# Schoonover v. Clay County Sheriff's Department

> District Court, S.D. West Virginia · May 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10729036

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** May 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10729036

## How later opinions describe it (automated extraction)

- holding that a political subdivision is not liable for its employees’ “intentional malfeasance”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

JAMES RANDY SCHOONOVER,

Plaintiff,

v. Civil Action No. 2:19-cv-00386

CLAY COUNTY SHERIFF’S DEPTARTMENT,
CLAY COUNTY COMMISSION,
MICHAEL PATRICK MORRIS, and
JONATHAN HOLCOMB,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the defendants’ motion to dismiss, filed on
July 15, 2019.
I. Background
The plaintiff is a 65-year old resident of Clay
County, West Virginia who had his left arm amputated prior to
the events of this suit.1 ECF No. 1 (“Compl.) ¶ 2. On September
27, 2018, the plaintiff drove to the home of his brother
(unnamed) to ask his brother to drive him to a hospital in

1 The defendants allege that “the lower portion of Plaintiff’s
left arm had been amputated.” ECF No. 8 at 2.
Charleston because he was experiencing chest pain. See id.
¶¶ 7-10.

The plaintiff parked his car and was walking up the
driveway to the front door of his brother’s house when defendant
Deputy Sheriff Michael Patrick Morris pulled into the driveway
and turned on the police lights of his vehicle.2 See id. ¶¶ 12-
14. Deputy Morris demanded the plaintiff’s license and
registration twice without explanation as to why. See id.
¶¶ 15-18. The plaintiff told Deputy Morris that he did not have
the requested documents, that he was experiencing chest pain,
and that he needed an aspirin. Id. ¶¶ 19-20. Deputy Morris

told the plaintiff that the plaintiff could not have an aspirin
and that he needed to “figure out what’s going on here.” See
id. ¶¶ 21-22. The plaintiff’s sister-in-law asked if she could
give the plaintiff an aspirin, which Deputy Morris allowed. See
id. ¶ 24. The plaintiff went into the house, took an aspirin,
and called Magistrate Boggs to ask him if he could stay past

2 The Criminal Complaint to the Magistrate Court details that
Deputy Morris conducted a “routine traffic stop” of the
plaintiff based on an expired vehicle registration. See ECF No.
7-1 at 2. Deputy Morris ran the vehicle registration through
the DMV, which came back with a hit from the National Crime
Information Center against a Ray Rhodes for stolen tags. See
id.
4:00pm in case the plaintiff would be brought before him. See
id. ¶ 25.

When the plaintiff returned outside, Deputy Morris
asked with whom the plaintiff had spoken and the plaintiff
answered that he spoke to Magistrate Boggs. See id. ¶¶ 26-27.
Deputy Morris then told the plaintiff that he was under arrest
“because he called Magistrate Boggs.” See id. ¶ 28. Defendant
Deputy Sheriff Jonathan Holcomb had arrived on the scene by this
point. See id. ¶ 29. Deputy Holcomb handcuffed the plaintiff’s
right wrist to his right ankle and placed the plaintiff in the
back of Deputy Morris’s vehicle. Id. ¶¶ 31-32, 51. Neither

officer read the plaintiff his Miranda rights or informed the
plaintiff of his charges. See id. ¶¶ 33-35. The plaintiff
asked for another aspirin as he was being placed in the police
vehicle, to which Deputy Holcomb responded by raising his arm as
if he were preparing to strike the plaintiff, and said: “Shut
your mouth, old man, or I’ll shut it for you.” See id. ¶¶ 36-
38.

At the county courthouse, Deputy Holcomb removed the
plaintiff from Deputy Morris’s vehicle and told a group of young
men standing nearby that: “You see this criminal here? Be good
or you’ll end up here.” See id. ¶¶ 39-41. Deputies Holcomb and
Morris told their supervisor that they should have made the
plaintiff “quack like Donald Duck” while they had him
handcuffed. See id. ¶ 42.

The plaintiff was charged with four criminal
violations: (1) driving with a suspended or revoked license, (2)
no proof of insurance, (3) improper vehicle registration, and
(4) receiving or transferring stolen property. See ECF No. 7-1
(“Crim. Compl.”); ECF No. 8 (“Mem. Mot. Dismiss”) at 3.
Magistrate Boggs determined that probable cause existed for each
charge. See Crim. Compl. at 1; Mem. Mot. Dismiss at 3. On
January 16, 2019, the plaintiff entered a guilty plea to the
charge of receiving or transferring stolen property. See ECF

