Copen

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

DENNIS COPEN,

Plaintiff,

v. Case No. 2:25-cv-00152

PROSECUTOR JOSH DOWNEY,

OFFICER J.T. LANIER, and

SHERIFF PHILLIP DEVER,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants’ Motion for to Dismiss, or in the

alternative, Motion for Summary Judgment. [ECF No. 11]. 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ORDERED that the referral of this matter to the Magistrate Judge is WITHDRAWN,

and I will proceed to rule on the motion.

I. Relevant Factual Background and Procedural History.

On November 7, 2023, Plaintiff, who was driving a 2004 Ford Ranger pickup

truck, was pulled over in a traffic stop by Roane County Deputy Sheriff, Lt. J.T.

Lanier (“Lanier”), allegedly for a seatbelt violation. [ECF No. 2 at 8]. However, in

the complaint, Plaintiff states that it was a cloudy day and his truck had 70% tint on

the windows. [ ] Plaintiff claims that, upon stopping him, Lanier asked to search

the vehicle, but Plaintiff did not consent. [ ] Nonetheless, according to the

complaint, after stating that Plaintiff “was a drug dealer [who] had been selling drugs

in county,” Lanier handcuffed Plaintiff and searched the truck anyway, finding a

pack of cigarettes containing a ½ gram of heroin. [ ] Plaintiff denies that he asked

Lanier to get his cigarettes out of the truck. [ ]

Plaintiff further alleges that Lanier continued the search and “took a large

amount of money from the truck and [him].” [ ] Subsequently, Lanier transported

Plaintiff to the Central Regional Jail (“CRJ”) for booking, at which time additional

money was found on his person. However, the parties dispute the total amount of

money that was located and seized.

According to the complaint, a total of $8,000 was seized from Plaintiff (Plaintiff

claims that $6,000 was seized from the truck; an additional $1,000 was seized from

his pocket; and another $1,000 was seized from his boot during booking at the CRJ).

Defendants, on the other hand, assert that $6,000 was seized ($5,000 from the truck

and $1,000 from Plaintiff’s boot at the CRJ). [ECF No. 2 at 8; ECF No. 12 at 2].

According to Defendants, the money was logged into evidence and then deposited into

the “Roane County Sheriff’s Asset Forfeiture Fund” account. [ECF No. 11, Exs. 7 &

8; ECF No. 12 at 3].

The complaint does not allege that any civil or criminal forfeiture proceedings

were instituted, and it further alleges that “[t]here was never a hearing to determine

the status of the money.” [ECF No. 2 at 9]. However, Defendants’ motion documents

include an “Administrative Forfeiture Notice” as an exhibit. [ECF No. 11, Ex. 9].

According to that paperwork, the notice was faxed to the CRJ on November 13, 2023,

but Plaintiff had been released on bond before receiving it. [ ] Defendants further

contend that “when service could not be ensured, the authorities simply maintained

the seized cash until such time as Plaintiff provided details on where to send it, and

upon being informed, promptly remitted the seized funds back to Plaintiff.” [ECF No.

12 at 9].

On November 7, 2023, Plaintiff was charged by criminal complaint with

driving on a suspended license, driving without a seatbelt, and possession of a

controlled substance. [ECF No. 11, Ex. 1; ECF No. 12 at 2]. On November 8, 2023, a

Roane County magistrate found probable cause for the charges. [ ] On December

28, 2023, Plaintiff pled no contest, via a written plea agreement, to driving on a

suspended license and was sentenced to pay a fine. All other charges were dismissed.

[ECF No. 11, Exs. 2, 3, & 4; ECF No. 12 at 2].

Plaintiff alleges that he informed his criminal attorney, Keasha Maye

(“Maye”), that the money he possessed came from the sale of his house and other

acreage, and that he intended to use it to pay rent on storage units where he was

keeping his personal property (an inventory of which is attached to the complaint as

Ex. A). [ECF No. 2 at 8, n.3, and Ex. A]. Maye allegedly informed the prosecutor of

the non-criminal origin of the funds; however, the money was not returned to Plaintiff

until after a new prosecuting attorney took office more than a year later. [ECF No. 2

at 8-9]. Defendants’ exhibits include a copy of a check dated March 7, 2025 made out

to Plaintiff in the amount of $6,000 from the Roane County Sheriff’s Asset Forfeiture

Fund, which was apparently sent to him at the Huttonsville Correctional Center

(“HCC”).1 [ECF No. 11, Ex. 10]. There is no allegation or evidence that, prior to

return of the funds, Plaintiff filed a motion for return of the seized funds in his

criminal action or initiated a civil action for conversion of the property.

