United States District Court, S.D. West Virginia, Huntington Division
December 22, 2016
JEREMY SWEAT and GINGER SWEAT, Plaintiffs,
STATE OF WEST VIRGINIA, WEST VIRGINIA STATE POLICE, SGT. S. T. HARPER, in his individual and official capacity as a sergeant in the West Virginia State Police, WEST VIRGINIA STATE POLICE UNKNOWN OFFICERS, in their individual and official capacity as officers in the West Virginia State Police, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
before the Court is Defendants' Motion to Dismiss in Part
(ECF No. 10). Plaintiffs filed the instant action on June 10,
2016 (ECF No. 1) alleging seven different counts against
Defendants over the untimely death of their beloved dog,
Willy Pete. Defendants have moved to dismiss many of
these claims, either in whole or in part. For the following
reasons, the Court GRANTS Defendants' Motion to Dismiss
in Part (ECF No. 10).
case involves a series of extremely unfortunate events that
led to the death of Plaintiffs' dog, Willy Pete.
Plaintiffs Jeremy and Ginger Sweat live in Milton, West
Virginia on a rural piece of property. Pls.'
Compl., ECF No. 1, at ¶ 10. On June 24, 2014, Mrs.
Sweat noticed a heavy police presence on or near their
property, including a helicopter overhead. Id. at
¶¶ 29-30. Plaintiffs later discovered that police
were searching for a fugitive who had fled near their
property. Id. at ¶ 32. Looking out the living
room window, Mrs. Sweat observed men in military-type
uniforms holding rifles and emerging from the woods near
Plaintiffs' driveway. Id. at ¶ 35. With the
men was a “large dark colored dog” - the K-9
unit's canine involved in the search. Id. One of
Plaintiffs' dogs, Willy Pete, was lounging on the front
porch near the door directly underneath the living room
window. Id. at ¶ 36.
to the complaint, the canine with the police officers began
to bark, and “its handler was struggling to control
that dog.” Id. at ¶ 38. Willy Pete stood
up from his position and began to trot towards the men.
Id. at ¶ 39. Plaintiffs allege that Willy Pete
was not aggressive and had no history of violence.
Id. at ¶¶ 27-28. One of the men, later
identified as Sergeant S.T. Harper, pointed his gun towards
the oncoming dog. Id. at ¶ 40. Mrs. Sweat
allegedly yelled for the officer to lower his weapon,
screaming “Don't Shoot My Dog! He won't bite
you! Let me put him inside!” Id. at ¶ 41.
However, the officer allegedly fired one shot that landed in
the dirt in front of Willy Pete, scaring the dog to run back
to the house towards Mrs. Sweat. Id. at ¶¶
43-45. Mrs. Sweat claims three more shots were fired in Willy
Pete's direction, putting the house and Mrs. Sweat in the
line of fire. Id. at ¶ 51.
Pete ran towards the back of the house, and Mrs. Sweat went
to the back door to check on him. Id. at ¶ 55.
Mrs. Sweat saw her dog lying on the ground, struggling for
breath, and watched him die. Id. at ¶ 56. Mrs.
Sweat struggled through her emotions to call Mr. Sweat to
tell him about what just happened, and the police officers
waited outside for him to return home. Id. at
¶¶ 61-65. When asked why they shot Willy Pete, one
of the police officers told Mrs. Sweat that they
“couldn't let the dogs fight.” Id.
at ¶ 63. When Mr. Sweat arrived, he demanded to know who
shot the dog. Id. at ¶ 75. In response, one of
the police officers allegedly grabbed Mr. Sweat by the arm
and said, “You had better shut your Goddamn mouth or
you're going to get yourself into trouble.”
Id. at ¶ 76. Mr. Sweat and the police officers
eventually dug a hole to bury Willy Pete in the yard.
Id. at ¶ 80.
Mr. and Mrs. Sweat gave statements to Sergeant Mills, a
member of the West Virginia State Police force on the scene.
