# Means v. Peterson

> District Court, S.D. West Virginia · November 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10729392

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** November 13, 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/10729392

## How later opinions describe it (automated extraction)

- holding that W. Va. Code § 29-12A-5(a) provides immunity “regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision’s employees while acting within the scope of employment
- stating that this requirement exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” (quoting , 550 U.S. 544, 555 (2007))

## Opinion text

CHARLESTON DIVISION

WILLIAM ALLEN MEANS

Plaintiff,

v. CIVIL ACTION NO. 2:20-cv-00561

E.M. PETERSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is a Motion to Dismiss filed by Defendants Peterson,
Harvey, and the City of South Charleston. [ECF No. 10]. Parties have responded
[ECF No. 12] and replied [ECF No. 14] and this Motion is ripe for decision. For the
reasons set forth below, Defendants’ Motion to Dismiss [ECF No. 10] is GRANTED
in part and DENIED in part.
I. Background and Procedural History
This case revolves around an incident between Plaintiff William Means and
Defendants Corporal Peterson (“Defendant Peterson”) and Patrolman Harvey
(“Defendant Harvey”) on May 2, 2020. At this stage of the proceedings, I accept
Plaintiff’s factual allegations as true. Plaintiff describes the interactions between him
and Defendants in great detail.
Plaintiff was riding a motorcycle on State Route 119 when Defendant Peterson
began following him without turning on his lights or siren. [ECF No. ¶¶ 7–8]. This
pursuit lasted over 15 minutes before Defendant Peterson called for back-up and
of the litigation, I accept Plaintiff’s allegation that Defendant Peterson never
attempted to initiate a traffic stop with lights or sirens as true.
After the pursuit persisted for some time, Defendant Peterson’s SUV struck
the rear wheel tire of Plaintiff’s motorcycle causing him to drive off the road and crash
into a pond. at ¶ 12. Defendants Peterson and Harvey then approached Plaintiff

as he was lying in the pond unable to move. Defendant Harvey then used pepper
spray on Plaintiff before pulling him out of the pond. at ¶ 15.
While Plaintiff was lying on the side of the road, either Defendant Peterson or
Defendant Harvey then “stomped down hard on [Plaintiff’s] head.” at ¶ 17. As a
result of the crash, Plaintiff’s spinal cord was broken, and he remains paralyzed from
the waist down. at ¶ 14.
Plaintiff filed this Complaint on August 25, 2020, alleging five counts against

defendants. In Count I, Plaintiff alleges negligence, gross negligence, and reckless
disregard in the operation of a motor vehicle against Defendants Peterson and the
City of South Charleston. at ¶¶ 21–27. In Count II, Plaintiff alleges the use of
excessive force in violation of the United States Constitution and the West Virginia
Constitution against Defendants Peterson and Harvey. at ¶¶ 28–34. In Count III,
Plaintiff alleges a Section 1983 Claim against Defendant City of South Charleston.

at ¶¶ 35–38. In Count IV, Plaintiff requests injunctive relief requiring Defendant
City of South Charleston to “provide for the video-recording of all police encounters
with suspects and other civilians where there exists a potential for apprehension or
misapprehension.” at ¶¶ at 39–41.
2
Defendants’ Motion argues (1) that Plaintiff is barred from recovery under West
Virginia law because Plaintiff was injured during the commission of a felony, [ECF
No. 11, at 6–7]; (2) that the City of South Charleston is entitled to absolute immunity
under the West Virginia Tort Claims Act, at 7–9; (3) that Defendant Peterson is
immune from negligence claims under the West Virginia Tort Claims Act, at 9–

10; (4) that Plaintiff’s State Constitutional Claims are barred by the Tort Claims Act,
at 10–11; (5) that Defendants Peterson and Harvey are entitled to qualified
immunity from Plaintiff’s § 1983 claim, at 11–14; (6) that Plaintiff has failed to
allege a widespread policy in its § 1983 claim against Defendant City of South
Charleston, at 14–17; and (7) that this court lacks the authority to grant the
requested injunctive relief, at 17–18.1
II. Legal Standard

In general, 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);
, 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
, 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.”

