Tolliver v. City of Dunbar

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

KHRISTOPHER TOLLIVER,

Plaintiff,

v. CIVIL ACTION NO. 2:21-cv-00011

CITY OF DUNBAR, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is the motion to dismiss filed by Defendants City of Dunbar and

Officer Lester (collectively “Defendants”). (ECF No. 4.) For the reasons discussed below, the

Court GRANTS IN PART and DENIES IN PART the motion.

I. BACKGROUND

This action arises out of an incident where Defendant Officer Lester (“Officer Lester”)

allegedly injured Plaintiff Khristopher Tolliver (“Plaintiff”) during the course of an arrest.

According to the Complaint, on or about April 29, 2021, Officer Lester stopped Plaintiff in the

parking lot of City National Bank, where Plaintiff was working as a night cleaner. (ECF No. 1 at

2, ¶¶ 6, 9.) Plaintiff claims he “ask[ed] why he had been stopped,” but Officer Lester commanded

him to “get back in the vehicle[.]” (Id. at ¶ 9.) Then, Plaintiff alleges he was “informing

Defendant Lester that he [was] just going to work and ha[d] not broken any laws,” when Officer

Lester “charge[d],” “tackle[d],” “violently assault[ed],” and arrested Plaintiff. (Id. at ¶ 10.)

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After the arrest, Plaintiff was taken to the Dunbar Police Station and charged with

Obstructing an Officer. (Id. at 3, ¶ 12.) However, Plaintiff asserts that another officer wrote the

police report, which did not list Officer Lester as the arresting officer. (Id.) Plaintiff alleges this

police report states he was stopped for “suspicious activity” because “a vehicle had been seen at

the Super 8 Motel,” which he contends is not in the vicinity of City National Bank. (Id. at ¶ 13).

Plaintiff was later informed that “his vehicle had been mistaken for another.” (Id. at ¶ 14.) As a

result of this incident, Plaintiff claims he suffered “a severe wrist injury,” several lacerations and

bruises, and “severe emotional and mental trauma[.]” (Id. at ¶¶ 15, 17.)

Plaintiff’s Complaint alleges violations of the West Virginia Constitution, 42 U.S.C. §

1983 civil rights violations, battery, and intentional infliction of emotional distress (“IIED”)

against Officer Lester. As against Defendant City of Dunbar (“the City”), Plaintiff alleges

violations of the West Virginia Constitution, as well as § 1983 municipal liability and negligent

hiring, retention, and supervision. On April 15, 2021, Defendants filed the pending Motion to

Dismiss. (ECF No. 4.) Plaintiff responded, (ECF No. 9), and Defendants timely replied, (ECF

No. 10). As such, this motion is fully briefed and ripe for adjudication.

II. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim upon which relief may be granted tests the

legal sufficiency of a civil complaint. Fed. R. Civ. P. 12(b)(6). A plaintiff must allege sufficient

facts, which, if proven, would entitle him to relief under a cognizable legal claim. Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 554–55 (2007). A case should be dismissed if, viewing the well-

pleaded factual allegations in the complaint as true and in the light most favorable to the plaintiff,

the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.”

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Id. at 570. In applying this standard, a court must utilize a two-pronged approach. First, it must

separate the legal conclusions in the complaint from the factual allegations. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Second, assuming the truth of only the factual allegations, the court

must determine whether the plaintiff’s complaint permits a reasonable inference that “the

defendant is liable for the misconduct alleged.” Id. 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)). A plaintiff’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level,” thereby “nudg[ing] [the] claims across

the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570.

III. DISCUSSION

Plaintiff’s Complaint alleges eleven causes of action. Defendants attack all counts in the

pending Motion to Dismiss. As an initial matter, Plaintiff agreed to dismiss Count X (racial

discrimination), as well as all claims brought under the West Virginia Constitution, other than

those brought under Article III, Section 10. (ECF No. 9 at 1, 8.) As such, Count X and all claims

brought under Article III, Sections 1, 5, 6, 14 of the West Virginia Constitution are DISMISSED.

All remaining claims are addressed in turn.