Id. at ¶¶ 82-85. Plaintiffs' complaint
includes details of emotional distress resulting from the
traumatic experience, including visits with psychiatrists and
therapist counselors as well as prescriptions for
“psychotropic medications.” Id. at
¶¶ 95-101. Mrs. Sweat has been diagnosed with
Posttraumatic Stress Disorder, depression, and generalized
anxiety. Id. at ¶ 96. Mr. Sweat has also been
diagnosed with an anxiety disorder. Id. at ¶
filed this suit to recover damages and to request injunctive
relief against Defendants' policies that allow officers
to kill domestic pets without due process and without exigent
circumstances. The complaint alleges seven causes of action,
which will each be addressed according to the arguments
brought in Defendants' Motion to Dismiss in Part: (1)
Fourth and Fourteenth Amendment violations under 42 U.S.C.
§ 1983 against Defendant Harper and Unknown Officers in
their individual capacities; (2) Fourth and Fourteenth
Amendment violations under 42 U.S.C. § 1983 against the
State of West Virginia and the West Virginia State Police
(WVSP); (3) a negligent training, supervision, and retention
claim against the WVSP; (4) an intentional infliction of
emotional distress (IIED) claim against all Defendants; (5) a
negligent infliction of emotional distress (NIED) claim
against all Defendants; (6) a negligence claim against all
Defendants; and (7) a conversion claim against all
Defendants. For relief, Plaintiffs request compensatory
damages, punitive damages, injunctive relief, and
attorneys' fees and costs.
Rule 8(a) requires a complaint to include “a short and
plain statement of the claim … showing entitle[ment]
to relief.” Fed.R.Civ.P. 8(a)(2). To overcome a motion
to dismiss under Federal Rule 12(b)(6), a complaint must also
be plausible. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 546 (2007). This standard requires a plaintiff to set
forth the “grounds” for an “entitle[ment]
to relief” that is more than mere “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555
(internal quotations and citations omitted). A complaint must
contain “sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotations and citation omitted). Facial
plausibility exists when a claim contains “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted).
the factual allegations in the complaint as true (even when
doubtful), the allegations “must be enough to raise a
right to relief above the speculative level ….”
Twombly, 550 U.S. at 555 (citations omitted). If the
allegations in the complaint, assuming their truth, do
“not raise a claim of entitlement to relief, this basic
deficiency should … be exposed at the point of minimum
expenditure of time and money by the parties and the
court.” Id. at 558 (internal quotations and
citations omitted). Finally, “[a]lthough for the
purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true, we are not
bound to accept as true a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678
(internal quotations and citation omitted).
Claims against Unknown Officers
challenge Plaintiffs' inclusion of Unknown Officers in
the complaint as contrary to the Federal Rules of Civil
Procedure. Briefings by both parties focus on District Judge
Joseph R. Goodwin's decision in Price v. Marsh
to argue opposite positions. See Price v. Marsh,
Civ. No. 2:12-cv-05442, 2013 WL 5409811 (S.D. W.Va. Sept. 25,
2013). Plaintiffs highlight Judge Goodwin's comment that
“lawsuits against John Doe defendants are permitted
where the ‘true identity of an unnamed party can be
discovered through discovery or through intervention by the
court.'” Id. at *5 (quoting Schiff v.
Kennedy, 691 F.2d 196, 198 (4th Cir. 1982)). Defendants
focus on the following sentence, stating that “this
determination and its subsequent reiteration by the Fourth
Circuit … occurred in the era prior to
Twombly and Iqbal.” Id.
Judge Goodwin goes on to say that “[i]f a judgment may
not be entered against an unnamed party, by definition it is
impossible for a plaintiff to state a claim against an
unnamed party upon which relief can be granted.”
Id. This analysis ultimately led Judge Goodwin to
dismiss Trooper John Doe from that action.
the cited analysis in both parties' briefs appears to
suggest that no actions can survive against John Doe
defendants, both Plaintiffs and Defendants failed to discuss
the most important part of Judge Goodwin's analysis,
occurring before any of the cited discussion. The dismissal
of Trooper John Doe importantly appears after Judge Goodwin
discusses the plaintiff's motion to amend the complaint
to substitute an actual defendant for the unnamed officer.
