United States District Court, N.D. West Virginia, Wheeling
MEMORANDUM ORDER AND OPINION GRANTING IN PART AND
DENYING IN PART CITY OF WEIRTON'S MOTION TO
PRESTON BAILEY, UNITED STATES DISTRICT JUDGE.
day, the above-styled action came before this Court for
consideration of the City of Weirton's Motion to Dismiss
[Doc. 4], filed August 14, 2017. The plaintiff did not
respond. For the reasons stated herein, this Court
GRANTS IN PART AND DENIES IN PART the City
of Weirton's Motion to Dismiss [Doc. 4].
Raymond Smith, filed a Complaint in the Circuit Court of
Hancock County, West Virginia, on July 18, 2017 [Doc. 1-3].
The matter arises from plaintiffs contention that defendant,
Eric Popish, a police officer with the City of Weirton Police
Department, utilized excessive force in his interaction with
plaintiff on January 10, 2016.
plaintiff claims that on January 10, 2016, Officer Popish
knocked on the door of plaintiffs home [Id. at
¶¶ 6-8]. Plaintiff claims Officer Popish
"began berating [him] with profanity to retrieve
'his' dog, which was running loose"
[Id. at ¶ 7]. Despite telling Officer Popish
several times that the dog did not belong to him, Officer
Popish allegedly "continued to accuse Plaintiff and
continued to escalate the situation" [Id. at
¶ 9]. Plaintiff then claims that Officer Popish accused
plaintiff of "touching" him, followed by Officer
Popish tackling plaintiff, beating him, handcuffing him, and
taking him into custody [Id. at ¶ 10].
Plaintiffs daughter was also taken with plaintiff to the City
of Weirton Police Department [Id. at ¶ 11].
police station, plaintiff claims he was seated on a bench and
his handcuffs were removed [Id. at ¶ 12].
Plaintiff then asserts that his daughter began shouting that
Officer Popish was hurting her and asked plaintiff to help,
so plaintiff began reaching toward her [Id. at
¶ 14]. At that point, plaintiff claims Officer Popish
"pulled him off the bench, slammed him to the floor and
tazed him four (4) times, although Plaintiff was not
asserts he was then charged with "Battery on a Police
Officer, Obstructing an Officer, Disorderly Conduct, Dog
Running at Large and Destruction of Property greater than
$500" [Id. at ¶ 15]. Plaintiff claims the
"Destruction of Property charge was because Defendant,
Eric Popish, falsely alleged that Plaintiff had damaged his
uniform shirt. Pictures were taken by a fellow officer with
his shirt still on. The pictures show no damage
whatsoever" [Id. at ¶ 16].
also asserts that "[t]he Defendant, Eric Popish, has
prior claims against him for excessive force and was the
subject of a federal investigation for such acts"
[Id. at ¶ 17]. Finally, plaintiff alleges that
"[a]s a result of... Eric Popish['s] actions,
Plaintiff.. . sustained injuries to his face, neck, back and
torso, suffered several seizures for six (6) months after the
incident and incurred in excess of Five Thousand ($5, 000)
Dollars in medical expense[s]" [Id. at ¶
the Complaint alleges four counts against both defendants,
Eric Popish and the City of Weirton, which include (I)
Negligence, (II) Negligence, (III) Excessive Force, and (IV)
"Civil Rights Violations" [Id. at
¶¶ 19-33]. With regard to defendant City of
Weirton, to which the instant Motion pertains, Count I
alleges that the City was "negligent in not setting and
enforcing regulations to require all persons arrested by its
police to be secured while in custody at all time[s]"
[Id. at ¶ 21]. Count II alleges that the City
"was aware of... Eric Popish['s] past use of
excessive force, but allowed him to continue as a police
officer without providing proper supervision or
re-training" [Id. at ¶ 24]. Count III
alleges the same as Count II, and further states that
plaintiff "is entitled to punitive (exemplary) damages
from the Defendants" [Id. at ¶¶
27-28]. Finally, Count IV alleges civil rights violations for
malicious prosecution [Id. at ¶¶ 30-31].
