Fields v. U.S. Marshals Service

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

MELISSA FIELDS, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:22-cv-00426

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant’s Motion to Dismiss pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 10.) For the reasons discussed

below, the motion is GRANTED.

I. BACKGROUND

Deputy Michael King (“Deputy King”) is a Deputy Sheriff from Roane County, West

Virginia, who also served as a Special Deputy on the C.U.F.F.E.D. Task Force of the United States

Marshals Service (“USMS”). (ECF No. 4 at 3, ¶ 11; ECF No. 10 at 2, ¶ 5.) As this Court has

previously recognized, Deputy King is no stranger to civil rights actions in both state and federal

courts for negligence, excessive force, and a host of other claims. Fields v. King, 576 F. Supp. 3d

392, 398 (S.D. W. Va. 2021). This particular civil action arises from the shooting death of

Michael Nichols (“Nichols”) during an encounter with Deputy King on October 22, 2020. (ECF

No. 1.)

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In fact, this is the second civil action Plaintiff Melissa Fields—as the personal

representative of the Estate of the Decedent—has filed regarding Nichols’s death. In Fields v.

King, Plaintiff asserted the following factual allegations:

On October 22, 2020, the Decedent was alone at his home in rural Roane County,

West Virginia, where he resided by himself. The Decedent’s closest neighbors,

Jimmy and Selena Parsons, lived approximately 200 yards away from his home.

Mrs. Parsons called Deputy King on his cell phone while he was off duty about the

Decedent during the day of October 22, 2020. The Parsons did not call 911 or the

Sheriff’s office to report any issues regarding the Decedent or otherwise, and

instead spoke only privately with Deputy King on his cell phone.

Although Deputy King subsequently called the 911 center, Plaintiff alleges he did

not provide the center with sufficient information about Mrs. Parsons’

communication. The 911 center was not given detail regarding the nature of Mrs.

Parsons’ call regarding the Decedent, Deputy King’s plans to respond to the

situation, or any other information sufficient to inform the 911 center’s workers as

to the situation. Instead, Deputy King only asked if certain other officers were on

duty, and—when told that those officers were not available—responded to the

Decedent’s residence alone by himself. Deputy King then proceeded to the

Decedent’s residence without formally marking-up on-duty and without obtaining

a warrant. Upon information and belief, Deputy King was not dressed in his

uniform and was not wearing a body camera.

As Deputy King arrived, the Decedent—a slight, older man who was unarmed and

did not own any firearms—was standing on his well-lit front porch. Plaintiff alleges

that a large streetlight directly overhead would have made it easy for Deputy King

to see that the Decedent presented no imposing threat, and certainly would not have

been a threat to an armed deputy of Deputy King’s physical stature. The Complaint

does not allege what events transpired between the moment Deputy King arrived at

the Decedent's residence and the moment the Decedent was killed. Nevertheless,

Deputy King shot the decedent three times—once in the chest, once at a downward

angle through his side into his pelvis, and once by placing his gun barrel against the

Decedent's cheek and shooting him through the face downward into his chest

cavity.

576 F.Supp.3d at 397.

Plaintiff initially filed suit against Deputy King, Roane County Sheriff L. Todd Cole

(“Sheriff Cole”), and the Roane County Commission on February 4, 2021. Id. She asserted

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claims against the Roane County Commission for (1) vicarious liability for Deputy King’s actions,

and (2) negligent training, supervision, investigation, discipline, and retention of Deputy King.

Fields v. King, 2:21-cv-00090 (ECF No. 1 at 16–18, ¶¶ 75, 79, 80). The parties eventually reached

a settlement, id. (ECF Nos. 92, 99), and Plaintiff voluntarily dismissed the case, id. (ECF No. 101).

Despite initially arguing that Deputy King was acting as a sheriff’s deputy under the Roane

County Commission, Plaintiff has since changed course and is now asserting that Deputy King

was acting as a Special Deputy of the USMS at the time of Nichols’s shooting.

