# Myers v. City of Charleston

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

URL: https://www.frixlaw.com/law-library/cases/10729141

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** July 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/10729141

## How later opinions describe it (automated extraction)

- stating that this requirement exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests”
- recognizing that “internal policies do not create legal duty where law does not impose duty”
- recognizing that “assault and battery are intentional torts”

## Opinion text

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

CHARLESTON DIVISION

WALTER R. MYERS, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:19-cv-00757

CITY OF CHARLESTON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants City of Charleston, Job Ouma, Erick Miller, and
Steve Cooper’s Motion to Dismiss. (ECF No. 5.) For the reasons set forth below, Defendants’
Motion is GRANTED.
I. BACKGROUND
This civil action arises from two incidents requiring law enforcement response from the
City of Charleston on September 11 and 12, 2017. (ECF No. 1-1.) Plaintiffs filed this action
against the City of Charleston, and Officers Job Ouma, Erick Miller, and Chief of Police Steve
Cooper individually and in their capacity as police officers and Chief of Police, respectively, for
the City of Charleston (collectively, “Defendants”). (Id.) Plaintiffs additionally name 25 “John
Does” in the Complaint. (Id.)
The following factual allegations are taken from Plaintiffs’ Complaint.1 On or about
September 11, 2017, Plaintiffs Walter (“Walter”) and Vivian (“Vivian”) Myers (collectively,

1 Plaintiffs object to the Defendants including two exhibits with their Motion to Dismiss, arguing that it impermissibly
introduces additional facts that were not a part of the pleadings. (ECF No. 6 at 4–5.) The complained-of exhibits
“Plaintiffs”) contacted emergency services through 9-1-1 and requested assistance for their son,
Adam Myers (“Adam”). (Id. at ¶ 16.) Adam allegedly suffered from mental illness, including
schizoaffective disorder which displays symptoms of schizophrenia and a mood disorder, such as
hallucinations, delusions, depression, and mania. (Id. at ¶ 13.) On September 11, Adam

experienced an exacerbation of his symptoms, and Plaintiffs called emergency services requesting
to have Adam taken to the hospital for treatment and observation. (Id. at ¶ 16.) Plaintiffs allege
that the responding officers “merely questioned” Adam and determined him to be “competent.”
(Id. at ¶ 17.) Therefore, the responding officers, identified as “John Does 1–10,” refused to take
Adam into custody. (Id. at ¶¶ 17–18.)
Plaintiffs then allege that Adam’s conditioned worsened through the evening and into the
morning of September 12. (Id. at ¶ 19.) During the early afternoon of September 12, Adam
began to physically struggle with his father, Walter Myers, while his mother, Vivian Myers, called
emergency services again for assistance. (Id. at ¶ 20.) Defendants Ouma and Miller responded
to the scene at approximately 12:18 P.M. (Id. at ¶ 21.) Plaintiffs assert that Defendants Ouma and

Miller found Adam with his back against the wall and arms at his side. (Id. at ¶ 22.) Plaintiffs
further allege that Adam “brandish[ed] no weapon and [made] no threats” to the officers, yet the
officers handcuffed Adam and “violently tripped” him. (Id. at ¶¶ 23–25.) While Adam was
prone on the floor, Defendant Ouma placed his “right lower leg into the small of” Adam’s back,

appear to be an Initial Report, authored by Corporal Erick Miller, and detailing the events of September 12, 2017, and
a Supplementary Report of the same events, authored by Officer J. Ouma. (ECF No. 5-1.) Rule 12(d) of the Federal
Rules of Civil Procedure “does not mandate that a district court treat a motion to dismiss as a motion for summary
judgment simply because the moving party includes exhibits with its motion.” Corbett v. Duerring, 780 F.Supp2d
486, 492 (S.D. W. Va. 2011) (quoting Pueschel v. United States, 369 F.3d 345, 354 n.3 (4th Cir.2004). Rather, it
“only requires that a motion to dismiss be treated as a motion for summary judgment when the motion to dismiss or
exhibits present matters outside the nonmoving party's pleadings and the district court does not exclude such matters.”
Id. In the instant matter, the Court does not consider the attached exhibits, and therefore does not convert Defendants’
Motion to Dismiss into a motion for summary judgment.
2
trapping Adam to the floor. (Id. at ¶ 25.) Adam allegedly began “gasping for breath,” while the
officers “carried on a conversation.” (Id. at ¶ 26.)
Defendants Ouma and Miller than left Adam in a prone position and began speaking with
Walter. (Id. at ¶ 28.) After a “brief conversation,” Defendants Ouma and Miller returned to

Adam and attempted to get his attention. (Id. at ¶¶ 27–28.) Adam was unresponsive. (Id. at ¶
30.) At that time, Vivian Myers fled the room, and Walter Myers lay “stunned and injured.” (Id.
at ¶ 31.) EMT’s arrived and transported Adam to the Charleston Area Medical Center, where he
was pronounced dead. (Id. at ¶ 34.)
Plaintiffs allege that Vivian was prohibited from remaining in the home and was directed
to the Charleston Police Department, where she was subjected to questioning. (Id. at ¶ 35.) She
was not allowed to return home for six (6) hours. (Id.) Plaintiffs allege that, during the time
Vivian was not allowed to return home, Detective W.R. Anderson obtained a search warrant based
upon the “malicious wounding” of Walter by Adam. (Id. at ¶ 36.) Officer A. Kuhner executed
this search warrant at approximately 4:30 p.m. (Id. at ¶ 39.) Plaintiffs finally assert that the

execution of this search warrant was an attempt by “the Defendants to obfuscate the circumstances
surrounding Adam Myers’ death at the hands of agents, servants, employees and/or law
enforcement officers.” (Id. at ¶ 40.)
Plaintiffs filed their Complaint in the Circuit Court of Kanawha County, West Virginia, on
September 11, 2019, asserting fourteen (14) counts.2 Count I is asserted under 42 U.S.C. § 1983
and against Defendants Ouma, Miller, and John Does 1–10 for (a) unreasonable search and seizure;
(b) deprivation of life or liberty without due process of law; (c) excessive force; (d) equal

2 Only Counts VII, IX, X, and XII appear to be asserted by all Plaintiffs. The remaining Counts are all asserted by
Walter Myers as a representative, on behalf of the estate of Adam Myers.
3
protection; (e) interference with the “zone of privacy, as protected by the Fourth and Ninth
Amendments;” and (f) malicious prosecution. (Id. at ¶¶ 43–44.) Count II is asserted under 42
U.S.C. § 1983 and against Defendants the City of Charleston, Cooper, and John Does 11–25 for
“approv[ing], ratif[ying], condon[ing] [sic] encourage[ing]and/or tacitly authoriz[ing]” the (a)

unreasonable search and seizure; (b) deprivation of life or liberty without due process of law; (c)
excessive force; (d) equal protection; (e) interference with the “zone of privacy, as protected by
the Fourth and Ninth Amendments;” and (f) malicious prosecution, as described in Count I. (Id.
at ¶¶ 45–51). Count III is asserted against Defendants the City of Charleston, Cooper, and John
Does 11–25 for “a custom, policy or repeated practice of condoning and/and [sic] tacitly
encouraging the abuse of police authority, and disregard for the constitutional rights of citizens”
and for “municipal customs and/or policies of deliberate indifference in the training, supervision
and/or discipline of” Charleston’s police officers, again leading to the alleged violations described
in Count I. (Id. at ¶¶ 52–59). Count IV is asserted against all Defendants for violations under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. (Id. at ¶¶ 60–64.) Count V is

asserted against Defendants Ouma, Miller, and the City of Charleston for the use of excessive force
in violation of Article III, § 6 of the West Virginia Constitution. (Id. at ¶¶ 65–69.) Count VI is
asserted against Ouma, Miller, and the City of Charleston for common law assault and battery.
(Id. at ¶¶ 70–74.) Count VII is asserted against Defendants Ouma, Miller, and the City of
Charleston for common law intentional infliction of emotional distress. (Id. at ¶¶ 75–79.) Count
VIII is asserted against Defendants Ouma, Miller, and the City of Charleston for “conduct excepted
from immunity pursuant to WV Code §29-12A-5(b).” (Id. at ¶¶ 80–83.) Count IX is asserted
against Defendants Ouma, Miller, and the City of Charleston for negligence. (Id. at ¶¶ 84–88.)