A. Violations of Article III, Section 10 of the West Virginia Constitution

Defendants contend that Plaintiff’s claim made pursuant to Article III, Section 10 of the

West Virginia Constitution must be dismissed because Section 10 does not serve as an adequate

vehicle for Plaintiff’s excessive force claim. (See ECF No. 5 at 5.) In response, Plaintiff cites to

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Fields v. Mellinger, 851 S.E.2d 789 (W. Va. 2020), in which the West Virginia Supreme Court of

Appeals (“WVSCA”) held that there are no private causes of action for monetary damages arising

out of Article III, Section 6 of the West Virginia Constitution. (ECF No. 9 at 2.) Plaintiff argues

that Fields permits a private cause of action under Article III, Section 10, by reasoning that the

WVSCA’s analysis “heavily involved ‘alternative remedies’ for raising these claims instead of

creating a new cause of action under [Section] 6.” (Id.)

Article III, Section 10 of the West Virginia Constitution states, “No person shall be

deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”

This mirrors the Fourteenth Amendment of the United States Constitution. Nutter v. Mellinger,

2020 WL 401790, at *6 (S.D. W. Va. 2020). Thus, the protections afforded to West Virginia

citizens under the search and seizure provisions of the West Virginia Constitution “are co-

extensive with those provided for in the Fourth and Fourteenth Amendments to the United States

Constitution.” State v. Clark, 752 S.E.2d 907, 920–21 (W. Va. 2013). To that extent, the

Supreme Court of the United States has instructed that “all claims that law enforcement officers

have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other

‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’

standard, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S.

386, 395 (1989) (emphasis in original); see United States v. Lanier, 520 U.S. 259, 272 n.7 (1997).

This Court has held that “the rule stated in Graham and reinforced in Lanier applies to state

constitutional claims as well—i.e., the protections afforded by substantive due process are at best

redundant of those afforded by the more specific provisions of Article III, Section 6.” Cottrell on

behalf of Est. of Cottrell v. Stepp, No. 2:18-CV-01281, 2019 WL 1140198, at *3 (S.D. W. Va.

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Mar. 12, 2019) (citations omitted). However, the WVSCA subsequently held that “West Virginia

does not recognize a private right of action for monetary damages for a violation of Article III,

Section 6 of the West Virginia Constitution.” See Fields, 851 S.E.2d at 789. Thus, the same

question is before this Court again: “whether Plaintiff[’s] Article III, Section 10 claim can still be

considered redundant if Article III, Section 6 is no longer a viable cause of action in West

Virginia.” See Cottrell on behalf of Est. of Cottrell v. Stepp, No. 2:18-CV-01281, 2021 WL

1966830, at *2 (S.D. W. Va. May 17, 2021). This Court has entered an Order of Certification

wherein it certified this question to the WVSCA, (see id.), and is awaiting an answer.

Accordingly, Defendants’ motion is DENIED WITHOUT PREJUDICE as it relates to

Plaintiff’s claim under Article III, Section 10 of the West Virginia Constitution, pending an answer

from the WVSCA to this Court’s certified question. Once that answer is received, the Court will

revisit this Count accordingly.

B. Count III for Negligent Hiring, Retention, and Supervision

Count III of the Complaint alleges that (1) the City “failed to exercise reasonable care in

the hiring, retention, and/or supervision” of Officer Lester, and (2) the City is “vicariously liable”

for Officer Lester’s actions. (ECF No. 1 at 6, ¶ 30.) Defendants first argue that Plaintiff has

failed to plead sufficient factual allegations to support his claim of negligence against the City.1

(See ECF No. 5 at 7.) Second, Defendants argue that the City cannot be held liable for intentional

acts committed by its employees under W. Va. Code § 29-12A-4(c)(2). (Id. at 9.)

1 Defendants also assert that the City is entitled to statutory immunity for Plaintiff’s negligence claim under W. Va.

Code § 29-12A-5(a)(5). (Id. at 7-8.) However, this provision of the West Virginia Governmental Tort Claims and

Insurance Reform Act, which provides immunity for claims involving “the method of providing police, law

enforcement or fire protection,” does not extend to claims based on negligent hiring and supervision of an employee.

Woods v. Town of Danville, W. Va., 712 F. Supp. 2d 502, 514 (S.D. W. Va. 2010); Davis v. Milton Police Dep't, No.