On September 30, 2022, Plaintiff filed her Complaint in the present action, (ECF No. 1),

and on October 20, 2022, Plaintiff filed a First Amended Complaint alleging various claims under

the Federal Tort Claims Act (“FTCA”) against the United States of America, (ECF No. 4). While

the bulk of the factual allegations involving Nichols’s shooting are identical to Plaintiff’s previous

lawsuit, Plaintiff now claims that Deputy King was working “full-time” for the USMS, went to

Nichols’s residence “in his USMS truck,” and was “wearing a vest and other gear provided by

USMS.” (Id. at 3–4, ¶¶ 11, 15.) Based on these facts, Plaintiff asserts two familiar claims against

the United States under the FTCA: (1) vicarious liability for Deputy King’s negligence, (2) direct

liability for negligent training, supervision, investigation, discipline, and retention of Deputy

King.1 (Id. at 15–18.)

On December 30, 2022, Defendant filed the pending motion to dismiss. (ECF No. 10.)

Plaintiff filed a response, (ECF No. 13), and Defendant filed a reply, (ECF No. 16). As such, this

motion is fully briefed and ripe for adjudication.

1 The Court has warned Plaintiff’s counsel multiple times that this “shotgun approach” with respect to the causes of

action alleged in Count II of the Amended Complaint violate Federal Rules of Civil Procedure 8(d)(1) and 10. See,

e.g., King, 576 F. Supp. 3d at 400 n.2. The Court will, for the last time, warn Plaintiff’s counsel that “[f]uture

pleadings and individual counts in such condition [will] be stricken by this Court.” Id.

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II. LEGAL STANDARDS

A. Rule 12(b)(1)

It is axiomatic that a court must find it has jurisdiction before determining the validity of

any claims brought before it. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A

motion to dismiss an action under Rule 12(b)(1) raises the question of the federal court’s subject

matter jurisdiction over the action. “The burden of showing the existence of subject matter

jurisdiction rests on the plaintiff.” Adkins v. United States, 923 F. Supp. 2d 853, 857 (S.D. W.

Va. 2013) (citation omitted). “If the plaintiff fails to meet this burden, then the claim must be

dismissed.” Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005) (citing Medina v. United

States, 259 F.3d 220, 223 (4th Cir. 2001)).

“Challenges to jurisdiction under Rule 12(b)(1) may be raised in two distinct ways: ‘facial

attacks’ and ‘factual attacks.’” Adkins v. United States, 923 F. Supp. 2d 853, 856 (S.D. W. Va.

2013) (quoting Thigpen v. United States, 800 F.2d 393, 401 n. 15 (4th Cir. 1986)). A “facial

challenge” claims that the facts in the complaint are simply insufficient to establish subject matter

jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citing Adams v. Bain, 697

F.2d 1213, 1219 (4th Cir.1982)). In such a case, “the plaintiff, in effect, is afforded the same

procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. (quoting

Adams, 697 F.2d at 1219). Thus, “the facts in the complaint are taken as true, and the motion

must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id.

If, on the other hand, the defendant makes a factual challenge and asserts the plaintiff’s

jurisdictional allegations are simply untrue, the plaintiff's allegations are given less procedural

protection. Id. (citation omitted). In those cases, the court ordinarily does not apply the

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presumption of truthfulness, and the court may “decide disputed issues of fact with respect to

subject matter jurisdiction.” Id. In doing so, the “court may then go beyond the allegations of

the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional

allegations, without converting the motion to a summary judgment proceeding.” Id. (internal

quotation marks and citation omitted; italics in original).

Yet, a third situation exists when facial and factual challenges are indivisible because “the

jurisdictional facts are intertwined with the facts central to the merits of the dispute.” Id. at 193

(internal quotation marks and citations omitted). In those instances, a court should presume the

truthfulness of the allegations. Id. Additionally, the court should provide “the plaintiff the

procedural safeguards—such as discovery—that would apply were the plaintiff facing a direct

attack on the merits.” Id.