Plaintiff alleges that the seizure of these funds caused him to lose all his

personal property in the storage units (which, he claims, totaled over $23,000, and

included his father’s ashes and invaluable family photographs), because he could not

pay the rent. [ECF No. 2 at 8-9]. He further alleges that Defendants Lanier and

Downey violated his due process rights by failing to return the seized currency and

that Roane County Sheriff Phillip Dever (“Dever”) failed to properly train, educate,

and supervise Lanier in proper methods of vehicle stops and searches. [ ]

Although not specifically pled in the complaint, I further liberally construe the

complaint to be alleging Fourth Amendment claims against Lanier grounded in

illegal search and seizure and those claims have been addressed by Defendants in

their motion documents. I infer from Plaintiff’s allegations concerning the tint on the

windows of the truck and the cloudy conditions that day, which he further contends

can be “readily seen” on dash and body camera footage, that he is alleging that Lanier

could not have clearly observed whether he was wearing a seatbelt, which was the

given basis for the traffic stop. [ECF No. 2 at 8]. Thus, Plaintiff appears to contend

that the traffic stop was pretextual. The complaint further asserts that Plaintiff did

not ask Lanier to get his cigarettes out of the truck. [ ] Thus, I further infer that

1 It is unclear why Plaintiff was incarcerated at HCC. It was apparently for charges other than those related

to this case, as Plaintiff was sentenced only to a fine for the suspended license charge.

Plaintiff is asserting that there was no valid, reasonable basis for the search of the

vehicle and seizure of his property.

Defendants filed the instant motion and supportive memorandum of law on

May 21, 2025. [ECF Nos. 11 & 12]. That same day, Magistrate Judge Tinsley entered

an Order and Notice, pursuant to the requirements of , 528 F.2d

309 (4th Cir. 1975), advising Plaintiff of his right and obligation to respond to the

motion and of the types of evidence that must be offered to overcome summary

judgment, and setting deadlines for a response and reply. [ECF No. 14]. Magistrate

Judge Tinsley’s Order and Notice also advised Plaintiff that the failure to respond

may result in the entry of summary judgment denying the relief sought in the

complaint and it further advised him of his obligation to notify the Court and opposing

parties of any changes in his contact information. [ at 2]. Thereafter, Plaintiff

sought a 45-day extension of time to file his response, which was granted on June 18,

2025. [ECF Nos. 18 & 19]. Thus, Plaintiff’s response was due on August 7, 2025.

[ECF No. 18].

On August 4, 2025, Plaintiff filed a Notice of Change of Address advising that

he had been released from custody and providing a new address. [ECF No. 20].

However, he did not file a timely response to Defendants’ motion by August 7, 2025.

Nonetheless, on August 21, 2025, the Clerk’s Office received and docketed a “Verified

Declaration” from an inmate named Tim Blevins (“Blevins”), indicating that he had

been acting as a “legal clerk” for Plaintiff and that he had assisted Plaintiff in

preparing a response to Defendants’ motion, but Plaintiff was released before he

signed and filed the response. [ECF No. 21]. Blevins attached the unexecuted

proposed response to his declaration and further indicated that he had sent a copy of

it to Plaintiff. [ at 2 ; ECF No. 21-1]. Plaintiff never submitted an executed copy of

his response and never moved for leave to file his response out of time.

On August 27, 2025, Defendants filed a reply brief asserting that Plaintiff’s

proposed response was untimely, not executed, and should not be considered by the

Court. [ECF No. 22]. Additionally, Defendants argue that, even if the Court were to

consider the fugitive response, it asserts new facts and theories that were not

contained in the complaint and does not sufficiently rebut Defendants’ arguments for

dismissal. [ ] This matter is ripe for resolution.

