# Barnett v. Cummings

> District Court, S.D. West Virginia · March 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10730897

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** March 22, 2023
- **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/10730897

## How later opinions describe it (automated extraction)

- applying state qualified or official immunity to West Virginia State Police officers
- finding that both the State Police and a political subdivision could be held liable for allegedly negligent acts which violated the constitution such that qualified immunity did not apply
- discussing when a prosecution terminates favorably for the purposes of Heck

## Opinion text

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

HUNTINGTON DIVISION

NATHAN BARNETT and
PHILIP BARNETT,

Plaintiffs,

v. CIVIL ACTION NO. 3:22-0203

CABELL COUNTY COMMISSION; and
ANTHONY CUMMINGS,
GREG LOSH,
KIMBERLY PACK,
MIKE PARDE, and
EDDIE BLANKENSHIP,
in their official capacities,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants Anthony Cummings, Greg Losh, Kimberly Pack,
Mike Parde, and Eddie Blankenship’s Partial Motion to Dismiss. ECF No. 14. For the following
reasons, the Motion is DENIED, in part, and GRANTED, in part.

I. BACKGROUND
As correctly characterized by the Defendants, Plaintiffs’ Complaint is “very detailed, long,
and factually complex.” Defs.’ Mem. of Law in Supp. of Partial Mot. to Dismiss at 1, ECF No. 15.
This Memorandum Opinion and Order only summarizes the portions of the allegations relevant to
the instant Partial Motion to Dismiss.
The claims brought by Plaintiffs Nathan and Philip Barnett stem from their conviction and
eventual exoneration for the murder of Deanna Crawford. See Compl., ECF No. 1. On August 8,
2002, Ms. Crawford’s body was found in Cabell County. Id. ¶¶ 39-40, 43. Approximately five
years after the initial investigation into her murder, in January 2007, criminal informant Gregory

Alan Bailey provided information to Cabell County Deputy Sheriff Jim Schiedler implicating Mr.
Bailey’s nephew, Brian Dement, and three friends in the murder. Id. ¶¶ 58-59, 61-62. Deputy
Schiedler allegedly “passed along” this information to Defendant Anthony Cummings of the West
Virginia State Police on January 11, 2007. Id. ¶ 65. In response, Defendant Officers Cummings
and Eddie Blankenship interviewed Mr. Bailey the following day. Id. ¶ 66. The Complaint alleges
that during this encounter Mr. Bailey informed these officers that Mr. Dement repeatedly
confessed to killing Ms. Crawford with friends, that Defendants Cummings and Blankenship
provided Mr. Bailey with non-public information concerning the murder, and that Defendants
Cummings and Blankenship coerced Mr. Bailey into wearing a wire under threats of
imprisonment. Id. ¶¶ 68-78.

Mr. Bailey proceeded to record two conversations with Mr. Dement concerning the murder.
Id. ¶ 83. In one of these conversations, Mr. Dement named Justin Black alongside Plaintiffs Nathan
and Philip Barnett as the other individuals involved in Ms. Crawford’s murder. Id. ¶ 84. Upon
obtaining these recordings, the State Police detained and interrogated Mr. Dement. Id. ¶ 91. Mr.
Dement was allegedly interrogated for nine hours, while under the influence of alcohol and Xanax,
during which police repeatedly threatened him until he falsely confessed to the murder. Id. ¶¶ 93-
107. Mr. Dement provided the police with three inconsistent statements, each implicating Mr.
Black and the Barnett brothers in incongruent narratives of the crime. See id. ¶¶ 113, 117, 119-26.
On January 29, 2007, Mr. Black became the next victim of an allegedly coercive police
interrogation. Id. ¶¶ 131-32. According to the Complaint, this interrogation involved providing
Mr. Black with “vivid details of the crime,” a polygraph test, telling Mr. Black he had failed the
polygraph and “berat[ing] him for being a liar,” and threatening to revoke his parole until he

confessed to the murder. Id. ¶¶ 136-44. The statement provided by Mr. Black was allegedly
inconsistent with the statements provided by Mr. Dement. See id. ¶¶ 113, 117, 119-26, 150-52.
While Defendant Officers Greg Losh and Cummings interrogated Philip and Nathan
Barnett concerning the murder on January 29, 2007, both maintained their innocence. Id. ¶¶ 156,
161-62, 167. While Mr. Dement recanted his confessions, then-Prosecuting Attorney Christopher
G. Chiles1 purportedly threatened Mr. Dement with a longer sentence unless he took a plea deal
in which he agreed to testify against Mr. Black and the Barnett brothers. Id. ¶¶ 168-75. After taking
this plea deal, Mr. Dement acknowledged to the Barnetts’ investigator, Greg Cook, that the
statements were fabricated due to police coercion, and stated: “We are all innocent.” Id. ¶¶ 176-
80. During the interview with Mr. Cook, the Complaint avers that Mr. Dement described his

encounters with the police, stating that they “came to his house without his permission, put
handcuffs on him, put guns to his head” and “interrogated him when he was intoxicated and messed
up and got him thinking that all this stuff was true.” Id. ¶¶ 178-79 (internal quotations and brackets
omitted).
Mr. Black also recanted his confession. Id. ¶¶ 182-83. Plaintiffs assert that in response,
Defendant Cummings “attempted to coerce [Mr.] Black into fabricating additional allegations

1 The Honorable Christopher G. Chiles is now a judge on the Sixth Judicial Circuit Court of West
Virginia.
against Philip and Nathan [Barnett], telling him that he would be given immunity from prosecution
if he implicated [them] in the murder” but Mr. Black refused. Id. ¶¶ 185-86.
It appears undisputed that no physical evidence ever linked the Barnetts to the murder. Id.
¶ 191. In fact, the Complaint asserts that DNA evidence taken from cigarette butts found at the

scene of the crime “conclusively excluded” all four men. Id. ¶¶ 188-89. The subsequent trials of
Mr. Black and the Barnetts were therefore grounded almost2 entirely in the confessions made by
Mr. Dement and Mr. Black. Id. ¶¶ 192, 194, 200, 214-17. At the Barnetts trial, Mr. Dement
reportedly disavowed his prior recantations, and provided a new, conflicting narrative of the events
of Ms. Crawford’s murder. Id. ¶¶ 241-44. The Barnetts’ case was handled by Mr. Chiles and then-
Assisting Prosecuting Attorney Jara L. Howard,3 who allegedly falsely informed the Barnetts that
“there is no known exculpatory evidence” when prompted in June 2007. Id. ¶¶ 201-02, 208-10.
The allegedly suppressed information at this time included the fact that Mr. Bailey was a police
informant. Id. ¶ 210.b.
Based on the above, the Barnetts were convicted of second-degree murder on August 27,

2008; Philip was sentenced to 40 years imprisonment and Nathan was sentenced to 36 years
imprisonment. Id. ¶ 245. However, in 2010, the Supreme Court of Appeals of West Virginia
vacated their convictions, based on the lower court’s abuse of discretion in excluding evidence
concerning the prior inconsistent statements of Mr. Dement to Mr. Cook. Id. ¶ 246; see State v.
Barnett, 701 S.E.2d 460 (W. Va. 2010). Making the strategic decision to avoid a retrial, the
Barnetts accepted Kennedy pleas4 to voluntary manslaughter on January 18, 2011. Compl. ¶ 248.

