Braley v. Thompson

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

CHRISTOPHER NOEL BRALEY,

Plaintiff,

v. CIVIL ACTION NO. 2:22-cv-00534

BRANDON THOMPSON, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants’ Partial Motion to Dismiss. [ECF No.

7]. Plaintiff did not file a response in opposition, and the deadline for such response

has passed. Defendants filed a reply addressing Plaintiff’s lack of response. [ECF No.

11]. For the reasons discussed herein, Defendants’ Motion is GRANTED in part and

DENIED in part.

I. Background

This action arises out of an incident occurring on or about November 24, 2020,

involving the arrest and alleged “brutalization” of Plaintiff Christopher Noel Braley

by law enforcement. [ECF No. 1].

According to the Complaint, “officers of the Jackson County Sheriff’s

Department . . . took charge of an investigation involving plaintiff wherein the person

requesting assistance alleged that an intoxicated man was ‘laying on the ground after

nearly striking juveniles with a vehicle.’” ¶ 5. Plaintiff alleges that “after a lengthy

and sometimes argumentative incident” with law enforcement, Defendant Brandon

Thompson (“Deputy Thompson”) “without provocation, used excessive force” by

“viciously” striking Plaintiff in the face, “kick[ing] him in the leg,” and “otherwise

batter[ing]” him. As a result of this incident, Plaintiff sustained facial injuries and

a broken screw in his leg.

Plaintiff also alleges that Deputy Thompson “was aided and abetted” by

Defendant John Doe, “who filmed the encounter on his body camera but

surreptitiously blocked the same with his hands or his uniform for the purpose of

concealing the violence.” ¶ 6. Plaintiff further alleges that officers followed and

arrested him at the instruction of their supervisor, Ross Mellinger, whom Plaintiff

had opposed in the election for Jackson County Sheriff. ¶ 7.

Following the alleged attack, Plaintiff “was arrested for various charges, all of

which were ultimately dismissed.” ¶ 9. On November 22, 2022, Plaintiff filed his

Complaint pursuant to this court’s jurisdiction to hear claims arising under federal

law. at 1 (citing 28 U.S.C. §§ 1331, 1343). The Complaint enumerates five counts1

against three defendants—Deputies Thompson and John Doe, and the Jackson

County Commission d/b/a/ Jackson County Sheriff’s Department (the “JCC”). Mr.

1 Plaintiff’s causes of action are not numbered sequentially. [ECF No. 1]. The first cause of action

(negligence) is labeled Count IV; the second cause of action (battery) is labeled Count III; the third

cause of action (IIED) is duplicatively labeled Count IV; the fourth cause of action (excessive force) is

labeled Count I; and the fifth cause of action ( ) is labeled Count II. For clarity, the court

identifies the causes of action by name throughout this opinion.

2

Braley asserts three state law claims for negligence, battery, and intentional

infliction of emotional distress (“IIED”). He also asserts two federal claims under 42

U.S.C. § 1983: a claim for excessive force and a claim against the JCC.

On January 25, 2023, Defendants Thompson and JCC filed their Partial

Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [ECF No. 7].

In their Motion, Defendants argue that all claims asserted against the JCC should be

dismissed, and that Deputy Thompson is entitled to dismissal of the claims for

negligence and IIED. Plaintiff did not file a response opposing the Motion.

II. Legal Standards

A. Standard of Review

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a

complaint or pleading. , 521 F.3d 298, 302 (4th Cir. 2008). A

pleading must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement need not include

“detailed factual allegations” but must be “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” , 556 U.S. 662, 678 (2009). To

survive dismissal, the complaint “must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” (quoting

, 550 U.S. 544, 555 (2007)). To achieve facial plausibility, the plaintiff

must plead facts allowing the court to draw the reasonable inference that the

defendant is liable, moving the claim beyond the realm of mere possibility. . Bare

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“labels and conclusions” or “formulaic recitation of the elements of a cause of action”

are insufficient. , 550 U.S. at 555.

B. Plaintiff’s Failure to Respond

Defendants timely filed their Partial Motion to Dismiss on January 25, 2023.

[ECF Nos. 6, 7]. Under this court’s Local Rules of Procedure, “[m]emoranda and

other materials in response to motions shall be filed and served on opposing counsel

and unrepresented parties within 14 days from the date of service of the motion.” Loc.

