Gravely v. Hinchman

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

RICHARD L. GRAVELY,

Plaintiff,

v. Case No.: 3:24-cv-00583

BRADY HINCHMAN,

Defendant.

PROPOSED FINDINGS AND RECOMMENDATIONS

Plaintiff, Richard L. Gravely, filed this pro se complaint pursuant to 42 U.S.C.

§ 1983, alleging that Defendant falsely arrested and imprisoned him for obstruction of

law enforcement under W. Va. Code § 61-5-17(a). (ECF No. 2). Pending before the Court

are Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment

and Plaintiff’s Motion for Evidentiary Hearing on Historical Disputed Factual Issues.

(ECF Nos. 9, 13). This case is assigned to the Honorable Robert C. Chambers, United

States District Judge, and by standing order was referred to the undersigned United

States Magistrate Judge for submission of proposed findings of fact and

recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). For the following

reasons, the undersigned respectfully RECOMMENDS that the presiding District Judge

GRANT Defendant’s motion. (ECF No. 9). The undersigned DENIES Plaintiff’s motion.

(ECF No. 13).

I. Relevant History

A. Complaint

On October 16, 2024, Plaintiff filed the instant complaint. (ECF No. 2). He asserts

that, on November 21, 2022, Defendant, acting under the color of state law, handcuffed

and arrested Plaintiff for “obstructing.” (Id.). The next day, according to Plaintiff, a

criminal complaint was filed to that effect, but the “unlawful complaint was dismissed”

on May 22, 2023. (Id.). Plaintiff attached the dismissal order to his complaint. (ECF No.

2-1). Plaintiff claims that Defendant’s actions violated his Fourth Amendment right

against unlawful seizure of a person. (ECF No. 2). He reportedly suffered mental anguish

and distress by being arrested and lodged in the Western Regional Jail on this “false

charge” brought by Defendant. (Id.). Plaintiff asserts that the willful intentional acts of

Defendant constituted false imprisonment, false arrest, and intentional infliction of

emotional distress (“IIED”). (Id.). He claims that the record will show that he is entitled

to compensatory damages, as well as punitive damages because the actions of Defendant

reflected a malicious, intentional, willful, and reckless disregard of his rights. (Id.). He

seeks $20,000.00 in compensatory damages and $100,000.00 in punitive damages.

(Id.).

B. Motion to Dismiss

Defendant moves to dismiss or, in the alternative, requests summary judgment in

his favor. (ECF No. 9). Defendant argues (1) that he is entitled to qualified immunity on

the § 1983 false arrest/imprisonment claim because he had probable cause to arrest

Plaintiff for a criminal violation; (2) Plaintiff’s state law false arrest/imprisonment claim

fails as a matter of law because it was not filed within the one-year statute of limitations

and because probable cause existed; and (3) Plaintiff’s IIED claim should be dismissed

because Plaintiff does not plead sufficient facts to plausibly establish that Defendant’s

conduct was legally outrageous. (ECF No. 10).

Defendant attached to his motion the purported Criminal Complaint filed against

Plaintiff on November 21, 2022, in the Magistrate Court of Cabell County, West Virginia

bearing case number 22-M06M-04967. (ECF No. 9-1). In the document, Defendant

attested that he was dispatched to an apartment building in response to an unknown

problem. (Id.). Supposedly, an individual called and refused to provide any information,

stating “just send the cops” and “[t]hey will find out when they get here.” (Id.). Defendant

asserted that he called for back-up, and Deputies Richmond and Bennett, accompanied

him. (Id.). When they approached the apartment building, Plaintiff spoke to them,

identifying himself as the person who called. (Id.). According to Defendant, the deputies

asked Plaintiff what was happening, and he said, “come down here and find out.” (Id.).

Defendant claimed that Plaintiff then “bladed his body and reached into his coat pockets.”