In summary, the Fourth Circuit held that for facial challenges “the trial court must apply a

standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged.” Id. For

factual challenges, “the trial court may go beyond the complaint, conduct evidentiary proceedings,

and resolve the disputed jurisdictional facts.” Id. For inextricably intertwined challenges, “the

court should resolve the relevant factual disputes only after appropriate discovery, unless the

jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous.” Id.

(citation omitted).

B. Rule 12(b)(6)

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

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

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

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

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

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

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

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

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

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

defendant is liable for the misconduct alleged.” Id. Well-pleaded factual allegations are

required; labels, conclusions, and a “formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555; see also King v. Rubenstein, 825 F.3d 206, 214 (4th Cir.

2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth’ and are insufficient to

state a claim.” (quoting Iqbal, 556 U.S. at 679)). A plaintiff’s “[f]actual allegations must be

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

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

III. DISCUSSION

In the pending motion, Defendant simultaneously argues that Plaintiff’s claims must be

dismissed under both Rule 12(b)(1) and Rule 12(b)(6) for a multitude of reasons. (ECF No. 10.)

Plaintiff disputes all Defendant’s arguments. (ECF No. 13.) The Court will address Defendant’s

Rule 12(b)(1) arguments before considering its Rule 12(b)(6) arguments.

A. Rule 12(b)(1)

The FTCA waives the United States’ sovereign immunity and allows suits against the

federal sovereign for personal injuries caused by government employees acting within the scope

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of their employment. See 28 U.S.C. § 1346(b), § 2671 et seq. In the pending motion, Defendant

argues that the Court lacks subject matter jurisdiction because Deputy King was not acting in his

capacity as a Special Deputy of the USMS at the time of the shooting of Nichols. (ECF No. 11.)

Defendant alternatively argues that the Court lacks subject matter jurisdiction even if Deputy King

was acting as a Special Deputy of the USMS at the time of the shooting because the discretionary

function exception (“DFE”) to the FTCA applies. (Id. at 13–20.) Each theory is addressed in

turn.

1. Federal Employee Acting within the Scope of his Employment

An “employee of the Government” includes “persons acting on behalf of a federal agency

in an official capacity, temporarily or permanently in the service of the United States, whether with

or without compensation.” 28 U.S.C. § 2671. A federal agency for FTCA purposes is defined

as “the executive departments, the military departments, independent establishments of the United

States, and corporations primarily acting as instrumentalities or agencies of the United States, but

does not include any contractor with the United States.” Id. The question of whether an actor is

an “employee” of the United States is determined by federal law. Williams v. United States, 50

F.3d 299, 305 (4th Cir. 1995) (citing Logue v. United States, 412 U.S. 521, 528 (1973)).

Conversely, whether an employee is “acting within the scope of his office or employment” is a

question of state law. Ross v. Bryan, 309 F.3d 830, 833 (4th Cir. 2002).

Here, Defendant argues that, under the terms of Deputy King’s appointment, he was not

acting in his official capacity as a Special Deputy of the USMS at the time of the shooting and,

thus, was not within the definition of “employee” under the FTCA. (ECF No. 11 at 8–9.)

Defendant attached over five-hundred pages of exhibits to its memorandum in support, which

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purport to define the scope of Deputy King’s employment as a Special Deputy of the USMS. (See

ECF Nos. 10-1 to 10-4.) Defendant describes its argument as a “factual challenge” and claims

that the Court can properly consider these exhibits under Rule 12(b)(1). (ECF No. 16 at 1–3.)

However, whether Deputy King was an employee of the United States at the time of

Nichols’s shooting is also intertwined with “the facts central to the merits of the dispute.”2 Kerns,

585 F.3d at 193. As such, the “facial and factual challenges are indivisible,” and Plaintiff’s

jurisdictional allegations are presumed truthful. See id. Therefore, the Court will not consider

Defendant’s exhibits, and Defendant’s argument fails.3 See id.

