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Hupp v. Cook

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

August 7, 2017

TIFFANIE HUPP, et al., Plaintiffs,
v.
STATE TROOPER SETH COOK, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

         Pending before the Court are Defendants' Motion to Dismiss, (ECF No. 8), and Plaintiffs' Motion to Amend, (ECF No. 22). The Motion to Amend is GRANTED and the First Amended Complaint will be filed as the operative pleading in this matter. With the consent of the parties, the Court treats the Motion to Dismiss as challenging the sufficiency of the First Amended Complaint. For the reasons set forth below, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         The following facts are drawn from the First Amended Complaint.[1] For purposes of the Motion to Dismiss, they will be regarded as true.

         On May 9, 2015, Cliff Myers contacted the West Virginia State Police (State Police) from his home in Waverly, West Virginia to report an altercation with a neighbor. Troopers Seth Cook and S.S. Michael responded to the call.[2] After conversing with the neighbors and confirming their quarrel had subsided, Trooper Cook entered Myers' front yard and began walking toward the residence. Myers' stepdaughter Tiffanie Hupp and her son, three-year-old Riley Hupp, were playing in the front yard. Myer's dog was also in the yard, restrained by a length of chain. The dog began to bark at Trooper Cook's approach. Though the dog had reached the end of its chain and could not approach within two feet of the officer, Trooper Cook suddenly drew his firearm and pointed the weapon at the dog's head. He yelled to Tiffanie Hupp to control the animal. Hupp ran toward the dog, exclaiming, “Don't do that!” and placed her body between dog and officer. Hupp alleges that Trooper Cook grabbed her, threw her to the ground, and placed her under arrest. Hupp's young son witnessed the entire episode. Trooper Cook then entered the Myers residence and confiscated four electronic devices that had been used to record the conflict. Hupp's husband Ryan, for example, recorded the incident on his cellular phone. The State Police retained possession of this and the three other devices for over one month before returning them.

         West Virginia prosecutors charged Tiffanie Hupp with obstructing an officer, a misdemeanor offense. On February 29, 2016, the case was tried to a jury in the magistrate court of Wood County, West Virginia. Trooper Cook testified at the trial that he had felt threatened by a crossbow observed at the Myers residence. He confirmed Hupp's contention that she had used her body as a shield to protect the dog, but claimed that he placed Hupp under arrest only after she 15(a)(2), the Court GRANTS the Motion to Amend. (ECF No. 22.) threatened or attempted to grab him. At the conclusion of testimony, the jury returned a verdict of acquittal within an hour.

         On January 25, 2017, Plaintiffs Cliff Myers, Tiffanie Hupp, and Riley Hupp filed suit in this Court against Trooper Cook, Colonel C.R. “Jay” Smithers, and the State Police. The First Amended Complaint consists of eleven counts, [3] with the central claims arising under 42 U.S.C. § 1983. The claims are summarized as follows:

Count I: Unlawful arrest in violation of the Fourth and Fourteenth Amendments (Tiffanie Hupp against Trooper Cook in his individual capacity);
Count II: Excessive force in violation of the Fourth and Fourteenth Amendments (Tiffanie Hupp against Trooper Cook in his individual capacity);
Count III: Malicious prosecution in violation of the Fourth and Fourteenth Amendments (Tiffanie Hupp against Trooper Cook in his individual capacity);
Count IV: State tort claim for malicious prosecution (Tiffanie Hupp against the WVSP and Trooper Cook in his individual and official capacities);
Count V: Deliberate indifference and supervisory liability in violation of the Fourth and Fourteenth Amendments (Tiffanie Hupp against Colonel Smithers in his individual capacity);
Count VI: State tort claim for negligent training, supervision, and retention (Tiffanie Hupp against the State Police and Colonel Smithers in his individual and official capacities);
Count VII: Intentional infliction of emotional distress (Tiffanie and Riley Hupp against the State Police and Trooper Cook in his individual and official capacities);
Count VIII: Battery (Tiffanie Hupp against Trooper Cook in his individual and official capacities);
Count IX: Unlawful search in violation of the Fourth and Fourteenth Amendments (Clifford Myers against Trooper Cook in his individual capacity),
Count X: Unlawful seizure in violation of the Fourth and Fourteenth Amendments (Clifford Myers against Trooper Cook in ...

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