and III

Plaintiff also brings state law claims of assault and

battery (Count II) and intentional infliction of emotional

distress (Count III).

As a “county commission” in West Virginia, the

Commission meets the definition of a “[p]olitical subdivision”

under West Virginia’s Governmental Tort Claims and Insurance

Reform Act. W. Va. Code Ann. § 29-12A-3(c), (e). Pursuant to

this statute, “[p]olitical subdivisions are liable for injury .

. . to persons . . . caused by the negligent performance of acts

by their employees while acting within the scope of employment.”

Id. § 29-12A-4(c)(2) (emphasis added); Matson v. Wagner, 236

W.Va. 488, 507 (2015). “Political subdivisions are not,

however, liable for ‘intentional malfeasance’ on the part of

their employees.” Poe v. Town of Gilbert, No. 2:11-CV-00645,

2012 WL 3853200, at *8 (S.D.W. Va. Sept. 5, 2012) (quoting

Mallamo v. Town of Rivesville, 197 W.Va. 616, 624 (1996))

(dismissing state law claims of assault and battery and

intentional infliction of emotion distress “insofar as they

allege intentional torts”). As defendants correctly point out,

Counts II and III allege intentional torts and therefore must be

dismissed as to the Commission.

C. State Law Tort Claims – Count IV

Plaintiff claims in Count IV that the Commission

negligently failed to “supervise and train its deputies.” Am.

Compl. ¶ 33. First, the Governmental Tort Claims and Insurance

Reform Act “does not contemplate immunity where a plaintiff sues

based on negligent hiring and supervision of an employee.”

Woods v. Town of Danville, 712 F. Supp. 2d 502, 514 (S.D.W. Va.

2010); W. Virginia Reg’l Jail & Corr. Facility Auth. v. A.B.,

234 W.Va. 492, 502, 507 (2014) (finding that while the statute

“does not cover claims made against the State or its agencies,”

it governs “the liability of political subdivisions and their

employees”). The Commission is thus not immune from this state

law claim.

A state law claim for negligent training and

supervision is governed by a standard different than that

discussed above to establish municipality liability in a § 1983

action. See, e.g., Pruitt v. West Virginia Dep’t of Public

Safety, 222 W. Va. 290, 296-97 (2008) (allowing claims of

negligent failure to train and supervise to proceed to trial);

Neiswonger v. Hennessey, 215 W. Va. 749, 753-54 (2004)

(recognizing negligent hiring, training, and supervising as a

cause of action grounded in state law and distinct from claims

asserted under § 1983). Unlike § 1983 claims, a “claim under

the Governmental Tort Claims Act for negligent hiring, training,

and supervision does not require a showing of ‘deliberate

indifference,’ nor does it require that [plaintiff] establish a

widespread ‘custom or policy.’” Gilco v. Logan Cty. Comm’n,

2:11-cv-0032, 2012 WL 3580056, at *8 (S.D.W. Va. Aug. 17, 2012).

Instead, it “centers on whether the employer was on notice of

the employee's propensity (creating a duty), yet unreasonably

failed to take action (manifesting a breach), resulting in harm

to a third-party from the employee’s tortious conduct.” S.R. v.

Fayette Cty. Bd. of Educ., No. CV 15-13466, 2016 WL 6886868, at

*6 (S.D.W. Va. Nov. 21, 2016).

The amended complaint alleges that the Commission

“failed to properly investigate plaintiff’s injuries and take

action against the defendants” and that “[r]epeatedly

handcuffing and releasing plaintiff who was clearly identified

as being intoxicated . . . was a result of improper training by

the Department [and] violated department protocol.” Am. Compl.

¶¶ 30, 33-34. Plaintiff also asserts that his “bodily injury,

emotional distress, humiliation, embarrassment, mental distress

and loss of personal dignity” were “a direct and proximate

result” of the Commission’s conduct. Am. Compl. ¶ 35.

Accepting all the allegations in plaintiff’s amended

complaint as true, plaintiff’s negligent supervision and

training claim fails to allege what duty existed or how the

Commission breached its duty to plaintiff. The amended

complaint asserts that the Commission failed to investigate the

deputy sheriffs’ conduct after the fact but gives no indication

as to how the Commission could have reasonably anticipated a

risk of injury from the alleged acts of the officers in this

case. The amended complaint fails to allege that an ordinary

county commission, knowing what it knew or should have known,

would anticipate that this type of harm was foreseeable. See

S.R., 2016 WL 6886868, at *6; see also Lizotte v. Finley, No.

2:18-CV-01389, 2019 WL 2865864, at *2 (S.D.W. Va. July 2, 2019)

(denying motion to dismiss where plaintiff alleged “Sheriff’s

Department had knowledge of, or (had they diligently exercised

their duties to instruct, supervise, and control their own

actions and actions of their agents) should have had knowledge

that the wrongs conspired to be done were about to be

committed”).

In Poe v. Town of Gilbert, for example, the

plaintiff’s negligent training, supervision, and retention claim

included allegations that the defendant town “failed to require

inservice training of police officers known to have engaged in

police misconduct [and] that Defendant knew the Officers . . .

had a history of violence and had received excessive force

complaints against them and did nothing about it.” No. 2:11-CV-

00645, 2012 WL 3853200, at *10 (S.D.W. Va. Sept. 5, 2012). Even

then, this court held that “these cobbled allegations” only

“barely” stated a claim. Id. Here, plaintiff fails to allege

whether the deputy sheriffs had prior complaints against them

for excessive force or improper booking, whether the Commission

was aware of abusive or unlawful conduct by any of the

individual officers, how the Commission responded to previous

complaints, or what type of training officers did or did not

receive. See id.; Gaylord v. City of Beckley, No. 5:18-CV-

00177, 2018 WL 3581093, at *5 (S.D.W. Va. July 25, 2018)

(allowing claim to proceed where plaintiff “allege[d] that

officers routinely charge people with obstruction without

probable cause, particularly when the officers engaged in other

misconduct”); Smith v. Popish, No. 5:17-CV-129, 2017 WL 4401633,

at *6 (N.D.W. Va. Oct. 2, 2017) (denying motion to dismiss where

plaintiff alleged city was aware defendant “ha[d] prior claims

against him for excessive force . . . but allowed him to

continue as a police officer without providing proper

supervision or re-training”). Without any additional

allegations, plaintiff’s claim amounts to bare conclusory

statements.

Accordingly, plaintiff’s Count IV negligent

supervision and training claim must be dismissed.

IV. Conclusion

For the reasons stated herein, it is ORDERED that the

Commission’s motion to dismiss be, and hereby is, granted. It

is further ORDERED that Counts I, II and III be, and hereby are,

dismissed as to the Fayette County Commission, and Count IV,

which is limited to the Commission, is dismissed.

The Clerk is directed to transmit copies of this order

to all counsel of record and to any unrepresented parties.

ENTER: September 30, 2019