No. 7-2 (“Guilty Plea”). On January 17, 2019, Magistrate Rider
entered a judgment of guilty of the charge of receiving or
transferring stolen property, and dismissed the remaining
charges. See ECF No. 7-3 (“Crim. J. Order”).
The plaintiff alleges that he suffered physical
injuries to his back, ankle, and wrist as a result of his

arrest. See Compl. ¶ 43. The plaintiff filed this suit on May
15, 2019 against the Clay County Sheriff’s Department, the Clay
County Commission, Deputy Sheriff Morris in his individual
capacity, and Deputy Sheriff Holcomb in his individual capacity,
as specified in the complaint. Id. ¶¶ 3-6. The plaintiff
alleges four causes of action against the defendants: (1)
excessive force pursuant to 42 U.S.C. § 1983 for violations of
his rights under the Fourth, Eighth, and Fourteenth Amendments
to the United States Constitution; (2) cruel and unusual
punishment pursuant to 42 U.S.C. § 1983 for violations of his
rights under the Fourth, Eighth, and Fourteenth Amendments; (3)

violations of Article III, Sections 1, 5, 6, and 10 of the West
Virginia Constitution; and (4) negligence. See id. ¶¶ 46-76.
The defendants filed a motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim upon which relief can be granted. See
ECF No. 7 (“Mot. Dismiss”). The plaintiff filed a response in

opposition, ECF No. 9 (“Pl.’s Resp.”), to which the defendants
filed a reply, ECF No. 12 (“Reply”).
II. Legal Standard

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). 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 by Twombly, 550 U.S. at 563). Rule 8
does not require “detailed factual allegations, but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted).

Rule 12(b)(6) correspondingly permits a defendant to
challenge a complaint that “fail[s] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). 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.’” Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 570). The “[f]actual
allegations [in the complaint] must be enough to raise a right
to relief above the speculative level” such that relief is
“plausible.” Twombly, 550 U.S. at 555-56. A “formulaic
recitation of the elements of a cause of action will not do.”
Id. at 555.

Nevertheless, “a Rule 12(b)(6) motion should only be
granted if, after accepting all well-pleaded allegations in the
plaintiff's complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff's favor, it appears
certain that the plaintiff cannot prove any set of facts in
support of his claim entitling him to relief.” Edwards v. City
of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

III. Discussion

A. First and Second Causes of Action - United States
Constitution Violations (§ 1983)
The plaintiff alleges two causes of action against the
defendants for violating the plaintiff’s rights under the
Fourth, Eighth, and Fourteenth Amendments to the United States
Constitution while acting under the color of law. The first
cause of action is for “excessive force and wrongful force” that
“no objectively reasonable police officer could have perceived
. . . as necessary” when the defendants handcuffed the plaintiff
wrist-to-ankle in the course of arresting him. Compl. ¶¶ 46-52.

The second cause of action is for “applying cruel and unusual
punishment” when the defendants handcuffed the plaintiff wrist-
to-ankle. Id. ¶ 60.
Section 1983 provides a federal cause of action to
recover damages for constitutional violations by officers acting
under color of state law. Hernandez v. Mesa, 140 S. Ct. 735,

747 (2020); see also Baker v. McCollan, 443 U.S. 137, 145 n.3
(1979) (“[Section 1983] is not itself a source of substantive
rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and
federal statutes that it describes.”). To sustain a § 1983
claim, a plaintiff must prove that he or she was deprived of a
constitutional right by the defendant acting under color of
state law, Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970), and that the defendant was personally involved in the
deprivation of the constitutional rights, Wright v. Collins, 766
F.2d 841, 850 (4th Cir. 1985).
(1) Fourth Amendment

The first cause of action for “excessive force” is
best understood as a violation of the Fourth Amendment. The
Fourth Amendment protects “[t]he right of the people to be
secure in their persons . . . against unreasonable searches and
seizures.” U.S. CONST. amend. IV. Arrests are “seizures” of
“persons” that “must be reasonable under the circumstances.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735-36 (2011). “A police
officer may arrest a person if he has probable cause to believe
that person committed a crime.” Tennessee v. Garner, 471 U.S.
1, 7 (1985). The plaintiff does not dispute that Deputies
Holcomb and Morris had probable cause to arrest him. See Crim.
Compl. at 1 (indicating that the Magistrate found probable cause
for the warrantless arrest).
“The right to make an arrest carries with it the right
to use the amount of force that a reasonable officer would think
necessary to take the person being arrested into custody.”
Martin v. Gentile, 849 F.2d 863, 869 (4th Cir. 1988); see also
Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002) (“It is also

well established that the right to make an arrest carries with
it the right to use a degree of physical coercion or threat
thereof to effect the arrest.”). To determine the
constitutionality of a seizure, courts must balance the
competing interests between “the nature and quality of the
intrusion on the individual's Fourth Amendment interests against
the importance of the governmental interests alleged to justify
the intrusion.” Tennessee, 471 U.S. at 8 (internal citations
omitted). A claim that law enforcement officials used excessive
force in the course of making an arrest is “properly analyzed
under the Fourth Amendment's ‘objective reasonableness'
standard.” Graham v. Connor, 490 U.S. 386, 388 (1989).

