Daniels v. City of South Charleston

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JOSHUA DANIELS,

Plaintiff,

v. Civil Action No. 2:20-cv-00779

CITY OF SOUTH CHARLESTON,

LT. YEAGER,

OFFICER BARBAGALLO, and

PATROLMAN MOSS,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the defendants’ motion to dismiss the

complaint, filed on December 28, 2020 (ECF No. 5).

I. Background

The plaintiff initiated this action by filing a

complaint in Kanawha County Circuit Court on or about August 12,

2020. See ECF No. 1-1 at 3-10. On November 30, 2020, the

defendants removed the action to this court based on federal

question jurisdiction. See ECF No. 1.

According to the complaint, the plaintiff and his

friend became intoxicated after drinking at a party and decided

to “sleep it off” inside the plaintiff’s vehicle. Id. ¶¶ 8-9.

They asked for and received permission to leave the vehicle

parked at a convenience store while they slept. See id. ¶ 10.

As they slept, a delivery driver called the South Charleston

Police Department, advising that two men were asleep in a

vehicle parked at the convenient store and would not wake when

he shook the vehicle. See id. ¶ 11.

The complaint then alleges that

[p]olice dispatched several units to the scene, as

well as firefighters. Upon arrival the officers

present proceeded to forcefully enter [the]

[p]laintiff’s vehicle and administer him Narcan.

After being administered Narcan twice, [the]

[p]laintiff was then transported handcuffed in the

back of an ambulance to [a nearby] [h]ospital while

his vehicle was towed.

Id. ¶¶ 12-13. The complaint does not specify which police

officers – and notably does not specify which, if any, of the

individual defendants (Lt. Yeager, Officer Barbagallo, and

Patrolman Moss) – entered the vehicle, administered Narcan, or

took part in transporting him to the hospital. Due to the

affects that Narcan has on someone who is not overdosing, the

plaintiff alleges he was “very anxious and energetic.” Id. ¶

14.

At the hospital, the plaintiff “began attempting to

explain to police that he had not done any illicit drugs” and

did not need medical attention. Id. ¶ 15. Because of the

Narcan, the plaintiff “was talking loudly and nervously,” and

the officers told him that, “if he did not quiet down and stop

using profane language[,] he would be arrested.” Id. ¶¶ 15-16.

The plaintiff continued to ask why he had been arrested and

“refused to sign any medical forms,” as he believed he had been

wrongfully detained. Id. ¶ 16. When he “attempt[ed] to leave

the hospital,” the plaintiff alleges that he was “violently and

forcefully assaulted by the officers present[]” again without

identifying them “and placed under arrest for [d]isorderly

[c]onduct and [o]bstructing an [o]fficer.” Id. ¶ 17. He

alleges that the “[d]efendants,” presumably the individual

defendants, were among the officers who “arrested” him after

“attempt[ing] to force [him] to calm down.” Id. ¶ 21.

In Count I of the complaint, the plaintiff asserts a

claim for outrageous conduct or intentional infliction of

emotional distress against the individual defendants. See id.

at 7. He alleges that the individual defendants “knew or should

have known that administering Narcan to an individual who is not

overdosing on illicit drugs can cause a severe mental and

physical reaction” and that their “attempt to force [the]

[p]laintiff to calm down” and subsequent arrest caused the

plaintiff “severe emotional distress.” Id. ¶¶ 19-22. Based on

these allegations, the plaintiff seeks compensatory and punitive

damages and attorney’s fees and costs. See id. ¶ 24.

In Count II, the plaintiff asserts a claim, pursuant

to 42 U.S.C. § 1983, for excessive force and cruel and unusual

punishment, in violation of his Eighth Amendment rights, against

all the defendants. See id. at 8. He alleges that his “assault

and battery” by the “[d]efendants” amounted to excessive force

and cruel and unusual punishment. Id. ¶ 27. He further alleges

that the violation of his constitutional rights resulted from

the “implementation of a custom, policy, or official action of

the South Charleston Police Department employees” to “use

excessive force and cruel and unusual punishment while detaining

individuals” and that excessive force “has been employed against

multiple West Virginia citizens on multiple occasions within the

past 5 years” and has been “sanctioned” and “condoned by

supervising personnel.” Id. ¶ 28. Based on these allegations,

the plaintiff seeks compensatory and punitive damages as well as

attorney’s fees and costs. See id. ¶ 29.

On December 28, 2020, the defendants filed the current

motion to dismiss the complaint, pursuant to Fed. R. Civ. P.

12(b)(6). See ECF No. 5; ECF No. 6.