Id. at *2-3. Judge Goodwin highlights the
plaintiff's untimely amendment, citing the failure to
request information from the defendants in discovery to learn
the trooper's name, the attempted alteration of the
complaint three months before any motion to amend was filed,
the six-month delay of filing a motion to amend after the
time for amended pleadings in the scheduling order had
passed, and the plaintiff's failure to request an
extension to file an amended pleading. Id. at *2.
Based on all of these damaging facts, Judge Goodwin held that
the plaintiff “was not diligent in seeking leave to
amend the complaint, and therefore the motion for leave to
amend the complaint is DENIED.” Id. at *3. The
complaint moving forward, therefore, contained allegations
against Trooper Marsh, Trooper John Doe, Colonel Cr.
Smithers, and the WVSP. Facing these defendants as the final
defendants allowed to be named in that action, Judge Goodwin
proceeded with a determination sua sponte to dismiss
Trooper John Doe. In fact, the discussion on whether a John
Doe defendant could exist begins with the statement that
“[b]ecause I am denying Mr. Price's request to
amend the complaint, I must determine what is to become
of Defendant John Doe.” Id. (emphasis added).
same factual circumstances that caused Judge Goodwin to deny
the motion to amend the plaintiff's complaint in that
case are not present in this case. This case is still in the
beginning stages with time for Plaintiffs to discover which
officers were present with Defendant Harper on the day in
question. Plaintiffs address this in their response, stating
that Defendants “certainly know who they are” and
that the names will be learned in discovery. See
Pls.' Mem. in Opp., ECF No. 18, at 2. Other courts
have similarly allowed plaintiffs to discover names of
unnamed defendants in discovery and amend the complaint, even
post-Twombly and post-Iqbal. See,
e.g., Cowart v. Dallas Cty. Jail, 439 F.
App'x 332, 333 (5th Cir. 2011) (holding that district
court improperly dismissed claim when plaintiff could have
discovered names of John Doe defendants in discovery). Thus,
the fact that Plaintiffs failed to name the unknown officers
in the complaint will not require dismissal. This Court
allows John Doe defendants if the names can be found in
discovery and complaints are timely amended.
also allege improper service as to Defendants Unknown
Officers because the service window from the date of the
complaint has passed. See Defs.' Reply, ECF No.
22, at 3. Federal Rule 4(m) requires that a plaintiff serve
the defendant within 120 days after the complaint is filed,
otherwise face dismissal without prejudice. Fed.R.Civ.P. 4(m)
(2015). A district court must either dismiss the case without
prejudice for failure of service or “order that service
be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time
for service for an appropriate period.” Id.;
see also Hicks v. Janiszewski, Civ. No. 5:13CV140,
2014 WL 2778731 (N.D. W.Va. June 19, 2014) (granting 90-day
extension to conduct service on then-unknown defendants).
even if the Court wanted to extend Plaintiffs' deadline
to serve the Unknown Officers, the Court is prevented from
doing so due to the applicable statute of limitations.
Although neither party addressed this concern, it is clear
that Plaintiffs' claims against the Unknown Officers will
be time barred because the statute of limitations has run.
Section 1983 claims do not have a corresponding statute of
limitations, but the Supreme Court has specified that the
statute of limitations for § 1983 claims “is that
which the State provides for personal-injury torts.”
Wallace v. Kato, 549 U.S. 1091, 1094 (2007); see
also Nat'l Advert. Co. v. City of Raleigh, 947 F.2d
1158, 1161 (4th Cir. 1991). “[W]here state law provides
multiple statutes of limitations for personal injury actions,
courts considering § 1983 claims should borrow the
general or residual statute for personal injury
actions.” Owens v. Okure, 488 U.S. 235, 249-50
(1989). In West Virginia, the applicable statute of
limitations for residual personal injury actions is set at
two years. See W.Va. Code §55-2-12(b); see
also Bell ex rel. Bell v. Bd. of Educ. of Cty. of
Fayette, 290 F.Supp.2d 701, 709 (S.D. W.Va. 2003). A
court must also determine the date that starts the statute of
limitations time period. In federal courts, “the time
of accrual of a civil rights action is a question of federal
law.” Nat'l Advert., 947 F.2d at 1162
(citations omitted). For a § 1983 claim, the
“cause of action accrues either when the plaintiff has
knowledge of his claim or when he is put on notice …
to make reasonable inquiry and that inquiry would reveal the
existence of a colorable claim.” Nasim v. Warden,
Maryland House of Corr., 64 F.3d 951, 955 (4th Cir.