R. Civ. P. 7.1(a)(7). Accordingly, Plaintiff had until February 8, 2023, to file a response

to Defendants’ Motion. Because Plaintiff never responded, Defendants request that

the court “deem [their] arguments as conceded or such causes of action waived or

abandoned.” [ECF No. 11, at 3–4].

“Where a plaintiff fails to respond to a motion to dismiss within the time period

set forth by the applicable procedural rules, a court may rule on the motion to dismiss

‘on the uncontroverted bases asserted therein.’” , No. 2:11-

cv-00618, 2012 WL 3139465, at *1 (S.D. W. Va. Aug. 1, 2012) (quoting

, 369 F.3d 345, 354 (4th Cir. 2004)). But “even if a plaintiff does not file

a response to a motion to dismiss for failure to state a claim, the district court must

still examine the allegations in the plaintiff’s complaint and determine whether the

plaintiff has stated a claim upon which relief can be granted.” , 354

F.3d 1174, 1178 (10th Cir. 2003) (citing , 232 F.3d 321, 322–23 (2d

Cir. 2000); and then citing , 344 F.3d 37, 40–41 (1st

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Cir. 2003)). The court therefore rejects Defendants’ request to treat Plaintiff’s failure

to respond as a concession that their Motion should be granted.2 I note, however, that

Plaintiff’s lack of response “is unhelpful and unnecessarily increases the burden on

the Court.” , No. 2:13-cv-16613, 2014 WL

4072066, at *1 n.3 (S.D. W. Va. Aug. 14, 2014).

III. Discussion

A. Battery and IIED

In the second and third counts of his Complaint, Mr. Braley alleges that

Deputy Thompson, aided and abetted by Defendant John Doe, committed a battery

upon Plaintiff by means of “outrageous” conduct. [ECF No. 1, ¶¶ 14–18]. “As a

proximate result of Defendants’ actions,” Plaintiff “sustained physical, mental and

emotional damages.” ¶¶ 15, 18. Although not explicit, Mr. Braley presumably

asserts that the JCC is vicariously liable for its employees’ misconduct. ¶ 19.

2 Several federal courts have gone so far as to declare that an unopposed motion to dismiss may be

properly granted without ever reaching the merits, “based on the theory that (i) plaintiff’s failure to

respond operates as a concession that the motion should be granted, or (ii) dismissal is appropriate as

a sanction for failure to prosecute or to obey the court’s orders.” , No. 2:13-cv-01537,

2015 WL 1276711, at *3 n.2 (S.D. W. Va. Mar. 19, 2015) (quoting , No. 05-0393,

2005 WL 1971116, at *2 (S.D. Ala. Aug. 16, 2015) (collecting cases)). But many of those courts operate

under Local Rules of Civil Procedure which, unlike those governing this district, expressly specify that

a party who fails to timely respond to a motion “shall be deemed not to oppose such motion.”

, No. 2:11-cv-00331, 2014 WL 4063828, at *4 n.5 (S.D. W. Va. Aug. 14, 2014)

(quoting M.D. Pa. Loc. R. Civ. P. 7.6). And even those courts generally recognize their retained

discretion to deny an unopposed motion “plainly lacking in merit.” ,

, No. 15-1308, 2015 WL 9490234, at *3 (D. Md. Dec. 30, 2015). Moreover, the United States Court

of Appeals for the Fourth Circuit has emphasized the district court’s independent “obligation to review

[unopposed] motions to ensure that dismissal is proper.” , 743 F.3d

411, 416 n.3 (4th Cir. 2014); , 766 F.2d 841, 847 n.3 (4th Cir. 1985) (“[T]he

norm should be to decide claims on their merits, and the mere inaction of a party or his lawyer should

not result in the loss of a hypothetically meritorious claim, except in those limited instances . . . where

clear notice is given in advance that a certain procedural default will or might result in loss of a claim

or defense.” (quoting , 700 F.2d 1202, 1205–06 (8th Cir. 1983))).

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Defendants argue that statutory immunity bars Plaintiff’s claims against the

JCC for battery and IIED. [ECF No. 8, at 4–5]. Under the West Virginia Tort Claims

and Insurance Reform Act, political subdivisions such as the JCC are granted broad

immunity “for any acts with respect to both governmental and proprietary functions

unless the acts complained of come within the specific liability provisions of W. Va.