(Id.). Thus, the deputies gained cover behind a vehicle and asked him to remove his hands

from his pockets, walk to the deputies, and tell them what was going on. (Id.). Plaintiff

refused, and he was placed at gunpoint and ordered to walk toward the deputies with his

hands in the air. (Id.). Plaintiff repeated that he was the one that called but refused to say

why. (Id.). After initially refusing to put his hands in the air, he complied, although he

refused to move. (Id.). Defendant relocated to a different position to obtain a better angle

and gained cover behind a vehicle. (Id.). A bystander was ordered out of the way, and

Defendant again told Plaintiff to walk to him with his hands in the air. (Id.). Plaintiff

walked from behind the vehicle with his hands in the air but would not walk to Defendant.

(Id.). The deputies approached Plaintiff and handcuffed him. (Id.). Plaintiff advised that

he had called over missing car keys. (Id.). He was arrested for obstruction under W. Va.

Code § 61-5-17(a). Defendant filed the criminal complaint. On November 22, 2022, the

Cabell County Magistrate found probable cause for the alleged violation. (Id.).

In response to the motion to dismiss, Plaintiff asserts that “[n]ot once did he ‘blade’

his body, “whatever [that] means,” nor was he “on a suicide mission by putting his hands

in his pockets.” (ECF No. 12 at 1, 4). He points to the fact that he called for Defendant’s

help to recover his keys; thus, he posits why would he be acting in such a manner when

Defendant arrived? (Id. at 2). Plaintiff maintains that his conduct was not forcible, nor

did he illegally interfere with Defendant’s discharge of his official duty. (Id.). Therefore,

according to Plaintiff, “[w]ith these facts viewed in the light most favorable to Plaintiff,

the dispute of facts would preclude the finding that a reasonable officer in Defendant’s

position would have believed that probable cause existed for Plaintiff’s arrest.” (Id.).

Further, Plaintiff indicates that his claim is timely because it was filed within two years.

(Id. at 4).

In reply, Defendant asserts that, because a neutral detached magistrate found

probable cause, Plaintiff can only overcome the state magistrate’s finding that probable

cause existed by coming forward with evidence that Defendant made false statements

knowingly and intentionally or with reckless disregard for the truth. (ECF No. 14 at 3).

Defendant contends that a person’s refusal to follow an officer’s lawful order issued to

effectuate a law enforcement function can constitute obstruction. (Id.). He cites two cases

in support. (Id.). Defendant repeats that the state law claim is untimely, and he notes that

Plaintiff did not contest the arguments raised in the motion that the IIED claim fails as a

matter of law. (Id. at 4-8).

II. Standard of Review

A motion under Rule 12(b)(6) tests the sufficiency of the complaint. Bell Atlantic

Corp v. Twombly, 550 U.S. 544, 570 (2007) (explaining that, to survive a 12(b)(6) motion,

a complaint must contain sufficient factual matter, accepted as true, to ‘‘state a claim to

relief that is plausible on its face”). In resolving the motion, the Court must assume that

the facts alleged in the complaint are true and will draw all reasonable inferences in favor

of the nonmoving party. Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d

401, 405-06 (4th Cir. 2002). A complaint fails to state a claim when, accepting the

plaintiff’s well-pleaded allegations as true and drawing all reasonable inferences, the

complaint lacks “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. A pleading that “offers labels and conclusions or a formulaic

recitation of the elements of a cause of action will not do,” and a complaint will not “suffice

if it tenders naked assertions devoid of further factual enhancements.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotations and citations omitted). The Court also

considers any exhibits attached to the complaint and documents explicitly incorporated

by reference. Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a

pleading is a part of the pleading for all purposes.”); see also Conner v. Cleveland Cnty.,

N. Carolina, 22 F.4th 412, 428 (4th Cir. 2022) (citing Goines v. Valley Cmty. Servs. Bd.,

822 F.3d 159, 165–66 (4th Cir. 2016)).

To be clear, the 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).

However, while the Court “take[s] the facts in the light most favorable to the plaintiff, ...

[the Court] need not accept the legal conclusions drawn from the facts,” and “need not

accept as true unwarranted inferences, unreasonable conclusions or arguments.”