an amended pleading to replace the name of an unknown party
with an actual party does not toll the statute of
limitations. See Bruce v. Smith, 581 F.Supp. 902,
905 (W.D. Va. 1984) (“Naming unknown, fictitious, or
‘John Doe' defendants in a complaint does not toll
the statute of limitations until such time as the names of
these parties can be secured.”). Under the Federal
Rules, an amended party can relate back to the original
complaint, effectively tolling the statute of limitations,
under certain conditions. Relation back for parties is
permitted by Rule 15(c) if the added party “(i)
received such notice of the action that it will not be
prejudiced in defending on the merits; and (ii) knew or
should have known that the action would have been brought
against it, but for mistake concerning the proper
party's identity.” Fed.R.Civ.P. 15(c)(1)(C)
(emphasis added). The Fourth Circuit has determined that a
party can make a “mistake due to a lack of
knowledge” or a “mistake due to a
misnomer.” Lockler v. Bergman & Beving AB,
457 F.3d 363, 366 (4th Cir. 2006). However, the meaning of
mistake in Rule 15(c) does not embrace a mistake for lack of
knowledge. Id. The court reasons that allowing for
relation back in such circumstance “would produce a
paradoxical result wherein a plaintiff with no knowledge of
the proper defendant could file a timely complaint naming any
entity as a defendant and then amend the complaint to add the
proper defendant after the statute of limitations had
run.” Id. at 367. Circuits around the country
have likewise determined that naming John Doe defendants does
not constitute a mistake within the meaning of Rule 15(c).
See Id. (listing cases). Therefore, if a plaintiff
is allowed to amend the complaint to name the proper party in
the place of an unknown entity, the new party does not relate
back to the date of the original complaint and must satisfy
the applicable statute of limitations. See Wright v.
Officer BJ Sawyer and Officer 2 Unknown, C/A No.
4:15-02442-BHH-KDW, 2016 WL 3633445, at *5 (D.S.C. June 15,
2016) (“Plaintiff's original complaint was filed
only one day before the statute of limitations ran. It is
unfortunate that the plaintiff left himself so slender a
margin for error. However, that was his decision, and it was
not affected by the conduct of the Defendant.”)
(internal quotation marks and citation omitted)).
all of Plaintiffs' claims revolve around the untimely
death of their dog, Willy Pete, on June 24, 2014. See
Pls.' Compl., ECF No. 1, at ¶ 16. A two-year
statute of limitations causes the time to expire on June 24,
2016 because Plaintiffs were aware of the arising claim as
soon as Defendants killed their dog. Plaintiffs filed the
complaint on June 10, 2016, a mere two weeks before the
statute of limitations ran out. As the statute of limitations
does not toll when amending a complaint to replace an unnamed
defendant, any amendment here would be futile. Plaintiffs
only had two weeks to name the Unknown Officers before the
statute of limitations expired. Therefore, the statute of
limitations on Plaintiffs' claims has run on the Unknown
Officers and any amendment of parties will not relate back to
the original complaint. The Court must
DISMISS the Unknown Officers as defendants
from this action.
Claims against the WVSP
complaint specifies various claims against the WVSP that are
not actionable as they are brought against both the State and
the WVSP. Plaintiffs alleged violations against the WVSP and
the State under Count II for a 42 U.S.C. § 1983 claim,
Count IV for IIED, Count V for NIED, Count VII for
negligence, and Count VIII for conversion. See Pls.'
Compl., ECF No. 1. The complaint also attempts to frame
the WVSP as a “political subdivision of the State of
West Virginia” to make it “amenable to suit
… in its own name.” Id. at ¶ 11.