2 The Complaint details additional conflicting witness evidence proffered by the Government. See
id. ¶¶ 219-43.
3 The Honorable Jara L. Howard is now a judge on the Sixth Family Court Circuit of West
Virginia.
4 In West Virginia, a Kennedy plea allows a defendant to accept a plea deal while maintaining
Each man was sentenced to 15 years imprisonment. Id. ¶ 249. Philip Barnett took a second
Kennedy plea to malicious wounding, resulting in an additional consecutive sentence of two to ten
years. Id. ¶ 250.
The prosecution of the Barnetts has since been revealed as a miscarriage of justice. In

August 2017, post-conviction DNA testing utilizing new technology definitively excluded Mr.
Dement, Mr. Black, and the Barnetts from the DNA profile obtained from newly discovered semen
found on Ms. Crawford’s pants. Id. ¶¶ 251-57. However, the semen DNA profile matched that of
the DNA initially found on the cigarette butts. Id. ¶ 258. The DNA profile was run through the
Federal Bureau of Investigation’s Combined DNA Index System, revealing a match to convicted
sex offender Timothy Smith, who was incarcerated in Ohio. Id. ¶ 259.
At the time of Ms. Crawford’s murder, Mr. Smith had been living in South Point, Ohio;
furthermore, his ex-wife allegedly saw him covered in blood in the days leading up to the discovery
of Ms. Crawford’s body. Id. ¶¶ 260-61. The Complaint alleges that upon learning of the DNA
results, Defendants Greg Losh and Mike Parde visited Mr. Smith in prison, “warning” him lawyers

might visit, that “they had the right people,” and that he should “keep his mouth shut.” Id. ¶¶ 262-
63.
On February 26, 2018, the Barnetts filed petitions to overturn their convictions. Id. ¶ 264.
In May 2019, the Circuit Court vacated their Kennedy pleas based on the exonerating DNA
evidence and granted them a new trial. Id. ¶ 267. On October 5, 2021, the State dismissed all
charges against Mr. Black5 and the Barnetts. Id. ¶ 268.

their innocence. See Kennedy v. Frazier, 357 S.E.2d 43 (W. Va. 1987).
5 According to the Supreme Court of Appeals of West Virginia, Mr. Black was found guilty of
second-degree murder on April 21, 2008. State v. Black, 708 S.E.2d 491, 497 (W. Va. 2010).
According to the Complaint, his conviction occurred on July 2, 2008. Compl. ¶ 200. Regardless,
Mr. Black was convicted and sentenced. The Complaint discusses Mr. Black’s indictment, arrest,
The Complaint proceeds to describe the physical and psychological toll 18 years of
combined wrongful incarceration exacted on the brothers. See id. ¶¶ 269-91. Inter alia, they allege
that their incarceration for a sex crime marked them as targets for violence while in prison, caused
Philip Barnett to develop a debilitating panic disorder, led Nathan Barnett to develop untreated

and excruciating dental conditions, continues to give both men disturbing nightmares, has deeply
strained Philip Barnett’s relationship with his four adolescent children, and has had serious and
lasting economic and reputational consequences for the brothers. See id.
On April 26, 2022, Philip and Nathan Barnett filed suit in this Court. The Barnetts’
Complaint brings seven causes of action against five officers involved in their incarceration and
the Cabell County Commission (“CCC”). Id. at 31-37. Five of the counts are brought against
Defendants Anthony Cummings, Greg Losh, Kimberly Pack, Mike Parde, and Eddie Blankenship
(“the Individual Defendants”) as a group. One additional count is brought solely against
Defendants Cummings and Parde (Count IV – Malicious Prosecution) and a final count is brought
against CCC (Count VII – Suppression of Brady/Giglio Material). On July 15, 2022, the Individual

Defendants filed a partial motion to dismiss Count III - Suppression of Brady/Giglio Material,
Count V - Negligence, and Count VI – Intentional Infliction of Emotional Distress under Rule
12(b)(6) for failure to state a claim upon which relief could be granted. ECF No. 14. The parties
have timely filed a Response (ECF No. 36) and Reply. ECF No. 40. The Court heard argument on
March 15, 2023, rending this matter ripe for adjudication.

II. LEGAL STANDARD
To survive a motion to dismiss, a complaint must contain “a short and plain statement of

conviction, some of his post-conviction efforts. Compl. ¶¶ 194, 197-200, 251-56.
the claim showing [the plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While the facts
alleged in the complaint need not be probable, the statement must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In considering the plausibility of a plaintiff’s
claim, the Court accepts all factual allegations in the complaint as true. Id. Still, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citation omitted).
Determining whether a complaint states a plausible claim is a “context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. If
the court finds from its analysis that “the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Id. (quoting, in part, Fed. R. Civ. P. 8(a)(2)). Nonetheless, a

plaintiff need not show that success is probable to withstand a motion to dismiss. Twombly, 550
U.S. at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is very remote and unlikely.”).

III. DISCUSSION
The Individual Defendants have motioned to dismiss Counts III, V, and VI of Plaintiffs’
Complaint. Each count or challenge is brought pursuant to a disparate legal framework and will
be addressed by the Court in succession.
A. Count III – Brady/Giglio Violations
In Count III of their Complaint, Plaintiffs have asserted violations of their constitutional
rights as enunciated in Brady and Giglio, stating that the Individual Defendants suppressed
exculpatory and impeachment material concerning (1) “the coercive nature of the Individual

Defendants’ interrogations of Brian Dement and Justin Black” and (2) “the threats that Defendants
Cummings and Blankenship used to persuade Greg Bailey to wear a wire and record his
conversations with Brian Dement.” Compl. ¶¶ 311-16. The Individual Defendants have motioned
to dismiss these claims for failure to plausibly allege a Brady/Giglio violation,6 arguing that
Plaintiffs either knew or had the opportunity to obtain the information concerning Mr. Dement and
Mr. Black, and that the information concerning Mr. Bailey was not material or favorable to
Plaintiffs’ defense. Defs.’ Mem. of Law in Supp. of Partial Mot. to Dismiss at 8-12. The Barnett
brothers have disputed these contentions under a variety of theories. Pls.’ Mem. of Law in Opp’n
to Defs.’ Partial Mot. to Dismiss at 7-15.
The Fifth and Fourteenth Amendments to the United States Constitution require the

government to disclose exculpatory evidence to criminal defendants. Brady v. Maryland, 373 U.S.
83, 87-88 (1963). The prosecution’s suppression of evidence that would tend to exculpate a
defendant “violates due process where the evidence is material either to guilt or to punishment.”
Id. Likewise, “a police officer’s failure to disclose exculpatory evidence to a prosecutor violates a
defendant’s due process rights.” Owens v. Balt. City State’s Att’ys Off., 767 F.3d 379, 396 (4th Cir.
2014) (citing Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 847 (4th Cir. 1964)). The Fourth