The Fourth Amendment reasonableness standard “depends
on not only when a seizure is made, but also how it is carried
out.” Tennessee, 471 U.S. at 8. “[T]he ‘reasonableness’
inquiry in an excessive force case is an objective one: the
question is whether the officers' actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.”
Graham, 490 U.S. at 397; see also Tennessee, 471 U.S. at 8
(reviewing “the totality of the circumstances”). “The
‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396. Although the Fourth Amendment test of
reasonableness is “not capable of precise definition or
mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559
(1979), the proper application of the test “requires careful
attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight,” Graham, 490 U.S. at 396.
The Fourth Circuit does not apply a per se rule to whether
handcuffing violates the Fourth Amendment; rather courts should

“assess the reasonableness of using handcuffs based on the
circumstances.” See E.W. by & through T.W. v. Dolgos, 884 F.3d
172, 180 (4th Cir. 2018).
The defendants argue that the plaintiff does not
allege a violation of a clearly established constitutional right
because handcuffing the plaintiff does not constitute excessive
force. Mem. Mot. Dismiss at 10, 12-13. The defendants also
argue that, even if handcuffing the plaintiff constituted a
violation of the Fourth Amendment under these circumstances, the
law was not clearly established at the time of the arrest and so
the Deputies are entitled to qualified immunity. Id. at 13.

The plaintiff argues in opposition that handcuffing can be a
viable excessive force claim. Pl.’s Resp. at 7. In particular,
the plaintiff argues that the Deputies’ actions were objectively
unreasonable under the totality of the circumstances of the
arrest. Id. at 8.

(i) Deputies Holcomb and Morris, in their
individual capacities
Government officials may be subject to suit in either
their individual capacity (i.e., personal capacity) or their
official capacity. Individual-capacity suits seek to impose
personal liability upon a government official for actions taken
under color of law, while official-capacity suits are generally
only another way of pleading an action against the government
entity and should be treated as a suit against that government
entity. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
Officials sued in their individual capacity may enjoy limited
defenses, including qualified immunity. Id. at 166-67.
Qualified immunity is “an entitlement not to stand
trial or face the other burdens of litigation.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). “The entitlement is an
immunity from suit rather than a mere defense to liability; and
like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.” Id. (emphasis in
original). As a result, it is important for courts to resolve
questions of qualified immunity at the earliest possible stage
of litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per
curiam). The determination of whether a government official is
entitled to qualified immunity is “purely [a] legal question.”
Siegert v. Gilley, 500 U.S. 226, 232 (1991).

The doctrine of qualified immunity provides that
“government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity protects government officials from “bad
guesses in gray areas” to ensure that they may only be liable
“for transgressing bright lines.” Maciariello v. Sumner, 973
F.2d 295, 298 (4th Cir. 1992). The standard for analyzing an
official’s conduct is objective reasonableness, and, generally,
“[s]ubjective factors involving the officer’s motives, intent,
or propensities are not relevant.” Rowland v. Perry, 41 F.3d
167, 173 (4th Cir. 1994). Government officials performing a
discretionary function are immune from liability for civil
damages unless “(i) the [officials’] conduct violates a federal

statutory or constitutional right; (ii) the right was clearly
established at the time of the conduct; and (iii) an objectively
reasonable [official] would have understood that the conduct
violated that right.” Trulock v. Freeh, 275 F.3d 391, 399 (4th
Cir. 2001).
A government official's conduct violates clearly

established law when, at the time of the challenged conduct,
“[t]he contours of [a] right [are] sufficiently clear” that
every “reasonable official would [have understood] that what he
is doing violates that right.” al-Kidd, 563 U.S. at 741
(alterations in original) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). A case directly on point is not
required, but “existing precedent must have placed the statutory
or constitutional question beyond debate.” Id. Courts must not
define the clearly established law at a “high level of
generality.” Id. at 742. “[S]pecificity is especially
important in the Fourth Amendment context” because “[i]t is
sometimes difficult for an officer to determine how the relevant
legal doctrine, here excessive force, will apply to the factual
situation the officer confronts.” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (per curiam) (quoting Saucier v. Katz, 533 U.S.
194, 205 (2001)).

