Manriquez v. Kanawha County Sheriffs

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

SAMUEL MANRIQUEZ,

Plaintiff,

v. Case No. 2:22-cv-00406

KANAWHA COUNTY SHERIFF’S DEPARTMENT, ,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are a Motion to Dismiss Borchers and Martin and

Substitute the United States of America as Defendant with respect to claims brought

under the Federal Tort Claims Act (“FTCA”) [ECF No. 41]; a Motion to Dismiss and/or

for Summary Judgment filed by Borchers and Martin [ECF No. 43]; and Plaintiff’s

Motion to Dismiss Borchers and Martin [ECF No. 47]. By Standing Order, this

matter is referred to the Honorable Dwane L. Tinsley, United States Magistrate

Judge for submission of proposed findings and a recommendation for disposition,

pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons appearing to the Court, it is hereby

ORDERED that the referral of these pending motions to the Magistrate Judge is

WITHDRAWN, and the undersigned will proceed to rule thereon.

I. Plaintiff’s Allegations and Pending Motions.

On September 22, 2022, Plaintiff, a federal prisoner incarcerated at the

Federal Correctional Institution at Beckley, West Virginia, filed a complaint against

the Kanawha County Sheriff’s Department (“KCSD”) and several of its employees

whose identities were not then properly known, arising out of Plaintiff’s arrest on

February 17, 2021. [ECF No. 2]. Thereafter, Plaintiff twice amended his complaint,

and this matter is now proceeding on the Second Amended Complaint [ECF No. 23],

which alleges that, during his arrest, Deputy Sheriff Ashley Keadle, Sgt. Josh

Cochran, Cpl. Josh Martin, and Lt. Borchers beat him until he was unconscious,

despite the fact that he had surrendered and was not resisting, and after he had been

bitten by a KCSD K-9. Plaintiff contends that these defendants violated his federal

constitutional right to be free from excessive force and he seeks monetary damages

from each defendant. [ECF No. 23 at 5].

The KCSD, Keadle, and Cochran filed an Answer to the Second Amended

Complaint and discovery is proceeding concerning Plaintiff’s claims against those

defendants. However, Defendants Martin and Borchers filed the instant Motions to

Dismiss and/or Motion for Summary Judgment asserting that, for purposes of this

civil action, they have been deemed to be employees of the United States of America

and, thus, the claims against them must be addressed under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and the Supreme Court’s decision in

, 403 U.S. 388 (1971). Martin and Borchers

filed one motion to dismiss asserting that, with respect to Plaintiff’s FTCA claims,

they should be dismissed as individual defendants, with the United States of America

being substituted as the proper defendant. [ECF Nos. 41 and 42]. Martin and

Borchers also filed a second motion to dismiss and/or for summary judgment

asserting that Plaintiff’s FTCA claim should be dismissed for failure to exhaust

required administrative remedies, and that his claims against them should be

dismissed for failure to state a plausible claim upon which relief can be granted. [ECF

Nos. 43 and 44]. These defendants alternatively argue that they are entitled to

qualified immunity on Plaintiff’s claims against them. [ ]

Pursuant to the holding of , 528 F.2d 309 (4th Cir. 1975),

Plaintiff was notified that he had the right and an obligation to file a response to

these motions and of his evidentiary obligations with respect to responding to a

motion for summary judgment. [ECF No. 46]. On May 9, 2024, in lieu of responding

to Defendants’ motions, Plaintiff filed his own Motion to Dismiss Martin and

Borchers, asserting that he wished to voluntarily dismiss those defendants so that he

could attempt to exhaust an administrative claim against them. [ECF No. 47 at 1].

Plaintiff’s motion indicates that he was unaware that Martin and Borchers were

acting as federal employees at the time of the subject incident resulting in his failure

to exhaust a federal administrative claim. [ ] Plaintiff also filed two declarations

addressing his version of the facts generally giving rise to his claims. [ECF Nos. 48

and 49]. However, Plaintiff has not provided any legal argument in opposition to

Defendants’ motions.