4
Count X is asserted against Defendants Ouma, Miller, and the City of Charleston for the negligent
infliction of emotional distress. (Id. at ¶¶ 89–94.) Count XI is asserted against Defendants the
City of Charleston, Cooper, and John Does 11–25 for negligent training, supervision, and
retention. (Id. at ¶¶ 95–103.) Count XII is asserted against Defendants the City of Charleston,

Cooper, and John Does 11–25 for common law negligent training and supervision. (Id. at ¶¶ 104–
110.) Count XIII is asserted against Defendants the City of Charleston and Cooper for “vicarious
liability.” (Id. at ¶¶ 111–114.) Finally, Count XIV is asserted against all Defendants for
“violation of policy.” (Id. at ¶¶ 115–120.)
This case was removed to this Court on October 18, 2019. (ECF No.1.) On November
4, 2019, Defendants moved to dismiss all counts except for Counts I(a), I(b), I(c), and X. (ECF
No. 5.) Plaintiffs filed their response on November 18, (ECF No. 8), and Defendants filed their
reply on November 25. (ECF No. 9.) As such, this motion is fully briefed and ripe for
adjudication.
II. LEGAL STANDARD

A pleading must include “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State
Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists “to give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests”) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To withstand a motion to dismiss made
pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to
state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat'l Sec. Agency, 857
F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has

5
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a
right to relief above the speculative level.’” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th

Cir. 2017) (quoting Twombly, 550 U.S. at 555). Well-pleaded factual allegations are required;
labels, conclusions, and a “formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (“Bare
legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to state a claim.”
(quoting Iqbal, 556 U.S. at 679)).
In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556
U.S. at 679. This Court then “assume[s] the[ ] veracity” of the complaint's “well-pleaded factual
allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id.
Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial

experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not required
to plead factual allegations in great detail, but the allegations must contain sufficient factual heft
to allow a court, drawing on judicial experience and common sense, to infer more than the mere
possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th
Cir. 2017) (internal quotation marks omitted).
III. DISCUSSION
Defendants seek the dismissal of all Plaintiffs’ claims, except for Counts I(a), I(b), and I(c),
and X to the extent that the Plaintiffs bring it for themselves, individually, and not on behalf of the

6
estate of Adam Myers. (ECF No. 5.) Given the multitude of claims, the Court will address each
in turn, beginning with Count I and its discrete subparts.
A. Count I(d) – Equal Protection
Defendants argue that Count I(d), wherein Plaintiffs allege a violation of equal protection,

fails because Plaintiffs have failed to plead any set of facts that would entitle them to a claim of
relief. (ECF No. 6 at 6.) Specifically, Defendants argue that Plaintiffs have failed to allege how
the Defendants treated Adam “differently from anyone, similarly situated or otherwise, because of
some class membership or attribute.” (Id.) Therefore, they argue, Count I(d) fails to state a claim
and should be dismissed.
Plaintiffs counter that Defendants are in fact arguing that a § 1983 claim requires a
heightened pleading standard, something which is not required to state a § 1983 claim. (ECF No.
6 at 6.) Plaintiffs further argue that they have alleged that Adam was not “afforded the provisions
of W.Va. Code §§ 27-5-1, et seq., as customarily would occur.” (Id. at 6–7.) Therefore,
Plaintiffs argue that they have alleged sufficient facts such that the Complaint plausibly states a

claim for a violation of equal protection under the law. (Id. at 7.)
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall
. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. The Equal Protection Clause does not prohibit the states from making classifications,
but instead “keeps governmental decisionmakers from treating differently persons who are in all
relevant aspects alike.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) (quoting
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). To succeed on an equal protection claim, a plaintiff
must “demonstrate that he has been treated differently from others with whom he is similarly

7
situated and that the unequal treatment was the result of intentional or purposeful discrimination.”
Id.; see also Veney v. Wyche, 293 F.3d 726, 730–31 (4th Cir. 2002); Delgado v. Ballard, Civ.
Action No. 2:09-1252, 2012 WL 456937 at *8 (S.D. W. Va. Feb. 10, 2012). The Supreme Court
of the United States expounded upon the meaning of purposeful discrimination:

“Discriminatory purpose,” however, implies more than intent as volition or intent
as awareness of consequences. It implies that the decisionmaker, . . . , selected or
reaffirmed a particular course of action at least in part “because of,” not merely “in
spite of,” its adverse effects upon an identifiable group.

Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (internal citations
omitted). Plaintiffs must plead sufficient facts to satisfy each requirement of an equal protection
claim. Veney, 293 F.3d at 731.
Plaintiffs claim fails in that regard. Plaintiffs, at best, have alleged that Adam was
mentally ill, (ECF No. 1-1 at ¶ 13), and that the Defendants did not afford Adam the procedure
established in W. Va. Code §§ 27-5-1, et seq. (Id. at ¶ 17.) What Plaintiffs have failed to allege,
however, is that the denial of these procedures was the result of intentional or purposeful
discrimination. See Thorne v. Huntington Police Dept., Civ. Action. No. 3:12-6280, 2013 WL
2458544 at *3 (S.D. W. Va. June 6, 2013). First, Plaintiffs make no allegations concerning other
similarly-situated individuals and how Adam was treated differently from them. Next, Plaintiff
have failed to allege any fact that this Court could reasonably infer was the product of intentional
or purposeful discrimination. In fact, there are no allegations in the pleadings that would allow
this Court to infer that the Defendants’ actions were even partly influenced by discriminatory
purpose. Even accepting Plaintiffs allegations as true and drawing all inferences in their favor,
this Court concludes that Plaintiffs have failed to state a § 1983 claim based on equal protection
and DISMISSES Count I(d) with prejudice.
8
B. Count I(e) – Zone of Privacy
Defendants next argue for the dismissal of Count I(e), which alleges a violation of Adam’s
“right to be free from interference with the zone of privacy, as protected by the Fourth and Ninth
Amendments.” (See ECF No. 6 at 6.) Defendants argue that Plaintiffs have failed to make any

allegations that the right to a “zone of privacy” was violated, but more importantly, that this claim
is not recognized under the Constitution. (Id. at 6, n.30.) Finally, Defendants argue that the
zone-of-privacy claim is subsumed within their excessive force claim. (Id.)
Plaintiffs, meanwhile, counter that while their zone-of-privacy claim is a “part of Plaintiffs’
claim involving excessive force,” it also stands as an “additional ground for a Fourth Amendment
violation.” (ECF No. 8 at 7.) Plaintiffs also assert that they have satisfied the notice pleading
standard of Rule 8 of the Federal Rules of Civil Procedure such that this claim is not subject to
dismissal. (Id. at 7–8.)
The Constitution of the United States does not explicitly mention a fundamental right to
privacy, nor does the Constitution create a general constitutional right to privacy. See Blackston

v. Vogrin, Civ. Action No. 2:10-cv-14, 2010 WL 1253895 at *2 (N.D. W. Va. Mar. 24, 2010),
aff’d 2010 WL 1740714 (N.D. W. Va. Apr. 29, 2010) (citing Katz v. United States, 389 U.S. 347
(1967)). Instead, the Supreme Court of the United States has found a right to privacy embedded
within various constitutional amendments. Id.; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968) (freedom from unreasonable governmental intrusion under Fourteenth
Amendment); Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)
(recognizing “zones of privacy” found in the First, Third, Fourth, Fifth and Ninth Amendments,
but no general right to privacy)).

