Merritt v. Casto

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

BARRY MERRITT,

Plaintiff,

v. CIVIL ACTION NO. 2:22-cv-00556

LUCAS CASTO and

JACKSON COUNTY COMMISSION,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Defendants’ Partial Motion to Dismiss (Document 7), the

corresponding Defendant’s Memorandum of Law in Support of Partial Motion to Dismiss

(Document 8), the Plaintiff’s Response in Opposition to Defendants’ Partial Motion to Dismiss

(Document 14), the Defendants’ Reply in Support of Partial Motion to Dismiss (Document 16),

the Complaint (Document 1), and all attached exhibits. For the reasons stated herein, the

Defendants’ motion should be granted in part and denied in part.

FACTUAL BACKGROUND

The Plaintiff, Barry Merritt, initiated this action on December 6, 2022.1 The Defendants

are the Jackson County Commission (JCC) and Lucas Casto, a deputy with the Jackson County

Sheriff’s Office. The Plaintiff brought this action alleging that the Defendants are liable for the

1 For the purpose of this motion to dismiss, the Court will treat the factual allegations contained in the Complaint as

true. Erickson v. Pardus, 551 U.S. 89, 93 (2007).

personal injuries he suffered in connection with the use of excessive force by Deputy Casto on

January 13, 2021.

On January 26, 2020, the Plaintiff was in a vehicle stopped by Deputy Casto, and during

the subsequent search, a joint of marijuana was found on his person. Mr. Merritt was arrested but

thereafter released from custody. Nearly a full year later, on January 11, 2021, Deputy Casto filed

a criminal complaint charging the Plaintiff with misdemeanor possession of a controlled substance.

The Magistrate found probable cause and issued an arrest warrant for Mr. Merritt.

Two days later, on January 13, 2021, Deputy Casto and other employees of JCC executed

the arrest warrant at the Plaintiff’s home in Ripley, West Virginia. Those entering Mr. Merritt’s

house did not knock or announce their entry. (Compl. at ¶ 11.) When Deputy Casto and others

entered Mr. Merritt’s house, the Plaintiff was on the phone with a medical provider. When the

Plaintiff saw Deputy Casto and others, they had drawn their firearms and were pointing them at

him. (Id. at ¶ 12.) Mr. Merritt was verbally instructed to “get down on the ground” but he was

not given an opportunity to comply and was immediately tackled. (Id. at ¶ 13.) The Plaintiff

was then “roughly cuffed.” (Id. at ¶ 14.) As a proximate result of the conduct during this arrest,

Mr. Merritt suffered several injuries. His injuries included several fractured ribs, hemothorax,2

severe bullous emphysema,3 and pneumothorax.4

The Plaintiff alleges that Deputy Casto had a history of violent misconduct and his

employer, JCC, knew of this history. JCC knew of this history because of prior citizen

complaints. (Id. at ¶ 41.) Based on JCC’s knowledge of Deputy Casto’s history, the Plaintiff

2 Hemothorax is the pooling of blood between the chest wall and the lungs.

3 Bullous Emphysema occurs when the lungs’ air sacs, alveoli, swell to form large air spaces.

4 A pneumothorax is a collapsed lung.

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alleges that it failed to properly train and supervise him and was negligent in hiring and retaining

him. Additionally, the Plaintiff states that Deputy Casto’s behavior was a direct result of the

customs and policies of JCC, whether those policies are written or unwritten. (Id. at ¶ 40.) These

policies would include JCC’s refusal to act regarding the excessive force complaints against

Deputy Casto, thereby creating a “custom of acceptance and encouragement of the use of excessive

force.” (Id. at ¶ 43.)

The Complaint contains the following causes of action: Count I – Excessive Force in

Violation of the Laws and Constitutions of West Virginia and the United States, as to Deputy

Casto; Count II – Reckless Conduct in Violation of Clearly Established Laws, as to JCC; Count

III – Deprivation of Rights in Violation of 42 U.S.C. § 1983, as to Defendants Deputy Casto and

JCC; Count IV – State Law Claims for Outrage, as to Defendants Deputy Casto and JCC; and

Count V – Punitive Damages, as to Deputy Casto. The Plaintiff requests compensatory damages

for pain and suffering, special damages for future medical care and lost earnings, prejudgment and

post judgment interest, attorney fees and costs, and punitive damages. (Id. at 10.)

STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or

pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R.

Civ. P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual

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allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,

550 U.S. 544, 555 (2007)). In other words, “a complaint must contain ‘more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.’”

Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions

devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

557) (internal quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual

inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,

244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the

assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,

the court need not “accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as

a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff

to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis,

588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint,

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“articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling

him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining

whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to

dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679.