On May 14, 2024, Defendants Martin and Borchers filed a response to

Plaintiff’s motion to dismiss and declarations asserting that Plaintiff has admitted

that he failed to exhaust his administrative remedies under the FTCA and, thus, such

claims must be dismissed for lack of subject matter jurisdiction.

508 U.S. 106, 113 (1993); , 900 F.2d 41, 42 (4th Cir.

1990). [ECF No. 50 at 1]. They further assert that Plaintiff’s declarations fail to raise

any legal arguments to oppose dismissal of his claims against them, or their

assertion that they are entitled to qualified immunity. [ at 1-2]. These matters

are ripe for resolution.

II. Standards of Review.

A. Dismissal under Rule 12(b)(6).

Pro se complaints are held to less stringent standards than those drafted by

attorneys, and the court is obliged to construe liberally such complaints. In general, a

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

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);

, 780 F.3d 582, 585 (4th Cir. 2015) (stating that

this requirement exists “to give the defendant fair notice of what the . . . claim is and

the grounds upon which it rests” (quoting , 550 U.S. 544,

555 (2007))). However, to withstand a motion to dismiss made pursuant to Federal

Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to state a claim

to relief that is plausible on its face.” , 857

F.3d 193, 208 (4th Cir. 2017) (quoting , 556 U.S. 662, 678 (2009)).

“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.” , 556 U.S. at 678. Stated another way, the factual

allegations in the complaint “must be sufficient ‘to raise a right to relief above the

speculative level.’” , 855 F.3d 639, 647 (4th Cir. 2017)

(quoting , 550 U.S. at 555). A complaint that alleges enough facts “to satisfy

the elements of a cause of action created by [the relevant] statute” will survive a

motion to dismiss. at 648 (quoting , 780 F.3d at 585).

In evaluating the sufficiency of a complaint, this Court first “identif[ies]

pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” , 556 U.S. at 679. This Court then “assume[s] the[]

veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s]

whether they plausibly give rise to an entitlement to relief.” Review of the

complaint is “a context-specific task that requires [this Court] to draw on its judicial

experience and common sense.” “[T]o satisfy the plausibility standard, a plaintiff

is not required to plead factual allegations in great detail, but the allegations must

contain sufficient factual heft to allow a court, drawing on judicial experience and

common sense, to infer more than the mere possibility of that which is alleged.”

, 878 F.3d 447, 452 (4th Cir. 2017) (internal

quotation marks omitted). This Court construes a plaintiff’s allegations

“liberally,” but the complaint must nonetheless “contain enough facts to state a claim

for relief that is plausible on its face.” , 841

F.3d 632, 637 (4th Cir. 2016).

B. Summary Judgment under Rule 56.

In evaluating summary judgment motions, Rule 56(a) of the Federal Rules of

Civil Procedure provides:

A party may move for summary judgment, identifying each claim or

defense — or the part of each claim or defense — on which summary

judgment is sought. The court shall grant summary judgment if the

movant shows there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law. The court should

state on the record the reasons for granting or denying the motion.

Fed. R. Civ. P. 56(a). Material facts are those necessary to establish the elements of

a party’s cause of action. 477 U.S. 242, 248 (1986).

Summary judgment is required when a party fails to make a showing sufficient to

establish an essential element of a claim. 477 U.S. at 322-23. The moving

party has the burden of establishing that there is an absence of evidence to support

the nonmoving party's claim. 477 U.S. 317, 325 (1986).

Once the moving party demonstrates such a lack of evidence, the non-

moving party must go beyond the pleadings and make a sufficient showing of facts

presenting a genuine issue for trial.

475 U.S. 574, 586-87 (1986). “A party opposing summary

judgment must do more than just rest upon mere allegations, general denials, or

vague statements.” , No. 08-5145,

2010 WL 5237855, *2 (D.N.J. Dec. 16, 2010) (citing , 260

F.3d 228, 232 (3d Cir. 2001). Rather, “the non-moving party must identify specific

facts and affirmative evidence that contradict those offered by the moving party.”