CV 3:20-0036, 2020 WL 2341238, at *5 (S.D. W. Va. May 11, 2020) (explaining that this rule is not altered or

amended by Albert v. City of Wheeling, 792 S.E.2d 628, 632 (W. Va. 2016)); see also W. Va. Code. § 29-12A-5(a)(5).

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Plaintiff responds in a conclusory fashion by stating that his claim is adequately pled and

that “the law does not require [him] to show all of the facts and evidence that [he] intends on

obtaining during discovery.” (ECF No. 9 at 3, 5.) He further argues that Defendants are not

entitled to statutory immunity under W. Va. Code § 29-12A-5(b) because Officer Lester’s actions

“were done with a malicious purpose and in bad faith.” (Id. at 3.)

To start, Plaintiff has failed to plead sufficient factual allegations to support a claim of

negligent hiring, retention, and supervision. A negligent hiring, retention, and supervision claim

focuses on an employer's liability for hiring, supervising, or retaining an employee “whom the

employer knew, or should have known, posed a risk to third parties.” Radford v. Hammons, Civ.

Action No. 2:14-24854, 2015 WL 738062 at *6–*7 (S.D. W. Va. Feb. 20, 2015). The analysis

focuses on whether (1) the employer (a) was on notice of the employee’s propensity, (b) yet

unreasonably failed to take action, and (2) a third-party was harmed from the employee’s tortious

conduct. Id. at *7; see also Woods, 712 F.Supp.2d at 514–15.

Here, Plaintiff has not alleged any facts from which the Court can reasonably infer that the

City was on notice of Officer Lester’s propensity or how it unreasonably failed to take action,

either through training or other disciplinary measures. See Westfall v. Osborne, No. 2:20-CV-

00118, 2020 WL 6276145, at *6 (S.D. W. Va. Oct. 26, 2020) (finding that plaintiff’s claim was

insufficient when arguing that “discovery will show” the defendant’s negligent hiring, training,

and retention); cf. Rhodes v. King, Civ. Action No. 2:19-cv-00626, 2020 WL 4607323 at *5 (S.D.

W. Va. Aug. 11, 2020) (finding that plaintiff sufficiently pled a claim when alleging three specific

incidents of defendant’s use of excessive force and a failure to act by county sheriff despite

receiving complaints). In fact, Plaintiff has not pled sufficient factual allegations to even

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demonstrate a propensity for tortious conduct by any officer. See, e.g., Myers v. City of

Charleston, 2:19-cv-00757, 2020 WL 4195005 at *14 (S.D. W. Va. July 21, 2020). Further,

“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. at 678–79. Thus, Plaintiff does not get to avail himself to

discovery without providing more than conclusory allegations.

Further, the City is entitled to statutory immunity for any alleged intentional acts under W.

Va. Code § 29-12A-(b)(1). See Fisher v. Morrison, No. 2:13-CV-31140, 2014 WL 4418196, at

*3 (S.D.W. Va. Sept. 8, 2014) (citing Tofi v. Napier, 2:10–CV–01121, 2011 WL 3862118, at *3

(S.D.W.Va. Aug. 31, 2011). Although Plaintiff argues that the City is not entitled to immunity

under W. Va. Code § 29-12A-5(b)(2), (see ECF No. 9 at 3), this subsection relates to employee

immunity and is thus inapplicable in determining the City’s immunity.

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff’s claims for negligent

hiring, training, and supervision and/or vicarious liability against the City is GRANTED.

C. Count IV for Negligence

Defendants also argue that Plaintiff’s negligence claim against Officer Lester must be

dismissed because it is based on alleged intentional acts. (ECF No. 5 at 10.) In response,

Plaintiff tries to reason that, although Officer Lester “was acting intentionally . . . some of the acts

performed by [Officer Lester] were not intended to harm the Plaintiff, but breached a duty of care

the Defendants owe the Plaintiff, and therefore Defendant Lester committed both intentional acts

and negligence.” (ECF No. 9 at 4.)

It is well-established that intentional acts cannot form the basis of a claim for negligence.

Smith v. Lusk, 533 F. App'x 280, 284 (4th Cir. 2013) (citations omitted); Weigle v. Pifer, 139 F.