II. Legal Standard

Fed. R. Civ. P. 8(a)(2) requires a pleading to contain

“a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule

12(b)(6) correspondingly provides that a pleading may be

dismissed if it “fail[s] to state a claim upon which relief can

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

To survive a Rule 12(b)(6) motion to dismiss, “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face,’” meaning that

the pleaded “factual content . . . allows the court to draw the

reasonable inference that the defendant[s] [are] liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). When ruling on a motion to dismiss, the court

“accept[s] all well-pleaded facts as true and draw[s] all

reasonable inferences in favor of the plaintiff[],” Attkisson v.

Holder, 925 F.3d 606, 619 (4th Cir. 2019), but need not accept

conclusory statements, legal conclusions, or unwarranted

inferences, see id.; see also Beck v. McDonald, 848 F.3d 262,

270 (4th Cir. 2017).

III. Discussion

A. Count I

The defendants first argue that the Count I claim

brought only against the individual defendants1 for intentional

infliction of emotional distress (“IIED”) must be dismissed

because the complaint does not plausibly allege that the

individual defendants’ conduct was outrageous. The court

agrees.

It appears from Count I that the plaintiff might be

asserting his IIED claim based on one or both of two separate

actions: (1) the “administ[ration] [of] Narcan” to him when he

“was not overdosing on illicit drugs” and (2) the “attempt to

force [him] to calm down” and then “arrest” him when he was in

an agitated state after being wrongfully administered Narcan.

ECF No. 1-1 ¶¶ 19-21.

1 Noting that the complaint is not clear regarding which of the

defendants Count I is asserted against, see ECF No. 1-1 ¶¶ 18-

24, the defendants argue that Count I should be dismissed to the

extent it is brought against the City of South Charleston (the

“City”) on the ground of immunity, see ECF No. 6 at 13-14. In

his briefing, the plaintiff clarifies that Count I is brought

only against the individual defendants and not against the City.

See EFC No. 8 at 4.

As for the first potential basis for the IIED claim,

the court concludes that the plaintiff has failed to plausibly

allege that the individual defendants administered the Narcan.

Although the complaint alleges that the individual defendants

should have known of the agitated state that might result from

the administration of Narcan to an individual who is not

overdosing, see id. ¶¶ 19-20, it does not allege that any of the

individual defendants administered Narcan to the plaintiff.2

The remaining potential basis for the claim cannot be

reasonably considered outrageous conduct. See Syl. pt. 4,

Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W. Va. 1998)

(explaining that “[w]hether conduct may reasonably be considered

outrageous is a legal question” for the court to decide).

Attempting to “force” a recently-arrived emergency room patient,

who, after being administered Narcan, is “talking loudly and

nervously,” to “calm down” by informing him that he will be

arrested if he fails to “quiet down and stop using profane

language,” id. ¶¶ 15-16, cannot reasonably be considered so

outrageous that it exceeds the bounds of decency, see Tanner v.

2 To the extent the plaintiff asserts, as a basis for his IIED

claim, that the individual defendants assaulted and battered him

during his arrest, the court concludes that allegations

regarding the assault and battery are conclusory, as the

complaint fails to present any non-conclusory description of the

arrest. See Part III.B, infra.

Rite Aid of W. Va., Inc., 461 S.E.2d 149, 157 (W. Va. 1995)

(“[IIED] liability clearly does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other

trivialities.” (quoting Restatement (Second) of Torts § 46, cmt.

d (1965))). Similarly, placing the same individual, who then

attempts to leave the hospital, under arrest for disorderly

conduct cannot reasonably be considered outrageous conduct. See

Weigle v. Pifer, 139 F. Supp. 3d 760, 778 (S.D.W. Va. 2015)

(“Courts applying West Virginia law . . . [and] consider[ing]

outrage claims against law enforcement officers predicated on

their conduct during an arrest . . . have determined that the

actions of the law enforcement officer, even if otherwise

actionable, did not qualify as legally outrageous.”); id.

(collecting cases); see also Hessami v. Corp. of Ranson, 170 F.

Supp. 2d 626, 633 (N.D.W. Va. 2001) (lawfully effectuating a

lawful arrest does not amount to outrageous conduct).

Because the plaintiff fails to plausibly allege

conduct that may reasonably be considered outrageous, the court

dismisses Count I of the complaint.

B. Count II against the individual defendants

The defendants next argue that the plaintiff’s Count

II excessive force claim, insofar as it is brought against the

individual defendants, must be dismissed because the complaint

fails to set forth sufficient factual matter from which the

court could reasonably infer their liability. The court agrees.

The plaintiff’s excessive force claim is brought

expressly under the Eighth Amendment. See ECF No. 1-1 ¶ 27.