(citing , 477 U.S. at 256-57). Accordingly, summary judgment will

generally be granted unless a reasonable jury could render a verdict for the non-

moving party on the evidence presented. 477 U.S. at 247-48.

A court must not resolve disputed facts or weigh the evidence and may not

make determinations of credibility. 1229, 1239

(4th Cir. 1995); 797 F.2d 179, 182 (4th Cir. 1986). Rather, the

party opposing the motion is entitled to have his or her version of the facts accepted

as true and to have all internal conflicts resolved in his or her favor.

597 F.2d 406, 414 (4th Cir. 1979). Inferences that are “drawn

from the underlying facts . . . must be viewed in the light most favorable to the party

opposing the motion.” 369 U.S. 654, 655 (1962).

However, the party opposing the motion may not rely upon mere allegations or

denials of the pleadings, but must set forth specific facts showing that there is a

genuine issue for trial. 84 F. Supp.2d 751 (N.D.W.

Va. 2000).

III. Discussion.

A. Plaintiff’s FTCA claims.

Pursuant to the Intergovernmental Personnel Act of 1970, as amended, which

authorizes the assignment of employees from state or local governments to federal

agencies, it is undisputed that Defendants Martin and Borchers, who were assigned

from the Kanawha County Sheriff’s Department to serve as Special Deputies on the

Cuffed Task Force of the United States Marshals Service, were deemed to be

employees of the United States who were acting within the scope of their employment

during the events giving rise to Plaintiff’s complaint. [ECF Nos. 41-1,41-2, and 41-

3]. See also 5 U.S.C. §§ 3371–76. Thus, their conduct is subject to the parameters of

the FTCA, including its administrative exhaustion requirement, which is

jurisdictional. , 1 F.3d 246. 249 (4th Cir. 1993);

, 785 F.2d 121, 123 (4th Cir.1986). The Supreme Court and Fourth

Circuit have made it clear that the failure to exhaust such remedies prior to filing a

lawsuit requires dismissal of the lawsuit. , 508 U.S. at 113 (“The FTCA

bars claimants from bringing suit in federal court until they have exhausted their

administrative remedies.”); , 900 F.2d 41, 42 (4th Cir. 1990)

(finding that dismissal of unexhausted FTCA claim was required).

Plaintiff’s own motion acknowledges that he has not exhausted the required

administrative remedies with respect to his claims against Martin and Borchers.

Thus, it is apparent that dismissal without prejudice for lack of subject matter

jurisdiction is required with respect to Plaintiff’s FTCA claims.

B. Plaintiff’s claims.

Martin and Borchers further assert that, although Plaintiff’s complaint does

not expressly state a claim based on , his Second Amended Complaint could be

liberally construed to be making such a claim. [ECF No. 44 at 6]. Nonetheless, they

further assert that Plaintiff’s allegations do not support a plausible claim against

them under the limited circumstances in which liability has been recognized,

and that Plaintiff has alternative available remedies. [ at 6-18]. At the outset, it

is unclear whether Plaintiff also intended to dismiss any alleged claims

against Martin and Borchers, as he has offered no legal argument to rebut

Defendants’ motions. Because his accompanying declaration discusses alleged

conduct by Martin and Borchers, however, out of an abundance of caution, I will

address the application of herein.

As noted by these defendants, in 1971, the Supreme Court created an implied

cause of action for money damages under the Fourth Amendment in where

the plaintiff alleged that federal narcotics agents manacled him, threatened his

family, engaged in a warrantless search, and arrested him without a warrant. 403

U.S. at 389, 397. Although not discussed in any detail, the opinion also

characterized the plaintiff’s complaint to include an allegation that “unreasonable

force was employed in making the arrest.” at 389.