2. Discretionary Function Exception

The DFE “marks the boundary between Congress’ willingness to impose tort liability upon

the United States and its desire to protect certain governmental activities from exposure to suit by

private individuals.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988)

2 State law applies to the analysis of a tort claim under the FTCA. 28 U.S.C. § 1346(b)(1). Under West Virginia

law, “[i]t is always incumbent upon one who asserts vicarious respondeat superior liability to make a prima facie

showing of the existence of the relation of master and servant or principal and agent or employer and employee.”

Sanders v. Georgia–Pacific Corp., 225 S.E.2d 218, 222 (W. Va. 1976) (emphasis added). To state a claim for

negligent supervision or training under West Virginia law, “a plaintiff must show that an employer failed to properly

supervise an employee and, as a result, the employee proximately caused injury to the plaintiff.” Lester v. City of

Gilbert, 85 F. Supp. 3d 851, 865 (S.D. W. Va. 2015) (emphasis added). And the West Virginia Supreme Court of

Appeals applies the following test for a claim based on negligent hiring under West Virginia law:

[W]hen the employee was hired or retained, did the employer conduct a reasonable investigation

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

risk of harm or injury to co-workers or third parties that could result from the conduct of an unfit

employee? Should the employer have reasonably foreseen the risk caused by hiring or retaining an

unfit person?

McCormick v. W. Va. Dep't of Pub. Safety, 503 S.E. 2d 502, 506 (W. Va. 1998) (internal citations omitted) (emphasis

added). Thus, Plaintiff’s claims involve Deputy King’s status as an employee of the United States.

3 Defendant also argues that Plaintiff is collaterally estopped from claiming that King was acting in his official

capacity as a special deputy of the USMS. (ECF No. 11 at 10–13 (citing Fields v. King, 2:21-cv-00090 (ECF No.

78).) The Court will consider this argument below, as collateral estoppel is an affirmative defense and is treated as a

basis for dismissal under Rule 12(b)(6). See Davani v. Virginia Dept. of Tans., 434 F.3d 712, 720 (4th Cir. 2006)

(res judicata or claim preclusion challenge is to be considered pursuant to Rule 12(b)(6)).

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(internal quotations and citations omitted). The exception “assure[s] protection for the

Government against tort liability for errors in administration or in the exercise of discretionary

functions.” Dalehite v. United States, 346 U.S. 15, 26–27 (1953) (citation omitted). Under the

DFE, the waiver of sovereign immunity does not apply to:

Any claim based upon an act or omission of an employee of the Government,

exercising due care, in the execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not the discretion involved

be abused.

28 U.S.C. § 2680(a). The Supreme Court has established a two-step analysis to ascertain whether

the DFE applies in any given case. See United States v. Gaubert, 499 U.S. 315, 322 (1991).

First, courts consider whether the conduct at issue “involves an element of judgment or

choice.” Rich v. United States, 811 F.3d 140, 144 (4th Cir. 2015). Conduct involves an element

of judgment or choice unless a “federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow.” Berkovitz, 486 U.S. at 536 (emphasis added); see

also Pornomo v. United States, 814 F.3d 681, 691 (4th Cir. 2016) (explaining that the source of

the directive must either expressly prescribe or proscribe “a particular course of action” in order

to eliminate an agency’s discretion for the purposes of the discretionary function exception). For

example, an absence of discretion cannot be demonstrated by either a document that sets forth

recommended actions or improvements, Indem. Ins. Co. of N. Am. v. United States, 569 F.3d 175,

180–81 (4th Cir. 2009), or a regulation that, although requiring adherence to a general standard,

fails to dictate a course of action for achieving that standard, see Rich, 811 F.3d at 145 (explaining

that nothing in the relevant regulation “requires that any specific action be taken by the various

prison officials”).