6 The Court notes that nothing in the Partial Motion to Dismiss expressly disputes the alleged
violations under Giglio. See Defs.’ Mem. of Law in Supp. of Partial Mot. to Dismiss at 8-12. The
Motion relies solely upon Brady. Id. However, after careful consideration, the Court finds that the
arguments invoked are either equally applicable to the Giglio claim or irrelevant in light of the
Court’s findings below.
Circuit has held that a Brady violation by a police officer occurs when “(1) the evidence at issue
was favorable to [the defendant]; (2) the [o]fficers suppressed the evidence in bad faith; and (3)
prejudice ensued.” Owens, 767 F.3d at 396-97; see also Smith v. Cain, 565 U.S. 73, 75 (2012).
The Individual Defendants pinpoint different aspects of this standard which they argue are

not plausibly alleged by Plaintiffs. With regards to the interrogations of Mr. Dement and Mr.
Black, Defendants assert that the Complaint does not show that the information was suppressed,
while with regards to the information concerning Mr. Bailey, Defendants assert that the Complaint
does not show that the information was material.
a. Allegations of Brady Violations Concerning Mr. Dement and Mr. Black
The Complaint alleges that the Individual Defendants used coercion in their interrogations
of Mr. Dement and Mr. Black, and that the coercive nature of these interrogations was suppressed.
Compl. ¶¶ 92-154, 312-13. In the instant motion, Defendants assert that Plaintiffs cannot have
plausibly alleged suppression of the information concerning the interrogations of Mr. Dement and
Mr. Black, as Plaintiffs either actually knew or could have reasonably obtained from other sources

the relevant information at the time of their convictions. Defs.’ Mem. of Law in Supp. of Partial
Mot. to Dismiss at 8-10. In support of this contention, the Individual Defendants cite to the
Barnetts’ appeal of their initial conviction, in which the Supreme Court of Appeals of West
Virginia ordered a new trial based on a lower court’s refusal to allow Mr. Dement to be cross-
examined with prior inconsistent statements given to the Barnetts’ investigator. Defs.’ Mem. of
Law in Supp. of Partial Mot. to Dismiss at 8-10; see State v. Barnett, 701 S.E.2d 460 (W. Va.
2010). Defendants raise the same arguments as to the interrogation of Mr. Black and the testimony
Mr. Black gave at his own trial concerning that interrogation. Id.; see Black, 708 S.E.2d 491. In
Response, the Barnetts have argued that the issue of suppression is a factual matter, and therefore
must be accepted as true at the motion to dismiss stage, or, in the alternative, that the Complaint
plausibly alleges that information concerning the interrogations of Mr. Dement and Mr. Black was
suppressed. Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 7-11.
For the following reasons, the Court finds that Count III should be dismissed as to the

allegedly suppressed information concerning the interrogations of Mr. Dement and Mr. Black.
i. The Court will consider whether the Complaint has plausibly alleged
suppression of the coercive nature of the interrogations of Mr. Dement and
Mr. Black.
In their Response, Plaintiffs argue that alleging this suppression is sufficient to survive a
motion to dismiss, as the issue of whether a piece of information was suppressed is a factual matter,
properly left to a jury. Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 9. When
considering a motion to dismiss, courts must accept all factual allegations in the complaint as true.
See Iqbal, 556 U.S. at 678. However, courts should dismiss complaints which do not contain
enough facts to state a claim to relief that is facially plausible. Twombly, 550 U.S. at 570. Facial

plausibility exists “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678.
Plaintiffs assert that “[c]ourts within the Fourth Circuit consistently deny motions to
dismiss on Brady claims where such motions are premised upon factual issues about whether
certain evidence was or was not disclosed.” Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to
Dismiss at 9 (internal quotations and citations omitted). Yet, in the cases cited by Plaintiffs, the
courts made clear that whether disclosure had occurred was a disputed factual matter. See
McPherson v. Balt. Police Dept., 494 F. Supp. 3d 269, 282 (D. Md. 2020) (denying 12(b)(6)
motion where defendants “raise[d] significant factual issues about whether certain evidence was
or was not disclosed.”); Taylor v. Deaver, No. 11 Civ. 341-H, 2012 WL 12905868, at *5 (E.D.N.C.
Sept. 28, 2012) (dismissing factual objections regarding Brady disclosures in considering a
12(b)(6) motion). Here, Defendants’ Motion is not disputing the factual basis of anything asserted

in Plaintiffs’ Complaint. Rather, they dispute that the facts alleged on the face of the Complaint
plausibly support an allegation that suppression occurred.7 See Defs.’ Reply in Supp. of Partial
Mot. to Dismiss at 4. Accordingly, the Court will consider whether the Complaint has plausibly
asserted facts concerning the allegedly coercive interrogations of Mr. Dement and Mr. Black which
could support an allegation of suppression.
ii. Plaintiffs’ Complaint indicates they had knowledge of the coercive nature of
the interviews of Mr. Dement and Mr. Black at the time of their Kennedy pleas.
The Individual Defendants assert that Plaintiffs had actual knowledge of the information
they now allege was suppressed at the time of their Kennedy pleas, and that evidence of this actual
knowledge is facially apparent in the Complaint. For the following reasons, the Court finds that

the Barnetts knew of the coercive nature of Mr. Dement and Mr. Black’s interrogations at the time
they allege this information was suppressed.
However, as a preliminary matter, the Court finds that the Complaint’s allegations of
coercion are not the same as what was in the at-issue testimony of Mr. Dement in the Barnetts’