II. Standards of Review

Defendants’ motion was filed as a motion to dismiss or, in the alternative

motion for summary judgment. A motion to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure tests the sufficiency of the allegations in the

complaint and usually does not allow consideration of evidence outside of the

complaint document, which is more appropriately considered in a motion for

summary judgment under Rule 56 of the Federal Rules of Civil Procedure. However,

“Rule 12(b)(6) does not mandate that a district court treat a motion to dismiss as a

motion for summary judgment simply because the moving party includes exhibits

with its motion.” , 369 F.3d 345, 354 n.3 (4th Cir. 2004). It

“only requires that a motion to dismiss be treated as a motion for summary judgment

when the motion to dismiss or exhibits present matters outside the nonmoving party’s

pleadings and the district court does not exclude such matters.”

Nevertheless, a court may consider extrinsic evidence at the 12(b)(6) stage if

such evidence “was integral to and explicitly relied on in the complaint and [if] the

plaintiffs do not challenge its authenticity.”

, 367 F.3d 212, 234 (4th Cir. 2004) (quoting .,

190 F.3d 609, 618 (4th Cir. 1999)). “The rationale underlying this exception is that

the primary problem raised by looking to documents outside the complaint—lack of

notice to the plaintiff—is dissipated where plaintiff has actual notice . . . .”

, 367 F.3d at 234 (4th Cir. 2004) (internal quotations omitted). Thus,

conversion of a motion to dismiss to a motion for summary judgment is discretionary.

, 49 F. Supp. 2d 500, 502 (S.D.W. Va. 1998) (citing

, 969 F.2d 1454, 1462 (3d Cir. 1992)). However, Rule 12(d)

dictates that “[a]ll parties must be given a reasonable opportunity to present all the

material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

Here, I intend to rely on the exhibits provided by the parties, which address

evidence that is not intrinsic or integral to the complaint. Moreover, pursuant to the

holding in , , 528 F.2d 309, Magistrate Judge Tinsley notified Plaintiff

of the requirements for properly responding to a motion for summary judgement and

gave him ample time to respond. Thus, I FIND that Plaintiff had sufficient notice of

his obligations to oppose Defendants’ motion, and sufficient opportunity to properly

rebut Defendants’ evidence, and I will treat the pending motion as one for summary

judgment addressed under Fed. R. Civ. P. 56. At least as to the claims for which I rely

upon the extrinsic evidence.

A court “may grant summary judgment only if, taking the facts in the best light

for the nonmoving party, no material facts are disputed and the moving party is

entitled to judgment as a matter of law.” , 352 F.3d

896, 899 (4th Cir. 2003). “Facts are ‘material’ when they might affect the outcome of

the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury

to return a verdict for the nonmoving party.”

, 597 F.3d 570, 576 (4th Cir. 2010).

Summary judgment is appropriate when the nonmoving party does not

sufficiently establish an essential element of his case on which he has the burden of

proof. , 477 U.S. 317, 322–23 (1986). The nonmoving party

must satisfy this burden by offering more than a mere “scintilla of evidence” in

support of his position. , 477 U.S. 242, 252 (1986). “[A]

party opposing a properly supported motion for summary judgment may not rest

upon mere allegation or denials of his pleading, but must set forth specific facts

showing that there is a genuine issue for trial.” at 256. Although the court will

view all underlying facts and inferences in the light most favorable to the nonmoving

party, the nonmoving party nonetheless must offer some “concrete evidence from

which a reasonable juror could return a verdict in his [or her] favor.” Thus, the

non-moving party may not rely on conclusory allegations or unsupported speculation.

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

Additionally, video evidence that clearly contradicts unsupported allegations

can be considered undisputed evidence sufficient to warrant summary judgment

where “[the opposing party’s] version of events is so utterly discredited by the record

that no reasonable jury could have believed him.” , 530 U.S. 372,

380-81 (2007). I will discuss the video evidence presented herein in greater detail

III. Discussion

As noted above, Plaintiff was properly advised of his right and obligation to file

a response to Defendants’ motion for summary judgment. [ECF No. 14]. He was then

granted a 45-day extension of time to file his response until August 7, 2025. [ECF

No. 19]. However, he was subsequently released on parole and, despite this extension

of time, he did not timely file a response. Instead, on August 21, 2025, the Clerk’s

Office received a “Verified Declaration” from another prisoner, Blevins, who had been

acting as an inmate legal aide for Plaintiff, who indicated that he had assisted

Plaintiff in drafting a response, but Plaintiff was released before signing and filing it.

Blevins attached an unexecuted version of the proposed response to his declaration.

[ECF No. 21 and 21-1]. Defendants have challenged the consideration of this

untimely and fugitive response. [ECF No. 22].