Code § 29-12A-4(c).” , 655 S.E.2d 155, 160 (W. Va.

2007). In section 29-12A-4(c), the Act specifically enumerates certain claims of

negligence for which liability may be imposed, but “claims of intentional and

malicious acts are included in the general grant of immunity.” (citing W. Va. Code

§ 29-12A-4(b)(1)); , 477 S.E.2d 525, 533 (W. Va.

1996) (dismissing civil conspiracy claim because “conspiracy is an intentional act, not

a negligent one”). Because the torts of battery and IIED each require “behavior that

is more than negligent,” both claims must be dismissed as to Defendant JCC.

, No. 2:21-cv-00491, 2022 WL 3587827, at *11 (S.D. W. Va. Aug.

22, 2022) (citing Syl. pt. 2, , 504 S.E.2d 419 (W. Va. 1998));

, No. 16-1070, 2017 WL 5513618, at *7 (W. Va. Nov. 17,

2017) (holding political subdivision was immune from claims for IIED, outrage, and

battery). Defendants’ Motion is therefore GRANTED as to the battery and IIED

claims against the JCC.

With respect to Deputy Thompson, Defendants do not seek dismissal of

Plaintiff’s battery claim, but they argue that his IIED claim “fails as a matter of law

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because it is duplicative of his battery claim.” [ECF No. 8, at 8]. I agree. Under West

Virginia law, “[a] plaintiff may not recover damages twice for the same injury simply

because he has two legal theories.” Syl. pt. 7, ,

289 S.E.2d 692, 694 (W. Va. 1982). “Because an action for assault and battery allows

for recovery of damages due to resulting emotional distress, a claim for [IIED] is

duplicitous of a claim for assault and battery, where both claims arise from the same

event.” Syl. pt. 4, , 356 S.E.2d 620, 620 (W. Va. 1987). Consequently,

“when an IIED claim arises from the same event as a battery claim, the two claims

cannot simultaneously go forward.” , No. 2:21-cv-00581, 2022 WL

16815240, at *7 (citing , 356 S.E.2d at 622). Here, Mr. Braley’s IIED claim arises

from the same event as his battery claim: his alleged attack by Deputy Thompson.

Because the IIED claim is duplicative of the battery claim, Defendants’ Motion to

Dismiss is GRANTED as to the IIED claim against Deputy Thompson.

B. Negligence

Mr. Braley alleges that “Defendants failed to exercise reasonable care in the

hiring, retention, and/or supervision of their employees.” [ECF No. 1, ¶ 12].

Throughout the Complaint, Mr. Braley does not specify which defendants are

implicated by each cause of action. Because the negligence claim focuses on “hiring,

retention, and/or supervision,” , and because “Deputy Thompson cannot hire,

retain, or supervise himself,” [ECF No. 8, at 7], I construe this claim to apply only to

Defendant JCC. Defendants argue that “there are no facts at all which establish a

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claim that JCC negligently hired, retained, or supervised Deputy Thompson or the

unknown ‘John Doe.’” at 6.

“[N]egligent hiring, negligent retention, and negligent supervision constitute

three separate causes of action,” , No. 3:21-cv-0081,

2021 WL 5417388, at *5 n.2 (S.D. W. Va. Nov. 19, 2021) (citing

, 859 S.E.2d 762 (W. Va. 2021)), but they all center “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. 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,” , No. 2:21-cv-00011, 2021 WL 5056081, at *3 (S.D.

W. Va. Nov. 2, 2021) (internal citations omitted);

, 503 S.E.2d 502, 506 (W. Va. 1998) (“[T]he inquiry upon which liability

for negligent hiring or retention should be determined is: ‘when the employee was

hired or retained, did the employer conduct a reasonable investigation into the

employee’s background vis a vis the job for which the employee was hired and the

possible risk of harm or injury to co-workers or third parties that could result from

the conduct of an unfit employee? Should the employer have reasonably foreseen the

risk caused by hiring or retaining an unfit person?’” (quoting

, 499 S.E.2d 283, 289 n.7 (W. Va. 1997))).