However, the WVSP serves as an agency of the State, and thus
is not a suable entity separate from the State of West
Virginia. See W.Va. Code § 15-2-2 (Department
of Public Safety continued as the WVSP); see also Krein
v. West Virginia State Police, Civ. No. 2:11-cv-00962,
2012 WL 2470015, at *6 (S.D. W.Va. June 27, 2012).
Plaintiffs' stipulated that the WVSP is an agency of the
State in its Memorandum in Opposition. Pls.' Mem. in
Opp., ECF No. 18, at 2. In so doing, Plaintiffs agreed
to dismiss any claim against the WVSP to the extent it serves
as an agency to the State.
the WVSP shall be DISMISSED as a defendant to this action for
counts II, IV, V, VII, and VIII.
Constitutional Claims under 42 U.S.C. § 1983 against the
II in the complaint alleges a 42 U.S.C. § 1983 claim
against the State and the WVSP. The claim requests only
injunctive and declaratory relief, a limitation that
Plaintiffs argue saves the claim from dismissal. See
Pls.' Mem. in Opp., ECF No. 18, at 3
(“declaratory and injunctive relief is viable under
§1983”). However, the Court agrees with
Defendants' argument that highlights the United States
Supreme Court's previous rulings that a state cannot be
sued under § 1983.
the Eleventh Amendment bars a citizen from bringing a civil
suit against the state that would require the state to pay
out of its own coffers. See Ex parte Young, 209 U.S.
123, 161 (1908). Ex parte Young provides a limited
exception for when citizens sue the state through one of its
officers for injunctive or declaratory relief. Id.
This exception, though, does not mean that a citizen can sue
for declaratory or injunctive relief against the state under
a State has waived its Eleventh Amendment immunity or
Congress has overridden it, however, a State cannot be sued
directly in its own name regardless of the relief
sought.” Kentucky v. Graham, 473 U.S. 159, 166
n.14 (1985). Thus, the federal statute that a plaintiff sues
under must explicitly provide for suit against a state or the
state must waive its immunity by engaging in the litigation
Plaintiffs bring Count II under 42 U.S.C. § 1983. This
statute imputes liability to “every person” who
violates a constitutional right. 42 U.S.C. § 1983. The
Supreme Court held in Will v. Michigan Department of
State Police, that persons under § 1983 do not
include the state, an agency of the state, or a state
official acting in official capacity. 491 U.S. 58, 71 (1989)
(“We hold that neither a State nor its officials acting
in their official capacities are “persons” under
§ 1983.”). Therefore, Plaintiffs' claims
brought under § 1983 cannot be maintained against any
state, any agency of the state, or an official acting in
official capacity even if Plaintiffs only request injunctive
or declaratory relief. The Court cannot provide the requested
injunctive relief, even if violations were proven, because
the State of West Virginia is not considered a person under
§ 1983. Therefore, as the WVSP must be dismissed from
this claim as an agency of the State, so must the State
itself. See Krein, 2012 WL 2470015, at *6. As
Plaintiffs request injunctive relief in Count II only against
the State and the WVSP, Count II is hereby
DISMISSED in its entirety.
Negligent Training, Supervision, and Retention
bring a negligent training, supervision, and retention
allegation in Count III against the WVSP. As the State is
also not alleged as a defendant in this cause of action, the
Court will consider the allegations asserted against the
Virginia recognizes a negligent retention claim and treats
claims for negligent supervision and training under
traditional principles of tort law. See Taylor v. Cabell
Huntington Hosp. Inc., 538 S.E.2d 719, 725 ( W.Va. 2000)
(training and supervision); McCormick v. West Virginia
Dep't of Pub. Safety, 503 S.E.2d 502, 506 ( W.Va.
1998) (retention). However, the State of West Virginia and
its agencies also enjoy sovereign immunity as explained in
Section 35, Article VI of the West Virginia Constitution.