Since , the Supreme Court has extended such liability only twice: (1) an

implied cause of action under the Fifth Amendment for sex discrimination by a

United States Congressman in , 442 U.S. 228 (1979); and (2) an

implied cause of action under the Eighth Amendment for a federal prisoner’s claim of

inadequate medical care in , 446 U.S. 14 (1980). Defendants assert

that, after , the Supreme Court “came to appreciate more fully the tension

between this practice and the Constitution’s separation of legislative and judicial

power[,]” , 589 U.S. 93, 99 (2020), and has “declined 11 times to

imply a similar cause of action for other constitutional violations.”

, 596 U.S. 482, 484 (2022). [ECF No. 44 at 6-7]. Thus, “the Court has made

clear that expanding the remedy is now a ‘disfavored’ judicial activity” and

has affirmatively stated that, if “called to decide today, [it] would decline to

discover any implied causes of action in the Constitution.” [ at 7, quoting

, 582 U.S. 120, 135 (2017) and , 596 U.S. at 491, 502]. Consequently,

the Court has “consistently refused to extend to any new context or new

category of defendants.” 534 U.S. 61, 68 (2001).

Courts faced with a potential claim must now engage in a two-step

inquiry to determine whether the case presents “a new context” and, if so,

whether there are “special factors” that counsel against extending such liability.

, 596 U.S. at 492-93 (other citations omitted). Essentially, the Court must

determine “whether there is any reason to think that Congress might be better

equipped to create a damages remedy.” at 492.

Martin and Borchers argue that this case “presents a new context,”

because, unlike , which involved a warrantless search and arrest by narcotics

agents, Plaintiff was arrested by task force officers with a different federal agency,

the United States Marshals Service (“USMS”), pursuant to validly obtained warrants.

Thus, these Defendants assert that Plaintiff’s case “differs from in a

meaningful way” and “would be an extension to a new category of defendants.” [ECF

No. 44 at 12-13]. Defendants point to a recent decision by the United States Court of

Appeals for the Tenth Circuit declining to extend liability to similar claims

against members of a USMS task force.

, 91 F.4th 1352 (10th Cir. 2024). The Court specifically found:

Of particular relevance here is a duty of the USMS that was not a factor

considered in . The USMS is statutorily required to partner with

state and local law-enforcement authorities to create Fugitive

Apprehension Task Forces, which are directed and coordinated by the

USMS. 34 U.S.C. § 41503(a). And it has the authority (which was

exercised in this case) to federally deputize officers from other

jurisdictions to perform the functions of a Deputy U.S. Marshal. 28

C.F.R. § 0.112(b). These officers act under color of federal law when

acting in that capacity. , 39 F.4th 1086, 1090-91

(8th Cir. 2022). Chilling participation in joint task forces is therefore a

potential cost of expanding to Deputy U.S. Marshals.

[ , No. 22-1893,] 2023 WL 6439438, at *4 [(6th Cir. July 25,

2023)] (“[A]llowing claims for damages against members of federal

fugitive-apprehension task forces could impair the government’s

recruitment of officers to participate in those task forces and could

negatively affect task members’ performance of their duties.”);

596 U.S. at 499, 142 S. Ct. 1793 (“Recognizing any new

action entails substantial social costs, including the risk that fear of

personal monetary liability and harassing litigation will unduly inhibit

officials in the discharge of their duties.” (brackets and internal

quotation marks omitted)). We are confident that the Supreme Court

would hold “that the Judiciary is not undoubtedly better positioned than

Congress to authorize a damages action in [this] context,” , 596

U.S. at 495, 142 S. Ct. 1793, where the impact of potential liability on

cooperation among law-enforcement agencies needs to be assessed.

91 F.4th at 1358-59; , , 2023 WL 6439438, at *4 (finding

“meaningful distinction” between USMS and agency involved in );

, 640 F.Supp.3d 249, 253-54 (E.D.N.Y. 2022), , 2023 WL 8613873 *2 (2d

Cir. Dec. 13, 2023) (members of the USMS represents a new category of defendants

and thus is a new context different than in ). [ECF No. 44 at 13-14].