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Second, courts consider whether the conduct at issue “involve[d] the permissible exercise

of policy judgment.” Berkovitz, 486 U.S. at 537. This inquiry focuses “not on the agent’s

subjective intent . . . but on the nature of the actions taken and on whether they are susceptible to

policy analysis.” United States v. Gaubert, 499 U.S. 315, 325 (1991). “When established

governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows

a government agent to exercise discretion, it must be presumed that the agent’s acts are grounded

in policy when exercising that discretion.” Id. at 324. If the challenged actions or omissions

satisfy those two steps, the government’s conduct is considered “discretionary within the meaning

of the exception,” and courts lack jurisdiction “whether or not the discretion involved be abused.”

Pornomo, 814 F.3d at 687 (quoting 28 U.S.C. § 2680(a)).

Under this framework, “[p]laintiffs bear the burden of proving that the discretionary

function exemption does not apply.” Indemnity Ins. Co. of North America, 569 F.3d at 180. “If

the plaintiff fails to meet this burden, then the claim must be dismissed.” Welch v. United States,

409 F.3d 646, 651 (4th Cir. 2005). Additionally, the FTCA is strictly construed with ambiguities

resolved in favor of the United States. See United States v. Nordic Village, Inc., 503 U.S. 30-34

(1992); see also Bulger v. Hurwitz, 62 F.4th 127, 142 (4th Cir. 2023) (“[W]aivers of sovereign

immunity must be strictly construed.”).

Here, Defendant argues that the United States’ decisions regarding employing, training,

supervising, investigating, and disciplining Deputy King as a Special Deputy of the USMS falls

within the discretionary function exception. (ECF No. 11 at 18–20.) For the first prong,

Defendant asserts that there are no mandatory statutes, regulations, or policies that apply to the

way in which USMS hires, supervises, retains, or terminates special deputies of the USMS. (Id.

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at 19.) For the second prong, Defendant states that “the way in which the USMS retains,

supervises, manages, disciplines, investigates, and trains its special deputies requires the

consideration of many challenging factors, including available resources, agency objectives, and

public policy.”4 (Id.)

On the other hand, Plaintiff contends that the first prong is not satisfied. (ECF No. 13 at

15–17.) Plaintiff argues that the USMS violated the policy5 that applicants for Special Deputy of

the USMS “should not be under internal investigation by their employer.” (Id. at 16 (quoting

ECF No. 10-1 at 11).) If there is an investigation, policy states that “a written explanation

regarding the circumstances of the investigation and what caused it should be sent to [the USMS]

along with the application.” (Id. (same).) However, as Defendant notes, (ECF No. 16 at 10), the

use of the term “should” is advisory rather than mandatory and does not indicate a mandatory

policy under the DFE analysis, Fortney v. United States, 714 F.Supp. 207, 208 (W.D. Va. 2007),

aff’d, 912 F.2d 722 (4th Cir. 1990); see also Indem. Ins. Co., 569 F.3d at 181 (holding that the

DFE applied where the procedures in a Marine Safety Manual were “only recommended,” not

“mandatory”).

Plaintiff also questions Defendant’s assertion that “[t]he USMS does not investigate or

discipline Special Deputies.” (Id. at 17 (quoting ECF No. 11 at 6).) Plaintiff is tilting at

windmills here and even confesses that she “does not know whether there are such written policies

4 Defendant also argues that the Fourth Circuit has made it clear that decisions regarding the selection, retention,

supervision, management, training, discipline, and investigation involve discretionary conduct and decisions which

are protected under the DFE to the FTCA, even when the discretion is exercised allegedly in a negligent manner.

(ECF No. 16 at 9–10 (collecting cases).) However, quite the opposite is true, as the Fourth Circuit has explicitly

rejected this argument and held that “the discretionary function exception does not categorically bar negligent hiring,

supervision, and retention claims.” Lins v. United States, 847 F. App’x 159, 165 (4th Cir. 2021).

5 Plaintiff also argues that King violated several policies. (ECF No. 13 at 15–16.) However, Defendant did not

argue that the DFE applies to Plaintiff’s vicarious liability claim. (See ECF Nos. 11, 16.)