DISCUSSION

A. Count I – Excessive Force in Violation of the Laws and Constitutions of West Virginia

and the United States

The Plaintiff alleges that Deputy Casto used excessive force against him in executing the

arrest on January 13, 2021. Because excessive force is prohibited by the constitutions of the

United States and West Virginia, the Plaintiff states that Deputy Casto is liable for the injuries

suffered as a result of the arrest. In their motion to dismiss, the Defendants raise two arguments.

First, they argue that no private cause of action for damages exists in connection with the relevant

provisions of the West Virginia Constitution and because the Plaintiff requests only damages, such

a claim should be dismissed. Second, Defendants argue that Count I is “wholly duplicative” of

Count III and should therefore be dismissed.

(1) No Cause of Action for Money Damages Under the West Virginia Constitution

The Defendants argue that it is now settled that the West Virginia Constitution does not

create a private right of action for monetary damages for excessive force claims, and because the

Plaintiff is asking for monetary damages under the West Virginia Constitution, the claim should

be dismissed. In response, the Plaintiff argues that “Mr. Merritt’s request for a remedy that may

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prove unavailable is not fatal to the claim . . . particularly when the request is intertwined with

another viable remedy.” (Pl.’s Resp. at 8) (Document 14.)

The Supreme Court of Appeals of West Virginia has stated that “[c]laims of excessive

force by police officers in the course of arrest are governed by the standards of the search and

seizure clause contained in West Virginia's Constitution, Article III, Section 6.” Stepp v. Cottrell

on behalf of Est. of Cottrell, 874 S.E.2d 700, 707 (W. Va. 2022). Section 6 of Article 3 of the

West Virginia Constitution states that the citizens’ right “to be secure in their houses, persons,

papers and effects, against unreasonable searches and seizures, shall not be violated.” In

interpreting that provision, the Supreme Court of Appeals of West Virginia held that it does not

create “a private right of action for monetary damages.” Syl. Pt. 3, Fields v. Mellinger, 851 S.E.2d

789 (W. Va. 2020).

The Plaintiff does not deny that the Complaint requests only monetary relief but argues

that “an improper remedy is not fatal to the sufficiency of a claim on a motion to dismiss.” (Pl.’s

Resp at 8) (citing Mays v. Cabell County Bd. of Educ., 2022 WL 17637616, at *5 (S.D. W. Va.

Dec. 13, 2022) (Chambers, J.)). “The sufficiency of the pleading is tested by . . . the claim for

relief,” not the request for relief, itself. 5 A. Benjamin Spencer, Federal Practice and Procedure

§ 1255 (4th ed. 2022). Stated otherwise, to determine whether a pleading is sufficient upon a

motion to dismiss, a court looks to the “statement of the claim showing the pleader is entitled to

relief” under Rule 8(a)(2) of the Federal Rules of Civil Procedure, not the “demand for relief

sought” under Rule 8(a)(3). See also Charles v. Front Royal Volunteer Fire & Rescue Dep't, Inc.,

21 F. Supp. 3d 620, 629 (W.D. Va. 2014) (“A court therefore should not dismiss a complaint so

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long as it sets out facts sufficient to support a reasonable inference that the plaintiff is entitled to

any relief the court can grant, even if that relief is not specifically requested.” (Emphasis added)).

Although the Defendants are correct in their assertion that the Plaintiff cannot recover

monetary damages pursuant to Count I, other relief may still be available to the Plaintiff. The fact

that the Plaintiff’s ad damnum clause requests solely monetary damages does not render the

pleadings insufficient. Accordingly, dismissal of Count I, on this ground, is inappropriate.

(2) Count I is Duplicative of Count III

The Defendants argue that “to the extent that Count I is premised upon the Fourth

Amendment [of Constitution of the United States], it is wholly duplicative of Count III,” and

therefore should be dismissed pursuant to Rule 12(b). (Def.’s Memo. at 17.) The Plaintiff

responds by stating that the allegations within Count I are, in fact, distinct but complementary to,

those presented in Count III.5

A motion to dismiss is not the proper means of eliminating duplicative counts. “[T]he

purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests

surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Court’s inquiry focuses on whether the

Plaintiff has pled “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 663. Although the

5 The Plaintiff refused to further clarify this response. Although unclear, it does seem that Count I and Count III

contain at least some overlap, especially regarding violations of the Fourth Amendment. Count I states that “under

42 U.S.C. § 1983 and similar doctrines adopted by the State of West Virginia, Deputy Casto is liable for the damages

inflicted upon Barry Merritt.” (Compl. at ¶ 28) (emphasis added.) Count III states that “[t]he allegations specifically

set forth in Count I above not only state a claim for relief against Deputy Casto under the laws of the State of West

Virginia, but also under § 1983.” (Id. at ¶ 38). Reading the two together, it seems that Count I and Count III both

raise claims under § 1983 for excessive force. Had the Plaintiff’s claim under the West Virginia Constitution been

dismissed, the existing pleadings would make it difficult to conclude that Counts I and III are not “wholly duplicative.”