Plaintiff did not move for another extension of time or leave to file his response

out of time, and he never attempted to submit an executed copy thereof. I agree that

the unexecuted and untimely proposed response submitted on Plaintiff’s behalf by

another prisoner [ECF No. 21-1] is not a valid response and should not be considered

herein. Consequently, in ruling on Defendants’ motion, I will only consider the

Plaintiff’s complaint [ECF No. 2], the Defendants’ motion documents [ECF Nos. 11 &

12], and the exhibits attached to each [ECF Nos. 2-1 and 11-1 through 11-13].

.

Plaintiff first appears to allege that Lanier and Downey violated his

constitutional right to procedural due process of law by denying him his personal

property without notice and hearing. [ECF No. 2 at 8]. As noted by Defendants’

memorandum of law [ECF No. 12 at 5], “in a procedural due process claim, it is not

the deprivation itself that is unconstitutional; rather it is the deprivation of personal

interests without due process.” , 494 U.S. 113, 125 (1990) (citation

omitted). Thus, a procedural due process claim is only actionable when the State

affords constitutionally inadequate process. at 126. However, “an unauthorized

intentional deprivation of property by a state employee does not constitute a violation

of the procedural requirements of the Due Process Clause of the Fourteenth

Amendment if a meaningful post-deprivation remedy for the loss is available.”

, 468 U.S. 517, 533 (1984). [ECF No. 12 at 6]. The Fourth Circuit

has held that the continued retention of property properly seized by state officials

does not violate procedural due process when there are adequate post-deprivation

remedies for recovery of the property. , 519 F.3d 216,

230 (4th Cir. 2008). [ ]

As noted by Defendants, the State of West Virginia recognizes three methods

by which a criminal defendant can recover seized property: (1) a motion under West

Virginia Code § 62-1A-6; (2) a motion under Rule 41(e) of the West Virginia Rules of

Criminal Procedure; or (3) a suit at common law for conversion.

, No. 3:22-cv-00049, 2022 WL 821082, at *2-3 (S.D.W. Va.

2022), , 2022 WL 820235 (S.D.W. Va. 2022);

, No. 3:22-cv-00267, 2022 WL 2793594, at *3 (S.D.W. Va. 2022),

, 2022 WL 2794297 (S.D.W. Va. 2022). [ECF No.

12 at 6]. They further assert that federal courts in this state have repeatedly

determined that a person seeking the return of property does not have a cognizable

due process claim because of the availability of these post-deprivation remedies. [ ]

Plaintiff’s complaint does not indicate that he filed a motion for the return of his

property in Roane County and the docket sheet for his criminal case does not indicate

that any such motion was filed. [ECF No. 2; ECF No. 11, Ex. 13]. Likewise, it does

not appear that Plaintiff filed a civil suit for conversion before filing the instant

federal complaint.

Here, it appears that Defendants unsuccessfully attempted to serve a

forfeiture notice on Plaintiff. [ECF No. 11, Ex. 9; ECF No. 12 at 3, 9]. However,

according to Defendants, “when service on Plaintiff could not be ensured, the

authorities simply maintained the seized cash in its account until such time as

Plaintiff provided details on where to send it, and upon being informed, promptly

remitted the seized funds back to Plaintiff.” [ECF No. 11, Ex. 10 & 11; ECF No. 12

at 9]. Likewise, Defendants assert that Plaintiff never sought or obtained a court

order directing that the money be returned to him, [ECF No. 11, Ex. 13], which means

that there was no duty to return the seized property. Syl. Pts. 1 and 2,

., 783 S.E.2d 585 (W. Va. 2016). [ECF No. 12 at 9]. As noted

above, Plaintiff did not file a motion for return of the property in his criminal case;

nor did he seek the available remedy of a civil action for conversion. Thus, I agree

that, absent a showing that Plaintiff attempted to utilize such available post-

deprivation remedies, his Fourteenth Amendment due process claim fails as a matter

of law.

However, even if Plaintiff’s complaint did sufficiently state a plausible due

process claim, I further FIND, as asserted in Defendants’ unopposed motion, that

Defendant Downey would be entitled to absolute immunity on such a claim because

his alleged conduct was taken as part of his duties as prosecuting attorney. A

prosecutor is a “quasi-judicial” officer who enjoys absolute immunity when

performing prosecutorial, as opposed to investigative or administrative, functions.