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regarding investigations or prospective or current Special Deputies.” (Id. n.6.) Still, she claims

that she is “entitled to discovery to investigate the full panoply of USMS policies—both written

and unwritten—as well as other evidence with which to prove her claims.” (Id. at 17.) The Court

disagrees.

Whatever issue Plaintiff may have with this alleged policy is immaterial. If such a policy

does not exist, then Defendant’s discretionary decision not to investigate or discipline Deputy King

is protected by the DFE. Plaintiff’s only potential argument would be that a policy regarding the

investigation and discipline of Special Deputies existed. Yet, despite the fact that Plaintiff bears

the burden of proving that the DFE does not apply, she cites no mandatory statute, regulation, or

governmental policy regarding investigations on prospective or current Special Deputies.

Further, Plaintiff is not entitled to discovery to investigate “the full panoply of USMS

policies,” because the merits of Plaintiff’s FTCA claims do not involve a USMS policy. Cf.

Kerns, 585 F.3d at 193. Permitting Plaintiff to obtain discovery because she “surmise[s], without

basis, the existence of some unspecified mandatory policy or procedure that might have an

unexplained bearing on the case . . . would undermine the discretionary function exception and

introduce the very litigation pressures that Congress meant to avoid when it developed the

exception.” Bulger v. Hurwitz, 62 F.4th 127, 145 (4th Cir. 2023) (internal quotation marks and

citations omitted); see also Hager v. United States, 2020 WL 2544421 (S.D. W. Va. May 19, 2020)

(“[A] party is not entitled . . . to go on a fishing expedition to find a basis for subject matter

jurisdiction.” (internal quotation marks and citations omitted).) Instead, because Plaintiff cannot

meet her burden, “the claim must be dismissed.” Welch, 409 F.3d at 651.

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Accordingly, Defendant’s Motion to Dismiss under Rule 12(b)(1) is GRANTED as to

Plaintiff’s copious theories of negligence under Count Two.

B. Rule 12(b)(6)

The FTCA enables plaintiffs to recover monetary awards from the United States for injury,

property loss, or death “caused by the negligent or wrongful act or omission of any employee of

the Government while acting within the scope . . . of employment.” 28 U.S.C. § 1346(b). Here,

Defendant argues that Plaintiff is collaterally estopped from claiming that Deputy King was acting

in his official capacity as a Special Deputy of the USMS at the time of the shooting because this

Court previously held that Deputy King was acting in his official capacity as a deputy sheriff with

the Roane County Commission at the time. (ECF No. 11 at 10–13 (citing Fields v. King, 2:21-

cv-00090 (ECF No. 78).) More precisely, in Fields v. King, Plaintiff conceded her state-law

claims against Deputy King and Sheriff Cole on the basis that they acted outside the scope of their

employment or official responsibilities with the Roane County Commission. 576 F. Supp.3d at

408. Thus, Defendant argues that, because Plaintiff should be estopped from arguing that Deputy

King was acting as a Special Deputy of the USMS at the time of Nichols’s shooting, she cannot

state a claim under the FTCA. (ECF No. 11 at 10–13.)

“Collateral estoppel forecloses the relitigation of issues of fact or law that are identical to

issues which have been actually determined and necessarily decided in prior litigation in which

the party against whom issue preclusion is asserted had a full and fair opportunity to litigate.”

Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir. 1998) (quoting Ramsay v. INS,

14 F.3d 206, 210 (4th Cir. 1994)). The proponent of collateral estoppel must establish the

following five elements:

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(1) the issue sought to be precluded is identical to one previously litigated; (2) the

issue must have been actually determined in the prior proceeding; (3) determination

of the issue must have been a critical part of the decision in the prior proceeding;

(4) the prior judgment must be final and valid; and (5) the party against whom

estoppel is asserted must have had a full and fair opportunity to litigate the issue in

the previous forum.

Id.; see also Collins v. Pond Creek Mining Co., 468 F.3d 213 (4th Cir. 2003).