The Supreme Court has articulated a two-step process
for resolving qualified immunity claims: (1) decide whether the
facts alleged by the plaintiff make out a violation of a
constitutional (or statutory) right, and (2) decide whether the
right at issue was “clearly established” at the time of the
defendant's alleged misconduct. Saucier, 533 U.S. at 201.
Lower court judges should “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.” Pearson v. Callahan, 555 U.S.
223, 236 (2009).
Considering the totality of the circumstances of this
case as alleged in the complaint, the court finds that the

Deputies’ actions were unreasonable. Graham v. Connor requires
a careful review of at least three circumstances in determining
reasonableness: (1) the severity of the crime at issue, (2)
whether the suspect poses an immediate threat to the safety of
the officers or others, and (3) whether the suspect is resisting
arrest or attempting to evade arrest by flight. See 490 U.S. at
396. The plaintiff was arrested for non-violent offenses; he
was not an apparent threat to anyone’s safety, in part, because
he was an elderly amputee who was complaining of chest pain; and
there is no evidence that he was resisting arrest or attempting
to flee. Deputy Morris did not need to pull over the

plaintiff’s vehicle because the plaintiff had already parked and
was walking toward his brother’s house when the Deputy
approached him. Deputy Morris also allowed the plaintiff to
enter the house at the request of the plaintiff’s sister-in-law
to obtain an aspirin. The Deputy’s actions prior to handcuffing
are not consistent with the view that the plaintiff posed a
threat or was attempting to resist arrest.

Even if the prudent exercise of caution warranted
handcuffing, the particular method of handcuffing the
plaintiff’s wrist to his ankle was unreasonable under the
circumstances. Handcuffing wrist-to-ankle naturally increases
the risk of falling or bodily injury since it places the
plaintiff off balance and requires him to contort his body. The
senior age of the plaintiff compounds the risk of falling or
serious injury. The plaintiff enumerates several alternatives
to handcuffing wrist-to-ankle, including using another restraint
device, handcuffing the plaintiff’s wrist to his belt or belt
loop in his pants, or using flex cuffs in a daisy chain. See
Pl.’s Resp. at 9. Any of these handcuffing alternatives would
have been more reasonable here. Handcuffing an elderly amputee
wrist-to-ankle under these circumstances is so extreme that any
reasonable officer on the scene should know that the conduct
constituted the imposition of excessive force in violation of

the Fourth Amendment.
Despite the constitutional violation, the Deputies are
entitled to qualified immunity. Handcuffing is a “standard
procedure” in arrest. See Brown, 278 F.3d at 369. Usual
protocol may be to handcuff an arrestee’s wrists, but the right
not to be handcuffed wrist-to-ankle is not clearly established

by law. The plaintiff does not even address whether such a
right is clearly established. The plaintiff instead asserts
that “[t]he right to be free from excessive force is a clearly
established Fourth Amendment right.” Pl.’s Resp. at 7. This
assertion is far too general to support a finding that the right
sought to be vindicated under these circumstances is clearly
established.

The unreasonable conduct here presents a proverbial
“hard case” in which the plaintiff's plight arouses natural
sympathies; however, the Supreme Court has cautioned judges not
to allow a “hard case” to make “bad law.” F.C.C. v. WOKO, Inc.,
329 U.S. 223, 229 (1946). The Eleventh Circuit in Rodriguez v.
Farrell recognized another “hard case” in which police twisted
the plaintiff’s previously injured arm behind his back and
handcuffed him, which resulted in amputation of the arm. 280
F.3d 1341, 1351 n.19 (11th Cir. 2002). The court found no
constitutional violation because the police applied a “common

non-excessive handcuffing technique (that ordinarily would be
painful but cause minimal injury)” and were not alerted about
the preexisting injury to the arm. Id. at 1352-53.
The Fourth Circuit in E.W. by & through T.W. v. Dolgos
found that handcuffing a ten-year-old girl was an “unreasonable
force disproportionate to the circumstances presented,” and thus

violated the girl’s constitutional rights under the Fourth
Amendment. 884 F.3d at 185. However, the court found that the
officer was entitled to qualified immunity because the girl’s
right not to be handcuffed under the circumstances of that case
was not clearly established at the time of the arrest, and it
was not obvious to the officer that he could not handcuff the
girl. Id. at 186-87. Similarly, handcuffing the plaintiff
wrist-to-ankle under the circumstances in this case seems
unreasonable, but there is no indication that the officers were
or should have been on notice of a clearly established right not
to handcuff one such as the plaintiff in this way. The
plaintiff fails to allege any support that such a right is
clearly established. The Fourth Amendment claims against the
Deputies are therefore dismissed based on qualified immunity.