1 Defendants have also moved to dismiss any claim for punitive damages. I reserve judgment on that issue until a
later stage in the litigation.
3
662, 678 (2009)). “A claim has 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.” , 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.’” , 855 F.3d 639, 647 (4th Cir. 2017)

(quoting , 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.” , 550 U.S. at 555; , 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 , 556 U.S. at 679)).
In evaluating the sufficiency of a complaint, the court first “identif[ies]
pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” , 556 U.S. at 679. The 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.” “[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.” , 878 F.3d 447, 452 (4th Cir.
2017) (internal quotation marks omitted).

4
a. Is Plaintiff barred from recovering by W. Va. Code § 55-7-13d?
Defendants argue that Plaintiff is barred from recovering by W. Va. Code § 55-
7-13d because the events described in the Complaint occurred while or after Plaintiff
committed the felony of “fleeing with reckless indifference in violation of W. Va. Code
§ 61-5-17(f).” [ECF No. 11, at 6]. In his response, Plaintiff argues that he did not

commit the felony in question and that, because we must accept his well pleaded
factual allegations as true, this request must be denied. [ECF No. 12, at 2]. In their
reply, Defendants raise—for the first time—the argument that the case must be
dismissed because it could result in conflicting civil and criminal judgments. [ECF
No. 14, at 2]. Section 55-7-13d of the W. Va. Code provides:
(c) In any civil action, a person . . . may not recover if: (1) Such damages
arise out of the person’s commission, attempted commission, or
immediate flight from the commission or attempted commission of a
felony; and (2) That the person’s damages were suffered as a proximate
result of the commission, attempted commission, or immediate flight
from the commission or attempted commission of a felony.
(d)The burden of alleging and proving the defense set forth in subsection
(c) of this section shall be upon the person who seeks to assert such
defense: , That in any civil action in which a person has been
convicted or pleaded guilty or no contest to a felony, the claim shall be
dismissed if the court determines as a matter of law that the person’s
damages were suffered as proximate result of the felonious conduct to
which the person pleaded guilty or no contest, or upon which the person
was convicted.

W. Va. Code § 55-7-13d(c)–(d).
The felony alleged by Defendants is “fleeing with reckless indifference” as
described in W. Va. Code § 61-5-17(f). “A person who intentionally flees or attempts
to flee in a vehicle from a law-enforcement officer acting in his or her official capacity
5
who operates the vehicle in a manner showing a reckless indifference to the safety of
others, is guilty of a felony . . . .” W. Va. Code § 61-f-17(f).
While Plaintiff has been charged with this offense, there has been no
conviction. And it is Defendants’ burden to prove that Plaintiff was committing a
felony and that the felony was the cause of his injuries. At this stage of the litigation,

where I accept Plaintiff’s allegations as true, I must accept his allegation that
Defendant Peterson did not visually or audibly try to initiate a traffic stop and that
therefore no felony was committed.
Because the argument of creating conflicting judgments under
, 512 U.S. 477 (1994) is raised for the first time in Defendants’ reply brief,
I do not consider it now. , 3:16-cv-
6213, 2017 WL 1128636, at *3 (S.D. W. Va. March 24, 2017).

Defendants’ Motion to Dismiss on the grounds that Plaintiff is barred from
recovery because his injuries were proximately caused by his committing a felony is
DENIED.
b. Is the City of South Charleston absolutely immune from liability?
Defendants argue that Defendant City of South Charleston is entitled to
absolute statutory immunity from Plaintiff’s negligence claims under W. Va. Code §

29-12A-5(a)(5). Plaintiff argues that this Section does not protect the municipality
from liability for “claims resulting from a law enforcement or police officer’s non-
emergency or careless use of his motor vehicle.” [ECF No. 12, at 3].

6
or loss to persons or property allegedly caused by an act or omission of the political
subdivision or of any of its employees in connection with a government or propriety
function . . . .” W. Va. Code § 29-12A-4(c). But this provision is “subject to” immunity
provisions elsewhere in the West Virginia Code.
Section 29-12A-5(a)(5) provides that a “political subdivision is immune from

liability if a loss or claim results from . . . the method of providing police, law
enforcement or fire protection.”
The Supreme Court of Appeals of West Virginia has clarified that this Section
creates absolute immunity for municipalities from claims of negligence by employees
in furtherance of the method of providing police, law enforcement, or fire protection.
, 238 W. Va. 129, 133 (2016) (holding that W. Va. Code §
29-12A-5(a) provides immunity “regardless of whether such loss or claim is caused by

the negligent performance of acts by the political subdivision’s employees while acting
within the scope of employment); , 2:19-cv-00387,
2020 WL 890247 (S.D. W. Va. Feb. 24, 2020).
Plaintiff is correct that prior to the ruling by the Supreme Court of Appeals in
, this liability would not have been foreclosed under , 566
S.E.2d 614 (W. Va. 2002), but the language of is explicit. A municipality is not

liable for damages that result from the negligence of a municipal employee when that
negligence occurs in furtherance of providing police, law enforcement, or fire
protection. 4, , 238 W. Va. 129. Plaintiff has conceded that

