United States District Court, S.D. West Virginia, Huntington Division
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 ...