9
As Defendants argue, whether a plaintiff has a general constitutional right to be free from
“interference with the zone of privacy, as protected by the Fourth and Ninth Amendments,” (see
ECF No. 1-1 at ¶ 43(e)), is debatable, at best. However, the Court need not reach this analysis at
the dismissal stage. Plaintiffs have failed to plead sufficient facts to support the zone-of-privacy

claim upon which the Court can grant relief. While Plaintiffs assert they have satisfied the “notice
pleading” requirement within Rule 8 of the Federal Rules of Civil Procedure, Plaintiffs have not
satisfied the pleading requirements set forth by the Supreme Court in Twombly and Iqbal. As
described above, a complaint must plead enough facts “to state a claim to relief that is plausible
on its face.” Iqbal, 556 U.S. at 678. Plaintiffs’ Complaint sets out no facts from which this Court
can reasonably infer that Defendants interfered with a “zone of privacy.” At best, Plaintiffs allege
that the search warrant obtained by Detective W.R. Anderson and executed by Officer A. Kuhner
“was an effort . . . to obfuscate the circumstances surrounding Adam Myers’ death[.]” (ECF No.
1-1 at ¶¶ 37–40.) Yet, Plaintiffs do not allege facts that would ultimately lead to this inference,
and so it remains a bare legal conclusion that is not entitled to the assumption of truth. See Iqbal,

556 U.S. at 679.
Furthermore, Plaintiffs’ readily admit that “this zone of privacy is part of Plaintiff’s claim
involving excessive force.” (ECF No. 8 at 7.) This argument, then, would be subsumed within
the excessive force claim. See, e.g., IDC v. City of Vallejo, Civ. Action No. 2:13-cv-1987 DAD,
2014 WL 2567185 at *5, n.3 (E.D. Cal. June 6, 2014). Even accepting Plaintiffs allegations as
true and drawing all inferences in their favor, this Court concludes that Plaintiffs have failed to
state a § 1983 claim based on the Defendants’ interference with a zone of privacy and DISMISSES
Count I(e) with prejudice.

10
C. Count I(f) – Malicious Prosecution
Defendants next argue for the dismissal of Count I(f) because Adam Myers was never
prosecuted, and therefore cannot claim to be maliciously prosecuted. (ECF No. 6 at 7.)
Furthermore, Defendants argue that no arrest warrant was ever obtained, or even sought, for any

person at the Plaintiffs’ residence. (Id.) Therefore, Defendants state that Plaintiffs’ claim for
malicious prosecution fails to state a claim.
Plaintiffs appear to have abandoned their claim for malicious prosecution as they have
failed to address Defendants’ argument in its response brief. See Brevard v. Racing Corp. of West
Virginia, Civ. Action No. 2:19-cv-578, 2020 WL 1860713 at *8 (S.D. W. Va. Apr. 13, 2020);
Taylor v. Clay Cty. Sheriff's Dep't, No. 2:19-cv-00387, 2020 WL 890247, at *2 (S.D. W. Va. Feb.
24, 2020) (finding the plaintiff abandoned their claims because they failed to address the
defendants' arguments); Blankenship v. Necco, LLC, No. 2:16-cv-12082, 2018 WL 3581092, at *9
(S.D. W. Va. July 25, 2018) (“The failure to respond to arguments raised in a motion . . . can
indicate that the non-moving party concedes the point or abandons the claim.”). Nonetheless,

even if Plaintiffs had responded, it would be to no benefit.
To begin, the Fourth Circuit has recognized that “there is no such thing as a ‘§ 1983
malicious prosecution’ claim.” Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000). Rather,
the appropriate § 1983 claim in this context is “a claim founded on a Fourth Amendment seizure
that incorporates elements of the analogous common law tort of malicious prosecution—
specifically, the requirement that the prior proceeding terminate favorably to the plaintiff.” Id.
(citing Brooks v. City of Winston Salem, 85 F.3d 178, 183 (4th Cir.1996)). A prima facie case of
common law malicious prosecution requires “(1) the initiation or maintenance of a proceeding

11
against the plaintiff by the defendant; (2) termination of that proceeding favorable to the plaintiff;
(3) lack of probable cause to support that proceeding; and (4) the defendant's malice.” Id. at 260.
Plaintiffs fail to state a claim in this regard. The Court need not address all the remaining
factors, as Plaintiffs fail to allege the most critical: That a proceeding was initiated or maintained

against them. Therefore, for the reasons articulated above, this Court concludes that Plaintiffs
have failed to state a § 1983 claim based on malicious prosecution and DISMISSES Count I(f)
with prejudice.
D. Count II – Supervisory Liability
Defendants argue that Plaintiffs have also failed to satisfy the pleading requirements of a
claim of supervisory liability under § 1983 because they have failed to identify any facts in the
Complaint that would satisfy the elements of the claim. (ECF No. 6 at 7–8.) Rather, the
Defendants assert that the Plaintiffs have attempted to gloss over the pleading requirement by
alleging they are “informed and believe” the necessary facts exist. (See ECF No. 9 at 3.) As
such, Defendants assert that Count II, in its entirety, is subject to dismissal.

Plaintiffs counter again that they have satisfied the “notice pleading requirements” set forth
in Rule 8 of the Federal Rules of Civil Procedure. (ECF No. 8 at 8.) Furthermore, Plaintiffs
assert that they “have more than adequately met their burden” of pleading under the Supreme
Court’s decisions in Twombly and Iqbal. (Id. at 9.) As such, Plaintiffs assert that Count II is not
subject to dismissal.
Three elements are necessary to establish supervisory liability:
(1) that the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed “a pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff; (2) that the supervisor's response
to that knowledge was so inadequate as to show “deliberate indifference to or tacit
12
authorization of the alleged offensive practices,”; and (3) that there was an
“affirmative causal link” between the supervisor's inaction and the particular
constitutional injury suffered by the plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
The first element requires a showing by the plaintiff that “(1) the supervisor's knowledge
of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and
unreasonable risk of constitutional injury to the plaintiff.” Id. To show that conduct “poses a
pervasive and unreasonable risk of constitutional injury” requires evidence that the conduct is
“widespread, or at least has been used on several different occasions and that the conduct engaged
in by the subordinate poses an unreasonable risk of harm of constitutional injury.” Id.
The second element, deliberate indifference or tacit authorization, is established “by
demonstrating a supervisor's ‘continued inaction in the face of documented widespread abuses.’”
Id. Here, the plaintiff “assumes a ‘heavy burden of proof’ because the plaintiff ‘cannot satisfy his
burden [] by pointing to a single incident or isolated incidents.’” Young v. Muncy, Civ. Action
No. 2:19-cv-00829, 2020 WL 1521799 at *5 (S.D. W. Va. Mar. 30, 2020) (quoting Shaw, 13 F.3d
at 799).
Finally, the third element can be established “when the plaintiff demonstrates an
‘affirmative causal link’ between the supervisor's inaction and the harm suffered by the plaintiff.”
Shaw, 13 F.3d at 799 (citations omitted). Causation under this element encompasses both cause
in fact and proximate cause. Id.
Here, Plaintiffs have failed to plead sufficient facts to establish supervisory liability against
the City of Charleston, Defendant Cooper, and John Does 11–25. Plaintiffs only make a
conclusory allegation that “high ranking City of Charleston officials, including Chief Cooper, high