7 The Court acknowledges that this is a charitable reading of Defendants’ Partial Motion to
Dismiss, which does directly state its challenge to the factual basis of the Complaint. See Defs.’
Mem. of Law in Supp. of Partial Mot. to Dismiss at 8 (“That allegation, however, is wholly and
demonstrably false.”). Yet, invective aside, the challenges raised by Defendants are only to the
ability of facts stated by Plaintiffs in the Complaint to support the alleged Brady violations. In
other words, nothing raised by Defendants is outside of the factual universe of the Complaint; they
do not, for example, argue that the Individual Defendants disclosed evidence of the coercive
interviews to the Barnetts. Instead, Defendants argue the Complaint itself alleges facts amounting
to disclosure.
2010 appeal to the Supreme Court of Appeals of West Virginia. See Barnett, 701 S.E.2d 460;
Compl. ¶ 246 (discussing this appeal). In that case, Mr. Dement was found to have given multiple
inconsistent statements concerning the events the night of Ms. Crawford’s murder. Barnett, 701
S.E.2d at 465-66. Again, the Supreme Court found that Mr. Dement reportedly gave further

inconsistent statements to the Barnetts’ defense investigator, Mr. Cook. Id. at 464. Yet, at issue
here is a subtly different aspect of Mr. Dement’s role in the case—the nature of his interrogations
by police officers.8 See Compl. ¶ 313.a. It is entirely plausible that a government witness could
provide multiple inconsistent statements—and admit to the falsity of those statements—without
being subject to coercive interrogation techniques. Accordingly, the Court rejects Defendants’
assertions that Plaintiffs had actual knowledge of the information they claim was suppressed
concerning the interrogation of Mr. Dement via the arguments raised in the 2010 appeal.
However, the Individual Defendants point to a second source cited in the Complaint from
which the Barnetts allegedly obtained the information concerning the coercive nature of Mr.
Dement’s interrogation: the interview with defense investigator Mr. Cook. Defs.’ Mem. of Law in

Supp. of Partial Mot. to Dismiss at 9. This interview is integral to the 2010 appeal, as it contained
the prior inconsistent statements made by Mr. Dement. Barnett, 701 S.E.2d at 464. Beyond prior
inconsistent statements, however, the Complaint asserts that Mr. Dement provided Mr. Cook with
information concerning the coercive nature of the police interrogations. Compl. ¶¶ 176-80. The

8 Accordingly, the Court declines Defendants’ invitation to find that “given the arguments
Plaintiffs successfully presented to the West Virginia Supreme Court, Plaintiffs should be
judicially estopped from presenting a new narrative in this civil action.” Defs.’ Reply in Supp. of
Partial Mot. to Dismiss at 5 n.1. The arguments presented by Plaintiffs in State v. Barnett
concerned cross-examination of Mr. Dement with prior inconsistent statements he made about the
events of the night Ms. Crawford was supposedly killed. See 701 S.E.2d 460. The argument that
Mr. Dement made a series of inconsistent statements is not at odds with Plaintiffs’ current assertion
that Mr. Dement’s statements were coerced. See Compl. ¶¶ 92-131, 313.a.
Complaint alleges that Mr. Dement told Mr. Cook that the police “came to his house without his
permission, put handcuffs on him, [and] put guns to his head,” and that the Individual Defendants
“interrogated him when he was intoxicated and mess up and got him thinking that all this stuff was
true.” Id. ¶¶ 178-79 (internal quotation marks omitted). According to the timeline of the Complaint,

these statements to Mr. Cook took place prior to the Barnetts’ trial and Kennedy pleas. Id. ¶¶ 173,
176 (alleging Mr. Cook spoke with Mr. Dement on October 25, 2007).
Accordingly, Plaintiffs have asserted that they had actual knowledge of at least some of
the allegedly coercive conduct exhibited by the police in their interrogation of Mr. Dement.
However, the Complaint may allege additional coercive conduct by Defendants in this
interrogation. See id. ¶¶ 92-131. But the Court finds that, to whatever extent the Complaint could
allege additional coercive conduct, that information was “available” to the Barnetts under the
Fourth Circuit’s Brady standard. The Fourth Circuit has held that “the Brady rule does not apply
if the evidence in question is available to the defendant from other sources,” including from
interviews with government witnesses. United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)

(internal citations omitted); United States v. Blankenship, 19 F.4th 685, 691-95 (4th Cir. 2021).
Blankenship affirmed Wilson, finding that information known to a witness was not suppressed
where “[a]t the very least, [the defendant] knew of the availability of this type of information and
where to find it. Its location was surely where he would first look — indeed, probably did look.”
19 F.4th at 693. Here, the Complaint asserts that the Barnetts sought information from Mr. Dement
in 2007, and that Mr. Dement provided their investigator with some information concerning the
coercive nature of the police interrogation at that point in time. Compl. ¶¶ 176-80. Therefore, the
Court finds that any additional information Mr. Dement could have told Mr. Cook in 2007
concerning the coercive nature of the interrogation was “available” to the Barnetts under Wilson
and Blankenship, and thus the Complaint fails to allege it was suppressed under Brady.
Additionally, the Court finds that Plaintiffs’ Complaint shows that they either knew or
reasonably should have known of the coercive nature of Mr. Black’s interrogation at the time of

their Kennedy pleas. Mr. Black’s prosecution, conviction, and post-conviction efforts are all
referenced in the Complaint. Id. ¶¶ 198-200, 251-54. The Court concludes that information given
by Mr. Black in his trial and on appeal concerns the allegedly coercive nature of Mr. Black’s
interrogation. See Black, 708 S.E.2d 491. First, Mr. Black raised arguments concerning the
coercive nature of the interrogation at the trial court, which held a suppression hearing concerning
Mr. Black’s confession on August 21, 2007. Id. at 499. Second, on appeal, Mr. Black asserted that
the statement he made was “provided to the police as a result of the police feeding him details of
the crime and threatening to revoke his parole if he refused to tell them what they wanted to hear.”
Id. at 497. This is a nearly identical narrative to what the Barnetts now claim was suppressed by
the Individual Defendants. See Compl. ¶¶ 132-55 (“Defendant Park threatened [Mr.] Black using

his parole status”). In his 2010 appeal, Mr. Black argued that his statements should not have been
admitted into evidence because they were involuntary. Black, 208 S.E.2d at 498. The Supreme
Court of Appeals of West Virginia’s opinion discusses Mr. Black’s assertion (and contrary
assertions from state police) at length, finding that the trial court did not err in finding Mr. Black’s
confession to be voluntary. Id. at 500.
Accordingly, the Court finds that the Complaint does not plausibly allege that information
concerning the coercive nature of the interrogation of Mr. Black was suppressed under Brady.
Again, “the Brady rule does not apply if the evidence in question is available to the defendant from
other sources,” Wilson, 901 F.2d at 380 (quoting United States v. Davis, 787 F.2d 1501, 1505 (11th
Cir.), cert. denied, 479 U.S. 852 (1986)), and could have been obtained by the defendant through
“reasonable and diligent investigation.”9 Barnes v. Thompson, 58 F.3d 971, 975 (4th Cir. 1995).
Given that all three men were charged with crimes related to the murder of Ms. Crawford, and that
information Mr. Black provided to the police was at issue in the Barnetts’ trial, any reasonably

diligent defense attorney would have been aware of Mr. Black’s prosecution, testimony, and
appeal concerning the coercive nature of his interrogation. By the time the Barnetts took their
Kennedy pleas on January 18, 2011, Mr. Black had not only testified under oath that his confession
was coerced, but also the Supreme Court of Appeals of West Virginia had issued an opinion
declining to suppress Mr. Black’s confession on those same grounds; it is implausible to allege
that arguments repeatedly raised in a related case on the record were suppressed. This is especially
true where, as here, the Complaint directly asserts information concerning the related case’s
progression through the judicial system. See Compl. ¶¶ 194, 197-200, 251-56. Therefore, the Court
finds that the Barnetts’ Complaint does not plausibly allege that this information was suppressed
by the Individual Defendants in violation of Brady or Giglio.