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Defendants argue that Count I is “wholly duplicative,” they do not argue that Count I alleges

insufficient facts to state a claim for excessive force. Again, dismissal of Count I is

inappropriate.6

B. Count II – Reckless Conduct in Violation of Clearly Established Laws

In Count II, the Plaintiff alleges that JCC is (1) vicariously liable for the actions of Deputy

Casto and (2) liable for its negligence in hiring, retaining, training and supervising Deputy Casto.

As alleged by the Plaintiff, JCC’s failures as an employer included “failing to follow adopted and

implemented policies” and simultaneously “implementing customs . . . demonstrating indifference

to the use of excessive force.” (Compl. at ¶ 32.) The Defendants argue that JCC is not liable

under Count II (1) because of various statutory immunity provisions, namely West Virginia Code

§§ 29-12A-4, 29-12A-5(a)(4) and 29-12A-5(a)(5), and (2) because the Plaintiff has failed to allege

sufficient facts to support such claims.

The Plaintiff agrees that JCC is not liable for the intentional acts of its employees. (Pl.’s

Resp. at 4–5.) As to the claims for negligent hiring, retention, training, and supervision, contained

in Count II, the Plaintiff argues that “Mr. Merritt’s Complaint, when evaluated in its entirety,

asserts sufficient facts to satisfy the notice pleading requirements.” (Id. at 4.) The Plaintiff

continues by arguing that the Complaint adequately states a Monell claim,7 citing previous actions

6 The elimination of duplicative counts is best accomplished via a motion to strike under Rule 12(f). See, e.g.,

Stratton v. Arch Coal, Inc., 2017 WL 2312840, at *3 (S.D. W. Va. May 26, 2017) (Berger, J.); Preziosi v. U.S., 2012

WL 2798771, at *5 (D. Md. July 9, 2012). Federal Rule of Civil Procedure 12(f) states the “court may strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Even then, a

motion to strike “should be denied unless the challenged allegations have no possible relation or logical connection to

the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties

to the action.” 5C Arthur R. Miller, A. Benjamin Spencer, Federal Practice & Procedure § 1382 (3d ed. 2022); see

also Waste Mgt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); U.S. v. Gwinn, 2006 WL 3377636, at

*1 (S.D. W. Va. Nov. 20, 2006) (Johnston, J.); Clark v. Milam, 152 F.R.D. 66, 70 (S.D. W. Va. 1993) (Haden, C.J.).

7 The Court notes that the Defendants moved to dismiss Count II and Count III, seemingly treating Count II as a state

law claim and Count III as a Monell claim. Count II is titled “Reckless Conduct in Violation of Clearly Established

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and complaints for excessive force involving Deputy Casto, the adoption of policies approving use

of force similar to that which caused the Plaintiff’s injuries, and failure to train officers to protect

constitutional rights. The Plaintiff further argues that the negligent hiring, retention, training, and

supervision claims are established because both the prior civilian complaints about Deputy Casto

and the incident with the Plaintiff itself “support the inference that Casto was not being adequately

trained, supervised, or disciplined.” (Id. at 6–7.)

The Defendants reply that the Plaintiff has failed to respond to the specific arguments

raised in their motion to dismiss, namely the arguments that JCC is entitled to immunity under

West Virginia Code §§ 29-12A-1, et seq., and the lack of allegations to support the negligence

claims. (Def.’s Reply at 2.) The Defendants assert that these arguments should be deemed

conceded. However, the Fourth Circuit has a “strong policy that cases be decided on the merits.”

U.S. v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993). Given that a motion to dismiss tests

the legal sufficiency of the complaint and dismissal for failure to respond is within a trial court’s

discretion, this Court refuses to deem the Plaintiff’s failure to respond to the Defendants’ specific

arguments as a concession. See, e.g., Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 408

Laws,” and is brought as to JCC. It contains allegations regarding JCC’s negligent hiring, retention, training, and

supervision of Deputy Casto and its tacit approval of unconstitutional conduct. Count III is entitled “Deprivation of

Rights in Violation of 42 U.S.C. § 1983,” and is alleged against both Defendants. Count III contains allegations

regarding JCC’s customs and policies, as well as its knowledge of a pattern of use of excessive force by officers.

The Plaintiff’s response muddies the waters. The Plaintiff’s argument that “factual allegations of failures and

omission by JCC and its employees . . . meet the . . . requirements for a claim pursuant to Monell” appears to be a

response to the Defendants’ arguments to dismiss Count III, not Count II. (Pl.’s Resp. at 5.) The Plaintiff then goes

on to support his argument for the sufficiency of the Monell claim by citing allegations contained within Count III, as

opposed to Count II. (Id. at 6–7.) What is more, nowhere within the allegations of Count II does the Plaintiff

mention Monell or § 1983. Rather, those allegations are contained in Count III. Therefore, for purpose of the motion

to dismiss, the Court will address Count II as a state law claim for negligent hiring, retention, training, and supervision

and Count III as a Monell claim.