13
ranking police supervisors, JOHN DOES [sic] 11 through 25, and/or each of them, knew and/or
reasonably should have known about the repeated acts of misconduct[.]” (See ECF No. 1-1 at ¶
46.) Plaintiffs have failed to allege specific facts, however, that the City, Cooper, or John Does
11–25 had knowledge of “repeated acts of misconduct” by Defendants Miller, Ouma, and the

remaining John Does. Even further, Plaintiffs have not plead specific facts that Defendants
Ouma, Miller, John Does 1 through 10, or anyone, were engaged in acts of misconduct that were
“widespread, or at least had been used on several occasions.” See Young, 2020 WL 1521799 at
*5 (quoting Shaw, 13 F.3d at 799). Nor have Plaintiffs identified what policies and procedures
were violated such that it would pose a pervasive and unreasonable risk of constitutional injury to
citizens. As Twombly and Iqbal have instructed, conclusory allegations will not suffice.
For these reasons, Plaintiffs have failed to allege sufficient facts to sustain a § 1983 claim
based on supervisory liability. Therefore, the Court DISMISSES Count II with prejudice.
E. Count III – Monell Claim
Defendants characterize Count III as a Monell claim and argue that Plaintiffs have the

“same problem in Count III that they have in Count II.” (ECF No. 6 at 8.) Defendants assert
that Plaintiff have failed to identify any facts that would support a Monell claim. (Id. at 9.)
Defendants agree with Plaintiffs that “if Count II fails, so does Count III.” (ECF No. 9 at 3.)
Plaintiffs do not dispute the Defendants’ characterization of their claim. (ECF No. 8 at
10.) Plaintiffs further rest on the argument they asserted for Count II, namely, that they have
satisfied the requirements of notice pleading. (Id.)
First, a municipality may be liable under § 1983 if the municipality itself subjects an
individual to a deprivation of rights or causes an individual to be subjected to such deprivation.

14
Connick v. Thompson, 563 U.S. 51, 59 (2011) (citing Monell v. New York City Dept. of Social
Servs., 436 U.S. 658, 692 (1978)). Under § 1983, municipalities are responsible only for “their
own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (citing Monell, 436 U.S. at
665–83). Municipalities are not vicariously liable for their employees’ actions under § 1983.

Monell, 436 U.S. at 691.
Thus, to prove a § 1983 claim against a municipality, a plaintiff must prove that the action
that caused their injury was “pursuant to official municipal policy.” Id. at 691, 694. A plaintiff
asserting a § 1983 claim against a municipality, then, must plead “(1) the existence of an official
policy or custom; (2) that the policy or custom is fairly attributable to the municipality; and (3)
that the policy or custom proximately caused the deprivation of a constitutional right.” Poe v.
Town of Gilbert, West Virginia, Civ. Action No. 2:11-cv-00645, 2012 WL 3853200 at * 4 (S.D.
W. Va. Sep. 5, 2012) (quoting Alexander v. City of Greensboro, 762 F.Supp.2d 764, 781
(M.D.N.C. 2011).
Poe instructs how a policy or custom may become attributable to a municipality:

A policy or custom for which a municipality may be held liable can arise 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 manifests 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.

Id. (quoting Alexander, 762 F.Supp.2d at 781). See also Jordan ex. rel Jordan v. Jackson, 15
F.3d 333, 338 (4th Cir.1994).
A policy or custom may be shown by persistent practices, “continued inaction in the face
of a known history of widespread constitutional deprivations,” or from the propensity of a known
course of employee conduct. See Milligan v. City of Newport News, 743 F.3d 227, 229–30 (4th
15
Cir. 1984). Despite the numerous ways a policy or custom may be shown, a policy or custom
“will not be inferred merely from municipal inaction in the face of isolated constitutional
deprivations by municipal employees.” Id. at 230.
Here, Plaintiffs have failed to satisfy Twombly and Iqbal’s pleading standards for Count

III. Count III fails for the same reason as Count II: Plaintiffs have merely given “[t]hreadbare
recitals of the elements of a cause of action, supported by conclusory statements[.]” See Iqbal,
556 U.S. at 678. These conclusory statements will not suffice. As in Count II, Plaintiffs have
not pled any facts from which may be inferred any official municipal policy or custom that would
support a claim for municipality liability under § 1983. Plaintiffs must “plead[] factual content
that allows the court to draw the reasonable inference that the defendant is liable” and must
demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.
Simply, Plaintiffs’ assertions that they are “informed and believe” are not sufficient for this Court
to draw a reasonable inference that the Defendants are liable under § 1983.
For these reasons, Plaintiffs have failed to allege sufficient facts to sustain a § 1983 claim

based on municipal liability. Therefore, the Court DISMISSES Count III with prejudice.
F. Count IV – Americans with Disabilities Act
Defendants next argue that Plaintiffs have again failed to allege certain specific facts
necessary to establish a claim of discrimination under the ADA. (ECF No. 6 at 10.) Plaintiffs
counter that they sufficiently plead that Adam Myers was “discriminated against because of his
disability” and denied “the benefit of the right to be involuntarily committed.” (ECF No. 8 at 10–
11.)

16
Among other things, the ADA provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. In general, a plaintiff seeking recovery under this provision must

allege that “(1) [he] has a disability, (2) [he] is otherwise qualified to receive the benefits of a
public service, program, or activity, and (3) [he] was excluded from participation in or denied the
benefits of such service, program, or activity, or otherwise discriminated against, on the basis of
h[is] disability.” Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 498
(4th Cir. 2005).
Defendants do not dispute the sufficiency of Plaintiffs’ allegations for the first two
elements, but rather contend that the Plaintiffs have failed to allege sufficient facts to establish that
Adam Myers was excluded from participation in or denied the benefits of being involuntarily
committed on the basis of his disability. (ECF No. 6 at 10.) This Court agrees. A plaintiff
seeking relief under this provision of the ADA “must prove that disability ‘played a motivating

role’ in the adverse action.” Constantine, 411 F.3d at 498 n. 17 (quoting Baird ex rel. Baird v.
Rose, 192 F.3d 462, 470 (4th Cir. 1999)).
Here, Plaintiffs have not alleged sufficient facts to permit the reasonable inference that
Adam’s disability played a motivating role in him not being involuntarily hospitalized under W.
Va. Code § 27-5-2. The Complaint utterly lacks allegations that the Defendants were motivated,
in any part, by Adam Myers’s disability. Instead, Plaintiffs again have relied on a bare conclusory
statement: “The exclusion, denial of benefits and/or discrimination against Adam Myers was by
reason of Adam Myers' recognized disability.” (ECF No. 1-1 at ¶ 64.) As stated above, these