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Eastern Shore Mkts.,

Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000)).

Courts are required to liberally construe pro se complaints. Erickson v. Pardus,

551 U.S. 89, 94 (2007). However, even under this less stringent standard, the complaint

still must contain sufficient factual allegations to support a valid legal cause of action.

Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). The Court may

not rewrite the pleading to include claims that were never presented, Parker v.

Champion, 148 F.3d 1219, 1222 (10th Cir. 1998), construct the plaintiff’s legal arguments

for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions

never squarely presented” to the Court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278

(4th Cir. 1985).

Summary judgment is proper under Fed. R. Civ. P. 56 when no genuine issue of

material fact is in dispute, and the moving party is entitled to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material if it “might

affect the outcome of the suit under the governing law,” and a disputed issue of material

fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. The party moving for summary judgment

bears the initial burden of showing an absence of evidence that demonstrates the

existence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986).

If the moving party meets this burden, then the burden shifts to the nonmoving

party, who “must set forth specific facts showing that there is a genuine issue for trial.”

Id. at 322, n.3. The nonmoving party must do more than rely upon the allegations or the

denial of allegations contained in his pleading to defeat a motion for summary judgment;

instead, he must offer some “concrete evidence from which a reasonable juror could

return a verdict in his favor.” Anderson, 477 U.S. at 256. Concrete evidence includes

“particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those

made for purposes of the motion only), admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). The court must not resolve disputed facts, nor

weigh the evidence. Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995).

Instead, the court must accept as true the facts asserted by the nonmoving party and

review the evidence “draw[ing] all justifiable inferences” in its favor. Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).

Even still, the “mere existence of a scintilla of evidence” favoring the non-moving

party will not prevent entry of summary judgment. Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the nonmoving

party, there is no genuine issue for trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009),

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

Thus, while any permissible inferences to be drawn from the underlying facts “must be

viewed in the light most favorable to the party opposing the motion,” Matsushita Elec.

Indus. Co., 475 U.S. at 587, “[i]f the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818

F.2d 1126, 1128 (4th Cir. 1987) (citation omitted).

II. Discussion

As an initial matter, the Court notes that Plaintiff purports to bring this action

under 18 U.S.C. § 242, (ECF No. 2), which provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom,

willfully subjects any person in any State, Territory, Commonwealth,

Possession, or District to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or laws of the United

States, or to different punishments, pains, or penalties, on account of such

person being an alien, or by reason of his color, or race, than are prescribed

for the punishment of citizens, shall be fined under this title or imprisoned

not more than one year, or both; and if bodily injury results from the acts

committed in violation of this section or if such acts include the use,

attempted use, or threatened use of a dangerous weapon, explosives, or fire,

shall be fined under this title or imprisoned not more than ten years, or

both; and if death results from the acts committed in violation of this section

or if such acts include kidnapping or an attempt to kidnap, aggravated

sexual abuse, or an attempt to commit aggravated sexual abuse, or an

attempt to kill, shall be fined under this title, or imprisoned for any term of

years or for life, or both, or may be sentenced to death.

18 U.S.C. § 242.

However, 18 U.S.C. § 242 does not confer a private cause of action. Henderson v.

Haynes, No. 3:23-CV-583-FDW, 2024 WL 1184724, at *2 (W.D.N.C. Mar. 19, 2024).

Plaintiff does not have standing to bring criminal charges against Defendant. Id. Rather,

Plaintiff’s claims are properly construed under 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action brought against a judicial

officer for an act or omission taken in such officer’s judicial capacity […]

42 U.S.C. § 1983.

Section 1983 is “not itself a source of substantive rights, but merely provides a

method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S.