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Supp. 3d 760, 780 (S.D. W. Va. 2015) (“A mere allegation of negligence does not turn an

intentional tort into negligent conduct.”) (citations omitted). Thus, “[c]onduct that supports a

negligence claim can be distinguished from conduct that supports an intentional tort claim by

examining the subjective intent of the alleged tortfeasor.” Weigle, 139 F. Supp. 3d at 780.

Specifically, “[i]ntentional torts . . . generally require that the actor intend ‘the consequences of an

act,’ not simply ‘the act itself.’” Id. (quoting Kawaauhau v. Geiger, 523 U.S. 57, 62, (1998)).

Thus, there is “a distinction between negligence, including gross negligence, and wilful, wanton,

and reckless misconduct.” Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907, 913-14 (W. Va.

1978) (superseded by statute on other grounds); see also City of Charleston, W. Virginia v. Joint

Comm'n, 473 F. Supp. 3d 596, 626 (S.D. W. Va. 2020) (collecting cases).

At no point does the Complaint allege that Officer Lester negligently injured Plaintiff.

Further, Count IV specifically alleges that Officer Lester’s actions were “willful and wanton,

malicious, and in blatant and intentional disregard of Plaintiff’s rights[.]” (ECF No. 1 at 6, ¶ 35.)

Such characterizations clearly charge that Officer Lester intended to violate Plaintiff’s rights.

Thus, although Plaintiff alleges that Officer Lester violated a duty, (see id. at ¶ 34), the subjective

intent pleaded does not support a claim of negligence.

Accordingly, Defendants’ motion to dismiss Plaintiff’s negligence claim against Officer

Lester is GRANTED.

D. Count VI for Intentional Infliction of Emotional Distress

Defendants contend that Count VI should be dismissed because Officer Lester “merely

tackled Plaintiff,” which they argue is too “mild” of conduct to support a claim for IIED. (See

ECF No. 5 at 12.) However, at the motion to dismiss stage, Plaintiff only needs to present

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“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

The Complaint alleges that Officer Lester charged, tackled, and violently assaulted Plaintiff

without provocation. (See ECF No. 1 at 2 ¶¶ 9, 10.) Viewing these allegations as true and in the

light most favorable to Plaintiff, Plaintiff’s allegations are sufficient to state a claim for IIED. See

Honaker v. Town of Sophia, 184 F. Supp. 3d 319, 328 (S.D. W. Va. 2016) (“[E]motional distress

is a natural and certain result of an unjust physical attack by a police officer, particularly when

accompanied by the vindictive filing of criminal charges.”).

Accordingly, Defendants’ Motion to Dismiss is DENIED as it pertains to Count VI.

E. Qualified Immunity

Government officials performing discretionary functions are entitled to qualified immunity

from liability for civil damages to the extent that “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Rish v. Johnson, 131 F.3d 1092, 1095 (4th Cir. 1997). The

purpose of qualified immunity is to ensure that government officials performing discretionary

functions can perform their duties “free from the specter of endless and debilitating lawsuits.”

Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (citing Anderson v. Creighton, 483 U.S.

635, 638 (1987)). Thus, qualified immunity protects “all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

While a defendant may assert a qualified immunity defense through a Rule 12(b)(6)

motion, “the defense faces a formidable hurdle” and “is usually not successful.” Owens v.

Baltimore City State's Attorney's Office, 767 F.3d 379, 396 (4th Cir. 2014) (internal citations

omitted). This is because, at this very early stage in the proceedings, dismissal under Rule

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12(b)(6) is only appropriate if the plaintiff “fails to state a claim that is plausible on its face.” Id.

at 396 (quoting Iqbal, 556 U.S. at 678) (emphasis in original). When a defendant asserts the

qualified immunity defense at this stage, the plaintiff’s burden is to demonstrate that his § 1983

claim “satisfies the following two-prong test: ‘(1) the allegations underlying the claim, if true,

substantiate a violation of a federal statutory or constitutional right; and (2) this violation was of a

clearly established right of which a reasonable person would have known.’” Souk v. City of Mount

Hope, Civ. Action No. 2:14-cv-26442, 2015 WL 5698509 at *5 (S.D. W. Va. Sep. 28, 2015)

(quoting Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013)).