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(4th Cir. 2010). Therefore, the question remains as to whether the Plaintiff has plausibly stated a

claim against JCC for negligent hiring, retention, training, and supervision.

(1) Statutory Immunity under West Virginia Code § 29-12A-1, et seq.

The Defendants first argue, and the Plaintiff concedes, that West Virginia Code § 29-12A-

4 and Zirkle v. Elkins Rd. Pub. Serv. Dist. preclude the Plaintiff from asserting a theory of vicarious

liability against JCC for the alleged intentional actions of Deputy Casto. 655 S.E.2d 155, 160 (W.

Va. 2007). It is apparent from the factual allegations within the Complaint that Deputy Casto

intended the consequences of his actions, and “a mere allegation of negligence does not turn an

intentional tort into negligent conduct.” Weigle v. Pifer, 139 F. Supp. 3d. 760, 780 (S.D. W. Va.

2015) (Copenhaver, J.). Therefore, insofar as Count II alleges the vicarious liability of JCC for

the actions of Deputy Casto, dismissal is appropriate.

Next, JCC argues that it is immune with respect to the claims of Count II based upon West

Virginia Code § 29-12A-5(a)(4), which states “a political subdivision is immune if a loss or claim

results from . . . adoption or failure to adopt a[n] . . . ordinance, resolution, rule, regulation or

written policy.” The Defendants state that the Plaintiff’s claim “directly emanates from an alleged

failure to adopt regulation or written policy.” However, a review of the Plaintiff’s Complaint

reveals that Count II independently rests on allegations that JCC negligently hired, retained,

trained, and supervised Deputy Casto, despite complaints of his previous use and threats of

excessive force. These allegations cannot fairly be characterized as resulting from the failure to

adopt an ordinance, resolution or rule or a failure to adopt regulation or written policy. No

immunity under § 29-12A-5(a)(4) is, therefore, appropriate.

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Further, JCC posits that it has immunity with respect to Count II based upon the “law

enforcement exception” contained in West Virginia Code § 29-12A-5(a)(5). (Def.’s Memo. at 6.)

In applying this provision, the West Virginia Supreme Court of Appeals has given political

subdivisions immunity “if a loss or claim results from the failure to provide [police] protection or

the method of providing [police] protection regardless of whether such loss or claim . . . is caused

by the negligent performance of acts by the political subdivision's employees while acting within

the scope of employment.” Albert v. City of Wheeling, 792 S.E.2d 628, Syl. Pt. 4 (W. Va. 2016).

In effect, the statute immunizes political subdivisions “from the negligent actions of their

employees in providing police protection.” Daniels v. Wayne County, 2020 WL 2543298, at *4

(S.D. W. Va. May 19, 2020) (Chambers, J) (citing Taylor v. Clay Cnty. Sheriff's Dept., 2020 WL

890247, *6 (S.D. W. Va. Feb. 24, 2020) (Johnston, C.J.)) (emphasis added). Again, however,

Count II alleges negligence of JCC, itself, in hiring, retaining, training, and supervising Deputy

Casto, as opposed to its employees’ negligence8 in providing police protection.

The alleged failure to properly hire, train, supervise, and retain Deputy Casto does not fall

within the ambit of the “implementation of a police policy,” and, therefore, the Defendant is not

entitled to immunity under § 29-12A-5(a)(5). This Court has previously held similarly, finding

that § 29-12A-5(a)(5) “does not contemplate immunity where a plaintiff sues based on negligent

hiring and supervision of an employee.” Brown v. Mason County Commn., 2019 WL 6654124,

at *8 n.6 (S.D. W. Va. Dec. 5, 2019) (Chambers, J.) (citing Woods v. Town of Danville, W.V., 712

F. Supp. 2d 502, 514 (S.D. W. Va. 2010) (Goodwin, C.J.).

8 As the Defendants have argued above, the alleged acts of Deputy Casto and others were not negligent, but rather,

intentional actions for which JCC is entitled to immunity under West Virginia Code 29-12A-4. (Def.’s Memo. at 5).

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(2) Failure to Plead Sufficient Facts to State Negligent Hiring, Retention, Training, and

Supervising Claims

The Defendants argue that even if statutory immunity does not apply, “the Plaintiff has not

alleged sufficient facts to plausibly state” claims of negligent hiring, retention, training, and

supervision. (Def.’s Memo. at 8.) The Plaintiff broadly responds that he has sufficiently pled

his claim. The Court will address Mr. Merritt’s negligent hiring and retention claims before

addressing his negligent training and supervision claims.