See Hesse v. State Soil Conservation Comm., 168
S.E.2d 293, 296 ( W.Va. 1969). Immunity will not apply to the
state or its agency if “liability accruing from alleged
negligent acts by the State is covered by the limits of the
State's liability insurance coverage and not state
funds.” Parkulo v. West Virginia Bd. of Prob. &
Parole, 483 S.E.2d 507, 514 ( W.Va. 1996). “Where
liability insurance is present, the reasons for immunity
completely disappear.” Clark v. Dunn, 465
S.E.2d 374, 378 ( W.Va. 1995) (internal quotation marks and
citation omitted). The plaintiff would seek damages from the
insurance contract and be limited to the extent of insurance
coverage provided. See Krein, 2012 WL 2470015, at *8
(allowing negligent training claim against WVSP to continue
when state not also sued because insurance limitations were
asserted to eliminate sovereign immunity bar).
Plaintiffs here have failed to allege any such insurance
coverage that would apply in the instant case. Although
Plaintiffs assert that “there is an existence of an
insurance contract that waives the defense of qualified
immunity” in their Memorandum in Opposition, this bare
assertion does not add to the complaint. See Pls.'
Mem. in Opp., ECF No. 18, at 6. In a case before Judge
Goodwin of this district, Judge Goodwin specified that
“a plaintiff can only state a plausible claim against a
state department if the claim seeks relief up to and under
the limits of the state's insurance policy.”
B.E. v. Mount Hope High Sch., No. 2:11-CV-00679,
2012 WL 3580190, at *4 (S.D. W.Va. Aug. 17, 2012). Because
the plaintiff in that case failed to allege in the complaint
the limitation of damages to the insurance policy, the
allegations were dismissed. Id.; see also Jarvis
v. West Virginia State Police, 711 S.E.2d 542, 552 (
W.Va. 2010) (dismissing WVSP for lack of insurance coverage
assertion). Plaintiffs here are faced with the same situation
in that they failed to allege an insurance policy that could
waive immunity for the State or the WVSP. Thus, Count III
against the WVSP must be DISMISSED. e. NIED Claim
Plaintiff's Count V claim is for common law negligent
infliction of emotional distress against each of Defendants.
See Pls.' Compl., ECF No. 1, at ¶¶
160-68. Specifically, Plaintiffs allege that Mrs. Sweat and
Plaintiffs' children “were in the zone of danger of
physical injury created by these Defendants.”
Id. at ¶ 162. Defendants argue in their Motion
to Dismiss in Part that Plaintiffs have not satisfied the
limited circumstances in which West Virginia recognizes an
NIED claim. See Defs.' Mem. in Supp., ECF No.
11, at 10. Plaintiffs respond by advocating for the use of
equitable principles to allow an NIED claim to continue
because West Virginia courts have recognized damages for
emotional distress when defendant actions “rise to the
level of outrage.” Pls.' Mem. in Opp., ECF
No. 18, at 6 (internal quotation marks omitted).
Virginia, damages for emotional distress are rarely given
when claims allege that a defendant acted negligently and did
not cause physical injury. See Harless v. First Nat'l
Bank in Fairmont, 289 S.E.2d 692, 702 ( W.Va. 1982). In
Heldreth v. Marrs, the Supreme Court of Appeals of
West Virginia analyzed the elements required for an NIED
claim: (1) “that a close marital or familial
relationship exist[s] between the plaintiff and the
victim”; (2) “that a plaintiff … is
present at the scene of the injury-producing event at the
time it occurs and is aware that it is causing injury to the
victim”; (3) “that the emotional trauma alleged
by a plaintiff must be the direct result of either the
critical injury to or death of a person closely related to
the plaintiff”; and (4) that the emotional distress
experienced was serious and “reasonably could have been
expected to befall the ordinarily reasonable person”.
425 S.E.2d 157, 163-68 ( W.Va. 1992). Physical injury is no
longer a requirement to prove NIED, but the cause of action
is limited still to “conduct that unreasonably
endangers the plaintiff's physical safety or causes the
plaintiff to fear for his or her physical safety.”
Brown v. City of Fairmont, 655 S.E.2d 563, 569 (
W.Va. 2007). Even with the limited expansion of the cause of
action, NIED remains a “narrowly drawn” claim.
Cruse v. Frabrizio, Civ. No. 3:13-18768, 2014 WL
3045412, at *12 (S.D. W.Va. July 2, 2014).