266, 271 (1994) (citation and markings omitted). Section 1983 provides a remedy to

parties who are deprived of federally protected civil rights by persons acting under color

of any state “law, statute, ordinance, regulation, custom, or usage.” Congress enacted §

1983 “to enforce provisions of the Fourteenth Amendment against those who carry a

badge of authority of a State and represent it in some capacity, whether they act in

accordance with their authority or misuse it.” Monroe v. Pape, 365 U.S. 167, 171-172

(1961). In order to maintain a prima facie case under 42 U.S.C. § 1983, a plaintiff must

show through factual allegations that he was (1) deprived of a right secured by the

Constitution or laws of the United States, and that (2) the deprivation was committed by

a person acting under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 49-50 (1999); Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003).

A. Motion to Dismiss

Two motions are presently before the Court. The undersigned first addresses the

dispositive motion to dismiss before discussing Plaintiff’s motion for a hearing.

1. False Arrest and Imprisonment Claims

a. Qualified Immunity

Defendant asserts that he “is entitled to qualified immunity because a §1983 false

arrest claim is premised upon the lack of probable cause, to which there are no factual

allegations” and “a detached magistrate determined that probable cause existed to believe

that Plaintiff committed the offense of obstructing an officer.” (ECF No. 10 at 4-7).

“Government officials performing discretionary functions are entitled to qualified

immunity from liability for civil damages to the extent that ‘their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Tolliver v. City of Dunbar, No. 2:21-CV-00011, 2021 WL 5056081, at *5

(S.D.W. Va. Nov. 1, 2021) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Rish

v. Johnson, 131 F.3d 1092, 1095 (4th Cir. 1997).

False arrest and imprisonment claims are analyzed under the Fourth Amendment

to the United States Constitution. “A seizure is unreasonable under the Fourth

Amendment if it is not based on probable cause,” which “is determined by a totality-of-

the-circumstances approach.’” Id. (citing Dunaway v. New York, 442 U.S. 200, 213

(1979) and Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017)). The probable cause

inquiry “turns on two factors: the suspect’s conduct as known to the officer, and the

contours of the offense thought to be committed by that conduct.” Id. (citation and

markings omitted). “While courts look to the information available to the officer on the

scene at the time, an objective test is applied to determine whether a reasonably prudent

officer with that information would have thought that probable cause existed for the

arrest.” Id.

It bears mentioning that, although Plaintiff does not explicitly allege malicious

prosecution, the substance of his pro se complaint indicates that it might have been his

intention because he notes that the “unlawful complaint was dismissed” and attaches the

dismissal order. (ECF Nos. 2 at 1, 2-1). “A plaintiff’s claim for false arrest or false

imprisonment ceases once plaintiff is detained pursuant to legal process, and at this point,

plaintiff’s claim becomes a claim of malicious prosecution. See Wallace v. Kato, 549 U.S.

384, 388-89 (2007) (“Reflective of the fact that false imprisonment consists of detention

without legal process, a false imprisonment ends once the victim becomes held pursuant

to such process -- when, for example, he is bound over by a magistrate or arraigned on

charges ... Thereafter, unlawful detention forms part of the damages for the entirely

distinct tort of malicious prosecution, which remedies detention accompanied, not by

absence of legal process, but by wrongful institution of legal process.”) (internal citations

omitted).” Kessler v. Lewis, No. CV 5:22-00551, 2024 WL 1474054, at *4 (S.D.W. Va. Feb.

15, 2024), report and recommendation adopted, No. 5:22-CV-551, 2024 WL 1469606

(S.D.W. Va. Apr. 4, 2024).

“[A] malicious prosecution claim under § 1983 is properly understood as a Fourth

Amendment claim for unreasonable seizure which incorporates certain elements of the

common law tort.” Lambert v. Williams, 222 F.3d 257, 261 (4th Cir. 2000). “To state such

a claim, the plaintiff must allege that the defendant (1) caused (2) a seizure of the plaintiff

pursuant to legal process unsupported by probable cause, and (3) criminal proceedings

terminated in the plaintiff's favor.” English v. Clarke, 90 F.4th 636, 647 (4th Cir. 2023)

(citing Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)). The Supreme Court of the

United States has clarified that the favorable termination element of a Fourth

Amendment malicious prosecution claim only requires that the plaintiff show that the

prosecution ended without a conviction. Thompson v. Clark, 596 U.S. 36, 39 (2022). In

other words, no affirmative indication of innocence is required, such as an acquittal or

finding of insufficient evidence. Id.