With respect to the negligent hiring and retention claim, the Defendants state that such a

claim “requires the Plaintiff to show some deficiency in the investigation or foresight of the

employer,” and argue the Plaintiff has failed to do so. (Id. at 9.) To prevail on a negligent hiring

or retention claim, the Plaintiff must establish that the employer failed “to conduct a reasonable

investigation into the employee’s background vis a vis the job . . . and the possible risk of harm.”

State ex rel. W. Virginia State Police v. Taylor, 499 S.E.2d 283, 289 n.7 (W. Va. 1997); see also

McCormick v. W. Virginia Dept. of Pub. Safety, 503 S.E.2d 502, 506 n.5 (W. Va. 1998).

Otherwise stated, the question is: “should the employer have reasonably foreseen the risk caused

by hiring or retaining an unfit person?” Id. An “employer’s duty is heightened when the

prospective employee is a police officer.” Fields v. King, 576 F. Supp. 3d 392, 406 (S.D. W. Va.

2021) (Johnston, C.J.) (citing Woods, 712 F. Supp. 2d at 514).

The Plaintiff has pled sufficient facts to establish a claim of negligent hiring and/or

retention. It is alleged that JCC hired and retained Deputy Casto despite the knowledge that he

had engaged in “dangerous misconduct . . . that involved the unnecessary use of force and

unnecessary threats of lethal force prior to the incident involving Barry Merritt.” (Compl. at ¶

33.) Also, it is alleged that a reasonable supervisor would have known that this misconduct was

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a violation of the constitutional rights of others and, if he was hired/retained, would result in future

such incidents. (Id. at ¶ 34.) Therefore, accepting the allegations as true and drawing all

reasonable inferences in favor of the Plaintiff, he has sufficiently pled that JCC should have

reasonably foreseen the risk of harm caused by hiring or retaining Deputy Casto.

JCC argues that it cannot be liable for negligent retention because a county commission

does not have the statutory authority to terminate employees of other elected officials and cites

Billiter v. Jones and West Virginia Code § 7-7-7(h) in support. (3:19-cv-0288, 2020 WL 5646901,

at *4 (Chambers, J.)) Section 7-7-7(h) states that a “county official named in this section shall

have the authority to discharge any of his or her assistants, deputies or employees by filing with

the clerk of the county commission a discharge statement specifying the discharge action.” W.

Va. Code § 7-7-7(h) (emphasis added). The language of § 7-7-7 does not state that the elected

officials have sole authority to terminate employees. Rather, § 7-7-7 outlines that an elected

official may terminate an employee. Moreover, case law clearly indicates that a “county

commission does, in fact, have the legal right to terminate an employee of an official listed in West

Virginia Code § 7-7-7.” Nichols v. County Commn. of Cabell County, CV 3:18-0266, 2018 WL

4016311, at *7 (S.D. W. Va. Aug. 22, 2018) (Chambers, J.) (citing Burke v. Wetzel County

Commission, 815 S.E.2d 520 (W. Va. 2018)); see also Billiter v. Jones, 3:19-cv-288, 2020 WL

118595, at *2 (S.D. W. Va. Jan. 9, 2020) (Chambers, J.)

The Defendants argue that the Plaintiff has not alleged sufficient facts to indicate that JCC

failed to properly train or supervise Deputy Casto. The Plaintiff responds that the Complaint

contains sufficient factual allegations to support a claim of negligent training and supervision, in

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part, because “prior civilian complaints about Casto support the inference that Casto was not being

adequately trained, supervised, or disciplined.” (Pl.’s Resp. at 6.)

“Under West Virginia law, negligent supervision claims must rest upon a showing that the

employer failed to properly supervise its employees and, as a result, those employees proximately

caused injury to another.” Ferrell v. Santander Consumer USA, Inc., 859 F. Supp. 2d 812, 818

(S.D. W. Va. 2012) (Copenhaver, J.) (citing Taylor v. Cabell Huntington Hosp., Inc., 208 W.Va.

128, 538 S.E.2d 719, 725 (2000)).

The Plaintiff’s negligent training and supervision claims are adequately alleged for the

same reasons that his claims of negligent hiring and retention are adequate. The Complaint states

that JCC was on notice that Deputy Casto had a history of violent conduct, amounting to

unnecessary force and threats of force. It also alleges that, despite this knowledge, JCC failed to

take action to train and supervise Deputy Casto, and this failure resulted in the injury. Such

allegations are adequate to survive a motion to dismiss. See, e.g., Fields v. King, 576 F. Supp. 3d

392, 407 (S.D. W. Va. 2021) (Johnston, C. J.); see also, B.E. v. Mt. Hope High Sch., 2:11-CV-

00679, 2012 WL 3580190, at *7 (S.D. W. Va. Aug. 17, 2012) (Goodwin, C.J.) (actual notice of

similar instances of predatory behavior is sufficient to establish a duty to take reasonable

supervisory action).