Court agrees with Defendants' analysis that a plaintiff
must witness a person-with either a marital or close familial
relationship-experience serious injury or death to allege a
successful NIED bystander claim that survives a motion to
dismiss. Unfortunately, West Virginia does not recognize an
NIED claim for emotional distress from witnessing a beloved
pet die because the test requires a “person” of
close relationship. See Peters v. Small, 413
F.Supp.2d 760, 761 (S.D. W.Va. 2006) (prohibiting evidence
for emotional distress because plaintiff “did not
witness the death or serious injury of a person closely
related to him” and could not sustain an NIED claim).
Although there are other recognized limited exceptions when
the plaintiff is not considered a bystander, including
exposure to a disease and the “dead body exception,
” neither of these exceptions are applicable to the
instant case. See Mays v. Marshall Univ. Bd. of
Governors, No. 14-0788, 2015 WL 6181508, *3 ( W.Va. Oct.
20, 2015) (citing Marlin v. Bill Rich Constr., Inc.,
482 S.E.2d 620 (1996) and Ricotilli v. Summersville
Mem'l Hosp., 425 S.E.2d 629 (1992)). Mrs. Sweat
alleges that she and her children were within the zone of
danger of the bullets that were shot toward Willy Pete and
reasonably feared for her life, but this alone does not
satisfy the narrowly drawn NIED claim in West Virginia.
See Pls.' Compl., ECF No. 1, at ¶ 164. The
Court is further convinced by other states denying damages
under NIED for witnessing the death of a pet. See Harabes
v. Barkery, Inc., 791 A.2d 1142, 1144 (N.J. Sup. Ct.
2001) (citing cases from Wisconsin, Nebraska, Iowa, Alaska,
Michigan, Texas, New York, Georgia, and Minnesota). If West
Virginia wishes to recognize a cause of action for witnessing
a pet's death, that should be done in the legislature and
not through an expansion of a common law tort.
in Plaintiffs' Memorandum in Opposition, Plaintiffs
misconstrue the zone of danger element as required under the
claim for outrage, or otherwise known as IIED, rather than
argue why witnessing a pet's death should fall under
NIED. See Pls.' Mem. in Opp., ECF No. 18, at 6.
Defendants have not challenged Plaintiffs' IIED claim,
and that claim has adequate allegations to support it at this
time. The Court, thus, will DISMISS Count V
for the NIED claim.
Count VII, Plaintiffs allege common law negligence against
all of Defendants, citing a duty of care to respect the life
of Plaintiffs' dog and to use “alternative,
non-lethal measures to handle domestic animal
situations.” Pls.' Compl., ECF No. 1, at
¶ 170. Plaintiffs cannot maintain a negligence action
against the Unknown Officers because they have been dismissed
already. West Virginia further bars suit against a state or
state agency when qualified or sovereign immunity applies.
See Clark, 465 S.E.2d at 380. As Defendants
acknowledge, this immunity only applies if there is no
applicable insurance contract in place that a plaintiff could
draw the damages award from. See Defs.' Mem. in
Supp., ECF No. 11, at 9.
explained in the Count III discussion, Plaintiffs have failed
to allege any applicable insurance coverage to circumvent the
State's and the WVSP's sovereign immunity protection.
For the same reasons that the Court dismissed Count III
against the WVSP, the Court must also dismiss Count VII as to
the State and the WVSP.
the negligence claim can only be asserted against Defendant
Harper, and the complaint specifies that the allegation is
against all of Defendants acting in their official capacity.
See Pls.' Compl, ECF No. 1, at ¶¶
170-73. Suits against an officer in his official capacity are
effectively suits against the state and must be dismissed if
seeking damages. See Pennhurst, 465 U.S. at 101-02;
Monell v. Dep't of Social Servs. of City of New
York, 436 U.S. 658, 691 n.55 (1978)
(“official-capacity suits generally represent only
another way of pleading an action against an entity of which
an officer is an agent”). Further, qualified immunity
protects individual officers from civil suits even if brought
in their individual capacity, including negligence, when
acting within the scope of their employment. See
Jarvis, 711 S.E.2d at 552 (holding that state police
officers “have qualified immunity from claims of simple
Clark v. Dunn, the Supreme Court of Appeals of West
Virginia affirmed the trial court's grant of summary
judgment in favor of an officer charged with negligence. 465
S.E.2d at 374 (negligence alleged when officer grabbed
firearm resting on hunter's lap and it discharged). The
trial court stated that a public official “is entitled
to qualified immunity for his actions in performing
discretionary acts. The doctrine protects all government
officials who exercise their discretion in fulfilling their
duties …. Negligence simply is not sufficient for
liability to be imposed under this standard.”