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Although the section of the Complaint dedicated to Plaintiff’s negligence claim

is threadbare, Mr. Braley does identify four specific instances in support of his

contention that Deputy Thompson and other officers “had serious anger management

issues or otherwise had a propensity or pattern or practice of violence.” [ECF No. 1,

¶ 24 (first citing , No. 2:21-cv-00594, ECF No. 1, ¶¶ 2–3 (alleging

that Deputy Thompson “beat plaintiff, causing him serious bodily injuries . . . without

cause”); then citing , No. 2:19-cv-00787, ECF No. 1, ¶¶ 14, 16

(alleging that Jackson County deputies used deadly and excessive force against

multiple plaintiffs without probable cause, provocation, or resistance); then citing

, No. 2:19-cv-00493, ECF No. 1, ¶ 5 (alleging that Jackson County

deputies “viciously struck the plaintiff in the face with the butt end of a shotgun . . .

causing facial injuries and knocking out several of the plaintiff’s teeth”); and then

citing , No. 2:21-cv-00581, ECF No. 1, ¶ 8 (alleging that Deputy

Thompson threw plaintiff to the ground and stomped on her shoulder, breaking her

clavicle)]. Plaintiff argues that the JCC failed to take appropriate action in light of

these “numerous claims of excessive force.” ¶ 12. The allegations involving Deputy

Thompson, of which the JCC had ample notice, satisfy the pleading requirements for

a claim of negligent retention. , No. 2:19-cv-00626, 2020 WL

4607323, at *5 (S.D. W. Va. Aug. 11, 2020) (finding that plaintiff sufficiently pled a

claim for negligent retention when alleging three specific incidents of defendant’s use

of excessive force and a failure to act by county sheriff).

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Mr. Braley’s claim for negligent hiring, on the other hand, must be dismissed.

The Complaint contains no facts regarding the JCC’s hiring practices or Deputy

Thompson’s background prior to joining the JCC. The claim therefore fails as a matter

of law. , 859 S.E.2d at 772–78 (holding plaintiff stated a claim for negligent

retention but not negligent hiring, where employee’s alleged misconduct occurred

only after he was hired).

The negligent supervision claim also fails, for lack of “underlying conduct of

the supervised employee that is also negligent.” at 774 (citing

, 538 S.E.2d 719, 725 (W. Va. 2000)). Unlike claims for

negligent hiring and retention, a negligent supervision claim may not rest on an

employee’s intentional misconduct, as opposed to his negligence.3 At no point does

the Complaint allege that the defendant Deputies negligently injured Plaintiff. To

the contrary, the Complaint repeatedly characterizes Defendants’ conduct as “wilful

and wanton, malicious, and in blatant and intentional disregard of Plaintiff’s rights.”

[ECF No. 1, ¶¶ 17, 22]. As pleaded, all of the Deputies’ alleged wrongful conduct is

intentional and therefore cannot form the basis of a negligent supervision claim.

3 This recent holding by the Supreme Court of Appeals of West Virginia is contentious, , ,

859 S.E.2d at 783–91 (Hutchison, J., concurring in part) (“strenuously dissent[ing]” to the majority’s

pronouncement that an employee’s intentional, tortious conduct cannot support a negligent

supervision claim); at 791 (Wooton, J., concurring in part) (“[A]s Justice Hutchison convincingly

demonstrates, , 538 S.E.2d 719, simply does not establish the principle of law that the majority

purports to follow.”), and has not been consistently applied, , , 576 F. Supp. 3d

392, 404 n.4, 408 (S.D. W. Va. 2021) (upholding negligent supervision claim “[f]or the same reasons

Plaintiff has adequately alleged claims of negligent hiring and negligent retention,” while expressly

declining to determine whether any of employee’s alleged conduct was negligent rather than

intentional). Nevertheless, I am obligated to defer to the state’s highest court on matters of state law.

, 59 F.4th 689, 693 (4th Cir. 2023) (“[S]tate—not federal—courts have the

last word about what state law means.” (citing , 304 U.S. 64 (1938))).

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, 859 S.E.2d at 775 (affirming dismissal of negligent supervision claim because

all of employee’s alleged misconduct—false imprisonment, assault, sexual

harassment, and IIED—was intentional); , 2021 WL 5056081, at *4

(upholding claims for battery, IIED, and excessive force but dismissing negligence

claim because allegation that defendant’s actions were “willful and wanton” clearly

charged defendant with intending to violate plaintiff’s rights).