b. Alleged Brady Violations Concerning Mr. Bailey
Defendants further argue that Plaintiffs’ Brady claim premised on information concerning
alleged threats the officers made to Mr. Bailey fails as a matter of law, asserting that the

9 “Moreover, the majority of federal circuits ... refuse to find a Brady violation where the defense
can access the material through its own due diligence.” Blankenship v. United States, Nos. 5:18-
cv-00591 & 5:14-cr-00244, 2020 WL 247313, at *8 n.7 (S.D.W. Va. Jan. 25, 2020) affirmed by
19 F.4th 685 (4th Cir. 2021) (citing State v. Mullen, 171 Wash. 2d 881, 896 n.5, 259 P.3d 158
(2011); Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir. 2003); DiSimone v. Phillips, 461 F.3d 181,
197 (2d Cir. 2006); United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2005); United States v.
Jeffers, 570 F.3d 557, 573 (4th Cir. 2009); Pondexter v. Quarterman, 537 F.3d 511, 526 (5th Cir.
2008); Owens v. Guida, 549 F.3d 399, 415 (6th Cir. 2008); Carvajal v. Dominguez, 542 F.3d 561,
567 (7th Cir. 2008); Mandacina v. United States, 328 F.3d 995, 1001-02 (8th Cir. 2003); United
States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991); Ward v. Hall, 592 F.3d 1144, 1183 (11th Cir.
2010); Xydas v. United States, 445 F.2d 660, 668 (D.C. Cir. 1971)).
information at issue was neither material nor favorable to Plaintiffs’ defense. Defs.’ Mem. of Law
in Supp. of Partial Mot. to Dismiss at 10-12. The Court disagrees.
Evidence is “material” under Brady if there is a reasonable probability that disclosure of
the evidence would have changed the outcome of the proceeding. United States v. Bagley, 473

U.S. 667, 682 (1965). A “reasonable probability” under Bagley is “a probability sufficient to
undermine confidence in the outcome.” Id. When evaluating the alleged materiality of suppressed
evidence, courts must take into account its cumulative effect in light of other evidence, rather than
assessing the probative value of each piece of evidence in a vacuum. Kyles v. Whitley, 514 U.S.
419, 421, 441 (1995); United States v. Bartko, 728 F.3d 327, 340 (4th Cir. 2013) (“Although courts
of necessity examine undisclosed evidence item-by-item, their materiality determinations must
evaluate the cumulative effect of all suppressed evidence to determine whether a Brady violation
has occurred.”) (quoting United States v. Ellis, 121 F.3d 908, 916 (4th Cir. 1997)). “A reasonable
probability does not mean that the defendant ‘would more likely than not have received a different
verdict with the evidence,’ only that the likelihood of a different result is great enough to

‘undermine [ ] confidence in the outcome of the trial.’” Smith, 565 U.S. at 75 (quoting Kyles, 514
U.S. at 434). The government is likewise obligated to disclose information that could be used to
impeach government witnesses, especially where the witness’s testimony is an important part of
the government’s case. See Wearry v. Cain, 577 U.S. 385, 392-94 (2016); also Giglio, 405 U.S. at
154-55; Kyles, 514 U.S. at 433 (“[T]he Court [has] disavowed any difference between exculpatory
and impeachment evidence for Brady purposes”).
Here, the Court finds that Plaintiffs have plausibly alleged factual content to support that
assertion that the information concerning Mr. Bailey is both material and favorable to them. The
information about threats used by Defendants Cummings and Blankenship plausibly could have
been used by the defense in a variety of ways which could have engendered enough doubt to
undermine a reasonable juror’s confidence in the verdict. Most obviously, the Barnetts could have
used the allegedly suppressed information to impeach Defendant Cummings’s and Mr. Dement’s
testimony. The Complaint alleges that Mr. Bailey was given non-public information by the police,

which he then passed on to Mr. Dement. Compl. ¶ 82. Had the Barnetts known this at trial, they
could have used it to impeach Mr. Dement’s testimony—a key aspect of the prosecution’s case
against them. Further, Plaintiffs assert that Defendant Cummings testified at the Barnetts’ trial
concerning his interactions with Mr. Bailey; it is entirely plausible information concerning
coercion Defendant Cummings allegedly used against Mr. Bailey would have been used by the
Barnetts to impeach Defendant Cummings. See Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot.
to Dismiss at 13-14. The Court must consider the cumulative effect of this impeachment evidence
in determining whether the Complaint has plausibly alleged materiality under Brady. See Bartko,
728 F.3d at 340.
Moreover, the Barnetts plausibly could have employed the allegedly suppressed

information to challenge the integrity of the police investigation against them more broadly. As
Mr. Bailey’s involvement with the police is alleged to be the foundation of the police’s
investigation of the Barnetts, a reasonable jury could have found that the manner in which Mr.
Bailey provided the police with information cast doubt unto the validity of the investigation as a
whole. See Kyles, 514 U.S. at 445 (finding evidence material where it “would have raised
opportunities to attack . . . the thoroughness and even the good faith of the investigation”). A
reasonable jury could believe that Mr. Bailey’s coerced cooperation could have given him an
incentive to make sure Mr. Dement incriminated the Barnetts. Accordingly, the allegedly
suppressed information could “reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Campbell v. Polk, 447 F.3d 270, 276 (4th Cir. 2006)
(quoting Kyles, 514 U.S. at 435). The Court concludes that Complaint plausibly states the allegedly
suppressed information concerning Mr. Bailey is material and favorable to the Barnetts, pursuant
to Brady and Kyles.

Defendants make much of the fact that Mr. Bailey did not testify at the Barnetts’ trial. See
Defs.’ Mem. of Law in Supp. of Mot. to Dismiss at 12. But the Court agrees with Plaintiffs: “it is
at least plausible . . . that [Mr.] Bailey did not testify at trial because the information concerning
the true circumstances of his recording of [Mr.] Dement was suppressed.” Pls.’ Mem. of Law in
Opp’n to Defs.’ Partial Mot. to Dismiss at 13 (emphasis in original). In fact, the Court finds that
the Barnetts have alleged suppression of information significantly analogous to that which the
Supreme Court found to be material in Kyles. Taking all facts alleged as true, in both cases, a
police informant provided information which initiated the investigation against the defendant. See
Kyles, 514 U.S. at 424-27; Compl. ¶¶ 64, 67. The informant then did not testify at trial. See Kyles,
514 U.S. at 429-30; Defs.’ Mem. of Law in Supp. of Mot. to Dismiss at 12. However, the defense

could have called the informant as an adverse witness had they known the suppressed information.
See Kyles, 514 U.S. at 445; Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 13.
Additionally, other witnesses at trial—including police officers—could have been impeached
using the allegedly suppressed information concerning the informant. See Kyles, 514 U.S. at 446-
47; Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 13-14. Finally, the Supreme
Court found that the defendant in Kyles could have used the suppressed information concerning
the informant’s initial disclosures to the police to broadly undermine the state’s case against him.
Kyles, 514 U.S. at 445-49. The same allegedly holds true for the Barnetts.
Furthermore, Defendants’ argument that information concerning the threats made to Mr.
Bailey is immaterial due to its alleged inadmissibility is to no avail. See Defs.’ Mem. of Law in
Supp. of Partial Mot. to Dismiss at 9, 12. It is well-established that Brady material need not have
been admissible, so long as it could lead to admissible evidence. See Nicolas v. Att’y Gen. of Md.,