, 509 U.S. 259 (1993) (citing , 424

U.S. 409 (1976)) (granting absolute immunity for conduct of prosecutors that was

“intimately associated with the judicial phase of the criminal process). “[T]he

approach focuses on the conduct for which immunity is claimed, not on the harm that

the conduct may have caused or the question whether it was lawful.” at 271-72;

, 500 U.S. 478, 486 (1991). “Such immunity also ‘extends to

forfeiture proceedings.” , 2008 WL 4441929, at *3 (D.S.C, 2008)

(adopting and incorporating report and recommendation) (collecting cases);

, 910 F.2d 1220, 1224 (4th Cir.1990) (finding that that a prosecutor's role

in locating and preserving assets for forfeiture is a prosecutorial function, entitling a

prosecutor to absolute immunity). [ECF No. 12 at 7]. As asserted by Defendants,

“Plaintiff’s allegations against Prosecutor Downey go to the very heart of the function

of a prosecuting attorney determining whether or not to initiate forfeiture

proceedings.” [ECF No. 12 at 8]. Thus, I FIND that Defendant Downey is entitled to

judgment as a matter of law on this basis as well.

Defendants further assert that, because the decision on whether to seek

forfeiture is made by the prosecutor under West Virginia Code § 60A-7-705a, Deputy

Lanier had no further involvement with the seized funds after placing them into

evidence and depositing them into the Asset Forfeiture Fund. [ECF No. 12 at 10].

Therefore, Defendants contend that Lanier is entitled to qualified immunity on

Plaintiff’s due process claim because he cannot demonstrate a due process violation

by Lanier.

The doctrine of qualified immunity protects government officials from civil

liability “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”

, 555 U.S. 223, 231 (2009). The determination of whether a state official

receives the benefit of qualified immunity is a two-step process. Viewing the facts in

the light most favorable to the plaintiff, the court must decide (1) whether there was

a constitutional violation, and (2) whether the right violated was clearly established

at the time of the violation. at 232. Whether a right is clearly established is a

question of law, while a genuine question of material fact regarding whether the

conduct actually occurred “must be reserved for trial.” , 973 F.2d

307, 313 (4th Cir. 1992) (citing , 472 U.S. 511, 526 (1985)). A right

is clearly established if “every ‘reasonable official would [understand] that what he is

doing violates that right.’ ” , 563 U.S. 731, 741 (2011) (quoting

, 483 U.S. 635, 640 (1987)).

Here, I FIND that Plaintiff cannot demonstrate that Lanier had any duty with

respect to the state forfeiture process that would give rise to a due process obligation

owed to Plaintiff. Thus, Plaintiff has not alleged a clearly established due process

violation against Lanier, and he is entitled to qualified immunity and judgment as a

matter of law on Plaintiff’s due process claim.

I further construe Plaintiff’s complaint to raise Fourth Amendment claims

against Defendant Lanier grounded in the stop and search of his vehicle and the

seizure of his property. Defendants further read the complaint to also be challenging

Plaintiff arrest. False arrest claims are also analyzed under the Fourth Amendment

as they “are essentially claims alleging a seizure of the person in violation of the

Fourth Amendment.” , 249 F.3d 279, 294 (4th Cir. 2001).

To state a claim for false arrest under § 1983, a plaintiff must demonstrate

that he was arrested or seized without probable cause. , 492 F.2d

368, 372-73 (4th Cir. 1974) (“[T]here is no cause of action for ‘false arrest’ under

section 1983 unless the arresting officer lacked probable cause.”); ,

278 F.3d 362, 367– 68 (4th Cir. 2002) (analyzing false arrest claim for whether seizure

was unreasonable). Therefore, as noted by Defendants, whether Lanier violated

Plaintiff' Fourth Amendment rights when he arrested him depends on whether he

had probable cause to seize him. , 278 F.3d at 368. “Probable cause is not a

high bar, and it must be assessed objectively based on a totality of the circumstances,

including common-sense conclusions about human behavior.” ,

952 F.3d 153, 158 (4th Cir. 2020) (quotation omitted). Courts consider all

circumstances known to the officer at the time of the arrest to determine whether

there was probable cause. , 81 F.3d 429, 434 (4th Cir. 1996). The

arresting officer's belief need not be correct, or even more likely true than false, so

long as it is reasonable. , 460 U.S. 730, 742 (1983). [ECF No. 12 at

10-11].