In this case, Defendants argue Officer Lester cannot be liable under Count VII for excessive

force or Count VIII for unlawful seizure because he is immune from liability under the doctrine of

qualified immunity. (ECF No. 5 at 13.) Defendants contend that “Plaintiff has failed to allege .

. . (1) that there was a violation of clearly established law at the time of the incident and (2) that

the facts demonstrate a constitutional violation.” (Id.) The Court disagrees.

1. Constitutional Violation

The Complaint states claims for excessive force and unlawful seizure in violation of the

Fourth Amendment. (ECF No. 1 at 8-9.) A seizure is unreasonable under the Fourth

Amendment if it is not based on probable cause. Dunaway v. New York, 442 U.S. 200, 213 (1979).

“Probable cause is determined by a ‘totality-of-the-circumstances’ approach.” Smith v. Munday,

848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). The inquiry

“turns on two factors: ‘the suspect’s conduct as known to the officer, and the contours of the

offense thought to be committed by that conduct.’” Id. (quoting Graham v. Gagnon, 831 F.3d

176, 184 (4th Cir. 2016)). While courts look to the information available to the officer on the

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scene at the time, an objective test is applied to determine whether a reasonably prudent officer

with that information would have thought that probable cause existed for the arrest. Gragnon,

831 F.3d at 185. Evidence sufficient to secure a conviction is not required, but probable cause

exists only if there is sufficient evidence on which a reasonable officer at the time could have

believed that probable cause existed for the arrest. Wong Sun v. United States, 371 U.S. 471, 479

(1963).

Because the probable cause inquiry is informed by the “contours of the offense” at issue,

the Court looks to West Virginia Code § 61-5-17(a)—the offense for which Plaintiff was arrested.

See Hupp v. Cook, 931 F.3d 307, 318 (4th Cir. 2019) (internal citations omitted). Interpreting this

statute, the WVSCA has held that a person is guilty of obstruction when she “check[s] or hamper[s]

the action of the officer,” does “something which hinders or prevents or tends to prevent the

performance of [the officer’s] legal duty,” or acts in “direct or indirect opposition or resistance to

the lawful discharge of [the officer’s] official duty.” State v. Johnson, 59 S.E.2d 485, 487 (W.

Va. 1950). As the WVSCA has explained, the State must show “forcible or illegal conduct that

interferes with a police officer’s discharge of official duties.” State v. Davis, 735 S.E.2d 570, 573

(W. Va. 2012) (quoting State v. Carney, 663 S.E.2d 606, 611 (W. Va. 2008)). Importantly, “when

done in an orderly manner, merely questioning or remonstrating with an officer while he or she is

performing his or her duty, does not ordinarily constitute the offense of obstructing an officer.”

State v. Srnsky, 582 S.E.2d 859, 867 (W. Va. 2003) (quoting State ex rel. Wilmoth v. Gustke, 373

S.E.2d 484, 486 (W. Va. 1988)); cf. Davis, 483 S.E.2d at 87 (W. Va. 1996) (holding that certain

“threats, language, and menacing demeanor” can constitute obstruction).

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In this case, Plaintiff has alleged sufficient facts from which the Court can reasonably infer

that Officer Lester lacked probable cause to arrest Plaintiff. The Complaint alleges that Plaintiff

was stopped for “suspicious activity” because a vehicle had been seen at the Super 8 Motel. (ECF

No. 1 at 3, ¶ 13.) Plaintiff claims that Officer Lester instructed him to “get back in the vehicle,”

(id. at ¶ 9), which he did not. However, Plaintiff asserts he was only asking why he had been

stopped and informing Officer Lester that he was going to work and had not broken any laws

before being arrested. (Id. ¶ 10.) Assuming Plaintiff had not done anything illegal, did not use

force, and was merely talking to Officer Lester, as pled, the Court finds that Plaintiff’s allegations

are sufficient to state a claim for unlawful seizure under the Fourth Amendment. See Hupp, 931

F.3d at 320 (refusing to find that a reasonable officer would have believed that probable cause

existed for obstruction when a defendant “approached him in ‘an aggressive manner,’” failed to

comply with orders, and was verbally noncompliant).