In any event, the distinction between whether Plaintiff brings a false arrest or

malicious prosecution claim, or both, is of no consequence in this instance. Plaintiff’s

potential malicious prosecution claim is wholly derivative of the false arrest claim for

qualified immunity purposes, which is premature at this point. See, e.g., Rogers v.

Pendleton, 249 F.3d 279, 294 (4th Cir. 2001). “While a defendant may assert a qualified

immunity defense through a Rule 12(b)(6) motion, ‘the defense faces a formidable hurdle’

and ‘is usually not successful.’” Id. (quoting Owens v. Baltimore City State's Attorney's

Office, 767 F.3d 379, 396 (4th Cir. 2014)). “[A]t this very early stage in the proceedings,

dismissal under Rule 12(b)(6) is only appropriate if the plaintiff fails to state a claim that

is plausible on its face.” Id. (citation omitted).

Defendant attached to his motion to dismiss the criminal complaint that he filed

against Plaintiff for obstruction, reciting his version of the facts. According to Defendant’s

statements in the criminal complaint, Plaintiff repeatedly refused his commands and

“bladed his body and reached into his coat pockets.” (ECF No. 9-1 at 1). Plaintiff

vehemently denies blading his body and reaching in his coat pockets. (ECF No. 12 at 4).

There is a clear dispute regarding exactly what occurred, which would bear on whether

Defendant had probable cause to charge Plaintiff with obstruction. Considering the

motion to dismiss, the Court cannot construe Defendant’s statements in the criminal

complaint as true to support a finding that probable cause existed. Kokinda v. Foster, No.

3:21-CV-00154, 2024 WL 715962, at *3 (N.D.W. Va. Feb. 21, 2024).

Furthermore, Defendant claims that the state magistrate’s probable cause finding,

which came after Plaintiff’s arrest, entitles him to qualified immunity from Plaintiff’s false

arrest claim. This is also incorrect because “[t]he post-arrest finding sheds no light on the

reasonableness of [Defendant’s] conduct based on the circumstances at the time of the

arrest, unlike when officers act pursuant to an arrest warrant issued before an arrest.”

Tartt v. Martin, No. CV 1:22-00327, 2024 WL 3166953, at *7 (S.D.W. Va. June 25, 2024).

Thus, the magistrate’s finding of probable cause in the post-arrest criminal complaint

does not entitle Defendant to qualified immunity. Id.

Finally, Defendant alternatively asks for the Court to award summary judgment in

his favor. Summary judgment would be inappropriate at this stage given the fact that

Plaintiff has not had the opportunity to conduct discovery. See, e.g., Daniel v. Dean, No.

3:23-CV-00712, 2025 WL 424726, at *3 (S.D.W. Va. Jan. 8, 2025), report and

recommendation adopted, 2025 WL 422606 (S.D.W. Va. Feb. 6, 2025). “[T]he Court

cannot consider those facts contained in the criminal complaint without converting

Defendant’s motion to dismiss into one for summary judgment.” Kokinda, 2024 WL

715962, at *3. Thus, the Court should refrain from doing so. Id.

For all of the above reasons, the undersigned FINDS that Defendant has not

shown at this point in the proceedings that he is entitled to qualified immunity. However,

as explained below, Defendant need not establish that he is entitled to qualified immunity

because Plaintiff’s claims are untimely.

b. Statute of Limitation

Defendant further argues that Plaintiff’s state law false arrest/imprisonment claim

is untimely and must be dismissed. (ECF No. 10 at 8). Defendant is correct that West

Virginia’s one-year statute of limitation bars Plaintiff’s state false arrest and

imprisonment claims to any extent that he raises them under state law. In fact, it bars his

federal claims for false arrest/imprisonment as well.

There is no federally prescribed statute of limitation for § 1983 actions. Daniel v.