Defendants assert that Lanier observed Plaintiff operating a motor vehicle

without wearing a seatbelt and pulled him over with the reasonable intent to detain

him long enough to issue a traffic citation. However, he then found that Plaintiff was

driving on a suspended license and further discovered the suspected drugs in the

cigarette pack, which were additional criminal violations under state law. Thus,

Defendants assert that “[p]lainly there was probable cause to arrest Plaintiff.” [ECF

No. 12 at 11]. Therefore, Defendants further assert that, “because probable cause

existed, Deputy Lanier is entitled to qualified immunity on any Fourth Amendment

claim for false arrest.

Lanier further contends that he is also entitled to qualified immunity on

Plaintiff’s Fourth Amendment claim concerning the search of his truck and seizure of

the drugs and money found therein or on his person. Lanier first contends that he

only entered the vehicle due to Plaintiff’s request for his cigarettes. Plaintiff’s

complaint baldly asserts that he did not ask for his cigarettes and did not otherwise

consent to a search of his vehicle, and summarily suggests that the alleged seatbelt

violation was pretextual. Moreover, he did not properly oppose Defendants’ motion,

which relies upon the available video evidence submitted by both parties and the

Report of Criminal Investigation, which was attached as Exhibit 5 to Defendants’

motion. [ECF No. 2, Ex. B; ECF No. 11, Exs. 5 & 6].

The video evidence offered by both parties does not sufficiently portray Lanier’s

initial observance of the vehicle before pulling it over or the discussion between

Lanier and Plaintiff at the initiation of the traffic stop and as Lanier first searched

the vehicle. Specifically, the dash camera footage submitted by Plaintiff as Exhibit

B to his complaint contains no sound and is captured at too far a distance to be

dispositive evidence; thus, it is of limited evidentiary value at this stage of the

proceedings.

However, the body camera footage offered as Exhibit 6 to Defendants’ motion

does contain sound and clearly demonstrates Plaintiff’s agreement when Lanier

states that Plaintiff was not wearing his seatbelt, and acknowledging that he asked

for his cigarettes, leading to the discovery of the alleged heroin. [ECF No. 11, Ex. 6

at 17:17:11-17:17:24; ECF No. 16 (hard copy of flash drive in Clerk’s Office)].

Lanier then states on that video that he did not need consent and that he was going

to search the vehicle, to which Plaintiff said “alright.” [ at 17:17;24-17:17:30].

Plaintiff offers nothing to rebut this evidence other than his bare allegations in his

complaint that he did not ask for the cigarettes, and did not otherwise consent to the

search. Therefore, I FIND this body camera video evidence is undisputed.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. Amend. IV. Thus, it only prohibits searches and seizures that are

unreasonable , 573 U.S. 373, 382 (2014) (citing

, 547 U.S. 398, 403 (2006)). In determining reasonableness, the intrusion on

an individual’s Fourth Amendment interests must be balanced against the promotion

of legitimate government interests. , 462 U.S.

579, 588 (1983).

As noted by Defendants, the Supreme Court has “long approved consensual

searches because it is no doubt reasonable for the police to conduct a search once they

have been permitted to do so.” , 500 U.S. 248, 250 (1991).

Defendants contend that the discovery of the heroin was pursuant to a consensual

search based upon Plaintiff’s request for his cigarettes and that Plaintiff also told

Lanier about the money in his pocket. [ECF No. 12 at 12]. They further contend that

the discovery of the money was reasonable as a search incident to a lawful arrest, a

recognized exception to the requirement of a search warrant. [ ] Their

memorandum of law further states:

This exception provides that when law enforcement officers have

probable cause to make a lawful custodial arrest, they may—incident to

that arrest and without a warrant— search “the arrestee’s person and

the area ‘within his immediate control.’” , 395 U.S.

752, 763 (1969). “Such searches have long been considered valid because

of the need ‘to remove any weapons that [the arrestee] might seek to use

in order to resist arrest or effect his escape’ and the need to prevent the

concealment or destruction of evidence.” , 453 U.S.

454, 457 (1981) (quoting , 395 U.S. at 763). As Plaintiff had been

discovered with a controlled substance, and was being arrested, there

was probable cause to search the vehicle in order to determine whether

there was additional contraband located within it.

[ at 12-13].