action was removed to the United States District Court for
the Northern District of West Virginia based on federal
question jurisdiction on August 14, 2017 [Doc. 1], Defendant,
City of Weirton, also filed the instant Motion to Dismiss on
August 14, 2017 [Doc. 4]. The Motion contends that the City
of Weirton is "immune from any claim involving Officer
Popish's alleged failure to secure plaintiff' (Count
I) under West Virginia Code Section 29-12A-5(a)(4) [Doc. 5 at
4-5]. The Motion further contends that the City of Weirton
"cannot be liable in connection with any allegations of
excessive force committed by Defendant Eric Popish"
(Counts II-III), again citing West Virginia Code Section
29-12A-5(a)(4) [Id. at 5-7]. Additionally, the
Motion contends the City of Weirton "is entitled to
immunity in connection with the negligence claims that are
described in Plaintiffs Complaint" (Counts I-II), once
again relying on West Virginia Code Section 29-12A-5(a)(4)
[Id. at 7-9]. The Motion further contends that
"Section 1983 claims are not viable against cities"
and therefore Count IV should "be dismissed as a matter
of law" [Id. at 2-3]. Additionally, the City
argues "Plaintiffs Malicious Prosecution claims should
be dismissed as a matter of law" (Count IV), relying on
West Virginia Code Section 29-12A-5(A)(2). Finally, the City
argues it is "immune from any claim requesting punitive
damages" pursuant to West Virginia Code Section
29-12A-7(a) [Id. at 9-10].
reviewing the sufficiency of a complaint under Federal Rule
of Civil Procedure 12(b)(6), a district court must accept the
factual allegations in the complaint as true. Zak v.
Chelsea, 780 F.3d 597, 601 (4th Cir. 2015) (citing
Matrix Capital Mgmt. Fund, LP v. Bearing Point,
Inc., 576 F.3d 172, 176 (4th Cir. 2009)). While a
complaint does not need detailed factual allegations, a
plaintiffs obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Indeed, courts
"are not bound to accept as true a legal conclusion
couched as a factual allegation." Papasan v.
Main, 478 U.S. 265, 286 (1986).
complaint must be dismissed if it does not allege
"'enough facts to state a claim to relief that is
plausible on its face.' Bell Atl. Corp. v.
Twombly, 127 S.Ct. 1955, 1974 (2007) (emphasis
added)." Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). This requires
"more than a sheer possibility that a defendant has
acted unlawfully." Id. However, when reviewing
the sufficiency of a complaint, a court may also consider
"documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice."
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007). A court may consider documents
attached to a motion to dismiss when they are "integral
to and explicitly relied on in the complaint and ... the
plaintiffs do not challenge [their] authenticity."
American Chiropractic Ass'n v. Trigon Healthcare,
Inc., 367 F.3d 212, 234 (4th Cir. 2004).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "But
in the relatively rare circumstances where facts sufficient
to rule on an affirmative defense are alleged in the
complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6), " so long as "all facts
necessary to the affirmative defense 'clearly appear on
the face of the complaint.'" Goodman v. Praxair,
Inc., 494 F.3d 458, 464 (4th Cir. 2007) (quoting
Richmond, Fredericksburg & Potomac R.R. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993)).
noted, Count I alleges that the City of Weirton was
"negligent in not setting and enforcing regulations to
require all persons arrested by its police to be secured
while in custody at all time[s]" [Doc. 1-3 at ¶
21]. Count II alleges that the City "was aware of...
Eric Popish['s] past use of excessive force, but allowed
him to continue as a police officer without providing proper
supervision or re-training" [Id. at ¶ 24].
Count III alleges the same as Count II, and further states
that plaintiff "is entitled to punitive (exemplary)
damages from the Defendants" [Id. at
¶¶ 27-28]. Finally, Count IV alleges civil rights
violations for malicious prosecution [Id. ...