Id. at 376 (emphasis added). In affirming, the court
stated that “the doctrine of qualified …
immunity bars a claim of mere negligence against …
Officer Dunn, an officer of that department acting within the
scope of his employment, with respect to the discretionary
judgments, decisions, and actions … which are the
subject of the complaint in this action.” Id.
complaint is similar to those in Clark and
Jarvis in that it only alleges actions within the
scope of Defendant's Harper's employment and within
his discretionary judgments at the time. The doctrine of
qualified immunity, thus, protects Defendant Harper from suit
and bars a claim for mere negligence against him. Therefore,
the Court must dismiss Count VII alleging negligence
Defendant Harper. As all Defendants have been dismissed,
Count VII must be DISMISSED in its entirety.
motion does not address Count I brought against Defendant
Harper in his individual capacity, Count IV, or Count VIII.
The Court has already addressed why Plaintiffs cannot
maintain an action for damages against the Unknown Officers,
the State, or the WVSP as a state agency. As Count IV and
Count VIII are addressed against all Defendants, the Court
must dismiss those counts as against the Unknown Officers,
the State, and the WVSP. Therefore, the remaining claims in
this action consist of: Count I, Count IV, and Count VIII,
all against Defendant Harper in his individual capacity.
summary, the following claims survive this motion to dismiss:
constitutional violations in Count I brought under 42 U.S.C.
§ 1983 against Defendant Harper in his individual
capacity; the IIED claim in Count IV against Defendant Harper
in his individual capacity; and the conversion claim in Count
VIII against Defendant Harper in his individual capacity. For
reasons explained above, the WVSP, the State of West
Virginia, and the Unknown Officers are DISMISSED as
defendants in this action. Counts II, III, V, and VII are
DISMISSED in their entirety. Therefore, the Court GRANTS
Defendants' Motion to Dismiss in Part (ECF No. 10).
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented parties.
 Although Plaintiffs' complaint
appears to have eight counts, the complaint mistakenly places
Count Seven after Count Five, so only seven causes of action
are alleged. This opinion will address the counts as numbered
in the complaint.
 Defendants suggest in their Reply that
equitable relief can be maintained against the individual
officers in their official capacities, and Plaintiffs
accurately state that a state officer can be sued for
injunctive relief. See Defs.' Reply, ECF No. 22,
at 3; Pls.' Mem. in Opp., ECF No. 18, at 3.
However, the complaint does not frame Count II as applying to
the individual officers at all. See Pls.'
Compl., ECF No. 1, at ¶¶ 146-49. The
allegations contained therein pertain only to the WVSP and
 In Plaintiffs' memorandum,
Plaintiffs state under the heading “Viable State Claims
Against Defendants” that they have alleged the claim
for negligent training, supervision, and retention against
“the individual West Virginia State Troopers regarding
the unconstitutional policy that was utilized
….” Pls.' Mem. in Opp., ECF No. 18,
at 5. However, the complaint specifies allegations only
toward the WVSP, stating that the WVSP had a duty, that the
WVSP breached the duty by not revisiting its policy, that the
WVSP is liable for the officers' conduct, and that
Plaintiffs suffered as a result. Pls.' Compl.,
ECF No. 1, at ¶¶ 146-49. Taking the complaint's
allegations as true, the Court can construe the claim to
include only the WVSP and not the individual officers as
Plaintiffs argue in the memorandum.
 The NIED claim may also fail for other
reasons stated under the negligence sections of this opinion.
The Court refrains from engaging in further discussions since
NIED is narrowly drawn in West Virginia, and the facts
presented here do not support such a claim.