17
conclusory statements are not afforded the assumption of truth and are otherwise insufficient to
state a claim.
Plaintiffs apparently argue that because Adam Myers was “well-known to the Police
Department to be mentally ill” on account of previous responses to the Plaintiffs’ residence that

this amounts to discrimination because of his disability. (See ECF No. 8 at 10.) What Plaintiffs
fail to allege, however, are facts that show how Adam’s disability played a motivating role in the
Defendants’ alleged denial of the involuntary hospitalization. As such, the factual allegations in
the Complaint are insufficient to raise the possibility of relief on this claim above a speculative
level. Therefore, the Court DISMISSES Count IV with prejudice.
G. Count V – State Law Excessive Force
For Count V, Defendants argue that Plaintiff’s cause of action based on a state law
excessive force claim does not survive Adam’s death under West Virginia Code Section 55-7-
8a(a). (ECF No. 8 at 11.) Plaintiffs respond that a § 1983 claim survives Adam’s death because
the “federal remedy under § 1983 was supplementary to state remedy, and survival of § 1983 claim

was needed to protect the federally created rights.” (ECF No. 8 at 11.) Plaintiffs assert that West
Virginia’s wrongful death statute serves as an appropriate “gap-filler” with which a § 1983 claim
could survive. (Id.)
But Plaintiffs have brought neither a § 1983 nor a West Virginia statutory wrongful death
claim within Count V of their Complaint. Count V is titled “Excessive Force – Violation of West
Virginia Constitution” and is brought against Defendants Ouma, Miller, and the City of
Charleston. (ECF No. 1-1 at 16.) Plaintiffs identify this claim as a “constitutional tort action,”
and state that it is brought pursuant to West Virginia common law “separate and apart from any

18
violation of 42 U.S.C. § 1983 alleged as aforesaid.” (Id. at ¶ 66.) Specifically, Plaintiffs allege
that the named Defendants “violated the constitutional rights guaranteed to Adam Meyers under
Article III, Section 6 of the West Virginia Constitution.”3 (Id. at ¶ 67.) With this framework of
Count V in mind, the Court begins its analysis.

West Virginia Code § 55-7-8a(a) states,
In addition to the causes of action which survive at common law, causes of action
for injuries to property, real or personal, or injuries to the person and not resulting
in death, or for deceit or fraud, also shall survive; and such actions may be brought
notwithstanding the death of the person entitled to recover or the death of the person
liable.

(emphasis added). Section 55-7-8a of the West Virginia Code effectively modified the common
law rule which resulted in the abatement of an injured party’s claims upon the injured party’s
death. See Hoover v. Trent, Civ. Action No. 1:07-CV-47, 2008 WL 2992987 at *3 (N.D. W. Va.
Aug. 1, 2008); see also Jones v. George, 533 F.Supp. 1293, 1301 (S.D. W. Va. 1982) (“A wronged
plaintiff took with him to the grave his unfiled claim for damages for purely personal torts, such
as false arrest, defamation, assault, etc.”). Thus, this modification of the common law “only
allows for survival of personal injuries that do not result in death.”4 Hoover, 2008 WL 2992987
at *3.

3 Article III, Section 6 of the West Virginia Constitution states that

[t]he rights of the citizens to be secure in their houses, persons, papers and effects, against
unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon
probable cause, supported by oath or affirmation, particularly describing the place to be searched,
or the person or thing to be seized.

In most cases, the protections offered by Article III, Section 6 are coextensive with those protections offered by the
Fourth Amendment of the United States Constitution. See State v. Clark, 232 W. Va. 480, 494, 752 S.E.2d 907, 920
(2013).

4 “Actions resulting in death are covered by our wrongful death statute, W.Va.Code, 55–7–5 (1931). See also
W.Va.Code, 55–7–8 (1989); W.Va.Code, 55–7–8a(b) through –8a(d).” Courtney v. Courtney, 190 W. Va. 126, 128
n.5, 437 S.E.2d 436, 438 n.5 (1993).
19
“The Supreme Court of Appeals of West Virginia has noted that the ‘broad terminology’
of the survival statute provides relatively little guidance concerning the ‘types of causes of action
[that] will survive.’” Finney v. MIG Capital Mgmt., Inc., Civ. Action No. 2:13-cv-2778, 2014
WL 1276159 at *5 (S.D. W. Va. Mar. 27, 2014) (quoting Stanley v. Sewell Coal Co., 169 W.Va.

72, 285 S.E.2d 679, 683 (1981)). Generally, however, survival statutes such as § 55-7-8a are to
be “liberally construed,” given their remedial nature. Triplett v. Mirandy, Civ. Action No. 3:13-
cv-135, 2015 WL 2170033 at *4 (N.D. W. Va. May 8, 2015). Thus, in analyzing whether a
particular claim survives under this statute, “[the Court] must of necessity apply the general terms
to the particular case.” Stanley, 169 W. Va. at 77, 285 S.E.2d at 683.
In addition to the above analysis, the Supreme Court of Appeals of West Virginia has held
that “the (state) Legislature intended to exclude from statutory survivability . . . such personal torts
as defamation, false arrest and imprisonment, and malicious prosecution.” Cavendish v. Moffitt,
163 W. Va. 38, 39–40, 253 S.E.2d 558, 559 (1979). See also Jones, 533 F.Supp. at 1301 (“Thus,
no provision of W. Va. Code § 55-7-8a(a) allows the survival of claims of false arrest, false

imprisonment, medical malpractice or neglect herein.”). The Supreme Court of the United States,
in examining survivability statutes, has also reasoned that, “[t]he goal of compensating those
injured by a deprivation of rights provides no basis for requiring compensation of one who is
merely suing as the executor of the deceased’s estate.” Id. (quoting Robertson v. Wegmann, 436
U.S. 584, 592 (1978)). Therefore, Section 55-7-8a(a) will only effect survival if “one, the death
of the injured person occurs prior to the institution of the suit, and two, his or her death is from
causes unrelated to the suit’s complaints.” Jones, 533 F. Supp. at 1301.

20
Here, Plaintiffs’ claim abates under the plain language of the statute. As Plaintiffs
identified, Count V represents a “constitutional tort action” alleging excessive force. State-law
excessive force claims are “analogous to claims for assault or battery.” See Ray v. Cutlip, Civ.
Action No. 2:13-cv-75, 2014 WL 858736 at *2 (N.D. W. Va. Mar. 5, 2014) (citing Wilson v.

Isaacs, 929 N.E.2d 200, 203 (Ind.2010)). Assault or battery claims do not survive under W. Va.
Code § 55-7-8a(a). Spry v. West Virginia, No. 2:16-CV-01785, 2017 WL 1483370, at *9 (S.D.
W. Va. Apr. 24, 2017); Hoover, 2008 WL 2992987, at *5.
Plaintiffs’ argument that a state law wrongful death action can supplement a federal claim
that would otherwise expire under this provision is undoubtedly correct, but has no application to
this specific claim.5 By their own words, Plaintiffs state that this state-law-based constitutional
tort cause of action is brought “separate and apart from any violation of 42 U.S.C. § 1983
alleged[.]” (ECF No. 1-1 at ¶ 66.) Plaintiffs further connect the actions of the Defendants to
Adam’s death. (See, e.g., id. at ¶ 67 (“As a proximate result of the action of the defendants . . .