Further, the complaint contains numerous allegations that appear

to be aimed specifically at the Eighth Amendment standard for

excessive force claims. See, e.g., ECF No. 1-1 ¶ 26

(“Defendant[s’] actions were done to Plaintiff with the intent

to inflict unnecessary harm.”); id. ¶ 27 (alleging the force

used amounted to “cruel and unusual punishment”); id. (“[T]his

cruel and unusual punishment was . . . done with malicious

intent.”). However, in his briefing, see ECF No. 8 at 2, the

plaintiff concedes that the Eighth Amendment is inapplicable to

his allegations of excessive force in the course of an arrest

and that the Fourth Amendment applies instead, see Graham v.

Connor, 490 U.S. 386, 394-96 (1989). The plaintiff argues

against dismissal on this basis because, he says, the complaint

provided adequate notice of an excessive force claim that would

be assessed under the Fourth Amendment. The court construes the

claim as if brought under the Fourth Amendment.

A plaintiff pursuing a Fourth Amendment excessive

force claim must allege, at a minimum, that the defendants used

some amount of force. See Graham, 490 U.S. at 394-96 (requiring

use of unreasonable force to establish a Fourth Amendment

excessive force claim). Here, however, the complaint fails to

plausibly allege that the named individual defendants used any

force against the plaintiff. Only four allegations in the

complaint could possibly give rise to an excessive force claim

against the individual defendants: (1) “officers . . .

administered [the plaintiff] Narcan,” ECF No. 1-1 ¶ 12; (2) the

plaintiff “was violently and forcefully assaulted by the

officers present[] [at the hospital] and placed under arrest,”

id. ¶ 17; (3) “Defendants Yeager, Moss, and Barbagallo harassed,

assaulted, battered, and used excessive force against Plaintiff

as previously described herein,” id. ¶ 26; and (4) “assault,

battery, and excessive force [were] used against Plaintiff by

Defendants,” id. ¶ 27. The latter three of these allegations

amount to nothing more than conclusory statements or legal

conclusions that the court need not accept. See Attkisson, 925

F.3d at 619; Beck, 848 F.3d at 270.3 Although the remaining

3 Other courts in this circuit have concluded that allegations

that officers, in the course of their duties, “battered” or

“assaulted” a plaintiff, without more, amount to mere legal

conclusions that are insufficient to plausibly allege an

excessive force claim. See Hill v. Palmer, No. 1:18-cv-294-FDW,

2019 WL 937333, at *4 (W.D.N.C. Feb. 26, 2019); Johnson v.

Thomas, No. 4:10-CV-151-BR, 2011 WL 1344008, at *5 (E.D.N.C.

Apr. 8, 2011); see also Iqbal, 556 U.S. at 678 (“[T]he [Rule 8]

allegation – that officers administered Narcan to the plaintiff

– is factual in nature, the complaint fails to identify any of

the administering officers, and nothing in the complaint

suggests that any of the individual defendants were among them.

Because Count II fails to plausibly allege a Fourth

Amendment excessive force claim against the individual

defendants, the court dismisses Count II as to them.

C. Count II against the City

Next, the defendants argue that Count II must be

dismissed as to the City because the plaintiff fails to

plausibly allege a Monell v. Department of Social Services, 436

U.S. 658 (1978), claim.

Under Monell, a municipality sued pursuant to § 1983

“is liable only for its own illegal acts,” specifically, “if it

follows a custom, policy, or practice by which local officials

violate a plaintiff’s constitutional rights.” Owens v. Balt.

City State’s Att’ys Off., 767 F.3d 379, 402 (4th Cir. 2014)

(emphasis in original). The plaintiff appears to assert a

condonation theory of liability, under which a municipality may

pleading standard . . . demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.”).

be liable for a constitutional violation resulting from its

policymakers’ failure to stop or correct a widespread pattern of

unconstitutional conduct by municipal officials. See id. Under

this theory, the plaintiff “must point to a persistent and

widespread practice of municipal officials, the duration and

frequency of which indicate that policymakers (1) had actual or

constructive knowledge of the conduct, and (2) failed to correct

it due to their deliberate indifference.” Id. (internal

quotation marks and brackets omitted). “Both knowledge and

indifference can be inferred from the extent of employees’

misconduct.” Id. at 402-03 (internal quotation marks omitted).

As the defendant’s point out, the complaint’s Monell-

related allegations are brief. The plaintiff alleges:

[T]he violation of [the plaintiff’s] federal

constitutional rights was caused by implementation of

a custom, policy, or official act of the South

Charleston Police Department employees including, but

not limited to, their ongoing use of excessive force

and cruel and unusual punishment while detaining

individuals. The use of excessive force has been

employed against multiple West Virginia citizens on

multiple occasions within the past 5 years. The

inappropriate use of force has been sanctioned by

supervisors and is condoned by supervising personnel.