Similarly, the Complaint permits a reasonable inference that Officer Lester used excessive

force in effecting Plaintiff’s arrest. When evaluating a claim for excessive force, the court must

consider whether the police officer’s actions were “‘objectively reasonable’ in light of the facts

and circumstances confronting [him], without regard to [his] underlying intent or motivation.”

Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham, 490 U.S. at 397). Factors to be

considered include “the severity of the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting

to evade arrest by flight.” Graham, 490 U.S. at 396. The court can also consider “the extent of

the plaintiff’s injuries” and “any lack of probable cause for the arrest[.]” Hupp, 931 F.3d at 322

(citing Graham). Ultimately, the Court must decide “whether the totality of the circumstances

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justifie[d] a particular sort of . . . seizure.” Smith, 781 F.3d at 101 (omission in original) (quoting

Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).

Here, Plaintiff asserts that Officer Lester charged at, tackled, and violently assaulted him

without provocation. (ECF No. 1 at 2, ¶ 10.) It can be reasonably inferred that tackling and

violently assaulting a suspect by an officer involved force. Further, the factors call into question

the reasonableness of the use of force against Plaintiff. First, the severity of the misdemeanor of

obstruction is slight. Hupp, 931 F.3d at 322. Second, as discussed above, the facts alleged in the

Complaint allow a reasonable inference that Officer Lester lacked probable cause to arrest

Plaintiff. Thus, assuming Plaintiff was compliant and did not attempt to flee or resist arrest, as

pled, the Court finds that Plaintiff’s allegations are sufficient to state a claim for excessive force

under the Fourth Amendment.

2. Clearly Established

“To prove that a clearly established right has been infringed upon, a plaintiff . . . must make

a ‘particularized showing’ that a ‘reasonable official would understand that what he is doing

violated that right’ or that ‘in the light of preexisting law the unlawfulness’ of the action was

‘apparent.’” Hutchison v. City of Huntington, 479 S.E.2d 649, 659 n.11 (W. Va. 1996) (quoting

Anderson, 483 U.S. at 640). In determining whether a right was clearly established at the time of

the claimed violation, “courts in this circuit [ordinarily] need not look beyond the decisions of the

Supreme Court, this court of appeals, and the highest court of the state in which the case arose[.]”

Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir.1999) (internal citations omitted); see

also Ray v. Roane, 948 F.3d 222, 229 (4th Cir. 2020).

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Here, the conduct alleged, if proven, would violate clearly established constitutional rights.

First, “[i]f a person is arrested when no reasonable officer could believe . . . that probable cause

exists to arrest that person, a violation of a clearly established Fourth Amendment right to be

arrested only upon probable cause ensues.” Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir.

2001) (citation omitted). Second, the law at the time of Officer Lester’s conduct makes clear that

in April 2021, “a police officer’s unprovoked tackling of a nonthreatening, nonresisting

misdemeanor suspect to effect his arrest violates the Fourth Amendment.” Barfield v. Kershaw

Cty. Sheriff's Off., 638 F. App'x 196, 203–04 (4th Cir. 2016) (reasoning that the “objectively

unreasonable application of force, combined with the weakness of the Graham factors, puts the

‘constitutional question beyond debate’”); see also Rowland v. Perry, 41 F.3d 167, 172–74 (4th

Cir. 1994) (rejecting qualified immunity where officer, unprovoked, attacked nonfleeing,

nondangerous misdemeanor suspect to subdue him).

Accordingly, Defendants’ Motion to Dismiss is DENIED as it relates to Counts VII and

VIII against Officer Lester.2

F. Count V for Battery

Defendants argue that Plaintiff’s claim for battery against Officer Lester must be dismissed

because Officer Lester was privileged to use force against Plaintiff during the arrest. (ECF No. 5

at 11.) However, as Defendants acknowledge, “that privilege is not absolute.” Weigle, 139 F.