Dean, No. 3:23-CV-00712, 2025 WL 424726, at *3 (S.D.W. Va. Jan. 8, 2025), report and

recommendation adopted, 2025 WL 422606 (S.D.W. Va. Feb. 6, 2025) (citations and

markings omitted). Thus, courts look to the respective state’s statutes of limitation.” Id.

While the limitation period is governed by state law, the question of when a cause of action

accrues is answered according to federal law. Id. Claims for false arrest and false

imprisonment are subject to a one-year statute of limitation in West Virginia, which,

under Federal law, accrues when the claimant is detained pursuant to the legal process.

Id.

Plaintiff was arrested for obstruction on November 21, 2022. (ECF No. 2). The

following day, the state magistrate found probable cause that he committed that crime.

(ECF No. 9-1). Therefore, the one-year statute of limitation on his false arrest and

imprisonment claims accrued in November 2022 and terminated in November 2023.

Plaintiff did not file this action until October 2024. His false arrest and imprisonment

claims are untimely and must be dismissed as a matter of law. Daniel v. Dean, No. 3:23-

CV-00712, 2025 WL 424726, at *3 (S.D.W. Va. Jan. 8, 2025), report and

recommendation adopted, 2025 WL 422606 (S.D.W. Va. Feb. 6, 2025) (collecting cases);

Montgomery v. Reed, No. CV 2:24-00149, 2024 WL 3876522, at *5–6 (S.D.W. Va. July

24, 2024), report and recommendation adopted, 2024 WL 3868242 (S.D.W. Va. Aug. 19,

2024) (“Accordingly, Plaintiff’s false arrest claims against Defendant Reed should be

dismissed because the one-year statute of limitations has run”).

Further, to any extent that Plaintiff asserts malicious prosecution, such claim is

likewise subject to a one-year statute of limitation, although the claim does not accrue

until the criminal proceedings terminated in Plaintiff’s favor. Daniel, 2025 WL 424726,

at *4; Heck v. Humphrey, 512 U.S. 477, 489–90 (1994). Here, the dismissal order

attached to Plaintiff’s complaint indicates that the obstruction charge was dismissed on

May 22, 2023. (ECF No. 2-1). As noted, Plaintiff did not file his complaint until October

16, 2024. Therefore, even if the Court were to liberally construe Plaintiff’s complaint to

allege a malicious prosecution claim, which Plaintiff does not explicitly raise, such claim

must also be dismissed as untimely.

For those reasons, the undersigned FINDS that Plaintiff’s false arrest and

imprisonment, or alternatively, malicious prosecution, claims are untimely and must be

dismissed.

2. Intentional Infliction of Emotional Distress

Defendant argues that Plaintiff’s remaining intentional infliction of emotional

distress (IIED) claim fails because he does not plead sufficient facts to plausibly establish

that Defendant’s conduct was legally outrageous. (ECF No. 10 at 9). “It is difficult to

overstate the high burden of proof required to sustain a tort claim for intentional infliction

of emotional distress.” Pegg v. Herrnberger, 845 F.3d 112, 122 (4th Cir. 2017). The

plaintiff must show (1) that the defendant’s conduct was atrocious, intolerable, and so

extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted

with the intent to inflict emotional distress, or acted recklessly when it was certain or

substantially certain emotional distress would result from his conduct; (3) that the actions

of the defendant caused the plaintiff to suffer emotional distress; and (4) that the

emotional distress suffered by the plaintiff was so severe that no reasonable person could

be expected to endure it. Reese v. Hannah, No. 2:23-CV-00805, 2024 WL 3607471, at *6

(S.D.W. Va. July 31, 2024) (citing Syl. Pt. 3, Travis v. Alcon Lab'ys, 504 S.E.2d 419 (W.

Va. 1988)).

Simply arresting a person does not typically give rise to an IIED claim. “There is

only liability ‘where the conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.’” Id. (quoting Keyes v. Keyes, 392 S.E.2d

693, 696 (W. Va. 1990)). For example, the United States Court of Appeals for the Fourth

Circuit has dismissed IIED claims when an officer did not strike, kick, or verbally abuse

an individual resisting arrest, and instead used no more force than necessary to subdue

the individual.” Id.