7
so no further analysis on this issue is required.
Defendants’ Motion to Dismiss Plaintiff’s negligence claim against Defendant
City of South Charleston is GRANTED.
c. Is Defendant Peterson immune from liability for a negligence claim?
Defendant Peterson alleges that he is not liable for ordinary negligence

because a “political subdivision employee cannot be liable for negligence.” [ECF No.
11, at 9–10]. Plaintiff concedes that Defendant Peterson is not liable for ordinary
negligence. [EC No. 12, at 7]. Plaintiff preserves his claims that Defendant Peterson
was reckless and or willful in striking Plaintiff’s Motorcycle. [ECF No. 1, at ¶¶ 23, 25,
30]. , 161 W. Va. 695 913–14 (W. Va. 1978) (“The
law of this jurisdiction recognizes a distinction between negligence, including gross
negligence, and wilful [sic], wanton, and reckless misconduct. The latter type of

conduct requires a subjective realization of the risk of bodily injury created by the
activity and as such does not constitute any form of negligence.”) (superseded by
statute on other grounds); 139 F. Supp. 3d 760, 775 (S.D. W. Va. 2015)
(“West Virginia ‘permits a plaintiff who has asserted a Section 1983 claim against a
law enforcement officer to pursue an independent claim for assault, battery or other
common law intentional tort even if those claims arise from the same facts as the

Section 1983 claim.’”).
Defendants’ Motion to Dismiss Plaintiff’s negligence claim against Defendant
Peterson is GRANTED.

8
Act?
Defendants argue that Plaintiff’s claims for damages under the West Virginia
Constitution are barred by the Tort Claims Act. Plaintiff concedes that the Tort
Claims Act does not waive immunity from suit for damages from violations of the
West Virginia Constitution but argues that there is a judicially created cause of action

for these claims. Plaintiff further states that all the allegations that Defendants are
referring to as ‘State Constitutional Claims’ are being pursued against Defendants
as claims of either willful, malicious, wanton or reckless conduct pursued under W.
Va. Code § 29-12A-5(b)(2). [ECF No. 12].
Defendants are correct that immunity for state constitutional claims is covered
by the Tort Claims Act. , 232 W. Va. 47, 51
(2013). Section 29-12A-5(b)(2) of the Tort Claims Act provides that an “employee of a

political subdivision is immune from liability unless . . . [h]is or her acts were with
malicious purpose, in bad faith, or in a wanton or reckless manner.” Because
Defendants Peterson and Harvey’s immunity from suit for allegations of malicious,
wanton, or reckless conduct is waived by statute, I need not decide whether there is
an additional cause of action for this same conduct for violating the West Virginia
Constitution.

e. Are Defendants Peterson and Harvey entitled to qualified immunity?
Defendants Peterson and Harvey argue that they are entitled to qualified
immunity from Plaintiff’s claims that Defendants Peterson and Harvey violated his
constitutional rights. Defendants assert that Plaintiff has not demonstrated that
9
his motorcycle off the road or that Defendant Harvey violated a clearly established
law by pepper spraying him while he was in the pond.2
Under the doctrine of qualified immunity, “[g]overnmental officials performing
discretionary functions are shielded from liability for money damages so long ‘as their
conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’” , 973 F.2d 295, 298
(4th Cir. 1992) (quoting , 457 U.S. 800, 818 (1982)).
Thus, the court must undertake a two-part inquiry: (1) viewing the facts in the
light most favorable to the Plaintiff, the court must determine if there was a
constitutional violation; and (2) if so, whether the right violated was clearly
established at the time of the violation. , 555 U.S. 223, 231 (2009).
If the answer to either question is no, then the Defendants are entitled to qualified

immunity. The Supreme Court previously required courts to address the first prong
before the second. , 533 U.S. 194, 201 (2001). “In 2009, however,
the Court held that judges ‘should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.’”
, 884 F.3d 219, 226 (4th Cir. 2018) (quoting , 555 U.S. at 236).