The Defendants state that it is “a predicate prerequisite that the supervised employee’s

underlying conduct must also be negligent.” Greene v. Putnam County Commn., 3:21-cv-520,

2022 WL 16857014, at *9 (S.D. W. Va. Nov. 10, 2022) (Chambers, J.). The Defendants argue

that because all the allegations of Deputy Casto’s conduct are intentional acts the negligent

supervision claim cannot stand.

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A court sitting in diversity has “an obligation to interpret the law in accordance with the

[state’s highest court], or where the law is unclear, as it appears that the [state’s highest court]

would rule.” Wells v. Liddy, 186 F.3d 505, 527–28 (4th Cir. 1999). “To forecast a decision of

the state's highest court we can consider, inter alia: canons of construction, restatements of the law,

treatises, recent pronouncements of general rules or policies by the state's highest court, well

considered dicta, and the state's trial court decisions.” Id. at 528. Clearly, the West Virginia

Supreme Court of Appeal’s decisions, related to the Defendants’ argument on the negligent

supervision claim, are ambiguous.

In the case of Taylor v. Cabell Huntington Hosp., Inc., in which the plaintiff alleged a

nurse’s negligence, the West Virginia Supreme Court of Appeals stated that the plaintiff’s

negligent supervision claim against her employer was moot because the jury found the plaintiff

had failed to establish that the employee nurse’s negligence caused the plaintiff’s injury. 538

S.E.2d 719, 725 (W. Va. 2000). There were no allegations that the nurse’s conduct was

intentional and, therefore, no opportunity for the court to discuss an employee’s intentional versus

negligent conduct.

Then, in June 2021, in the case of C.C. v. Harrison County Bd. of Educ., the West Virginia

Supreme Court of Appeals stated that its current position relative to a negligent supervision claim

requires that the supervisee’s wrongful conduct be negligent, and intentional tortious conduct by

a supervisee cannot form the basis of a negligent supervision claim. 859 S.E.2d 762, 774–75 (W.

Va. 2021). The Supreme Court relied, at least in part, on the Taylor decision. This case is the

basis of JCC’s argument that Deputy Casto’s intentional conduct cannot support a negligent

supervision claim.

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In the 2022 case of Jones v. Logan County Board of Education, the court seemingly

distanced itself from C.C., and found that a negligence claim against board of education employee

had been sufficiently pled where allegation was that employee failed to stop bullying of a school

child. 881 S.E.2d 374, 385 (W. Va. 2022) (a principal owed a duty of protection/supervision when

the principal knew a child was exposed “to the high risk of harm posed by the intentional

misconduct of school bullies.”); see also Ayersman v. Wratchford, 874 S.E.2d 756, 771–72 (W.

Va. 2022) (it is a question of fact whether supervisors could use qualified immunity to avoid

liability under a negligent supervision theory when the employee’s conduct allegedly amounted to

malicious prosecution and abuse of process). If the holding in C.C. is strictly followed, it would

constitute a sharp departure from the basic tenets of negligence.9 Accepting that the court

engaged in such a sharp departure without thorough review and an announced syllabus point10

would necessarily require accepting the fall of historical practice and precedent.

A review of Jones, decided after C.C., makes it apparent that the court did not intend for

the holding in C.C. to be binding outside of the facts of that case.11 Thus, this Court finds, in

forecasting a decision of the West Virginia Supreme Court of Appeals, that the Plaintiff has

9 Generally, a duty to protect others from the intentional conduct of third parties arises when “affirmative actions or

omissions unreasonably created or increased the risk of injury.” Est. of Hough ex rel. Lemaster v. Est. of Hough ex

rel. Berkeley Cnty. Sheriff, 519 S.E.2d 640, 647 (1999). Decisions prior to C.C. allowed for supervisory liability

when the supervisee committed an intentional tort. See e.g. Doe v. Logan County Bd. of Educ., 829 S.E.2d 45, 50 (W.

Va. 2019) (holding that a claim for negligent supervision against a school board could survive when the plaintiff

sufficiently alleged that the board had knowledge of a teacher’s grooming but failed to intervene to prevent the

teacher’s sexual harassment of the plaintiff).

10 State v. McKinley, 764 S.E.2d 303, 313 (W. Va. 2014).

11 Limiting C.C. to its facts heeds the warning of Justice Hutchinson in his partial concurrence and dissent, which

advised that “lawyers not rely upon the majority’s legal discussion” regarding negligent supervision. Id. at 783.

Justice Hutchinson offers several explanations as to why a negligent supervision claim can be established by

intentional employee conduct, including that (1) the majority improperly interpreted and weighed dicta in Taylor, 538

S.E.2d 719, (2) the majority focused on the employee’s conduct, when a claim for negligent supervision focuses on

the employer’s negligence, (3) the Restatement (Second) of Agency states that a negligent supervision claim

encompasses intentional tortious behavior by employees, and (4) other courts have carefully outlined that intentional

tortious behavior by employees can establish a claim for negligent supervision.