Finally, Defendants assert that the search of Plaintiff’s vehicle was a

permissible inventory search in anticipation of his truck being towed in conjunction

with his arrest. [ at 13]. Thus, they contend that the search and seizure of

Plaintiff’s property was reasonable under all these circumstances and did not violate

Plaintiff’s Fourth Amendment rights. [ ] Consequently, they further assert that

Lanier is entitled to qualified immunity on Plaintiff’s Fourth Amendment claim. [ ]

Again, Plaintiff has not sufficiently rebutted Defendant’s evidence and

arguments. The undisputed body camera footage and investigative report support

the finding that Plaintiff consented to the entry of his vehicle to obtain his cigarettes,

leading to the discovery of the suspected heroin. That undisputed evidence further

demonstrates that Plaintiff was arrested for driving on a suspended license and

possession of a controlled substance and his arrest reasonably permitted the search

of the vehicle and his person incident to the arrest and for inventory purposes, leading

to the seizure of the money. Thus, I FIND that there is no genuine issue of material

fact that the search of Plaintiff’s vehicle and the seizure of his property was

reasonable under the circumstances and did not violate the Fourth Amendment.

Therefore, Defendant Lanier is entitled to qualified immunity and judgment as a

matter of law on Plaintiff’s Fourth Amendment claims.

The complaint also alleges that Defendant Dever, the Roane County Sheriff,

“failed to train, educate, and supervise Lanier concerning traffic stops and searches.”

[ECF No. 2 at 9]. However, he does not specify whether he is bringing this claim

against Dever as a claim of intentional conduct under the federal constitution, or as

a state law claim grounded in negligence. Defendants’ unopposed motion presumes

that it is a claim of negligent training and supervision. [ECF No. 12 at 13-15]. Their

memorandum of law asserts that “[n]egligent training and supervision ‘are governed

by basic negligence principles[,]’” , 2024 WL 3607471, at *5

(S.D.W. Va. 2024) (citations omitted), and that Plaintiff has wholly failed to allege

facts sufficient to meet the required elements of negligence and satisfy the

plausibility standard required of him.” [ECF No. 12 at 13-14]. I

agree.

To the extent that Plaintiff, instead, intended to bring his failure to train and

supervise claim against Dever under the federal constitution, he likewise fails to state

a plausible claim thereunder. In , 13 F.3d 791 (4th Cir. 1994), the

Court held that supervisors may be liable for the actions of their subordinates where

the supervisor, by his own conduct, was deliberately indifferent to, or tacitly

authorized or approved prior constitutional violations. Such liability is not based on

, but rather upon “a recognition that supervisory indifference or

tacit authorization of subordinates’ misconduct may be a causative factor in the

constitutional injuries they inflict on those committed to their care.” 13 F.3d at 798

( , 737 F.2d 368 (4th Cir. 1984)).

To state such a claim, Plaintiff must plausibly allege (1) that a policymaker

had actual or constructive knowledge that his subordinates were engaged in conduct

posing a pervasive and unreasonable risk of constitutional injury; (2) that his

response evidenced deliberate indifference or tacit authorization; and (3) a causal link

between the inaction and Plaintiff's alleged injury. , 751 F.3d

214, 226 (4th Cir. 2014) (citing , 13 F.3d 791, 798 (4th Cir. 1994)). A

“pervasive and unreasonable risk” requires allegations of widespread conduct

occurring on several occasions. Here, Plaintiff relies only on his own incident on

November 7, 2023. [ECF No. 2 at 10]. He identifies no prior similar incidents, no

facts suggesting that Dever was aware of any pattern of wrongful traffic stops,

searches, or seizures by his subordinates, and no allegations or evidence tying any of

Dever’s decisions or inaction to Plaintiff’s stop, search, or arrest.

In the absence of well-pled facts supporting each essential element, Plaintiff’s

failure-to-supervise claim does not cross the line from possible to plausible under

and , No. 2:25-cv-00259, 2025 WL 3207816,

at *10 (S.D.W. Va. Nov. 17, 2025). Accordingly, Plaintiff's complaint fails to state any

plausible claim against Dever.

IV. Conclusion

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

to Dismiss, or in the alternative, Motion for Summary Judgment [ECF No. 11] is

GRANTED.

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

and Order to counsel of record and any unrepresented party.

ENTER: February 26, 2026

ee STATES DISTRICT JUDGE

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