Adam Myers suffered pain and suffering, both physical and mental, and was killed.”).) This
allegation alone—injuries to the person resulting in death—results in the state-law excessive force
claim abating.
Therefore, because the Plaintiffs’ state-law excessive force claim does not survive Adam’s
death, the Court DISMISSES Count V with prejudice as to all Defendants.

5 Federal law does not address the survivability of claims brought pursuant to 42 U.S.C. § 1983, so § 1988 instructs
courts to turn to the applicable state law addressing survivability. See Hoover, 2008 WL 2992987 at *3. Under
West Virginia’s survivability statute, claims involving injuries that result in death do not survive. Id. However, as
Hoover explains, a § 1983 claim advanced under a wrongful death theory does survive. Id.
21
H. Count VI – Assault and Battery
Defendants next argue that Plaintiffs’ assault and battery claim, Count VI, also does not
survive under West Virginia’s survivability statute, but that even if it did, it cannot be asserted
against the City of Charleston because the West Virginia Governmental Tort Claims and Insurance

Reform Act (“WVGTCIRA”) immunizes political subdivisions from intentional torts. (ECF No.
6 at 11.) Plaintiffs respond that the Complaint “provides sufficient grounds to lay a foundation
that the premise is the discriminatory conduct of Defendants.” (ECF No. 8 at 12.) Plaintiffs cite
Waller v. City of Danville, 212 Fed.Appx. 162 (4th Cir. 2006) to support the notion that allegations
premised on discrimination survive the pleading stage.6
Plaintiffs’ claim fails because the claim of assault and battery does not survive Adam’s
death, as detailed more fully above. See Spry, 2017 WL 1483370, at *9; Hoover, 2008 WL
2992987, at *5. However, even if the assault and battery claim did survive, the claim could not
be asserted against the City of Charleston because of the grant of immunity provided to it by the

WVGTCIRA.

6 Plaintiffs rely on Waller v. City of Danville, 212 Fed.Appx. 162 (4th Cir. 2006) for the proposition that, because
they assert their claims of discrimination are sufficiently pled, they are entitled to engage in discovery “to reveal . . .
the premise of their allegations.” (ECF No. 8 at 12.) Plaintiffs’ reliance on Waller, however, is misplaced. In
Waller, the plaintiff brought an assortment of federal constitutional claims and state law claims against the defendants,
following the shooting death of an individual during an arrest. Id. At the outset of the case, the district court ordered
the limitation of discovery to the issue of qualified immunity. Id. at 167. Then, later, the court granted summary
judgment to the defendants on all claims asserting excessive force and unlawful arrest, which then led to the dismissal
of all other claims, despite no further discovery taking place. Id. at 168. On appeal, the Fourth Circuit upheld the
dismissal of the federal claims. Id. at 174. However, to the extent the state-law claims were based on an ill-defined
“discrimination” claim, the Fourth Circuit remanded to the district court for further delineation, and discovery, if
needed, as the plaintiff had been denied that opportunity previously. Id. at 173–74 (“The precise nature of the
discrimination claim is not clear to us, . . . . However, plaintiff has also been prohibited from conducting discovery
into her allegations of disability discrimination[.]”). Notably, Waller was decided before the Supreme Court of the
United States issued its decision in Twombly and Iqbal, but the plaintiff had satisfied the prior pleading standards.
And, as already discussed by this Court, under the Twombly and Iqbal pleading standards, Plaintiffs’ discrimination
claim fails.

22
The WVGTCIRA provides that,
[e]xcept 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: Provided, That this article shall not restrict the availability of mandamus,
injunction, prohibition, and other extraordinary remedies.

W. Va. Code § 29-12A-4(b)(1).7 The statute goes on to list five circumstances when a political
subdivision may be found liable in a civil action, all involving negligence or when liability is
expressly imposed by the West Virginia Code. See W. Va. Code § 29-12A-4(c)(1)–(5).
The Supreme Court of Appeals of West Virginia has interpreted § 29-12A-4(b)(1) to mean
that “claims of intentional and malicious acts are included in the general grant of immunity in W.
Va. Code, 29-12A-5.” Zirkle v. Elkins Road Public Serv. Dist., 221 W. Va. 409, 414, 655 S.E.2d
155, 160 (2007). Only the claims of negligence contained within W. Va. Code § 29-12A-4(c) fall
outside this general grant of immunity. Zirkle, 221 W. Va. At 414, 655 S.E.2d at 160. Assault
and battery, conversely, are intentional torts. See Tofi v. Napier, Civ. Action No. 2:10-cv-1121,
2011 WL 3862118 at *3 (Aug. 31, 2011) (“Counts three, four, and five respectively allege assault,
battery, and outrage—all of which are intentional torts.”); West Virginia Fire & Cas. Co. v.
Stanley, 216 W. Va. 40, 49, 602 S.E.2d 483, 492 (2004) (assault and intentional infliction of
emotional distress); Flowers v. Max Specialty Ins. Co., 234 W. Va. 1, 11, 761 S.E.2d 787, 797
(2014) (recognizing that “assault and battery are intentional torts”).

7 The WVGTCIRA defines a “political subdivision” as “any county commission, municipality and county board of
education; . . . .” W. Va. Code § 29-12A-3(c). A “municipality” is further defined by the Act as “any incorporated
city, town or village and all institutions, agencies or instrumentalities of a municipality.” W. Va. Code § 29-12A-
3(b). The parties do not dispute that the City of Charleston is a municipality under the WVGTCIRA.
23
Here, the Plaintiffs have asserted an intentional tort cause of action—assault and battery—
against a political subdivision. By the plain language of the WVGTCIRA, the City of Charleston
is immune from liability for intentional torts. However, because the claim does not survive Adam
Myers’s death as more fully explained above, the claim is DISMISSED with prejudice as to all

Defendants.
I. Count VII – Intentional Infliction of Emotional Distress
Next, Defendants argue that Plaintiffs’ intentional infliction of emotional distress claim
similarly does not survive under West Virginia’s survivability statute, but that even if it did, it
cannot be asserted against the City of Charleston because the WVGTCIRA immunizes political
subdivisions from intentional torts. (ECF No. 6 at 11.) Plaintiffs respond by adopting their
response to Count VI. (ECF No. 8 at 12).
Again, Plaintiffs’ claim, to the extent it is asserted by the estate of Adam Myers, must be
dismissed because it does not survive Adam’s death. W. Va. Code § 55-7-8a(a). But even if it
did, the claim would be subject to dismissal against the City of Charleston due to the immunity

grant provided by the WVGTCIRA. W. Va. Code § 29-12A-4(b)(1). Therefore, Plaintiffs’
claim of intentional infliction of emotional distress, insofar as it is asserted by the estate of Adam
Myers, is DISMISSED with prejudice as to all Defendants. Plaintiffs Walter and Vivian Myers’s
claim of intentional infliction of emotional distress is DISMISSED with prejudice as to the City
of Charleston.
J. Count VIII – Conduct Excepted from Immunity
Defendants argue that, in addition to the survivability statute and the WVGTCIRA, Count
VIII fails because it does not set forth an actual cause of action. (ECF No. 6 at 12.) Rather,