In this case, Plaintiff seems to argue that the first, second, third, and fifth elements are not

met. (ECF No. 13 at 14–15.) Some of Plaintiff’s arguments are overlapping and have been

consolidated for clarity. Each is discussed in turn.

1. An identical issue

For the first element, Plaintiff asserts that Defendant’s argument “ignores the dual role that

task force officers have as state employees deputized by, and to work, for the federal government.”

(ECF No. 13 at 14.) As such, Plaintiff argues that, “because deputy sheriff status and deputy

marshal status are not mutually exclusive, the issue here is not ‘identical’ to the prior issue.” (Id.

at 15.) Alternatively, Plaintiff contends that she is entitled to plead arguments in the alternative,

which is “precisely what was occurring in the prior . . . litigation, as compared with the allegations

against the United States here.” (Id. at 14 (citing Fed. R. Civ. P. 8(d)(2).) The Court disagrees

with both of Plaintiff’s arguments.

To start, deputy sheriff status and deputy marshal status are mutually exclusive. After all,

“[d]uring the period of assignment,” a local government employee who is assigned to a federal

agency, like the USMS, “is deemed an employee of the agency for the purpose of . . . the Federal

Tort Claims Act and any other Federal tort liability statute.” 5 U.S.C. § 3374(c)(2). As such,

numerous courts have held that where a local law enforcement official has been deputized as a

federal officer, he is either a federal actor or a state actor on a particular occasion in question.

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Deavers v. Martin, No. 2:21-CV-00423, 2022 WL 4348474, at *5 (S.D. W. Va. Sept. 19, 2022)

(collecting cases). Thus, at the time of Nichols’s shooting, Deputy King was acting either as a

state or federal actor, but not both. See id.

Further, plaintiffs are entitled to set forth alternative arguments “in a single count or

defense or in separate ones.” Fed. R. Civ. P. 8(d)(2); see also Fed. R. Civ. P. 8(d)(3) (“A party

may state as many separate claims or defenses as it has, regardless of consistency.”) However, it

should go without saying that a plaintiff’s ability to offer alternative arguments is limited to a

single lawsuit—not separate lawsuits. For example, in the previous litigation, Plaintiff could have

also named the USMS as a defendant and raised alterative claims of liability based on Deputy

King’s status as either a federal or state actor. Yet, Plaintiff cannot now twist the Federal Rules

of Civil Procedure to provide an end-around for collateral estoppel.

2. Actually determined and critical to the prior decision

Plaintiff then claims that the Court’s prior ruling was not “actually determined” because it

was based on the sufficiency of allegations at the pleadings stage as opposed to on the substantive

merits of the case. (ECF No. 13 at 14.) Plaintiff also asserts that, because the Court’s order

granting the motion to dismiss “was procedural and not a substantive one on the factual merits,

Deputy King’s role was not a ‘critical and necessary part of the decision.’” (Id. at 15.) Plaintiff

is mistaken.

First, Plaintiff has yet again misunderstood the Federal Rules of Civil Procedure. “Unless

the court in its order for dismissal otherwise specifies,” any dismissal under Rule 41(b) “[f]or

failure of the plaintiff to prosecute or to comply with these rules or any order of the court,” and (2)

“any dismissal not provided for in [Rule 41], other than a dismissal for lack of jurisdiction, for

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improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the

merits.” Fed. R. Civ. P. 41(b) (emphasis added). A Rule 12(b)(6) dismissal is not provided for

in Rule 41(b) and is not based on lack of jurisdiction, improper venue, or failure to join a party.

Thus, the Court’s previous dismissal in Fields v. King under Rule 12(b)(6) for failure to state a

claim indeed operates as an adjudication upon the merits. See Andrews v. Daw, 201 F.3d 521,

525 n.2 (4th Cir. 2000) (stating that under Rule 41(b) a dismissal under Rule 12(b)(6) is a final

judgment on the merits for purposes of res judicata).