(ii) Clay County Commission
The Clay County Commission enjoys immunity from suit

for certain claims under the West Virginia Governmental Tort
Claims and Insurance Reform Act, W. Va. Code § 29-12A-1 et seq.
The Act “limit[s] liability of political subdivisions and
provide[s] immunity to political subdivisions in certain
instances.” W. Va. Code § 29-12A-1. However, it does not apply
to “[c]ivil claims based upon alleged violations of the
constitution or statutes of the United States.” W. Va. Code
§ 29-12A-18(e). The Act therefore does not immunize the
Commission from liability for the plaintiff’s § 1983 claims.

Qualified immunity does not extend to municipal
defendants. Santos v. Frederick Cty. Bd. of Comm'rs, 725 F.3d
451, 470 (4th Cir. 2013). As a consequence, the Commission may
be liable for the § 1983 claims under a theory of municipal
liability. A local government may not be sued under § 1983 for
injuries inflicted solely by its employees or agents; instead a
municipality is subject to liability for a claim under § 1983
only when its “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 [plaintiff’s] injury.” Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978). This means that “a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” Id. at 691; see
also Santos, 725 F.3d at 469–70 (“[M]unicipal liability under

Section 1983 does not amount to respondeat superior.”).
Thus, municipal liability under § 1983 attaches only
where “a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question.” Pembaur v. City of Cincinnati, 475

U.S. 469, 483 (1986). The official must possess “final
authority to establish municipal policy with respect to the
action ordered,” and be “responsible for establishing final
government policy respecting such activity.” Id. at 481–83.
These requirements ensure that any recovery from a municipality
is limited to acts that the municipality has officially
sanctioned or ordered.

Neither party in this case addresses municipal
liability in their briefings. The plaintiff fails to allege or
present any support for a policy or custom endorsed by the local
government. There is no indication that the Commission has
established a policy or sanctioned a custom of handcuffing
wrist-to-ankle under any circumstance. The Fourth Amendment
claims against the Clay County Commission are dismissed because
the plaintiff fails to allege a plausible basis to establish
Fourth Amendment municipal liability.3

(iii) Clay County Sheriff’s Department

The defendants argue that all claims against the Clay
County Sheriff’s Department fail as a matter of law because the
Department is an entity incapable of being sued and therefore is
an improper party. See Mem. Mot. Dismiss at 4-6. The plaintiff
does not respond to this argument.

West Virginia law authorizes a county commission to
sue or be sued, but no provision authorizes a county sheriff's
office to sue or be sued separate from the county commission.
See W. Va. Code § 7-1-1(a); see also Revene v. Charles Cty.
Comm'rs, 882 F.2d 870, 874 (4th Cir. 1989) (affirming dismissal
of a claim against the “Office of Sheriff” in Charles County,
Maryland because “this ‘office’ is not a cognizable legal entity
separate from the Sheriff in his official capacity and the
county government of which this ‘office’ is simply an agency”).

3 Although the plaintiff does not oppose the dismissal of the
Clay County Commission without prejudice as to the first cause
of action (42 U.S.C. § 1983 excessive force), see Pl.’s Resp. at
11 n.1, the court decides dismissal on the merits.
Federal courts in West Virginia have uniformly dismissed claims
brought against a sheriff’s department as being improper. See,
e.g., Tomashek v. Raleigh Cty. Emergency Operating Ctr., No.
2:17-CV-1904, 2018 WL 522420, at *2-3 (S.D.W. Va. Jan. 23,
2018); Terlosky v. Matthews, No. 5:11-CV-26, 2011 WL 1302238, at

*2 (N.D.W. Va. Mar. 31, 2011); Taylor v. Mercer, No. 5:09-CV-
127, 2010 WL 1490367, at *2 (N.D.W. Va. Apr. 13, 2010).
Accordingly, all claims asserted against the Clay County
Sheriff’s Department are dismissed.

(2) Eighth Amendment
The second cause of action for “cruel and unusual
punishment” is best understood as a violation of the Eighth
Amendment. The Eighth Amendment prohibits “[e]xcessive bail,”
“excessive fines,” and “cruel and unusual punishments.” U.S.
CONST. amend. VII. The Eighth Amendment only pertains to

punishments that occur after an individual has been convicted.
See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,
244 (1983) (holding that the Eighth Amendment does not apply
until after a “formal adjudication of guilt”); United States v.
Hall, 551 F.3d 257, 273 n.19 (4th Cir. 2009). The alleged
violations in this case occurred in the course of an arrest,
before the determination of the plaintiff’s guilt. The Eighth
Amendment claims are thus dismissed.4

(3) Fourteenth Amendment
The Fourteenth Amendment provides three types of

constitutional protection against state interference: (1) the
incorporation of certain provisions of the Bill of Rights
against the states, including rights secured under the Fourth
and Eighth Amendments; (2) procedural due process that provides
direct protection against state deprivation of life, liberty, or
property without appropriate procedural safeguards; and (3)
substantive due process that prohibits certain deprivations of
life, liberty, or property regardless of the procedures by which
these are deprived. Martin, 849 F.2d at 867.