Martin and Borchers further argue that Plaintiff’s claim fails because

Plaintiff has available alternative remedies. [ at 14-18]. In , the Supreme

Court held that should not be extended to those contexts where a plaintiff has

alternate remedies available to him. 596 U.S. at 493. (“Finally, our cases hold that a

court may not fashion a remedy if Congress already has provided, or has

authorized the Executive to provide, ‘an alternative remedial structure.’”), citing

, 582 U.S. at 136-37; 62 F.4th 127, 140 (4th Cir.

2023), quoting , 56 F.4th 271, 279 (4th Cir. 2022) (“An alternative

remedy weighs against recognizing a new claim even if it is less effective than

the damages that would be available under and is not expressly identified by

Congress as an alternative remedy.”). [ at 15].

Here, Defendants assert that alternative remedies exist under the USMS’s

statutory and regulatory grievance process and the FTCA administrative process.

[ at 16-17]. Defendants cite to several cases holding that the USMS internal

grievance procedure and the Department of Justice’s Office of Inspector General

(OIG) investigation process are adequate alternative procedures that preclude

application of to cases such as this. , 2023 WL 6439438, at *4;

, No. 20-13123, 2021 WL 5353099, *2 (11th Cir. Nov. 17, 2021). [ at 16].

They also point to an alternative tort remedy under 31 U.S.C. § 3724, permitting

settlements by the Attorney General of claims for personal injury, death, or property

damage caused by investigative or law enforcement officers employed by the

Department of Justice for “not more than $50,000.” [ECF No. 44 at 18]. [ at 18].

While and the instant case both involve allegations of excessive force,

the Court made clear that such “superficial similarities are not enough to

support the judicial creation of a cause of action” and emphasized that the

Court did not “meaningfully” undertake a review of any special factors counseling

against extension of an implied damages remedy. 596 U.S. at 495. Considering this

binding Supreme Court precedent, the Fourth Circuit has consistently declined to

extend potential liability to new contexts such as that presented here.

Moreover, at least four of our sister circuits have now concluded that this precedent

counsels against extending liability to USMS task force members.

, 102 F.4th 1337 (11th Cir. 2024); , 91 F.4th at 1358-

59; , 2023 WL 6439438 at *4; , 2023 WL 8613873 (2d.

Cir. Dec. 13, 2023).

I agree that the facts of this case present a new context involving a new

category of defendants against whom Plaintiff had or has alternative available

remedies. Thus, I FIND that Plaintiff’s alleged federal constitutional claims against

Defendants Martin and Borchers constitute an improper extension of liability

requiring dismissal of such claims as a matter of law.1

IV. Conclusion.

For the reasons stated herein, it is hereby ORDERED that Plaintiff’s Motion

to Dismiss Defendants Martin and Borchers [ECF No. 47] is GRANTED, and

Plaintiff’s FTCA claims against Martin and Borchers are DISMISSED WITHOUT

PREJUDICE. It is further ORDERED that Martin and Borchers’ Motion to Dismiss

and Substitute the United States of America [ECF No. 41] and their Motion to

Dismiss and/or for Summary Judgment [ECF No. 43] are DENIED AS MOOT with

respect to their arguments concerning Plaintiff’s FTCA claims. However, it is further

ORDERED that Martin and Borchers’ Motion to Dismiss and/or for Summary

Judgment [ECF No. 43] is GRANTED with respect to Plaintiff’s claims.

1 Based upon my findings that the Court lacks subject matter jurisdiction over Plaintiff’s FTCA claim

and that there is no plausible claim, I find it inappropriate and unnecessary to address

Defendants’ qualified immunity arguments raised in their motion.

The court DIRECTS the Clerk to send a copy of this Memorandum Opinion

and Order to counsel of record and any unrepresented party.

ENTER: August 21, 2024

G 6A

ee STATES DISTRICT JUDGE

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