820 F.3d 124, 130 n.4 (4th Cir. 2016) (citing Kyles, 514 U.S. at 428-32). Assuming arguendo that
the Individual Defendants correctly conclude that the information would have been inadmissible,
that analysis remains irrelevant to the Court’s determination. Defendants have not motioned to
dismiss the count on the grounds that the information could not plausibly have led to any
admissible evidence, and the Court declines to consider this argument sua sponte.
Finally, the Individual Defendants argue that “by the time of their trial in August 2008, []
Plaintiffs were fully advised of the way in which they had come to be on the police’s radar,
including the method by which Mr. Bailey (as well as his wife) agreed to wear recording
equipment.” Defs.’ Mem. of Law in Supp. of Partial Mot. to Dismiss at 12. Accordingly,
Defendants assert, the threats officers are alleged to have made to Mr. Bailey were not suppressed.

See Wilson, 901 F.2d at 380. Again, the Court disagrees. Unlike the information concerning the
interrogations of Mr. Dement and Mr. Black—which the Complaint indicates was stated
repeatedly on the record and provided to the Barnetts’ private investigator—the Complaint does
not allege that information concerning threats made to Mr. Bailey or Mr. Bailey’s informant
relationship was provided to the Barnetts at any point prior to their trial or pleas. Knowledge of
how the Barnetts “had come to be on the police’s radar” is not synonymous with knowledge that
Defendants Cummings and Blankenship “threatened [Mr.] Bailey, telling him that, unless he
agreed to wear a wire, [he] would face five years’ jail time for being an ‘accessory’ to the murder.”
Compl. ¶ 76. Therefore, the Court finds that the Complaint plausibly alleges a lack of knowledge
commiserate with the suppression standard.
In summation, while a future jury might not concur with Plaintiffs’ allegations that
suppressed information concerning threats made to Mr. Bailey would have significantly

undermined confidence in the prosecution’s case against the Barnetts, they have plausibly brought
these allegations to survive a motion to dismiss. The Partial Motion to Dismiss alleged Brady
violations as to Mr. Bailey is DENIED. However, dismissal of the alleged Brady violations as to
Mr. Black and Mr. Dement is GRANTED.
B. Count V – State Negligence Claim
Count V alleges common law negligence against the Individual Defendants, citing their
“duty to exercise reasonable care in the investigation of crimes, to reasonably pursue and disclose
exculpatory evidence, and to refrain from fabricating evidence and pursuing criminal prosecutions
without sufficient basis.” Compl. ¶ 327. As the Court reads the pleadings concerning this count, it
finds that Defendants raise two main contentions as to the grounds on which the Barnetts’

negligence claim should be dismissed. First, they assert they are entitled to qualified or official
immunity under state law, and second, they argue that the Complaint only alleges intentional
conduct insufficient to support a claim of negligence. See Defs.’ Mem. of Law in Supp. of Partial
Mot. to Dismiss at 12-14; Defs.’ Reply in Supp. of Partial Mot. to Dismiss at 7-10.
According to the West Virginia Supreme Court of Appeals,
[i]n the absence of an insurance contract waiving the defense, the doctrine of
qualified or official immunity bars a claim of mere negligence against a state agency
not within the purview of the West Virginia Governmental Tort Claims and
Insurance Reform Act, W.Va. Code § 29-12A-1, et seq., and against an officer of
that department acting within the scope of his or her employment, with respect to
the discretionary judgments, decisions, and actions of the officer.
Syl. Pt. 6, Clark v. Dunn, 465 S.E.2d 374 (W. Va. 1995) (emphasis added); Syl. Pt. 7,
Jarvis v. W. Va. State Police, 711 S.E.2d 542 (W. Va. 2010).
As the State Police are a State agency—not a subdivision—West Virginia Code § 29-12A-
1, et seq. is inapplicable. See Jarvis, 711 S.E.2d at 551 n.10 (discussing the statutory provision but

not applying it to the State Police). Accordingly, those provisions are equally inapplicable to the
Individual Defendants as officials of the State Police. See Ali v. Raleigh Cnty., 2018 WL 4101517,
at *6 (S.D.W. Va. Aug. 28, 2018). In fact, the parties do not dispute that the Individual Defendants
as officers of the West Virginia State Police can invoke qualified or official immunity. See Defs.’
Mem. of Law in Supp of Partial Mot. to Dismiss at 12-14; Pls.’ Mem. of Law in Opp’n to Defs.’
Partial Mot. to Dismiss at 15-16; also Jarvis, 711 S.E.2d at 552 (applying state qualified or official
immunity to West Virginia State Police officers). Nor is it disputed that the at-issue tortious
conduct occurred within the scope of their employment and involved discretionary judgments,
decisions, and functions. See Defs.’ Mem. of Law in Supp of Partial Mot. to Dismiss at 12-14;
Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 15-16.

The parties do potentially dispute, however, whether any insurance contract waived the
defense of qualified or official immunity. See Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot.
to Dismiss at 15 (arguing that they should not have to prove the absence of an insurance waiver).
While Defendants cite to a variety of cases which found that State insurance policies had not
waived qualified or official immunity, they neglect to note that in most of these cases, a copy of
the relevant insurance policy was provided to the court. See, e.g., Hess v. W. Va. Div. of Corr., 705
S.E.2d 125, 130 (W. Va. 2010) (“In the instant case, the insurance policy at issue, a copy of which
was attached to the Appellant's Motion to Dismiss, does not waive the Appellant's qualified
immunity.”). However, while the Court would prefer if Defendants had appended the relevant
insurance agreement, it finds that the West Virginia Supreme Court has found sufficient a mere
lack of allegation of any insurance waiver. See W. Va. State Police v. J.H., 856 S.E.2d 679, 696
(W. Va. 2021) (finding “no assertion of the existence of an insurance contract that waives the
defense of qualified immunity” to be sufficient to meet the element). Plaintiffs dispute the burden