The Supreme Court has held 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.” United States v.
Lanier, 520 U.S. 259, 272 (1997). “[A]ll claims that law

4 While the plaintiff does not oppose dismissal of all
defendants, without prejudice, as to the second cause of action
for cruel and unusual punishment, the court directs dismissal on
the merits. See Pl.’s Resp. at 11 n.1.
enforcement officers have used excessive force . . . in the
course of an arrest, investigatory stop, or other ‘seizure’ of a
free citizen should be analyzed under the Fourth Amendment and
its ‘reasonableness’ standard, rather than under a ‘substantive
due process’ approach.” Graham, 490 U.S. at 395. Indeed, the

plaintiff does not allege a procedural due process or
substantive due process violation separate from the Fourth and
Eighth Amendment claims concerning the plaintiff’s arrest.
B. Third Cause of Action - West Virginia State
Constitution Violations

The plaintiff alleges a constitutional tort action
against all the defendants for violations of the rights
guaranteed under Article III, Sections 1, 5, 6, and 10 of the
West Virginia state constitution.5 Compl. ¶¶ 66-67. The court
exercises supplemental jurisdiction over the state-law claims

5 The plaintiff argues that the West Virginia Governmental Tort
Claims and Insurance Reform Act is inapplicable to claims of
violations of the West Virginia state constitution because the
Act does not apply to the claims of violations of the United
States Constitution. See Pl.’s Resp. at 12. This argument is
without merit. While the Act does not apply to civil claims
based upon alleged violations of the United States Constitution
and federal statute, no such provision precludes the Act from
applying to alleged violations of the West Virginia state
constitution. Simply alleging federal-law claims does not void
the application of the Act to state-law claims.
under 28 U.S.C. § 1367 because the claims “form part of the same
case or controversy” as the federal-law claims addressed above.

(1) Article III, Section 1
Article III, Section 1 of the West Virginia state

constitution, entitled “Bill of Rights,” provides “the basic
principle” on which the state democratic structure is founded.
Allen v. State, Human Rights Comm'n, 324 S.E.2d 99, 109 (W. Va.
1984). This section does not independently give rise to a cause
of action. See Spry v. W. Virginia, No. 2:16-CV-01785, 2017 WL
440733, at *10 (S.D.W. Va. Feb. 1, 2017); Harper v. C.O. Joseph
Barbagallo, No. 2:14-CV-07529, 2016 WL 5419442, at *13 (S.D.W.
Va. Sept. 27, 2016). The plaintiff does not present authority
to the contrary. All claims against the defendants for
violations of Article III, Section 1 are dismissed.

(2) Article III, Section 5

Article III, Section 5 prohibits cruel and unusual
punishment. This section is the West Virginia counterpart to
the Eighth Amendment to the United States Constitution. Syl.
Pt. 8, State v. Vance, 262 S.E.2d 423, 425 (W. Va. 1980). All
claims against the defendants for violations of Article III,
Section 5 are dismissed for the same reason as that given for
the dismissal of the Eighth Amendment claims.
(3) Article III, Section 6

Article III, Section 6 is the West Virginia
counterpart to the Fourth Amendment to the United States
Constitution. State v. Worley, 369 S.E.2d 706, 712 n.5 (W. Va.
1988) (noting that the “State counterpart is virtually identical
to the Fourth Amendment”); State v. Craft, 272 S.E.2d 46, 54 (W.
Va. 1980). In most cases, the protections afforded under
Article III, Section 6 are co-extensive with those provided in
the Fourth and Fourteenth Amendments to the United States
Constitution. State v. Clark, 752 S.E.2d 907, 920 (W. Va.
2013); see also State v. Duvernoy, 195 S.E.2d 631, 634 (W. Va.
1973) (“This Court has traditionally construed Article III,

Section 6 in harmony with the Fourth Amendment.”). The same
analysis under the Fourth Amendment applies here to Deputies
Holcomb and Morris, and the claim is dismissed against them.
With respect to the Clay County Commission, the West
Virginia Governmental Tort Claims and Insurance Reform Act
immunizes the Commission from liability resulting from the

intentional misconduct of its employees. Provisions of the Act
pertinent here include the following:
(b)(1) Except as provided in subsection (c) of this
section, a political subdivision is not liable in
damages in a civil action for injury, death, or loss
to persons or property allegedly caused by any act or
omission of the political subdivision or an employee
of the political subdivision in connection with a
governmental or proprietary function. . . .