2 Plaintiff notes that Defendants have not raised qualified immunity for Plaintiff’s claim that either Defendant
Peterson or Defendant Harvey “stomped” on his head.
10
Plaintiff “alleges a violation of his rights under the Fourth Amendment, which
“guarantees citizens the right ‘to be secure in their persons . . . against unreasonable
. . . seizures.’” , 490 U.S. 386, 394 (1989) (quoting U.S. Const.
amend. IV). The Fourth Amendment’s bar on unreasonable seizures prohibits the use
of excessive force by a police officer in effectuating an arrest. , 284

F.3d 543, 549–50 (4th Cir. 2002).” To determine whether an officer’s use of force is
excessive, we apply a “standard of objective reasonableness.” at 550. “We do not
inquire into an officer’s motives, intentions, or tendencies, and instead determine
whether a reasonable officer in the same circumstances would have concluded that a
threat existed justifying the particular use of force.” (citing , 99
F.3d 640, 642 (4th Cir. 1996).
Because the excessiveness turns on “the information possessed by the officer

at the moment that force is employed,” force justified at the beginning of an encounter
is not justified if—even seconds later—that justification for the initial force has been
eliminated. In , the Fourth Circuit held that the use of deadly
force became objectively unreasonable once the suspect, disabled by the officer’s
initial use of deadly force fell to the ground, 637 F.3d 503, 507–08 (4th Cir. 2011).
Here, Plaintiff has alleged that Defendant Peterson followed him at an unsafe

distance for fifteen minutes for no reason other than a suspicion that the motorcycle
might be stolen. Defendant Peterson then willfully struck the rear of Plaintiff’s
motorcycle with his SUV, causing Plaintiff to crash into a drainage pond. The impact
of the crash severed his spine. After Plaintiff had been knocked to the ground by the
11
was still incapacitated in the pond. Then, after pulling Plaintiff from the pond
Defendant Harvey or Defendant Peterson proceeded to “stomp” on his head.3
Accepting Plaintiff’s well pleaded factual allegations as true, which I am
required to do at this stage of litigation, it is clear that the use of Defendant Peterson’s
SUV to run Plaintiff’s motorcycle off the road was unreasonable and that the

application of pepper spray by Defendant Harvey was unreasonable.
ii. Was this a violation of clearly established law?
“Unless the plaintiff's allegations state a claim of violation of clearly
established law, a defendant pleading qualified immunity is entitled to dismissal
before the commencement of discovery.” , 472 U.S. 511, 526 (1985).
“When determining whether a right was ‘clearly established,’ ‘[t]he dispositive
question is whether the violative nature of conduct is clearly established.’”

, No. 5:15-03589, 2016 WL 7840216, at *6 (S.D. W. Va. Dec. 13, 2016)
(quoting , 136 S. Ct. 305, 308 (2015) (per curiam)). “To be ‘clearly
established,’ ‘[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.’” (quoting
, 483 U.S. 635, 640 (1987)).
Though, of course, “officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” , 536 U.S. 730,
741 (2002); , 526 U.S. 603, 620–21 (1999) (Stevens, J., dissenting).

3 I, of course, recognize that Defendants Peterson and Harvey allege a noticeably different version of this story in
their police reports and pleadings. Determining which version of this story is true is for a later stage of litigation.
12
placed the statutory or constitutional question beyond debate.” ,
563 U.S. 731, 741 (2011). “The salient question . . . is whether the state of the law . . .
gave [Defendants] fair warning that their alleged conduct was unconstitutional.”
, 393 F.3d 471, 476 (4th Cir. 2005) (quoting , 526
U.S. 603, 617 (1999)).