24
Defendants claim that Plaintiffs attempt to set out claim pursuant to § 29-12A-5(b)(2) “in an
obvious attempt to strip Officer Ouma and Corporal Miller of the WVGTCIRA immunity.” (Id.)
The Court agrees. West Virginia Code § 29-12A-5 establishes when a political
subdivision or an employee of a political subdivision is immune from liability. It does not operate

to form a private cause of action. Instead, it establishes an immunity defense to the types of claims
brought by Plaintiffs. See, e.g., Hutchison v. City of Huntington, 198 W. Va. 139, 148, 479 S.E.2d
649, 658 (1996) (“The very heart of the immunity defense is that it spares the defendant from
having to go forward with an inquiry into the merits of the case.”)
Plaintiffs have failed to state a claim upon which relief may be granted. Count VIII is
DISMISSED with prejudice.
K. Count IX - Negligence
Defendants next argue that Count IX, which asserts a common-law negligence claim, does
not survive Adam’s death under West Virginia Code § 55-7-8a(a), to the extent it is brought on
behalf of the estate of Adam Myers. (ECF No. 6 at 11.) Plaintiffs again apparently rely on

Waller v. City of Danville, 212 Fed.Appx. 162 (4th Cir. 2006) to support the notion that allegations
premised on discrimination survive the pleading stage. (ECF No. 8 at 12.)
As this Court has already discussed, because Count IX alleges injuries to Adam that
resulted in his death, Plaintiffs’ state-law negligence claim does not survive Adam’s death, insofar
as it is asserted on behalf of Adam’s estate. See Part III.G, supra. Moreover, Plaintiffs’ reliance
on Waller is misplaced. See Part III.H, n.6, supra. Therefore, Plaintiffs’ claim of negligence,
insofar as it is asserted by the estate of Adam Myers, is DISMISSED with prejudice as to all
Defendants.

25
L. Count X – Negligent Infliction of Emotional Distress
Defendants again assert that, to the extent Plaintiffs’ claim of negligent infliction of
emotional distress is asserted on behalf of the estate of Adam Myers, Count X does not survive
because of West Virginia’s survivability statute. (ECF No. 6 at 11.) Plaintiffs again rely on

Waller v. City of Danville to support the notion that allegations premised on discrimination survive
the pleading stage. (ECF No. 8 at 12.)
Plaintiffs’ counterargument has no bearing on whether the claim itself, as asserted by the
estate of Adam Myers, survives. Because the actions complained of resulted in injuries that in
turn resulted in Adam’s death, Plaintiffs’ claim fails because it does not survive W. Va. Code §
55-7-8a(a) to the extent it is asserted on behalf of the estate of Adam Myers. Therefore, Plaintiffs’
claim of negligent infliction of emotional distress, insofar as it is asserted by the estate of Adam
Myers, is DISMISSED with prejudice as to all Defendants.
M. Count XI – Negligent Training, Supervision and/or Retention
Defendants next argue that Count XI, titled as “Negligent Training, Supervision and/or

Retention,” is subject to dismissal because it is a “vaguely-described mashup” of claims such that
it fails to put Defendants’ on notice of the claims against them. (ECF No. 6 at 13.) Defendants
assert that the claim as “being predicated entirely on the histrionic over-alleging of sources of law
and states of mens rea,” such that the claim is “hopelessly vague.”8 (Id.) Plaintiffs respond that
their pleading is “clear” that they are asserting a common-law claim of negligent training and

8 Defendants also argue that the claim, as asserted on behalf of the estate of Adam Myers, does not survive West
Virginia’s survivability statute, W. Va. Code § 55-7-8a(a). (ECF No. 6 at 13.) However, because the Court finds
that Plaintiffs have failed to meet the pleading requirements of Twomby and Iqbal, the Court does not reach the issue
of survivability as to the estate of Adam Myers’s claim of negligent training.
26
supervision, and that their claim is asserted with “sufficient specificity” to put Defendants on
notice of its claim. (ECF No. 8 at 13–14.)
Plaintiffs’ Complaint alleges that Adam Myers was “deprived of rights and privileges
secured to him by the United States Constitution and by other laws of the United States,” due to

the City of Charleston’s failure to properly train officers “in violation of 42 U.S.C. § 1983 and
related provisions of federal law and in violation of the above cited constitutional provisions.”
(ECF No. 1-1 at ¶ 97.) Plaintiffs then allege that the City of Charleston failed to train its officers
to properly “deal[] with mentally ill individuals under the Fourteenth Amendment, the
Rehabilitation Act of 1973, 29 U.S.C.C. [sic] § 794 and the Americans with Disabilities Act, 42
U.S.C.S. [sic] § 12101 et seq.” (Id. at ¶ 98.) The Plaintiffs then allege that this failure is
actionable under “42 U.S.C. § 1983, the West Virginia Constitution and West Virginia statutory
and common law.” (Id. at ¶ 99.) Finally, the Plaintiffs allege that the City of Charleston acted
with “deliberate, callous, and conscious indifference[.]” (Id. at ¶ 103.)
In Lane v. Fayette County Commission, Judge Copenhaver explained that establishing a

state-law claim for negligent training and supervision is different than that of 42 U.S.C. § 1983
claim. Civ. Action No. 2:18-cv-1223, 2019 WL 4780815 at *5 (S.D. W. Va. Sep. 30, 2019).
Rather than showing “deliberate indifference” or a widespread custom or policy, the plaintiff must
show that “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.” Id. (quoting S.R. v. Fayette Cty. Bd. of Educ., Civ. Action No.
2:15-cv-13466, 2016 WL 6886868 at *6 (S.D. W. Va. Nov. 21, 2016).

27
Here, despite Plaintiffs’ insistence that they have satisfied the notice pleading standards,
Plaintiffs have failed to allege specific facts that would show the City of Charleston or any of its
supervisors would be on notice of any employee’s propensity for misconduct. Even accepting all
Plaintiffs’ allegations as true, Plaintiffs only state that they are “informed and believe and thereon

allege” that these individuals knew of repeated acts by employees, but fail to identify what those
acts are. (See ECF No. 1-1 at ¶¶ 46, 47.) Furthermore, Plaintiffs have failed to allege what duty
existed or how that duty was breached by the Defendants. See Lane, 2019 WL 6886868 at *6.
Plaintiffs have not alleged whether the officers had prior complaints against them for excessive
force or for failing to “properly deal” with others with mental illness, whether the City of
Charleston was aware of abusive conduct or excessive force by the officers, how the City of
Charleston and its supervisors handled prior complaints against these officers, or the type of
training the officers received. See id. Cf. 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”). Instead,
Plaintiffs have simply alleged legal conclusions, while asserting a deprivation of rights under the
entire body of West Virginia law and several significant portions of federal law. Simply,
Plaintiffs’ claim falls significantly short of the standard required by Twombly and Iqbal.

28
Therefore, Plaintiffs’ claim of negligent training and supervision is DISMISSED with prejudice
as to all Defendants.
N. Count XII – Common Law Negligent Training and Supervision

Defendants argue that Count XII, titled as a common law negligent training and supervision
claim, is subject to dismissal to the extent it is asserted by the estate of Adam Myers because the
claim does not survive the death of Adam. (ECF No. 6 at 11.) Plaintiffs do not appear to dispute
this and have not asserted an argument arguing for its survival. (See generally ECF No. 8.)
Plaintiffs appear to have abandoned their claim, to the extent it was asserted on behalf of
the estate of Adam Myers, for negligent training and supervision as they have failed to address
Defendants’ argument in its response brief. See Brevard v. Racing Corp. of West Virginia, Civ.
Action No. 2:19-cv-578, 2020 WL 1860713 at *8 (S.D. W. Va. Apr. 13, 2020); Taylor v. Clay Cty.
Sheriff's Dep't, No. 2:19-cv-00387, 2020 WL 890247, at *2 (S.D. W. Va. Feb. 24, 2020) (finding
the plaintiff abandoned their claims because they failed to address the defendants' arguments);

Blankenship v. Necco, LLC, No. 2:16-cv-12082, 2018 WL 3581092, at *9 (S.D. W. Va. July 25,
2018) (“The failure to respond to arguments raised in a motion ... can indicate that the non-moving
party concedes the point or abandons the claim.”).
Nonetheless, even if Plaintiffs had responded, it would be to no benefit. As discussed
supra, Plaintiffs’ claim does not survive the death of Adam Myers because the injuries complained
of resulted in Adam’s death. Therefore, Count XII, insofar as it is asserted by the estate of Adam
Myers, is DISMISSED with prejudice as to all Defendants.