(c) Subject to sections five and six of this article,
a political subdivision is liable in damages . . . as
follows: . . .

(2) Political subdivisions are liable for injury,
death, or loss to persons or property caused by the
negligent performance of acts by their employees while
acting within the scope of employment.

W. Va. Code §§ 29-12A-4(b)(1), 29-12A-4(c)(2); see Mallamo v.
Town of Rivesville, 477 S.E.2d 525, 534 (W. Va. 1996) (holding
that a political subdivision is not liable for its employees’
“intentional malfeasance”). Political subdivisions are liable
for the “negligent performance of acts by their employees while
acting within the scope of employment.” See W. Va. Code § 29-
12A-4(c)(2); Zirkle v. Elkins Rd. Pub. Serv. Dist., 655 S.E.2d
155, 160 (W. Va. 2007) (per curiam) (“Only claims of negligence
specified in [§ 29–12A–4(c)] can survive immunity from liability
under the general grant of immunity in [the Act].”).
The claim for violation of Article III, Section 6
arises from the alleged intentional malfeasance of Deputies
Holcomb and Morris. The Commission may only be liable for
negligent conduct of the Deputies, which is alleged under a
separate claim. The Commission is therefore immune from
liability for the claim of violating Article III, Section 6, and
the claim is dismissed.

(4) Article III, Section 10
Article III, Section 10 provides that: “No person

shall be deprived of life, liberty, or property, without due
process of law, and the judgment of his peers.” W. Va. Const.
art. III, § 10. This section is the due process clause of the
West Virginia state constitution. See State ex rel. Ford Motor
Co. v. McGraw, 788 S.E.2d 319, 325 (W. Va. 2016). In the
context of a warrantless arrest before sentencing, “due process
[under Article III, Section 10] does not extend any further than
the constitutional right to avoid unreasonable seizure.” See
Rogers v. Albert, 541 S.E.2d 563, 567 (W. Va. 2000) (per
curiam). In line with the previous discussion in the context of
the Fourteenth Amendment, all claims that law enforcement

officers used excessive force in the course of an arrest should
be analyzed under Article III, Section 6, the state counterpart
to the Fourth Amendment, rather than under a substantive due
process approach. Graham, 490 U.S. at 395. Consequently, this
claim too is dismissed.
C. Fourth Cause of Action - Negligence

The plaintiff alleges in the negligence claim simply
that the “defendants,” without distinguishing among them, “were
negligent in the performance of their duties within the scope of
their employment and such negligence was the proximate cause of
the plaintiff’s injuries.” Compl. ¶ 75. The term “defendants,”
as used in the negligence count, would seem to apply only to
Deputies Holcomb and Morris inasmuch as the Deputies are the
ones who would be engaged in the “performance of their duties
within the scope of their employment,” not the Clay County
Commission.

To prevail in a negligence claim in West Virginia, the
plaintiff must establish three elements by a preponderance of
the evidence: (1) a duty that the defendant owes to the
plaintiff, (2) a breach of that duty by an act or omission, and
(3) injuries proximately caused by that breach of duty.
Wheeling Park Comm'n v. Dattoli, 787 S.E.2d 546, 551 (W. Va.
2016).

The plaintiff fails to allege a plausible claim of
negligence against any defendant in the negligence count. The
plaintiff does not allege a specific negligent act but merely
alleges that “[t]he defendants were negligent in the performance
of their duties within the scope of their employment.” Compl.
¶ 75. The negligence claim in the complaint does not
incorporate or re-allege any prior portion of the complaint, so
that claim stands alone, except for the “Parties” and “Facts”
sections, which apply to all four causes of action. The
plaintiff fails to charge the defendants with any duty owed to

him by any of the defendants, and the plaintiff does not allege
a breach of any duty. The plaintiff thus does not allege or
attempt to establish the necessary elements for a negligence
claim. The conclusory allegation quoted above, without any
attempt to address the necessary elements of negligence, does
not survive a motion to dismiss.