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sufficiently stated a claim for negligent supervision, as it is alleged that JCC knew of prior

instances of use and threats of excessive force by Deputy Casto and failed to take reasonable

corrective supervisory action, resulting in Deputy Casto violating Mr. Merritt’s right to be free

from excessive force. It is of no consequence that Deputy Casto’s actions were intentionally

tortious.

In summary, the negligent hiring, retention, training, and supervision claims contained in

Count II set forth sufficient factual allegations, if true, to show that the Plaintiff is entitled to relief

and are not precluded by West Virginia Code §§ 29-12A-1, et seq. The Defendants’ motion to

dismiss those claims should be denied.

C. Count III – Deprivation of Rights in Violation of 42 U.S.C. § 1983

The Plaintiff alleges that both Defendants have violated his Fourth Amendment right to be

free from excessive force. Specifically, Deputy Casto was acting under the color of law when he

arrested Mr. Merritt and this violation occurred because of JCC’s “express written or unwritten

customs and policies.” (Compl. at ¶ 40.) JCC, who took no action against Deputy Casto despite

his prior instances of excessive force and threats, “created a custom of acceptance and

encouragement of the use of excessive force.” (Id. at ¶ 43.)

The Defendants argue that the Plaintiff has failed to sufficiently plead that JCC had adopted

an official policy or custom that proximately resulted in Mr. Merritt’s injury, as required by Monell

v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). Mr. Merritt responds that

the prior complaints of excessive force about Deputy Casto amount to liability for JCC’s “failure

to hire, train, supervise, and discipline its employees.” Means v. Peterson, 2:20-cv-561, 2020 WL

6702036, at *7 (S.D. W. Va. Nov. 13, 2020) (Goodwin, J.) (citing Connick v. Thompson, 563 U.S.

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51, 61 (2011); Bd. of the County. Comm'rs v. Brown, 520 U.S. 397, 403–04 (1997)). The

Defendants further argue that the Plaintiff has failed to include sufficient detail about the prior

complaints, and therefore has failed to establish that JCC had a custom that was a proximate cause

of the Plaintiff’s deprivation of rights.

42 U.S.C. § 1983 states, in pertinent part, that “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen

. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable.” Congress intended § 1983 to apply to municipalities. Monell, 436 U.S. at 690.

A municipality is not liable for injuries “inflicted solely by its employees or agents,” but rather,

when the injury is caused by the “execution of a government's policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Id.

at 694.

The Fourth Circuit has stated that there are four ways that a policy or custom can result in

a municipality’s liability:

(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 “manifest[s]

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.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (citing Carter v. Morris, 164 F.3d 215, 218 (4th

Cir.1999)) (structure altered). The Plaintiff argues that the improper supervision and training of

Deputy Casto after JCC received actual knowledge of his propensity for excessive force amounts

to either deliberate indifference or a widespread practice that constitutes a custom. (Pl.’s Resp.

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at 6.) The Fourth Circuit has outlined the three elements for a § 1983 claim under a theory of

failure to supervise or discipline:

(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.

Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (citing Shaw v. Stroud, 13 F.3d 791,

798 (4th Cir. 1994)). Here, the Plaintiff has sufficiently pled specific facts to establish each

element.

As to the first element, a plaintiff can satisfy this element by showing that the conduct “at

least has been used on several different occasions and . . . poses an unreasonable risk of harm of

constitutional injury.” Shaw, 13 F.3d at 799. The Plaintiff has stated that JCC had actual

knowledge of the unreasonable risk of excessive force posed by Deputy Casto due to multiple prior

complaints about Deputy Casto’s use and threats of excessive force. (Compl. ¶ 41.)

Regarding the second element, a plaintiff “may establish deliberate indifference by

demonstrating a supervisor’s continued inaction in the face of documented widespread abuses.”

Shaw, 13 F.3d at 799; see also Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984) (“supervisory

indifference or tacit authorization of subordinates’ misconduct may be a causative factor”). The

Plaintiff not only alleges that JCC’s response was inadequate, but that JCC “took no remedial,

adverse, or other action against Deputy Casto” and that this amounted to “acceptance and

encouragement of the use of excessive force.” (Compl. at ¶ 43) (emphasis added.)

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The third element has been sufficiently pled because the Plaintiff alleges that it was the

natural consequence of this practice of acceptance, in the face of Deputy Casto’s conduct, that led

to Mr. Merritt being subjected to excessive force on January 13, 2021.