It is unlikely that Plaintiff states a claim for IIED because he does not appear to

plead any outrageous conduct by Defendant. However, the Court need not conclusively

resolve that issue because it should not exercise supplemental jurisdiction over Plaintiff’s

state law IIED claim. Under 28 U.S.C. § 1367(a), parties can append state law claims over

which federal courts would otherwise lack jurisdiction, so long as they form part of the

same case or controversy as the federal claims. Shanaghan v. Cahill, 58 F.3d 106, 109

(4th Cir. 1995). Thus, a federal court can exercise supplemental jurisdiction over a state

law tort claim for IIED that is based on the same facts giving rise to the plaintiff’s § 1983

claim. Insco v. Wexford Health Sources, Inc., No. 2:19-CV-00612, 2020 WL 2770419, at

*9 (S.D.W. Va. May 28, 2020).

There are no surviving federal claims at issue because Plaintiff’s § 1983 claims are

untimely. If a district court dismisses all claims over which it has original jurisdiction, it

should decline to exercise supplemental jurisdiction over any remaining pendent state

law claims by dismissing those claims without prejudice. Williams v. Mitchell, 122 F.4th

85, 92 (4th Cir. 2024). When the federal claims are dismissed, “federal law is not where

the real action is.” Royal Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22, 31–32 (2025).

Thus, “although supplemental jurisdiction persists, the district court need not exercise it:

Instead, the court may (and indeed, ordinarily should) kick the case to state court.” Id.

The undersigned FINDS that the Court should decline to exercise supplemental

jurisdiction under 28 U.S.C. § 1367(c)(3) and dismiss the IIED claim without prejudice.

B. Motion for Hearing

Plaintiff asked for an evidentiary hearing before the undersigned issued this

Proposed Findings and Recommendations because “genuine disputes about material

facts cannot be resolved without live testimony, which would aid the Court in the truth-

seeking process in this instant matter.” (ECF No. 13). Nevertheless, the undersigned has

not recommended converting the motion to dismiss to a motion for summary judgment

and any disputed material facts are not pertinent to the aforementioned reasons that the

case must be dismissed. The matter is adequately presented in the materials before the

Court. The undersigned finds no grounds for an evidentiary hearing and DENIES

Plaintiff’s motion. (ECF No. 13).

IV. Proposal and Recommendations

For the reasons set forth above, the undersigned respectfully PROPOSES that the

District Court accept and adopt the findings proposed herein and RECOMMENDS that

the Court GRANT Defendant’s Motion to Dismiss or, in the Alternative, Motion for

Summary Judgment. (ECF No. 9). The undersigned DENIES Plaintiff’s Motion for

Evidentiary Hearing on Historical Disputed Factual Issues. (ECF No. 13).

The parties are notified that this “Proposed Findings and Recommendations” is

hereby FILED, and a copy will be submitted to the Honorable Robert C. Chambers,

United States District Judge. Pursuant to the provisions of Title 28, United States Code,

Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, the

parties shall have fourteen days (filing of objections) and three days (if received by mail)

from the date of filing this “Proposed Findings and Recommendations” within which to

file with the Clerk of this Court, specific written objections, identifying the portions of the

“Proposed Findings and Recommendations” to which objection is made and the basis of

such objection. Extension of this time period may be granted by the presiding District

Judge for good cause shown.

Failure to file written objections as set forth above shall constitute a waiver of de

novo review by the District Court and a waiver of appellate review by the Circuit Court of

Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140

(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727

F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to the opposing

parties, Judge Chambers, and Magistrate Judge Reeder.

The Clerk is instructed to provide a copy of this “Proposed Findings and

Recommendations” to Plaintiff and counsel of record.

FILED: June 30, 2025

>

Aen (4

' J Ogey K. Reeder

a United States Magistrate Judge

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