The negligence claim also fails because the basis of
the plaintiff’s complaint is intentional conduct, not
negligence. In the “Facts” section of the complaint, the
plaintiff alleges:
After Deputy Morris told the plaintiff he would have
to arrest him because he called Magistrate Boggs,
Deputy Holcomb took the plaintiff’s right wrist and
handcuffed it to the plaintiff’s right ankle. Compl.
¶ 31.
Deputy Holcomb then placed the plaintiff in the back
of Deputy Morris’s vehicle with his right wrist still
handcuffed to his right ankle. Id. ¶ 32.
Deputy Morris then drove the plaintiff to the
courthouse. Id. ¶ 39.
While taking the plaintiff into the courthouse, Deputy
Holcomb told a group of young men standing outside,
“[Y]ou see this criminal here? Be good or you’ll end
up here.” Id. ¶ 41
Deputy Holcomb and Deputy Morris told their
supervisor, Robert Belt, that they should have made
the plaintiff “quack like Donald Duck” while they had
him handcuffed on his right wrist to his right ankle.
Id. ¶ 42.
Plaintiff suffered physical injuries to his back,
ankle, and wrist as a result of the actions of Deputy
Holcomb and Deputy Morris. Id. ¶ 43.
No reasonable police officer in Deputy Holcomb or
Deputy Morris’s positions could have believed that it
was reasonable to handcuff the plaintiff’s wrist to
his ankle . . . . Id. ¶ 44.
These allegations describe intentional conduct that is
repeatedly depicted in the first three causes of action as
“reprehensible, willful, wanton, malicious, and/or undertaken
with blatant and intentional disregard of the rights owed to the
plaintiff.” See id. ¶¶ 56, 65, 74.
A plaintiff cannot prevail on a claim of simple
negligence based on a defendant’s intentional act. Smith v.
Lusk, 533 F. App'x 280, 284 (4th Cir. 2013); see also Brown v.
J.C. Penney Corp., 521 F. App'x 922, 924 (11th Cir. 2013) (per
curiam) (“A claim for negligence cannot be premised solely on a
defendant's alleged commission of an intentional tort.”); Stone
v. Rudolph, 32 S.E.2d 742, 748 (W. Va. 1944) (“Negligence and
wilfulness are mutually exclusive terms which imply radically
different mental states.”). “[A] mere allegation of negligence
does not turn an intentional tort into negligent conduct.”
Weigle v. Pifer, 139 F. Supp. 3d 760, 780 (S.D.W. Va. 2015)
(quoting Benavidez v. United States, 177 F.3d 927, 931 (10th
Cir. 1999)). Consequently, the negligence cause of action is
dismissed.

Moreover, the negligence claim also fails against each
of the individual defendants based on qualified immunity or
statutory immunity, as set forth below. Government officials
and employees enjoy qualified immunity from civil liability for
state-law claims arising from their discretionary judgments,
decisions, and actions performed in an official capacity, so
long as their actions do not violate a clearly established law
or constitutional duty. See W. Virginia State Police v. Hughes,

796 S.E.2d 193, 198-200 (W. Va. 2017). Under West Virginia law,
“[a] public officer is entitled to qualified immunity for
discretionary acts, even if committed negligently.” Maston v.
Wagner, 781 S.E.2d 936, 948 (W. Va. 2015). The Supreme Court of
Appeals of West Virginia has also clarified that:
If a public officer is either authorized or required,
in the exercise of his judgment and discretion, to
make a decision and to perform acts in the making of
that decision, and the decision and acts are within
the scope of his duty, authority, and jurisdiction, he
is not liable for negligence or other error in the
making of that decision, at the suit of a private
individual claiming to have been damaged thereby.

Syl. Pt. 4, Clark v. Dunn, 465 S.E.2d 374, 375 (W. Va. 1995).
The conduct of Deputies Holcomb and Morris in
arresting and handcuffing the plaintiff clearly involved the
exercise of judgment and discretion within the scope of their
duties as law enforcement officers, for which they are entitled
to qualified immunity for the reasons just noted.

Alternatively, Section 5(b) of the West Virginia
Governmental Tort Claims and Insurance Reform Act provides,
generally, statutory immunity for the Deputies as employees of a
political subdivision for acts of negligence within the scope of
their employment:
(b) An employee of a political subdivision is immune
from liability unless one of the following applies:

(1) His or her acts or omissions were manifestly
outside the scope of employment or official
responsibilities;

(2) His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless
manner; or

(3) Liability is expressly imposed upon the employee
by a provision of this code.

W. Va. Code § 29-12A-5(b).
“The ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the
court to determine.” Syl. Pt. 3, in part, W. Va. Reg'l Jail &
Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 755 (W. Va. 2014).
Beyond the failure to state a plausible negligence
claim against any of the defendants, the claims of negligence
against Deputies Holcomb and Morris are dismissed based on
qualified immunity and, in the alternative, statutory immunity.

Iv. Conclusion

For the foregoing reasons, it is ORDERED that the
defendants’ motion to dismiss be, and it hereby is, granted.
Accordingly, it is further ORDERED that this case be, and it
hereby is, dismissed against all defendants.

The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record.

ENTER: May 21, 2020

Mir
Jo . Copenhaver, Jr.
Senior United States District Judge

33

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729036. Public record. Not legal advice.