ECF No. 1-1 ¶ 28. The defendants argue these allegations lack

the factual detail needed to satisfy the plausibility test.

The Fourth Circuit addressed the same argument the

defendants advance here in Owens. In that case, the plaintiff

alleged that police officers violated his constitutional rights

by withholding exculpatory evidence during his criminal trial.

See Owens, 767 F.3d at 385. He brought a Monell claim against

the municipality’s police department under a condonation theory,

“alleg[ing] that at all times relevant to this case, the

[department] maintained a custom, policy, and/or practice of

condoning its officers’ conduct in knowingly, consciously, and

repeatedly withholding and suppressing exculpatory evidence” and

“that by failing to correct its officers’ pervasive suppression

of evidence, the [department] injured him.” Id. at 402

(internal quotation marks and brackets omitted). As in this

case, the department argued that the allegations failed to meet

the Rule 12(b)(6) plausibility standard because the allegations

were conclusory and lacked factual detail. See id. at 403.

The Fourth Circuit disagreed with the department. It

first noted that, although “[p]revailing under . . . a

[condonation] theory is no easy task,” “alleging such a claim is

. . . easier,” and “[t]he recitation of facts need not be

particularly detailed.” Id. at 402-03. The Fourth Circuit then

noted that the plaintiff had supported his claim with two

“brief, but non-conclusory,” factual allegations: (1) reported

and unreported cases from the relevant period established that

the department had a practice of knowingly and repeatedly

suppressing exculpatory evidence, and (2) numerous motions filed

and granted during this period demonstrated that the department

maintained a practice of allowing or condoning this type of

behavior. Id. at 403. The Fourth Circuit concluded that “[t]he

assertions as to ‘reported and unreported cases’ and numerous

‘successful motions’ are factual allegations, the veracity of

which could plausibly support a Monell claim,” because the

allegation that “officers withheld information on multiple

occasions could establish a ‘persistent and widespread’ pattern

of practice, the hallmark of an impermissible custom.” Id. The

Owens court also pointed to a decision from the First Circuit

concluding that allegations of a “‘volume of cases’” involving

similar constitutional violations to those alleged by the

plaintiff contained sufficient factual matter to support a

Monell claim, even if “the complaint was couched in general

terms” and the “cases” comprising the “volume” were not

otherwise identified. Id. at 403-04 (brackets omitted) (quoting

Haley v. City of Bos., 657 F.3d 39, 53 (1st Cir. 2011)).

The court is constrained by the Fourth Circuit’s

decision in Owens to conclude that the plaintiff’s complaint

contains sufficient factual detail to support his Monell claim

against the City. The allegation that the unconstitutional

excessive force the plaintiff claims he suffered “has been

employed against multiple West Virginia citizens on multiple

occasions within the past 5 years,” EFC No. 1-1 ¶ 28, is brief

and fails to identify any of the underlying instances of

excessive force. However, the courts in Owens and Haley faced

similarly brief and imprecise allegations and nonetheless

determined they sufficed. See Owens, 767 F.3d at 403; Haley,

657 F.3d at 53. Further, as in Owens and Haley, the plaintiff’s

factual allegation that municipal officials have used excessive

force on multiple occasions in the recent past, which the court

must accept as true, plausibly supports his Monell claim because

allegations of multiple instances of the same constitutional

violation can establish a persistent, widespread pattern of

practice that forms the basis of an impermissible custom. See

Owens, 767 F.3d at 403; Haley, 657 F.3d at 53. This is so

because allegations of extensive misconduct by municipal

officials can support a reasonable inference of both knowledge

and indifference on the part of the municipality’s policymakers.

See Owens, 767 F.3d at 402-03.

Accordingly, the court must deny the motion to dismiss

to the extent it seeks the dismissal of the Count II Monell

claim against the City.

IV. Conclusion

For the foregoing reasons, it is ORDERED that the

defendants’ motion to dismiss the complaint (ECF No. 5) be, and

hereby it is, granted to the extent it seeks dismissal of Count

I in its entirety and Count II as to Lt. Yeager, Officer

Barbagallo, and Patrolman Moss and denied to the extent it seeks

dismissal of Count II as to the City.

It is further ORDERED that Count I in its entirety and

Count II, to the extent it is asserted against Lt. Yeager,

Officer Barbagallo, and Patrolman Moss, be, and hereby they are,

dismissed.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: August 16, 2021