they feel Defendants placed upon them to produce evidence of a waiver, but do not actually allege
any such waiver exists. See Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 15.
Accordingly, the Court concludes that there is no alleged relevant insurance policy which would
waive the defense of qualified or official immunity, and that this lack of an allegation is sufficient
under West Virginia law.
Subsequently, the parties debate whether the conduct complained of violated a clearly
established statutory or constitutional right sufficient to overcome qualified immunity. The
Supreme Court of Appeals of West Virginia has held that West Virginia—or its agencies, officials,
or employees—is entitled to qualified immunity where the allegedly injurious conduct constitutes
a discretionary governmental function unless “plaintiff has demonstrated that [the relevant] acts or

omissions are in violation of clearly established statutory or constitutional rights or laws of which
a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive.” W.
Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 766 S.E.2d 751, 766 (W. Va. 2014). While AB
reaffirmed Clark’s holding that “mere negligence” was insufficient to overcome qualified or
official immunity, the West Virginia Supreme Court of Appeals proceeded to apply the violation
of “clearly established statutory or constitutional rights” standard to examine the tort of negligent
training, supervision, and retention. Compare Syl. Pt. 6, Clark, 465 S.E.2d at 374 (concerning
“mere negligence”) with A.B., 766 S.E.2d at 772 (concerning negligent training, supervision, and
retention); see also Sweat v. West Virginia, 2016 WL 7422678, at *8 (Dec. 22, 2016). Accordingly,
it appears that a defendant could violate a plaintiff’s constitutional or statutory rights via
negligence in such a way as to overcome state qualified immunity. See Maston v. Wagner, 781
S.E.2d 936, 949, 955-56 (W. Va. 2015) (finding that both the State Police and a political
subdivision could be held liable for allegedly negligent acts which violated the constitution such

that qualified immunity did not apply).
Nonetheless, the Court finds that the Barnetts’ plausible allegations of clearly established
rights are insufficient to overcome state qualified or official immunity where their claim is one of
“mere negligence,” without converting that negligence claim into a claim of intentional tortious
conduct. Again, to overcome qualified immunity, Plaintiffs must demonstrate that the Defendants’
negligent behavior was “in violation of clearly established statutory or constitutional rights or laws
of which a reasonable person would have known” or “otherwise fraudulent, malicious, or
oppressive.” A.B., 766 S.E.2d at 766. As a preliminary matter, the Court finds that the standard of
“fraudulent, malicious, or oppressive” requires a finding of intentionality. See Maston, 781 S.E.2d
at 949. Maston stated that where a defendant invokes qualified or official immunity “in the absence

of fraudulent, malicious or intentional wrongdoing,” the court should consider “(1) does the
alleged conduct set out a constitutional or statutory violation, and (2) were the constitutional
standards clearly established at the time in question.” 781 S.E.2d at 949 (quoting Hutchinson v.
City of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996)). An allegation of a violation of
constitutional rights by itself is insufficient—the Complaint must allege a causal connection
between the constitutional rights violated and the Defendants’ negligence. See, e.g., J.H., 856
S.E.2d at 699 (finding an allegation of a constitutional violation insufficient where that violation
was unconnected to negligent training and supervision claim).
Here, the Court finds that any “clearly established statutory or constitutional right” the
Barnetts have alleged in support of Count V would require a finding of intentionality, thus bringing
the claim outside the realm of negligence. Plaintiffs allege that Defendants violated “well-
established rights by, among other things, failing to disclose exculpatory evidence and refraining

from fabricating evidence, and pursuing criminal prosecutions without probable cause.” Pls.’
Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 16; see also Compl. ¶ 327. Each of
these would necessitate a finding of intentionality in order to violate a constitutional right. As
mentioned above, proving a Brady violation against an officer requires a finding of that the officer
“suppressed the evidence in bad faith.” Owens, 767 F.3d at 397. Fabrication of evidence and
malicious prosecution likewise entail intentional conduct. Finally, the Court cannot find any other
alleged constitutional or statutory violation in the Complaint devoid of intentional conduct.
Therefore, while the Barnetts have plausibly alleged constitutional violations, none of them
support the negligence claim.
Accordingly, Defendants’ Motion to Dismiss is GRANTED as to Count V.

C. Count VI – Intentional Infliction of Emotional Distress (“IIED”)
The Individual Defendants have motioned to dismiss Plaintiffs’ IIED claim, arguing that the
statute of limitations period had expired by the time the Complaint was filed. Defs.’ Mem. of Law
in Supp. of Partial Mot. to Dismiss at 14-18. The Court will examine the Barnetts’ IIED claim, the
statute of limitations period, and any allegedly applicable exceptions to that limitations period.
The elements of IIED are:
(1) that the defendant's conduct was atrocious, intolerable, and so extreme and outrageous
as to exceed the bounds of decency;
(2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly
when it was certain or substantially certain emotional distress would result from his
conduct;
(3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and,
(4) that the emotional distress suffered by the plaintiff was so severe that no reasonable
person could be expected to endure it.

Travis v. Alcon Lab’ys, Inc., 504 S.E.2d 419, 421 (W. Va. 1998). In West Virginia, IIED has a
statute of limitations of two years. Syl. Pt. 5, Courtney v. Courtney, 437 S.E.2d 436 (W. Va. 1993).
The Complaint plausibly alleges conduct sufficient to meet the IIED elements. First, it
alleges that the Individual Defendants fabricated evidence, coerced false statements against
Plaintiffs, and provided that coerced information to prosecutors while withholding exculpatory
evidence—the Court finds that this alleged behavior is sufficiently plausibly extreme and
outrageous to meet the IIED standard. See Compl. ¶¶ 331-33. Second, it alleges that this behavior
was committed intentionally or recklessly, such that the actual and severe emotional distress of
Plaintiffs was the substantially certain result. Id. ¶ 331, 334.
Defendants do not appear to dispute that the Complaint plausibly alleges IIED, only
arguing that the claim is barred by the statute of limitations. See Defs.’ Mem. of Law in Supp. of
Partial Mot. to Dismiss at 14-18. Defendants contend that the variety of outrageous behaviors they
allegedly committed predate the filing of the Complaint by over a decade. Id. at 15. The Partial
Motion to Dismiss proceeds to preemptively dispute the applicability of the discovery rule,
fraudulent concealment doctrine, or, generally, any other tolling doctrine. Id. at 16-17. In
Response, Plaintiffs have argued that the Court should not consider this affirmative defense at the
pleadings stage, or, in the alternative, that as the Barnetts’ IIED claim would have been subject to

the favorable termination bar prior to their exoneration, the statute of limitations should be
deferred. Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot. to Dismiss at 17-19.
“A court may grant a 12(b)(6) motion on statute of limitations grounds only if the time bar
is apparent on the face of the complaint.” Semenova v. Md. Transit Administration, 845 F.3d 564,
567 (4th Cir. 2017) (quoting Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005)).
As a preliminary matter, the Court finds that none of the allegedly outrageous behavior occurred
within two years prior to the filing date, and that this timeline is apparent on the face of the
Complaint. While Plaintiffs are correct to assert that their Complaint alleges more outrageous
conduct in support of IIED than the examples cherry-picked by the Individuals Defendants in their