The Supreme Court has “repeatedly told courts . . . not to define clearly
established law at a high level of generality.” , 563 U.S. 731, 742
(2011). Thus, courts consider whether a right is clearly established “in light of the
specific context of the case, not as a broad general proposition.” , 884 F.3d at
227 (citing , 136 S. Ct. 305, 308 (2015)).
This requires me to decide whether it is clearly established under the law that
police officers cannot, without any probable cause that a crime has been committed,

without any belief that a suspect poses a danger to others, without any effort to
initiate a traffic stop with lights or sirens, run a suspect off the road by striking a
motorcycle with an SUV. I also must decide whether there is a clearly established
right which provides that a police officer may not use pepper spray on a suspect who
is lying unconscious and unmoving in a drainage pond. I then must decide whether it
is a clearly established right which protects a suspect from a police officer “stomping”

on his head while he is lying unconscious on the ground.
In , the Supreme Court established that using a police
vehicle to stop another vehicle by crashing into it is a seizure under the Fourth
Amendment, 489 U.S. 593, 598 (1989) (“If . . . the police cruiser had pulled alongside
13
suspect’s freedom of movement would have been a seizure.”) In ,
the Supreme Court stated that “if the suspect threatens the officer with a weapon or
there is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly force may be used
if necessary to prevent escape, and if, where feasible, some warning has been given,”

471 U.S. 1, 11–12 (1985).
In , the Supreme Court examined the reasonableness of a police
officer applying deadly force to end a high speed police chase that was putting many
members of the public in danger and arrived at this rule: “A police officer’s attempt
to terminate a dangerous high-speed car chase that threatens the lives of innocent
bystanders does not violate the Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death,” 550 U.S. 372, 386 (2007). In , the

necessity for using deadly force hinged on the key fact that the police officer applied
deadly force to prevent serious harm to the officers or others during a “Hollywood-
style car chase of the most frightening sort, placing police officers and innocent
bystanders alike at great risk of serious injury.” at 379–381. The holding in
puts a law enforcement officer on notice that deadly force is not appropriate to seize
a vehicle traveling at a slow speed that is not posing a danger to others.

Based on the law established by , , and , and accepting the
Plaintiff’s alleged facts as true, I cannot find that any reasonable law enforcement
officer would believe it to be lawful to apply deadly force to end a low-speed pursuit
without having first attempted to initiate the stop via sirens. Defendants Peterson
14
committing a crime of violence. Plaintiff had not threatened Defendants Peterson and
Harvey, or anyone else, with a weapon or threat of violence. Plaintiff was not
traveling at a great rate of speed and was not putting anyone else on the road in
danger. All of the factors that might have made Defendant Peterson’s application of
force to run the motorcycle of the road lawful were absent in this case, and it was

clearly established at the time that an application of deadly force without one of these
factors was unlawful.
I turn now to the use of pepper spray by Defendant Harvey and the “stomping”
on his head that is corroborated by video evidence. In , the
Fourth Circuit held that the use of deadly force became objectively unreasonable once
the suspect, disabled by the officer’s initial use of deadly force fell to the ground, 637
F.3d 503, 507–08 (4th Cir. 2011). Plaintiff has alleged that he was motionless in the

pond after his spine was severed, when Defendant Harvey used pepper spray on him.
Plaintiff alleged he was still unmoving when one of the Defendants “stomped” on his
head. At the time of this incident, it was clearly established law that police officers
could not use additional excessive force on a suspect who has already been
incapacitated from an initial use of force.
If Plaintiff’s version of events is accepted, as I must do at this stage, a trier of

fact could easily conclude that a Fourth Amendment violation occurred and that
reasonable officers in Defendants’ position could not have believed that they were
acting lawfully in employing deadly force. Defendants Peterson and Harvey are not
entitled to qualified immunity at this point in the litigation.
15
Peterson and Harvey is DENIED.
f. Is the Town of South Charleston immune from suit under § 1983?
Defendants argue that Plaintiff’s § 1983 claim against Defendant City of South
Charleston fails because Plaintiff did not allege a widespread policy but rather
alleged only a single incident of misconduct. Plaintiff responds that the City’s failure

to require the use of body cameras and dashboard cameras amounts to a failure to
supervise that encourages the violation of citizens’ constitutional rights.
The theory of liability set forth in provides for a § 1983 claim against
local governments when their formal policies or customs result in constitutional
deprivations. , 436 U.S. 658, 694 (1978). A municipal
custom refers to relevant practices so widespread as to have the force of law, though
not formally approved by a legislative body. ,

520 U.S. 397, 403–04 (1997). A custom can include a municipality's failure to hire,
train, supervise, and discipline its employees. , 563 U.S. 51,
61 (2011); , 520 U.S. at 415. Municipal liability under § 1983 cannot be based
on a theory of respondeat superior. ; , 489 U.S. 378,
379 (1989).
The municipality’s failure to hire, train, supervise, or discipline must amount

to deliberate indifference toward the constitutional rights at stake.
, 489 U.S. at 379. Plaintiffs must demonstrate that the deliberate indifference
the violation of their constitutional rights. In this case, plaintiff alleges

16
35–38].
The Fourth Circuit has identified three elements in analyzing failure to
supervise or discipline under :
(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
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.