Defendants’ Motion is GRANTED as to the claims for negligent hiring and

supervision, but the Motion is DENIED as to the claim for negligent retention.

C. and Supervisory Liability

Defendants also request dismissal of the claims made against the JCC

pursuant to 42 U.S.C. § 1983.4 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, 690 (1978).

A municipal policy or custom may be established

(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.

, 326 F.3d 463, 471 (4th Cir. 1999) (internal markings omitted).

4 Plaintiff’s Complaint brings the claim under “24 U.S.C. 1983.” [ECF No. 1, at 6]. Because “24

U.S.C. 1983” is not an existing statute, the court construes the Complaint to mean 42 U.S.C. § 1983.

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Mr. Braley’s claim arises out of the JCC’s alleged failure “to adequately

hire, train, supervise, and discipline its police officers regarding the circumstances

which constitute excessive force.” [ECF No. 1, ¶ 24]. As discussed with respect to

Plaintiff’s negligence claim, the Complaint contains no facts regarding hiring

practices at the JCC. Accordingly, Mr. Braley’s claim fails insofar as it is based

on the JCC’s failure to adequately hire.

To bring a failure to train claim against a local government, plaintiffs must

demonstrate that “the need for more or different training is so obvious, and the

inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the [municipality] can reasonably be said to have been deliberately

indifferent to the need.” , 489 U.S. 378, 390 (1989).

“Demonstrating a pattern of similar constitutional violations is one way for a plaintiff

to show obvious need of more or different training.” , 2020 WL 401790, at *4

(citing , 489 U.S. at 390; then citing , 326 F.3d at 474);

, 824 F.2d 1380, 1390 (4th Cir. 1987) (“[T]raining policy deficiencies

for which municipal liability may be imposed include not only express authorizations

of specific unconstitutional conduct, but tacit authorizations, and failures to

adequately prohibit or discourage readily foreseeable conduct in light of known

exigencies of police duty.”). Mr. Braley’s allegations are sufficient to suggest a pattern

of unconstitutional uses of force by Jackson County Deputy Sheriffs that would have

indicated to official policymakers that there was an obvious need for better or

12

different training. At the summary judgment stage, Mr. Braley will need to identify

more specifically the deficiencies in the JCC’s training program, but for now he

sufficiently alleges that officers received inadequate training “regarding the

circumstances which constitute excessive force.” [ECF No. 1, ¶ 24].

Based on those same factual allegations, Mr. Braley also adequately pleads the

JCC’s failure to supervise or discipline. The United States Court of Appeals for 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)) (internal markings omitted). Demonstrating a

“pervasive and unreasonable risk” requires evidence that the conduct is “widespread,

or at least has been used on several different occasions.” In this case, Mr. Braley

alleges that Jackson County Deputies used unconstitutional excessive force on

several different occasions prior to the incident giving rise to this litigation, and that

the JCC “knew, or should have known” of the Deputies’ “pattern or practice of

violence.” [ECF No. 1, ¶ 24]. Mr. Braley further alleges that the JCC “adopted a policy

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of paying lip-service to the Use of Force rules and not enforcing the violation of the

same.” /d. § 10. According to the Complaint, these “customs, policies or official or

unofficial acts” by the JCC caused the deprivation of Plaintiffs constitutional rights

by the individual defendants. Jd. { 24.

At this stage of the proceedings, Plaintiff has sufficiently pleaded a plausible

Monell claim against the JCC. Therefore, Defendants’ Motion to Dismiss is DENIED

as to the count for Mone// and supervisory liability.

IV. Conclusion

For the foregoing reasons, Defendants’ Partial Motion to Dismiss [ECF No. 7]

is GRANTED in part and DENIED in part. The claims against the JCC for battery,

ITED, and negligent hiring and supervision are DISMISSED. The claim against

Deputy Thompson for ITED is also DISMISSED. Plaintiffs negligent retention and

Monell claims against the JCC remain pending, as do the claims against Deputy

Thompson for battery and excessive force.

The court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented party.

ENTER: March 3, 2023

Y / YO

_AOSEPH R. GOODWIN

{ UNITED STATES DISTI CT JUDGE

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