Supp. 3d at 776. Rather, “force that would otherwise constitute battery is not privileged if that

force is excessive.” Id. (citing Restatement (Second) of Torts, § 132). As discussed above,

2 The Court does not make any determinations as to (1) whether Officer Lester’s arrest was unlawful or (2) whether

Officer Lester’s force was excessive. The finding that Officer Lester is not entitled to qualified immunity at this stage

of litigation does not preclude a finding at a later stage that he lawfully arrested Plaintiff or that he used reasonable

force.

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Plaintiff’s allegations are sufficient to state a claim for excessive force under the Fourth

Amendment.

Accordingly, Defendants’ Motion to Dismiss is DENIED as it pertains to Count V.

G. Count IX for Municipal Liability Under 42 U.S.C. § 1983

Defendants contend that Count IX must be dismissed because Plaintiff “failed to allege any

facts in support of his municipal liability claim[.]” (ECF No. 5 at 15.) Specifically, Defendants

contend that there are no facts alleged that would demonstrate that (1) a custom or policy existed,

(2) the City knew or should have known of such policy, or (3) such a policy caused a deprivation

of his constitutional rights. (Id.) In response, Plaintiff argues the Complaint “puts Defendants

on notice of a claims [sic] against them relating to the custom of adding on an obstruction charge”

and, again, asserts he will have the necessary facts after discovery. (ECF No. 9 at 7.)

However, to withstand a motion to dismiss, the complaint must “identify” the municipal

“policy or custom” that resulted in the alleged violation of the plaintiff’s rights. Walker v. Prince

George’s Cty., 575 F.3d 426, 431 (4th Cir. 2009) (citations omitted). The Complaint alleges that

the City had a pattern, policy or custom of “using obstruction as a charge when no facts support it

as a charge.” (ECF No. 1 at 10, ¶ 56.) This was based on the City’s alleged “failure to adequately

train, supervise, and discipline officers,” which Plaintiff claims amounted to deliberate

indifference. (Id. at ¶¶ 58-59.) Nevertheless, as discussed above, Plaintiff has failed to state a

claim for negligent hiring, retention, and supervision. Further, the remainder of Count IX only

offers formulaic recitations of relevant rules. (See id. at 10.) Thus, after separating the legal

conclusions from the factual allegations, Iqbal, 556 U.S. at 678, Plaintiff has failed to sufficiently

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plead a municipal liability claim. Accordingly, Defendants’ motion to dismiss Plaintiff’s

municipal liability claim is GRANTED.

H. Count XI for Fraudulent Conduct under 42 U.S.C. § 1983

Count XI alleges that “Lester has a past history of fraudulent conduct resulting in

fraudulent affidavits and police reports.” (ECF No. 1 at 11, ¶ 67.) Defendants argue that Count

XI must be dismissed because Plaintiff only offered one fact in support, which Defendants contend

is “demonstrably false.” (ECF No. 5 at 16.) The proffered fact in question is that another officer

processed Plaintiff’s arrest and wrote the police report “so that this incident could not be connected

to Defendant Lester.” (ECF No. 1 at 12, ¶ 68.) However, the Field Case Report3 names Officer

Lester as the “reporting officer.” (ECF No. 5-1.) Therefore, no factual basis supports Plaintiff’s

claim for fraudulent conduct against Officer Lester

Accordingly, Defendants’ motion to dismiss Plaintiff’s fraudulent conduct claim against

Officer Lester is GRANTED.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART

Defendants’ Motion to Dismiss. (ECF No. 4.) The Court GRANTS the motion and

DISMISSES WITH PREJUDICE Counts III, IV, IX, X, and XI, as well as all claims brought

under Article III, Sections 1, 5, 6, 14 of the West Virginia Constitution. The Court DENIES

WITHOUT PREJUDICE Defendants’ motion, as it relates to Article III, Section 10 of the West

3 Under the Federal Rules of Civil Procedure, including an exhibit to a motion to dismiss may convert the motion into

a motion for summary judgment. See Fed. Civ. P. 12(b)(6). However, an exception to this rule exists when including

as an exhibit a document that “was integral to and explicitly relied on in the complaint” and the plaintiff does not

challenge its authenticity. See Am. Chiropractice Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

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Virginia Constitution. The Court further DENIES Defendants’ motion as it pertains to Counts V-

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: November 1, 2021

THOMAS E. JOHNSTON, CHIEF JUDGE

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