, 751 F.3d 214, 226 (4th Cir. 2014) (citing , 13
F.3d 791, 798 (4th Cir. 1994)). Demonstrating a “pervasive and unreasonable risk”
requires evidence that the conduct is “widespread, or at least has been used on several
different occasions.” , 751 F.3d at 226.
In this case, plaintiff has not pleaded specific facts that indicate that
Defendants Peterson and Harvey, or even other South Charleston law enforcement
officers, used unconstitutional excessive force on occasions other than May 2, 2020.
Nor has he alleged that Defendant City of South Charleston knew about any other
instances of Defendants using excessive force.
Defendants’ Motion to Dismiss Plaintiff’s § 1983 claim against Defendant City
of South Charleston is GRANTED.
17
Defendants argue that Plaintiff’s request for injunctive relief should fail for
lack of a justiciable controversy. Plaintiff asserts that a justiciable controversy exists
and that if I find that the policy of not requiring body or dashboard cameras is
unconstitutional, then I must enjoin Defendant City of South Charleston, requiring
them to use body and dashboard cameras whenever the apprehension of a suspect is

possible. But first I will address whether Plaintiff has standing to pursue this claim.
To establish Article III standing, a plaintiff “must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct . . . and (3) that is likely
to be redressed by a favorable judicial decision.” , 136 S. Ct.
1540, 1547 (2016).
The injury-in-fact requirement ensures that plaintiffs have a “personal stake
in the outcome of the controversy.” , 422 U.S. 490, 498 (1975). Injury

in fact is “an invasion of a legally protected interest” that is “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical.” , 136
S. Ct. at 1548. “An allegation of future injury may suffice if the threatened injury is
certainly impending, or there is a substantial risk that the harm will occur.”
, 134 S. Ct. 2334, 2341 (2014) (internal quotation marks
omitted). Because Plaintiff seeks declaratory and injunctive relief, he must establish

an ongoing or future injury in fact. , 414 U.S. 488, 495–96, (1974)
(“Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any continuing, present adverse
effects.”).
18
they have ‘sustained or [are] immediately in danger of sustaining some direct injury
as the result of the challenged official conduct.’” ,
971 F.3d 199, 220 (4th Cir. 2020) (quoting , 461 U.S. 95,
101–02 (1983)). In , the plaintiff sought to enjoin the Los Angeles Police
Department’s use of chokeholds when an officer faces no threat of deadly force, 461

U.S. at 98. The plaintiff had previously been handcuffed and choked by a police officer
during the course of a traffic stop, but the Court held that “[a]bsent a sufficient
likelihood that he will again be wronged in a similar way, Lyons is no more entitled
to an injunction than any other citizen of Los Angeles.” at 111.
Like the request in , Plaintiff here seeks injunctive relief against
Defendant City of South Charleston without having alleged multiple instances of
misconduct based on a theory that a lack of body cameras and dashboard cameras

encourages the use of excessive force by police officers. Therefore, I find that Plaintiff
lacks standing to seek injunctive relief for the use of body and dashboard cameras.
Because Plaintiff lacks standing to pursue the requested injunctive relief,
Defendants’ Motion to Dismiss Plaintiff’s claim for Injunctive and Declaratory relief
is GRANTED.
IV. Conclusion

In summary, Defendants’ Motion to Dismiss [ECF No. 10] is DENIED in part
and GRANTED in part. Defendants’ Motion to Dismiss Plaintiff’s claim on the
grounds that he was committing a felony is DENIED. Defendants’ Motion to Dismiss
the § 1983 claims against Defendants Harvey and Peterson is DENIED.
19
Defendants’ Motion to Dismiss all negligence claims against the City of South
Charleston is GRANTED. Defendants’ Motion to Dismiss the negligence claim
against Defendant Peterson is GRANTED. Defendants’ Motion to Dismiss the § 1983
claim against Defendant City of South Charleston is GRANTED. Defendants’ Motion
to Dismiss Plaintiff's claim for Injunctive and Declaratory relief is GRANTED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER: November 13, 2020

pe STATES DISTRICT JUDGE

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729392. Public record. Not legal advice.