Second, Deputy King’s role was a critical and necessary part of the decision to dismiss part

of Plaintiff’s state law claims against Sheriff Cole and Deputy King. The Court noted that under

the West Virginia Torts Claims Act (“WVTCA”), employees of political subdivisions are immune

from liability except in three instances, including when “[h]is or her acts or omissions were

manifestly outside the scope of employment or official responsibilities.” King, 576 F.Supp.3d at

408 (quoting W. Va. Code § 29-12A-5(b)). The defendants in that case contended that Plaintiff

“made no attempt to allege that Deputy King or Sheriff Cole acted outside the scope of their

employment or official responsibilities” with the Roane County Commission. Id. Plaintiff did

not respond to that argument and thus “conceded her state-law claims against Deputy King and

Sheriff Cole on the basis that they acted outside the scope of their employment or official

responsibilities.” Id. Consequently, the Court dismissed Plaintiff’s claims under the WVTCA

against Sheriff Cole and Deputy King on the basis that “Deputy King’s and Sheriff Cole’s actions

or omissions were done outside the scope of their employment.” Id. at 409.

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Thus, Deputy King’s role within the scope of his employment with the Roane County

Commission was the entire basis of the Court’s decision to dismiss certain WVTCA claims under

Rule 12(b)(6), which is an adjudication on the merits.

3. Full and fair opportunity to litigate

Lastly, Plaintiff argues that, because the Court’s order granting Deputy King’s motion to

dismiss came before substantive discovery, Plaintiff did not have a “full and fair opportunity to

litigate the issue.” (ECF No. 13 at 15.) Plaintiff also emphasizes that she did not know that

Deputy King was a Special Deputy of the USMS until after the previous complaint was filed.

(See id. at 14–15.) These are not persuasive arguments given the procedural history.

For parties to have a full and fair opportunity to litigate, they must “have a fair opportunity

procedurally, substantively and evidentially to pursue [their] claim the first time.” Blonder-

Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333 (1971) (quotation omitted).

Importantly, the party must have had the opportunity to litigate; it does not matter if it chose not

to so litigate. See Sartin v. Macik, 535 F.3d 284, 290 (4th Cir. 2008); see also Parklane Hosiery

Co., Inc. v. Shore, 439 U.S. 322, 332-33 (1979).

Plaintiff undoubtedly had the opportunity to assert a claim against Deputy King for his

actions taken outside the scope of his employment with the Roane County Commission. In

Plaintiff’s previous complaint, Count Two specifically sought to hold Deputy King liable under

the WVTCA “[t]o the extent [his] actions or omissions are deemed to have been outside the scope

of his employment.” King v. Fields, 2:21-cv-00090 (ECF No. 1 at 20, ¶ 87). However, as

discussed above, Plaintiff abandoned this claim when the defendants challenged it. The fact that

Plaintiff alleges that she did not know that Deputy King was a Special Deputy of the USMS until

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after the previous complaint was filed is inconsequential because she could have maintained a

claim on the theory that Deputy King was acting outside the scope of his employment with the

Roane County Commission. Thus, Plaintiff had the opportunity—but chose not to—litigate the

issue. See Sartin, 535 F.3d at 290.

Therefore, Plaintiff is collaterally estopped from claiming that Deputy King was acting as

a Special Deputy of the USMS at the time of Nichols’s shooting. Consequently, because Plaintiff

cannot assert that Nichols’s death was “caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope . . . of employment,” 28 U.S.C. §

1346(b), she has failed to state a claim under the FTCA. Accordingly, Defendant’s Motion to

Dismiss under Rule 12(b)(6) is GRANTED as to Plaintiff's FTCA claim under Count One.

IV. CONCLUSION

For these reasons, Defendant’s Motion to Dismiss, (ECF No. 10), is GRANTED. No

claims remain. Accordingly, it is ORDERED that this civil action is DISMISSED and retired

from the docket of this Court. The Court DIRECTS the Clerk to remove this matter from the

Court’s docket.

IT IS SO ORDERED.

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

unrepresented party.

ENTER: May 16, 2023

ie

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