The Defendants argue that Mr. Merritt’s failure to outline the specifics of the prior

complaints renders his allegations insufficient and precludes his Monell claim. However, at this

stage, the plaintiff is only required to assert a claim that is “plausible.” Accepting the allegations

in the Complaint as true, the fact that there were prior complaints about Deputy Casto’s use and

threats of excessive force is sufficient. Although his allegations do not currently amount to

proving “deliberate indifference”, his pleading “is sufficient to allow him the opportunity to

attempt to prove his claim under that standard.” Smith v. Popish, 5:17-CV-129, 2017 WL

4401633, at *5 (N.D. W. Va. Oct. 2, 2017) (holding that allegations of prior complaints of

excessive force and the municipalities’ knowledge of those complaints is enough to survive a

motion to dismiss); see also Gaylord v. City of Beckley, No. 5:18-CV-00177, 2018 WL 3581093,

at *4 (S.D. W. Va. July 25, 2018) (Berger, J.); Poe v. Town of Gilbert, W. Va., 2:11-CV-00645,

2012 WL 3853200, at *10 n.3 (S.D. W. Va. Sept. 5, 2012) (Johnston, J.) (holding that it is “barely”

sufficient when the plaintiff alleges a history of excessive force and violence and the municipality

failed to take action despite knowing of this relevant misconduct).

Although the allegations contained in Count III seemingly focus on a failure to supervise,

the Plaintiff also has sufficiently pled a failure to train. To establish municipal liability for failure

to train, a plaintiff must show that the municipality’s failure to train amounted to deliberate

indifference. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). It is only when, “in light

of the duties assigned to specific officers or employees, the need for more or different training is

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so obvious, and the inadequacy so likely to result in the violation of constitutional rights, can a

municipality reasonably be said to have been deliberately indifferent to that need.” Jordan by

Jordan v. Jackson, 15 F.3d 333, 341 (4th Cir. 1994) (citing City of Canton, 489 U.S. at 390).

The Plaintiff’s failure to train claim survives for the same reason his failure to supervise

claim survives. By pleading that Deputy Casto had a history of prior use and threats of excessive

force and JCC knew of this history and failed to take any action in response, the Plaintiff has

plausibly pled his Monell claim under a theory of failure to train. For the reasons stated above,

dismissal of Count III is inappropriate at this stage of the litigation.

D. Count IV – State Law Claims for Outrage

The Plaintiff alleges that Deputy Casto’s conduct amounted to “gratuitous acts of violence

and were in no way justified.” (Compl. at ¶ 48.) Moreover, it is alleged that Deputy Casto’s

conduct during the arrest was intentional and outrageous, going beyond “all bounds of decency.”

(Id. at ¶ 51.) As a result, the Plaintiff states he has suffered mental anguish, emotional distress,

and physical pain. (Id. at ¶ 52.) Mr. Merritt alleges that Deputy Casto is liable for his conduct,

and that JCC is liable under a theory of vicarious liability.

JCC argues that it enjoys statutory immunity for its employees’ intentional torts, pursuant

to Zirkle v. Elkins Rd. Pub. Serv. Dist., 655 S.E.2d 155, 160 (W. Va. 2007). In response, the

Plaintiff agrees that “Count IV should only pertain to Deputy Casto.” (Pl.’s Resp. at 4.) Count

IV will be dismissed as to JCC.

E. Count V –Punitive Damages

The Complaint repeatedly requests punitive damages. Punitive damages are requested as

relief from both Defendants as to the conduct alleged in Counts III and IV. (Compl. at ¶¶ 45, 53.)

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Count V is solely a claim for punitive damages against Deputy Casto. The ad damnum clause

broadly requests punitive damages. JCC argues that an award of punitive damages against JCC

is precluded by West Virginia Code § 29-12A-7(a). The Plaintiff agrees that punitive damages

cannot be recovered against JCC. (Pl.’s Resp. at 4.) Therefore, insofar as the Complaint asserts

a claim for punitive damages against JCC, it will be dismissed.

The Defendants continue to argue that “West Virginia does not recognize a separate cause

of action for punitive damages.” Davis v. Milton Police Dept., 3:20-cv-36, 2020 WL 2341238, at

*8 (S.D. W. Va. May 11, 2020) (Chambers, J.) (citing S.F. v. Higginbotham, 2:18-cv-94, 2019

WL 286746, at *3 (N.D. W. Va. Jan. 22, 2019). Although the Defendants are correct that Count

V seeks a form of relief rather than stating an independent cause of action, that does not require its

dismissal. The Court has found that underlying causes of action alleged in other counts are not

subject to dismissal, and so the form of relief sought in Count V may likewise proceed. Of course,

the Plaintiff would be unable to obtain the relief sought without proving the underlying legal claims

and the type of conduct necessary to garner punitive damages.

CONCLUSION

Wherefore, after thorough review and careful consideration, the Court ORDERS that the

Defendants’ Partial Motion to Dismiss (Document 7) be GRANTED in part, insofar as it

dismisses (1) a claim for vicarious liability under Count II, (2) any claim contained in Count IV

against Jackson County Commission, and (3) any punitive damages relief against Jackson County

Commission, and otherwise be DENIED.

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

any unrepresented party.

ENTER: = March 21, 2023

IRENE C. G

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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