29
O. Count XIII – Vicarious Liability
Defendants next argue that Count XIII, a claim titled “vicarious liability,” fails to state a
claim because vicarious liability “is not a cause of action.”9 (ECF No. 6 at 14.) Plaintiffs counter
that they have “set forth a theory of liability” such that Count XIII is not subject to dismissal.

(ECF No. 8 at 14.)
Vicarious liability is not an independent cause of action. Rather, it is exactly what
Plaintiffs identify—a theory of liability—but it cannot stand on its own. See, e.g., Penn v. Citizens
Telecom Servs. Co., LLC, 999 F. Supp. 2d 888, 894 (S.D. W. Va. 2014) (“To the extent that Penn
has asserted a separate ‘state law claim’ or ‘count’ of ‘vicarious liability’, however, the Court
observes that vicarious liability is a theory of liability by which Penn may seek to hold Citizens
Telecom liable for the actions of its employee, Kidder. It is not a separate cause of action. See
McCullough v. Liberty Heights Health & Rehab. Ctr., 830 F. Supp. 2d 94, 97 (D. Md. 2011)
(‘Vicarious liability is, of course, not an independent cause of action, but rather a theory of
assigning liability.’”).”) (citation omitted); accord McIntosh v. Clark Cty. Sch. Dist., No. 2:17-

CV-00490, 2017 WL 3996399, at *4 (D. Nev. Sept. 11, 2017) (“Vicarious liability is not a cause
of action; it is a theory applied to a negligence cause of action to hold an employer liable for its
employees’ negligence. So ‘vicarious liability’ cannot stand as an independent claim for
relief.”); Dennis v. Collins, No. 15-CV-2410, 2016 WL 6637973, at *5 (W.D. La. Nov. 9, 2016);
Banks v. Soc’y of St. Vincent De Paul, 143 F. Supp. 3d 1097, 1104 (W.D. Wash. 2015); Bond v.
Rexel, Inc., No. 5:09-CV-122, 2011 WL 1578502, at *9 (W.D.N.C. Apr. 26, 2011); In re S.

9 Defendants also argue that the claim, as asserted on behalf of the estate of Adam Myers, does not survive West
Virginia’s survivability statute, W. Va. Code § 55-7-8a(a). (ECF No. 6 at 13.) However, because “vicarious
liability” is itself not an independent cause of action, the Court does not address this argument.
30
African Apartheid Litig., 617 F. Supp. 2d 228, 301 (S.D.N.Y. 2009); Bonner v. Alderson, No. 02-
CV-248, 2005 WL 2333829, at *19 (D. Idaho Sept. 22, 2005). Vicarious liability is not a claim
on which relief can be granted, but is instead a theory of liability under which a proper claim could
be asserted.

Therefore, Plaintiffs’ claim of vicarious liability is DISMISSED with prejudice as to all
Defendants.
P. Count XIV – Violation of City Policy
Defendants argue for the dismissal of Plaintiffs’ claim for violation of city policy because
an agency’s internal policies, and the subsequent violation thereof, do not create a cause of
action.10 (ECF No. 6 at 15.) Plaintiffs assert that they have set forth a “theory of liability” and
that, under the notice pleading requirements, this claim is not subject to dismissal. (ECF No. 8 at
14.)
The violation of an agency’s internal rules or policies does not give rise to an independent
cause of action. Simply, the violation of an agency’s internal policies, with nothing more, is not

a legally recognizable claim. See, e.g., Decker v. Target Corp., No. 1:16-CV-00171, 2018 WL
4956641, at *2 (D. Utah Oct. 12, 2018) (“What is more, just as internal policies do not establish
the legal duty, a violation of those policies does not ‘necessarily establish a breach of duty.’”);
Doe 20 v. Bd. of Educ. of Cmty. Unit Sch. Dist. No. 5, 680 F. Supp. 2d 957, 992 (C.D. Ill. 2010)
(recognizing that “internal policies do not create legal duty where law does not impose duty”);
Harris v. Commerce City, No. 09-CV-01728, 2010 WL 3307465, at *4 n.7 (D. Colo. Aug. 18,

10 Defendants again argue that the claim, as asserted on behalf of the estate of Adam Myers, does not survive West
Virginia’s survivability statute, W. Va. Code § 55-7-8a(a). (ECF No. 6 at 13.) However, because “violation of
policy” is itself not an independent cause of action, the Court does not address this argument.

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2010) (“In any event, the provisions of the Commerce City Police Manual cited by Mr. Harris
reference internal police department policies. Breach of these duties might give rise to internal
punishment by police supervisors, but the mere fact that internal policies exist does not suffice to
convert those policies into legally-recognized duties that may be enforced by citizens through tort

law.”); cf. Goodrich v. Newport News Sch. Bd., 743 F.2d 225, 227 (4th Cir. 1984) (“a claim that
an agency’s policies or regulations have not been adhered to does not sustain an action for redress
of procedural due process violations”); Harper v.Blagg, No. 2:13-CV-19796, 2015 WL
6509131, at *8 (S.D. W. Va. Oct. 28, 2015) (recognizing that violation of internal policy
directives does not per se establish a constitutional violation); Evans v. Chalmers, 703 F.3d 636,
667 (4th Cir. 2012) (Wilkinson, J., concurring) (noting that “a mere deviation from departmental
policy, by itself, does not plausibly suggest [that the defendants] acted ‘wantonly’”); Dalrymple v.
United States, 460 F.3d 1318, 1327 (11th Cir. 2006) (“Violating an internal policy or procedure
does not create a cause of action under the FTCA against the government unless the challenged
conduct is independently tortious under applicable state law.”); Hovater v. Robinson, 1 F.3d

1063, 1068 (10th Cir. 1993) (“However, a failure to adhere to administrative regulations does not
equate to a constitutional violation.”). Because the violation of an agency’s internal policies is
not a cognizable claim, Plaintiffs have failed to state a claim upon which relief can be granted.
Therefore, Plaintiffs’ claim of violation of policies is DISMISSED with prejudice as to
all Defendants.
Q. Damages
As a final note, Defendants also moved for the dismissal of any “cause of action” for
damages. (ECF No. 6 at 16.) Plaintiffs responded that the damages clauses included in the

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Complaint were not independent causes of action, but rather a delineation of the damages prayed
for in the Complaint. (ECF No. 8 at 14.) With the parties in agreement that the damages do not
set forth independent causes of action, the Court has nothing to decide.
IV. CONCLUSION
For the reasons discussed above, the Court GRANTS Defendants’ Motion to Dismiss.
(ECF No. 28.)
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: July 21, 2020

&

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729141. Public record. Not legal advice.