Partial Motion to Dismiss, the fact remains that none of the averred outrageous behavior occurred
later than 2018. See Compl. ¶ 262. The latest potentially outrageous action the Court could find in
the Complaint is the alleged February 2, 2018 visit of Defendants Losh and Parde to Mr. Smith in
prison. Id.
However, Plaintiffs have argued that “the Barnetts continued wrongful imprisonment and
subjection to criminal charges . . . is central to their IIED claim” and, therefore, the outrageous
conduct continued until charges were dropped. Pls.’ Mem. of Law in Opp’n to Defs.’ Partial Mot.
to Dismiss at 18. Even so, the Court is unconvinced that continued imprisonment is the outrageous
behavior alleged in Count VI, which accuses the Individual Defendants of “fabricating evidence,
coercing false statements” from Mr. Dement and Mr. Black, and “withholding exculpatory

evidence.” Compl. ¶ 331. The facts of the Complaint clearly state these actions occurred many
years prior. See id. ¶¶ 92, 132, 194, 207, 213, 245. Rather, the count asserts that the Barnetts’
imprisonment is the result of the outrageous behavior, stating: “The Individual Defendants’
actions, which resulted in Plaintiffs’ incarceration for 18 years, collectively, was atrocious,
intolerable, and so extreme and outrageous as to exceed the bounds of decency.” Id. ¶ 333
(emphasis added). Under Travis v. Alcon Laboratories, Plaintiffs must prove both the outrageous
actions and the substantially certain results of those actions in order to prevail on an IIED claim;
the Court finds that the imprisonment of the Plaintiffs was an asserted result of the collective
allegedly intolerable actions of the Individual Defendants, rather than an asserted outrageous
action undertaken by them as individuals. See 504 S.E.2d at 421.
And yet, assuming arguendo that the latest possible date of outrageous conduct is the date
Plaintiffs’ Kennedy pleas were vacated—in May 2019—that still predates the filing of the

Complaint by more than two years. See id. ¶ 267. The only date in the Complaint’s recitation of
facts which would fall within the two-year statutory period is the October 5, 2021 dismissal of
charges brought against the Barnetts. Id. ¶ 268. Plaintiffs have offered no allegations, evidence, or
authority to support a finding that, post-release, the Individual Defendants continued to behave
outrageously until charges were dropped. The Court does not seriously entertain the possibility
that dismissal of the charges itself was outrageous. Accordingly, if Plaintiffs are to prevail, they
must establish an exception to the general applicability of the statute of limitations.
To that end, Plaintiffs argue that they could not bring their IIED claim until the charges
against them had been dismissed, as the claim otherwise would have been subject to the favorable
termination doctrine. This doctrine prevents litigation of a tort claim which would constitute a

“collateral attack on the [plaintiff’s] conviction through the vehicle of a civil suit.” Goodwin v.
City of Shepherdstown, 825 S.E.2d 363, 369 (W. Va. 2019) (quoting Heck v. Humphrey, 512 U.S.
477, 484 (1994)). Under Heck v. Humphrey, 42 U.S.C. § 1983 claims are not cognizable where
those claims are challenging the legality of a conviction, and where a favorable adjudication would
result in a prisoner’s release. 512 U.S. at 488. Instead, Heck holds that the correct remedy to be
sought is federal habeas corpus. Id. Where Heck would have barred a tort claim during the
applicable statute of limitations but then a favorable termination occurred, any “cause of action for
damages attributable to an unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.” 512 U.S. at 490; see also Thompson v. Clark, 142 S.
Ct. 1332 (2022) (discussing when a prosecution terminates favorably for the purposes of Heck).
The Barnetts ask the Court to find that accrual of their IIED claim was deferred until the
prosecution against them was dropped.
In opposition to this argument, the Individual Defendants note that under West Virginia

law, there is no general tolling mechanism for claims brought by incarcerated individuals. Craigo
v. Marshall, 331 S.E.2d 510, 513 (W. Va. 1985) (“[T]here is no tolling provision in our statute of
limitations with regard to a prisoner's claim during the period of his incarceration. It is generally
held absent specific provisions to the contrary in a tolling statute, there is no exemption because
of imprisonment from a statute of limitations.”). However, Plaintiffs are not asserting that the
statute of limitations was tolled by their incarceration; they are asserting that the statute of
limitations was deferred due to their inability to assert the IIED claim without running afoul of the
favorable termination doctrine. The Supreme Court of Appeals of West Virginia has cited and
applied Heck with approval in a case involving common law malicious prosecution, when
discussing favorable termination doctrine. See Goodwin, 825 S.E.2d at 369.

To prevail on their IIED claim under West Virginia law, Plaintiffs must show that the
Individual Defendants’ outrageous conduct either intentionally or recklessly caused them
unendurable emotional distress. See Travis, 504 S.E.2d at 421. The Barnetts claim that Defendants’
outrageous conduct included withholding exculpatory evidence in violation of Brady.10 Compl. ¶
331. The Supreme Court has held that Brady claims are Heck-barred, as “a Brady claim, when
successful postconviction, necessarily yields evidence undermining a conviction.” Skinner v.

10 Also, the Barnetts allege that Defendants, inter alia, fabricated evidence, coerced statements,
physically assaulted them, and attempted to intimidate the likely actual culprit to prevent him from
undermining their case against the Barnetts. See, e.g., Compl. ¶¶ 73, 101, 138, 142, 166, 193, 208,
262.
Switzer, 562 U.S. 521, 536 (2011). Furthermore, relying on Skinner, the Fourth Circuit has found
a § 1983 Fourth Amendment claim which relied upon a Brady claim to be Heck-barred. Griffin v.
Baltimore Police Dept., 804 F.3d 692, 695-96 (2015). Accordingly, the Court finds that an ITED
claim relying upon a Brady claim as an element of its underlying conduct would also be barred by
Heck. See Goodwin, 825 S.E.2d at 369. Accordingly, the Barnetts’ ITED claim would have been
subject to the favorable termination doctrine had they brought it during their period of
incarceration.
Therefore, the Court finds today that Plaintiffs’ ITED claim is subject to deferral accrual,
and the two-year statute of limitations period began to run at the point of the October 5, 2021
dismissal of charges brought against the Barnetts. The Individual Defendants’ Motion to Dismiss
Count VI is DENIED.
IV. CONCLUSION
For the foregoing reasons, the Individual Defendant’s Partial Motion to Dismiss (ECF No.
14) is GRANTED, in part, and DENIED, in part. Count III is DISMISSED in part, as to the
information concerning Mr. Dement and Mr. Black, but not as to the information concerning Mr.
Bailey. The Motion is GRANTED as to Count V and DENIED as to Count VI.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER: March 22, 2023

i om
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

-29-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730897. Public record. Not legal advice.